These Mayple Managed Expert Platform Terms and Conditions (these “Terms and Conditions”, and together with all Orders, exhibits, schedules and/or addenda attached hereto or incorporated herein by reference, this “Agreement”) are made by and between Mayple Marketplace Ltd. and any of its affiliated companies (“Mayple”) and the business partner identified in the Order (“Partner” or “you”). By executing an Order (as such term defined hereunder) you are accepting and agreeing to be bound by all the terms hereof and representing that it has full right, power, and authority to enter into and perform hereunder. If you are agreeing to this Agreement not as an individual but on behalf of your company, government, or other entity for which you are acting (for example, as an employee or governmental official), then “you” means your entity and you are binding your entity to this Agreement. You and Mayple may each be referred to herein individually as a “Party” or collectively as the “Parties”.
The “Effective Date” of this Agreement is the effective date of the first Order referencing these Terms and Conditions.
During the Term (as defined below), Mayple and Partner may enter into a service order, work order, purchase order, statement of work or other ordering document, issued under Terms and Conditions (each, an “Order”), whereby Partner and/or its business clients (“Users”) will be provided with the services set forth thereof (“Services”).
Unless otherwise agreed in the Order, the Services will be provided to Partner and/or its Users through Mayple’s proprietary online solution and marketplace platform (“Platform”) which connects subscribed online businesses with marketing experts (“Experts”) and through which such businesses can obtain certain professional marketing services provided by their matched Experts (“Expert Services”). The Services may include Expert Services, as well as support, assistance, monitoring, and any additional and supplementary services, all as set forth in the Order.
Subject to the terms and conditions hereof and pursuant to the Order, Mayple will grant Partner and/or its Users a limited, non-exclusive, non-transferable, non-sublicensable and revocable right and license to access and use the Platform in order to receive the Services strictly for Partner’s and/or its Users’ internal business purposes. It is hereby clarified that notwithstanding anything else in this Agreement, the access and use of the Platform by each User is subject to and will be governed by the terms of use and privacy policy governing the use of the Platform, as provided by Mayple at https://www.mayple.com/legal/terms-of-use and https://www.mayple.com/legal/privacy-policy both as applicable to such Users’ use of the Platform and as may be updated by Mayple from time to time (collectively, the “EULA”).
Other than as expressly permitted, Partner hereby undertakes that Partner and its Users shall not, nor shall they authorize or assist any third party to: (i) access and/or use the Services in a manner circumventing or exceeding the purpose of the this Agreement; (ii) transfer, sell, lease, directly or indirectly commercialize the Services, any part thereof and/or let any third party, directly or indirectly, examine the Services and/or the results of such examination, for whatever purpose, except as otherwise explicitly provided in this Agreement; (iii utilize in, or co-mingle with, any other projects and/or programs ongoing now or in the future by Partner without first obtaining Mayple’s written consent; (iv) modify, reverse engineer, decompile, reproduce in any form or disassemble, make derivatives works of all or any part of the Services, or derive source code, techniques, algorithms or processes from the Platform or any part thereof, nor attempt to do any of the foregoing; (v) interfere with, disrupt or disable features or functionality of the Services or the servers or networks that host it, and any part of, including without limitation any such mechanism used to restrict or control the functionality, or defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection or monitoring mechanisms of the Services, or any part thereof; (vi) distribute, publish, or allow access or linking to the Services by anyone other than the its Users; (vii) use the Services in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage or otherwise fails to comply or is inconsistent with any respective law or regulation and/or applicable documentation; and (vii) directly or indirectly, take any action to contest Mayple's intellectual property rights in the Services or any part thereof.
The EULA shall be directly and independently between Mayple and the User in connection with such User’s use of the Platform, and Partner shall have no responsibility or liability in connection therewith. In addition, Mayple may engage with each User directly and independently, in connection with other services outside the scope of the Order. Partner acknowledges that any such direct and independent interaction between Mayple and the Users shall be governed solely by the EULA.
This Agreement shall commence as of the Effective Date and will continue in effect for the period described in the Order (the “Term”). Either Party may terminate this Agreement for convenience upon 30 days’ prior written notice to the other Party. Either Party may terminate this Agreement immediately by giving the other Party a written notice of termination if the other Party commits a material breach or default under this Agreement that, if curable, has not been cured within 7 days following written notice thereof from the non-breaching Party. Upon expiration or termination of this Agreement for any reason: (i) all Services, rights and licenses granted under this Agreement shall expire immediately and Mayple shall be entitled to disconnect the Users from the Platform and prevent access thereto; and (ii) Partner shall cease any use of the services hereunder or any part thereof. Sections 1.3 (Use Restrictions), 1.4 (Direct and Independent Engagement with Users), 2 (Term and Termination; Effect of Termination), 3 (Consideration), 4 (Ownership), 5 (Confidentiality), 8 (No Circumvention; Non-Compete), 10 (Limitation of Liability), 11 (Indemnification) and 13 (Miscellaneous) and any other provision that by its nature was intended to survive termination or expiration, shall survive such termination or expiration of this Agreement.
In consideration for the Services hereunder, Partner shall pay to Mayple the fees and payments set forth in the Order (“Consideration”). Unless otherwise specified in the Order: (i) Partner shall pay each payment of the Consideration within thirty (30) days following the applicable invoice date; (ii) the amounts are quoted and payable in United States Dollars (USD); and (iii) payment obligations are non-cancellable, and amounts paid are non-refundable. Any amount not paid when due will accrue interest on a daily basis until paid in full, at the lesser of: (a) the rate of one and a half percent (1.5%) per month; and (b) the highest amount permitted by applicable law. All amounts paid hereunder are net and exclusive of any taxes, including value added tax, sales tax or withholding tax, all of which shall be the responsibility of the Partner.
Each Party reserves all rights in and to its solutions, products, and services and any part thereof created independently and existing as of the Effective Date, including but not limited to, all modifications, updates, customization, improvements, and derivatives of the same (“Pre-Existing IP”), and no rights, express or implied, shall pass to the other Party other than those expressly set forth herein. For avoidance of doubt, the Platform, as well as any pre-existing works, methodologies, know-how, processes, models, and similar materials created by Mayple and/or Experts and/or any if its licensors prior the Effective Date and/or outside of the Services, are, as between the Parties, the Pre-Existing IP of Mayple. No license, express or implied, in or to the intellectual property rights of Mayple or its affiliates or its licensors (including with regard to any trademark of Mayple or its affiliates or licensors) is granted to Partner and/or its Users under this Agreement, other than as explicitly stated hereunder. Partner shall not remove, alter, cover or obfuscate any proprietary rights notices, such as patent, copyright, mask work or trademark, or confidentiality notices, placed or embedded by Mayple on or in connection with the Services, any part thereof, or any related documentation provided by Mayple.
Unless otherwise agreed on the Order with respect to the ownership of Partner in any written reports, analyses or presentations provided by Mayple and/or the Experts in the course of performing the Services pursuant to the Order (other than with respect to Mayple’s Pre-Existing IP) (“Deliverables”), all right, title, and interest in and to any and all Deliverables created pursuant to the Order shall, as between the Parties, be and remain the sole and exclusive property of Partner, and be considered a “work made for hire” owned by Partner to the greatest extent allowed by any applicable law. Mayple hereby assigns and transfers to Partner and agrees to assign and transfer to Partner in the future, for no additional consideration or compensation, to the fullest extent under applicable law, Mayple’s entire right, title and interest in and to all Deliverables and any copyrights, patents, or other intellectual property rights relating thereto. This Agreement does not restrict or deprive Mayple of any of its rights or proprietary interest in any of its Pre-Existing IP. If a Mayple’s Pre-Existing IP is delivered in connection with and as part of a Deliverable, Mayple hereby grants to Partner and/or applicable its Users a non-exclusive right to use such Pre-Existing IP solely to enable the full use and/or benefit of the Deliverable.
Partner may provide Mayple with suggestions, comments, conclusions, or any other input concerning the Services or its evaluation and use thereof (collectively, "Feedback"). Whether such Feedback is provided prior to, on or after the Effective Date, such Feedback shall become the sole and exclusive property of Mayple, and Partner hereby irrevocably assigns to Mayple all of its right, title and interest in and to such Feedback (including all intellectual property rights therein), and Mayple may use the Feedback for any and all commercial and non-commercial purposes with no obligation of any kind to Partner.
Neither Party will disclose to any third party or use any Confidential Information except as expressly permitted in this Agreement. Each Party will take all reasonable measures to maintain the confidentiality of all Confidential Information in its possession or control using no less than a reasonable standard of care.
Each Party acknowledges any unauthorized disclosure or unauthorized use of Confidential Information will cause irreparable harm and loss to the Disclosing Party. In the event of any actual or threatened breach of this Section 5 by a Receiving Party, the Disclosing Party shall be entitled to seek emergency interim relief prohibiting disclosure of its Confidential Information in any court of competent jurisdiction, which action shall not restrict or limit any other legal or equitable remedies that the Disclosing Party determines to seek.
Notwithstanding the foregoing, a Receiving Party may disclose Confidential Information: (a) to the extent required by order of a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that the Receiving Party furnishes the Disclosing Party with immediate notice of such order so that it may contest the order or obtain a protective order and provides all reasonable assistance, at the Disclosing Party’s expense and direction, in contesting such order; or (b) on a “need-to-know” basis under an obligation of confidentiality, similar to the obligations set forth herein, to its Affiliates, employees, contractors, authorized third party agents or subcontractors, and trusted consultants (“Authorized Parties”) solely for the purpose of delivering the applicable Services and performing its obligations hereunder, provided that the Receiving Party remains responsible to the Disclosing Party for such other parties’ compliance with the disclosure and use restrictions of this Section 7 as though each were a Party hereto.
Furthermore, Confidential Information disclosed to a Party’s Affiliate hereunder shall be deemed disclosed to such Party, and such Party shall ensure its Affiliate complies with all disclosure and use restrictions of herein as though it were a Party hereto, such that Receiving Party shall obtain an undertaking of confidentiality of similar form and content as the obligations set forth herein.
Notwithstanding the forgoing, the Receiving Party shall be responsible to the Disclosing Party for any act or omission of its Affiliates that would breach the obligations herein, as if the action or omission had been carried out by the Receiving Party. The terms and conditions of the Agreement will be deemed to be the Confidential Information of each Party and will not be disclosed without the prior written consent of the other Party, provided however, that each Party may reveal the existence and terms of this Agreement without obtaining prior written consent of the other Party: (a) to its Authorized Parties; or (b) in the course of a due diligence process conducted by a third party in connection with a potential investment, acquisition, merger or other similar transaction involving such Party.
Each Party will comply, to the extent applicable, with data protection and data privacy laws in performing their obligations under this Agreement. Only to the extent applicable to the Services rendered under the Order, the Parties may enter into a Data Protection Addendum, which shall apply solely with respect to personal data excluding personal data received by Mayple through the Platform.
Each Party hereby represents and warrants that (i) it has all right, power, and authority to enter into this Agreement and to fully perform its obligations hereunder; and (ii) there is no restriction, limitation, contractual obligation or statutory obligation which prevents it from fulfilling its obligations under this Agreement. Partner further warrants and represents that (a) it will perform its obligations hereunder in accordance with all applicable laws, regulations, and governmental guidelines, and the terms of the Agreement; and (b) it owns all rights or has all necessary permissions, consents or approvals that may be required under applicable law, including the applicable consent of all of the Users (or their authorized legal representative), if not obtained directly by Mayple under the EULA, to allow Mayple to transfer, access, store, process and use their personal data for the provision of the Services, and if applicable, allow Partner to receive and use such data for the Services hereunder.
Partner agree not to solicit or approach in competition with Mayple, directly or indirectly, any Expert introduced or approached to a User by Mayple, for the purpose of receiving services of the same type as or similar to the Services, during an applicable project and/or for one year following (a) the date of approaching such Expert to the User through the Services; or (b) the date of termination or expiration of such project (whatever occurs last) for any reason. Partner further agrees not to build a competitive product or service or access the Platform for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes.
During the Term: (i) each Party shall be entitled to use the other Party’s name and/or logo in its website and/or marketing material, solely for purposes of attributing the other Party as is its business partner. Each Party may use the other Party’s respective tradename and trademark solely in accordance with any reasonable guidelines provided by the owning Party, and solely for the purpose permitted under this Section 9. All use of a Party’s tradename and/or trademarks (including any goodwill arising therefrom) shall inure solely to the benefit of the owning Party. Any permitted use under this Section 9 shall immediately terminate upon the termination or expiration of this Agreement.
Other than as explicitly stated in this Agreement, Partner understands and agrees that the Services are provided on an “As Is” and “As Available” basis. To the fullest extent permissible pursuant to applicable law, Mayple disclaims all other warranties of any kind, express or implied, including, without limitation, implied warranties of title, non-infringement, accuracy, merchantability, and fitness for a particular purpose. Notwithstanding any other provision of this Agreement, (a) except for indemnification obligations hereunder, confidentiality obligations contained herein, and gross negligence or wilful misconduct, neither Party’s maximum aggregate liability under, arising out of or relating to this agreement or any Order shall exceed the total amount of fees paid by Partner to contractor during the twelve (12) months preceding the date the liability first arises; and (b) except for breach of confidentiality, in no event will either Party be liable for lost profits, loss of use, loss of data, cost of procurement of substitute goods or services, or for any special, incidental, indirect, or consequential damages, however caused, and on any theory of liability, whether for breach of contract, tort (including negligence and strict liability), or otherwise, whether or not such Party has been advised of the possibility of such damages. this limitation of liability is cumulative, with all payments for claims or damages in connection with this Agreement being aggregated to determine satisfaction of the limit. The existence of one or more claims shall not enlarge the limit.
Mayple shall indemnify, defend and hold harmless Partner and/or its affiliates and their respective officers, directors, employees, agents, successors and assigns (“Partner Indemnitee”), from and against all costs, damages, losses and expenses (including reasonable attorneys’ fees and other legal expenses) (collectively, “Damages”) finally awarded against Partner Indemnitee by a court of competent jurisdiction or agreed to in a written settlement agreement signed by Mayple, arising from any third-party claims that Partner’s access and/or use of Services in accordance with this Agreement violates any third-party intellectual property rights. Partner shall defend, indemnify and hold harmless Mayple and/or its affiliates and their respective officers, directors, employees agents, successors and assigns (“Mayple Indemnitee”) from and against Damages awarded against Mayple Indemnitee by a court of competent jurisdiction or agreed to in a written settlement agreement signed by Partner, to the extent such Damages arise out of any claims by an unaffiliated third party based on (i) any act or omission of Partner and/or its affiliates that does not comply with any applicable law, including any applicable federal, state or local law or regulation; or (ii) any breach of any third-party’s intellectual property, in each case, by Partner or Users or the Partner’s products and/or services.
The Parties acknowledges that a breach of this Agreement would cause irreparable harm to the other Party which monetary damages will be insufficient to remedy. Each Party in addition to any other remedies available at law, shall be entitled to seek injunctive and/or other equitable relief as a remedy for any such breach.
This Agreement constitutes the full and entire understandings and agreements between the Parties and replaces any previous agreement and/or communications between the Parties. The Partner may not assign this Agreement without the prior written consent of Mayple. No change, modification, alteration or addition of, or to, any provision of this Agreement shall be binding unless in writing and executed by or on behalf of both Parties. No failure, delay or forbearance of either Party in exercising any power or right hereunder shall in any way restrict or diminish such Party’s rights and powers under this Agreement or operate as a waiver of any breach or non-performance by either Party of any of the terms or conditions hereof. This Agreement shall be governed by and construed under the laws of the State of New-York, USA without reference to its conflict of laws principles. The competent courts of the City of New-York, NY, USA, shall have the exclusive jurisdiction with respect to any dispute and action arising under or in relation to this Agreement.
