MX Data Services Evaluation Agreement

IMPORTANT - READ CAREFULLY: This MX Data Services Evaluation (the “Agreement”) is a legal agreement between you (an individual or a single entity) and MX Technologies Inc. (“MX”). BY SIGNING THE ORDER FORM, OR IF YOU OTHERWISE ACCESS OR USE MX’S ONLINE SERVICE, YOU AGREE TO AND ARE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. THIS AGREEMENT INCLUDES THE TERMS AND CONDITIONS BELOW AND ANY DOCUMENTS OR MATERIALS REFERENCED HEREIN. THE AGREEMENT GOVERNS YOUR ACCESS TO AND USE OF MX 'S ONLINE SERVICES. In this Agreement, the terms "you" or "your" refer to the entity you represent. The terms “MX” "we," "us," "our" or "ours" refer to MX. YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY FOR WHICH YOU ARE ENTERING INTO THIS AGREEMENT. MX, with its principal place of business located at 3401 N Thanksgiving Way, Suite 500, Lehi, UT 84043, is willing to grant you access to the Service on the condition that you accept all the terms of this Agreement. The Initial Term will be the period of time specified on the Order Form. You and MX are sometimes referred to herein individually as a “Party,” and collectively the “Parties.”

In consideration of the mutual promises set forth herein, together with other good and valuable consideration, the receipt and sufficiency of which the Parties acknowledge, you agree as follows:

  1. Data Services. We will provide our data enhancement services to you whereby your raw transactional data is cleansed, categorized, and classified by our platform as well as other services, including but not limited to, aggregation, instant account verification, analytics, digital money management, and any other services offered by MX (the “Data Services”) during the Evaluation Period set forth in Section 2 below. The Data Services are further described, along with the necessary system requirements, in the applicable MX specification sheets and Order Form, which are attached hereto and made a part hereof. We may provide certain Professional Services, which may include implementation, consulting, technical, education or training services as described more fully in an applicable specification sheets and Order Form.
  2. Evaluation Period. The evaluation period shall commence on the Effective Date and shall terminate six (6) weeks thereafter (the “Evaluation Period”), unless otherwise extended by the mutual written agreement of the Parties.
  3. Ownership of Intellectual Property. We and our licensors exclusively own all right, title, and interest in and to the Data Services, Professional Services and any Data Services-related suggestions, ideas, enhancements, requests, feedback, and recommendations provided by you to us during the Evaluation Period. Each of this Agreement, any Order Form, and any specification sheets is not a sale and does not convey to you any of our rights of ownership in or related to the Data Services, Professional Services or our intellectual property rights. Our logo and the product names associated with the Data Services, Professional Services are trademarks of ours and no right or license is granted to you to use them.
  4. De-Identified Data. To facilitate the evaluation of the Data Services and any related Professional Services, you will deliver to us a set of de-identified, anonymized transactional data as set forth in the Order Form and specification sheets (“De-Identified Data”). You will not provide, and we will not require any personally identifiable information in connection with this Agreement or in the performance of the Data Services and any Professional Services. You grant to us a limited, non-exclusive, royalty-free license to use the De-Identified Data during the Evaluation Period as reasonably required for the provision of the Data Services and Professional Services. Except for the limited license granted to us hereby, you retain all rights, title, and interest in and to such De-Identified Data.
  5. Charges. We offer this evaluation of the Data Services and any related Professional Services to you for the fees set forth in the Order Form.
  6. Warranties.
    1. We represent and warrant to you that (i) we have all consents, permits, permissions or licenses necessary to perform the Data Services Professional Services and we will comply with all federal, state and local laws, rules and regulations applicable to our performance of the Data Services and Professional Services, and (ii) the Data Services Services and Professional Servies are not derived from and do not infringe (whether direct, contributory, by inducement or otherwise) upon any U.S. patent, copyright, trade secret or other intellectual property right of any other person, firm or entity, nor are subject to any interest, proprietary or otherwise, or any claim of any third party.
    2. You represent and warrant to us that it (i) you have all rights necessary, including all consents and/or licenses, and have made any applicable disclosures to make the De-Identified Data available to us as described in this Agreement and you are providing such De-Identified Data to us in accordance with applicable federal, state and local laws, rules and regulations, and (ii) the De-Identified Data will not contain any nonpublic personally identifiable data of any individual or consumer such that the De-Identified Data can no longer be attributable to any specific individual or end user consumer.
    3. DISCLAIMER. EXCEPT WITH RESPECT TO ANY WARRANTIES SET FORTH HEREIN, THE DATA SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITH NO REPRESENTATIONS AND WARRANTIES WHATSOEVER, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF QUIET ENJOYMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
  7. Indemnification. Each Party (the “Indemnifying Party”) shall indemnify and hold the other Party (the “Indemnified Party”), and if applicable, its licensors, and each such Party’s parent organizations, subsidiaries, affiliates, officers, directors, and employees harmless from and against any and all third-party claims, costs, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with the Indemnifying Party’s (i) willful misrepresentation of its representations or warranties, or (ii) gross negligence or reckless misconduct under this Agreement.
  8. Limitations of Liability.
    1. THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY PURSUANT TO THIS AGREEMENT SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU TO US FOR THE DATA SERVICES AND PROFESSIONAL SERVICES.
    2. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF BUSINESS, DATA, REVENUE, PROFITS, USE, DIMINUTION IN VALUE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE data SERVICES, PROFESSIONAL SERVICES OR THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, FOR ANY CONTENT OBTAINED FROM OR THROUGH THE data SERVICES, PROFESSIONAL SERVICES, ANY INTERRUPTION, INACCURACY, ERRORS, OR OMISSIONS, EVEN IF A PARTY HAS BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    3. THE LIMITATION OF LIABILITY IN SECTION 8.a DOES NOT APPLY TO SECTIONS 6 and 7 (warranties and indemnification). EACH PARTY SHALL USE REASONABLE EFFORTS TO MITIGATE ANY POTENTIAL DAMAGES OR OTHER ADVERSE CONSEQUENCES ARISING FROM OR RELATING TO THE SERVICES.
  9. Confidentiality.
    1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a Party (“Disclosing Party”) disclosed by the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information or the circumstances of disclosure, including (i) the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder); (ii) User Data; (iii) a Party’s proprietary technology or computer software in all versions and forms of expression and the Services, whether or not the same has been patented or the copyright thereto registered, is the subject of a pending patent or registration application, or forms the basis for a patentable invention; (iv) the MX Materials; (v) MX’s security information and reports; and (vi) each Party’s respective business and marketing plans, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, Confidential Information shall not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; (c) is lawfully received from a third party without breach of any obligation owed to the Disclosing Party and without an obligation of confidentiality; or (d) was independently developed by the Receiving Party without the use of or reference to Confidential Information of the Disclosing Party.
    2. Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Either party may disclose Confidential Information to its personnel and its auditors who are subject to confidentiality obligations comparable in scope to those herein, which are in no event less than a reasonable standard of care.
    3. Protection. The Receiving Party will use at least the same level of care to prevent unauthorized use of the Confidential Information as it uses for its own confidential and proprietary information of like kind, but in no event less than a reasonable standard of care.
    4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing party, it shall provide the Disclosing Party with prior notice of such compelled disclosure, to the extent legally permitted, and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
    5. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of the confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
  10. Subsequent Use. If at the end of the Evaluation Period you desire to obtain longer term use of the Data Services or additional Professional Services, the Parties shall commence negotiation of mutually acceptable master terms and conditions governing this use. If the Parties fail to enter into a longer term agreement, we will destroy all De-Identified Data within ten (10) days of receipt of your request of destruction.
  11. General Provisions.
    1. Survival. The Parties obligations as regards to indemnification, the representations of the Parties set forth in Section 6, and our obligation of destruction of all De-Identified Data shall survive the expiration, termination or rescission of this Agreement and continue in full force and effect for one (1) year.
    2. Applicable Law. This Agreement shall be governed by the laws of the State of Delaware without regard to conflicts of laws.
    3. Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
    4. Waiver and Cumulative Remedies. No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a Party at law or in equity. Any waiver of the provisions of this Agreement or of a Party’s rights or remedies under this Agreement must be in writing signed by the waiving Party to be effective. No claim or action arising out of this Agreement may be asserted by either Party more than one (1) year after the date on which such Party has actual knowledge of the material facts upon which the claim or action is based; such limitation shall not extend any applicable statute of limitations.
    5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
    6. Assignment. You may not assign your rights or delegate your duties under this Agreement either in whole or in part without our prior written consent. Any attempt by you to assign your rights or obligations under this Agreement in breach of this section shall be void and of no effect. We may assign this Agreement upon notice to you. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
    7. No Third-Party Beneficiaries. No person or entity not a party to this Agreement will be deemed to be a third-party beneficiary of this Agreement or any provision hereof.
    8. Modification to Terms. No terms or conditions set forth on any purchase order or document shall add to or vary the terms and conditions of this Agreement, and all such terms or conditions shall be null and void. We reserve the right to modify the terms and conditions of this Agreement or our policies relating to the Service at any time, effective upon the commencement of any renewal term. You are responsible for regularly reviewing this Agreement. YOUR CONTINUED USE OF THE SERVICE AFTER ANY SUCH CHANGES SHALL CONSTITUTE YOUR CONSENT TO SUCH CHANGES.
    9. Entire Agreement. This Agreement constitutes the entire agreement between the Parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the Parties, and there are no warranties, representations and/or agreements among the Parties in connection with the subject matter hereof except as set forth in this Agreement.
    10. Other Business Opportunities. Each Party understands that the other Party may be reviewing potential business opportunities that are similar to the business opportunities which are the subject of this Agreement. Neither this Agreement nor discussions about a possible business arrangement will obligate either Party (a) to enter into any further agreement with the other Party, (b) to sell or purchase any products or services from the other Party, or (c) to disclose any particular information to the other Party.

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MX Data Serv Eval Online Rev 061019