License Agreement

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PLEASE READ THIS SOFTWARE AS A SERVICE AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE DOWNLOADABLE SOFTWARE OR SERVICES.

This Software as a Service Agreement (the “Agreement”) is a legally binding agreement between Mighty Metrics Solutions, L.L.C., a Minnesota limited liability company (the “Provider”) and the individual, entity, or municipality accepting this Agreement (the “Customer”, “you”, or “your”). This Agreement becomes effective on the date Customer first accepts this Agreement electronically or first accesses or uses the Services, whichever occurs first (the “Effective Date”)

PROVIDER PROVIDES THE DOWNLOADABLE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT CUSTOMER ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE “ACCEPT” BUTTON YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT CUSTOMER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF CUSTOMER IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND CUSTOMER TO ITS TERMS. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, PROVIDER WILL NOT AND DOES NOT LICENSE THE DOWNLOADABLE SOFTWARE TO CUSTOMER AND YOU MUST NOT DOWNLOAD THE DOWNLOADABLE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR CUSTOMER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT CUSTOMER DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF PROVIDER’S SOFTWARE.

ARTICLE ONE

DEFINITIONS

“Aggregated Statistics” means data and information related to Customer’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.

“Authorized User” means those employees who are authorized by Customer to access and use the Provider System under the rights granted to Customer pursuant to this Agreement and for whom access to the Provider System has been purchased hereunder. Authorized Users are limited to only those employees of Customer who have a role within Customer’s business, department, or division, and do not include individuals outside of or who do not have a role within Customer’s organization, department, or division. 

“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Provider System.

“Documentation” means Provider’s user manuals, installation guides, tutorial videos, acknowledgement of resources, and other written or electronic material relating to the Downloadable Software provided by Provider to Customer electronically, in the download package, or in hard copy form. 

“Downloadable Software” means the Provider’s proprietary software, including software applications, source code, object code, databases, application programming interfaces, Documentation, user interfaces, and all upgrades, modifications, and derivative works that Provider makes available for download specifically for purposes of facilitating access to, operation of, or use of the Services, and any updates Provider may make available to such software from time to time. For the avoidance of doubt, Downloadable Software does not include Third-Party Products.

“Fees” means collectively the Subscription Fee and the License Fee as well as any applicable taxes, governmental assessments, or other charges payable by Customer under this Agreement. 

“License Fee” means the license fee payable by Customer under Section 3, which is calculated as a percentage of the Subscription Fee for the package purchased by Customer.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.

“Provider IP” means the Provider System, the Documentation, and Intellectual Property Rights provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services or Downloadable Software but does not include Customer Data.

“Provider System” means the Services and the Downloadable Software.

“Services” means the services and tools made available by Provider under this Agreement, including Customer’s authorized access to and use of the Downloadable Software, together with any maintenance, updates, technical support, and other services that Provider may make available to Customer as part of Customer’s selected subscription package. Services shall also include any additional tools purchased by Customer over the course of this Agreement.

“Subscription Fee” means the monthly subscription fee for the Downloadable Software package purchased by Customer.

“Third-Party Products” means any third-party products described in Exhibit A used with, provided with, or incorporated into the Provider System, including any open source software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative.

“Updates” means any updates, bug fixes, patches, or other error corrections to the Downloadable Software that Provider generally makes available free of charge to all licensees of the Downloadable Software.

ARTICLE TWO

LICENSE, ACCESS, AND USE

Section 2.01 Downloadable Software and SaaS Documentation License. Subject to and conditioned upon Customer’s payment of the Fees and Customer’s compliance with all terms and conditions set forth in this Agreement, Provider grants Customer a non-exclusive, non-sublicensable, non-transferable license, during the Term  and solely by and through its Authorized Users, to: 

1. Download and install in accordance with the Documentation one (1) copy of the Downloadable Software on one (1) computer owned or leased, and controlled by, Customer in connection with Customer’s use of the Services. Each such computer shall be for a single Authorized User. In addition to the foregoing, Customer has the right to make one (1) copy of the Downloadable Software solely for archival purposes and one (1) copy of the Downloadable Software solely for backup purposes, provided that Customer shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as any copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Customer uninstalls and otherwise deletes such inoperable copy(ies). All copies of the Downloadable Software made by the Customer: (i) will be the exclusive property of the Provider; (ii) will be subject to the terms and conditions of this Agreement; and (iii) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
2. Use and run the Downloadable Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Customer’s internal usual business purposes. Such use is permitted only on the computer on which the Downloadable Software is installed, at the physical location thereof and not via any remote access or other network.
3. Download and make one (1) copy of the Documentation per copy of the Downloadable Software permitted to be downloaded and installed in accordance with this Agreement and use such Documentation, solely in support of Customer’s licensed use of the Downloadable Software in accordance herewith. All copies of the Documentation made by the Customer: (i) will be the exclusive property of the Provider; (ii) will be subject to the terms and conditions of this Agreement; and (iii) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
4. Transfer any copy of the Downloadable Software from one computer to another, provided that the number of computers on which the Downloadable Software is installed at any one time does not exceed the number permitted under Section 2.01(a). 

Section 2.02 Provision of Access to Services. Subject to and conditioned upon Customer’s payment of the Fees and Customer’s compliance with all terms and conditions set forth in this Agreement, Provider hereby grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term, solely for use by Authorized Users in accordance with this Agreement. Such use is limited to Customer’s internal use in furtherance of its usual business purposes. Provider shall provide Customer the necessary credentials and network links or connections to access the Services.

Section 2.03 Use Restrictions. Customer shall not, and shall not permit any Authorized Users to: 

1. use (including make any copies of) the Downloadable Software or Documentation beyond the scope of the license granted under Section 2;
2. copy, modify, or create derivative works of the Provider IP; 
3. rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make the Provider IP available; 
4. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Provider IP; 
5. remove delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Downloadable Software, Documentation, or Provider IP; 
6. use the Provider IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any right of any person, or violates law;
7. provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Customer, with access to or use of the Downloadable Software or Documentation;
8. modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Downloadable Software or Documentation or any part thereof;
9. combine the Downloadable Software or any part thereof with, or incorporate the Downloadable Software or any part thereof in, any other programs; 
10. use the Downloadable Software or Documentation in violation of any law, regulation, or rule; or
11. except as expressly set forth in Section 2.01(a) and Section 2.01(c), copy the Downloadable Software or Documentation, in whole or in part.

Section 2.04 Reservation of Rights. Provider reserves all rights not expressly granted in this Agreement. Except for the limited rights and licenses granted, no other rights or licenses are granted by implication, waiver, estoppel, or otherwise.

Section 2.05 Suspension. Notwithstanding anything to the contrary, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: 

1. Provider reasonably determines there is a threat or attack on any of the Provider IP; 
2. Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or any other customer or vendor of Provider; 
3. Customer or any Authorized User uses the Provider IP for fraudulent or illegal activities; 
4. subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; 
5. Provider’s provision of the Services is prohibited by law; or
6. any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services.

Provider will use commercially reasonable efforts to provide written notice of any suspension of Services and updates regarding resumption and will resume as soon as reasonably possible after cure. Provider will have no liability for any damages arising from a suspension of Services.

Section 2.06 Collection of Information.

1. Aggregated Statistics. Notwithstanding anything to the contrary, Provider may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between the Parties, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong solely to Provider. Customer acknowledges Provider may compile Aggregated Statistics based on Customer Data input into the Services and agrees Provider may (a) make Aggregated Statistics publicly available in compliance with applicable law; and (b) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided such Aggregated Statistics do not identify Customer or Customer’s Confidential Information.
2. Collection and Use of Information. Customer acknowledges that Provider may, directly or indirectly through the services of third parties, collect and store information regarding use of the Downloadable Software and about equipment on which the Downloadable Software is installed or through which it otherwise is accessed and used, through the provision of maintenance and support services. Customer agrees that the Provider may use such information for any purpose related to any use of the Downloadable Software by Customer or on Customer’s equipment, including but not limited to: (i) improving the performance of the Downloadable Software or developing Updates; and (ii) verifying Customer’s compliance with the terms of this Agreement and enforcing the Provider’s rights, including all Intellectual Property Rights in and to the Downloadable Software.

Section 2.07 Customer Responsibilities. Customer is responsible and liable for all uses of the Provider IP resulting from access provided by Customer, directly or indirectly. Without limitation, Customer is responsible and liable for all acts and omissions of Authorized Users, and any such act or omission that would constitute a breach of this Agreement if taken by Customer will be deemed a breach by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions and cause compliance.

Section 2.08 Third-Party Products, and Components. Provider may make Third-Party Products available to Customer from time to time. The Downloadable Software includes or may include software, content, data, or other materials, including related documentation, that are owned by Persons other than Provider and that are provided to Customer on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). A list of all materials, if any, included in the Downloadable Software and provided under Third-Party Licenses is set forth on Exhibit A to this Agreement, and the applicable Third-Party Licenses are accessible via links therefrom. Customer is bound by and shall comply with all Third-Party Licenses. Any breach by Customer or any of its Authorized Users of any Third-Party License is also a breach of this Agreement. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, Customer should not install or use such Third-Party Products.

Section 2.09 Platform, Services, and Tool Expansion. Provider may expand the Services offered and add new tools over the Term of this Agreement. Provider shall notify Customer of any new tools or add-ons to the platform. Provider shall provide Customer the opportunity to purchase these new tools or add-ons as they are added to the platform. 

ARTICLE THREE

FEES

Section 3.01Package Subscription Fee; License Fee. 

1. Package Subscription Fee. Provider offers three packages for purchase: Basic Package, Professional Package, or Enterprise Package.  Customer shall select one of Provider’s available Downloadable Software packages through Provider’s online ordering process. The features, tools, and functionality available to Customer will correspond to the package selected by the Customer. As of the Effective Date the Subscription Fee for each package is as follows: the Basic Package ($333.33), Professional Package ($666.67), and Enterprise Package ($2,333.33). Provider may modify its pricing for future Renewal Terms in accordance with Section 3.05. 
2. License Fee. In addition to the Subscription Fee, the Customer shall pay a License Fee equal to fifteen percent (15%) of the monthly subscription fee. As of the Effective Date, the License Fee for each package is as follows: the Basic Package ($50.00), Professional Package ($100.00), and Enterprise Package ($350.00). The License Fee is subject to change if and when the Provider modifies its pricing for future Renewal Terms in accordance with Section 3.05.

Section 3.02 Fees. Customer shall pay all Fees during the Term. Such Fees are non-refundable. Any renewal of the Term shall not be effective until the Fees have been paid in full. 

Section 3.03 Billing.

1. Monthly Billing. Unless otherwise agreed to in writing, the Subscription Fee and License Fee shall be billed monthly each month, in advance, beginning on the Effective Date and continuing on the first day of each successive month during the Term. 
2. Automatic Payments. Customer expressly authorizes Provider to automatically charge or debit the Customer’s designated payment method (e.g., credit card, debit card, or bank account) on a recurring basis for all Fees when due. Debits will be processed on the first day of each month during the Term of this Agreement for the Fees, applicable taxes, and any other agreed-upon charges. This authorization shall remain in full force and effect until this Agreement is terminated by either Party in accordance with Section 8 of this Agreement. 

Section 3.04 Payment Information. Customer shall provide and maintain valid, up-to-date payment information on file with Provider. If the designated payment method is declined, expires, or fails for any reason, Customer must provide a valid replacement within five (5) days. Failure to maintain updated payment information may result in the suspension or termination of the Services. 

Section 3.05 Changes in Fees. Provider reserves the right to change the Fees for the Downloadable Software and Services. Provider will provide Customer with written notice of any fee changes at least 30 days before the start of the next billing cycle. Customer’s continued use of the Downloadable Software and Services after the effective date of the fee change constitutes the Customer’s agreement to pay the updated fees.

Section 3.06 Failed Payments. If an automatic debit is rejected or returned due to insufficient funds, an incorrect account number, or other banking error, Provider may assess a failed payment fee of Twenty-Nine and 00/100 Dollars ($29.00). Provider may also re-submit the returned payment to the financial institution and/or suspend the provision of services until the account is brought current. 

ARTICLE FOUR

SERVICES AND SUPPORT

Section 4.01Service Levels. Subject to this Agreement, Provider shall use commercially reasonable efforts to make the Services available in accordance with the service levels set out in Exhibit B.

Section 4.02 Maintenance and Support. The license granted entitles Customer to the software maintenance and support services described in Exhibit B for the Initial Term and any Renewal Term provided that Customer is not in violation of this Agreement. Such support services shall be provided on the terms and conditions set forth in Exhibit B. Maintenance and support services will include provision of Updates. Provider may develop and provide Updates in its sole discretion, and Customer agrees that Provider has no obligation to develop any Updates at all or for particular issues. Customer further agrees that all Updates will be deemed Downloadable Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Customer acknowledges that Provider may provide some or all Updates via download from a website designated by Provider and that Customer’s receipt thereof will require an internet connection, which connection is Customer’s sole responsibility. Provider has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that Provider may issue as a separate or new product, and Provider may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.

ARTICLE FIVE

CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY

Section 5.01 Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

Section 5.02 Intellectual Property Rights.

1. Provider Intellectual Property. Customer acknowledges that the Downloadable Software and Documentation are provided under license, and not sold, to Customer. Customer does not acquire any ownership interest in the Downloadable Software or Documentation under this Agreement, or any rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. Provider reserves, owns, and shall retain its entire right, title, and interest in and to the Downloadable Software, Intellectual Property Rights, and Provider IP, except as expressly granted in this Agreement and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. Customer shall promptly notify Provider if Customer becomes aware of any infringement of the Provider’s Intellectual Property Rights in the Downloadable Software and fully cooperate with Provider in any legal action taken by Provider to enforce its Intellectual Property Rights.
2. Customer Data. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.
3. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.

ARTICLE SIX

WARRANTY

Section 6.01 Limited Warranty. 

1. Solely with respect to the Downloadable Software for which Provider receives Fees, Provider warrants that for a period of ninety (90) days following the Effective Date: (i) the Services will conform in all material respects to the service levels set forth in Exhibit B when accessed and used in accordance with the Documentation; and (ii) the Downloadable Software will perform materially as described in the Downloadable Software License Terms. Provider does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Exhibit B. THE FOREGOING WARRANTIES DO NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY MATERIALS. 
2. The warranties set forth in Section 6.01(a) will not apply and will become null and void if Customer breaches any provision of this Agreement, or if Customer, any Authorized User, or any other Person provided access to the Downloadable Software by Customer or any Authorized User, whether or not in violation of this Agreement: (i) installs or uses the Downloadable Software on or in connection with any hardware or software not specified in the Documentation; (ii) modifies or damages the Downloadable Software, or the media on which it is provided, including abnormal physical or electrical stress; or (iii) misuses the Downloadable Software, including any use of the Downloadable Software other than as specified in the Documentation or expressly authorized by Provider in writing.
3. If, during the period specified in Section 6.01(a), any Downloadable Software covered by the warranty set forth in such Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to the Section 6.01(b), Provider will, subject to Customer’s promptly notifying Provider in writing of such failure, at its sole option, either: (i) repair or replace the Downloadable Software, provided that Customer provides Provider with all information Provider reasonably requests to resolve the reported failure, including sufficient information to enable the Provider to recreate such failure; or (ii) refund the Fees paid for such Downloadable Software, subject to Customer’s ceasing all use of and, if requested by Provider, returning to Provider or deleting and uninstalling all copies of the Downloadable Software. If Provider repairs or replaces the Downloadable Software, the warranty will continue to run from the Effective Date of this Agreement, and not from Customer’s receipt of the repair or replacement. The remedies set forth in this Section 6.01(c) are Customer’s sole remedies and Provider’s sole liability under this Agreement.

Section 6.02 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6.01, THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6.01, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

ARTICLE SEVEN

INDEMNIFICATION, LIMITATION OF LIABILITY

Section 7.01 Provider Indemnification. 

1. Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights/US patents, copyrights, or trade secrets, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
2. If a Third-Party Claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (i) modify or replace the Provider System, or component or part thereof, to make it non-infringing, or (ii) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
3. This Section 7.01 will not apply to the extent that the alleged infringement arises from: (i) use of the Provider System in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (ii) modifications to the Provider System not made by Provider;  (iii) Customer Data ; or (iv) Third-Party Products.

Section 7.02 Customer Indemnification. Customer shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Provider IP in a manner not authorized by this Agreement; (iii) use of the Provider IP in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; or (iv) modifications to the Provider IP not made by Provider, provided that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.

Section 7.03 Sole Remedy. THIS SECTION 7 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE PROVIDER IP INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL PROVIDER’S LIABILITY UNDER THIS SECTION 7 EXCEED THE TOTAL AMOUNT PAID TO PROVIDER PURSUANT TO THIS AGREEMENT.

Section 7.04 Limitations of Liability. IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE PROVIDER PURSUANT TO THIS AGREEMENT FOR THE DOWNLOADABLE SOFTWARE THAT IS OR ARE THE SUBJECT OF THE CLAIM.

ARTICLE EIGHT

TERM AND TERMINATION

Section 8.01 Term. The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, shall continue for an initial term of one (1) month (the “Initial Term”) 

Section 8.02 Automatic Renewal. Upon the expiration of the Initial Term, this Agreement shall automatically renew on a month-to-month basis for successive one (1) month periods (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party provides written notice of non-renewal to the other party at least thirty (30) days prior to the expiration of the then-current monthly term. 

Section 8.02 Termination. In addition to any other express termination right set forth in this Agreement:

1. Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than 5 days after Provider’s delivery of written notice thereof; or (ii) breaches any of its obligations under this Agreement.
2. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach.
3. Either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

Section 8.03 Effect of Termination. Upon termination of this Agreement, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under this Agreement, Customer shall cease using and delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.

ARTICLE NINE

MISCELLANEOUS

Section 9.01 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.

Section 9.02 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at their respective addresses (or to such other address that may be designated by each respective Party from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section. All Notices to Provider may be sent to: Mighty Metrics Solutions, L.L.C., 2909 S. Wayzata Blvd, Minneapolis, MN 55405. Unless otherwise agreed to, Provider may send notices to the email or billing address on file for Customer. Customer shall provide notice to Provider of any changes in address in accordance with this Section. 

Section 9.03 Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

Section 9.04 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof of any other right, remedy, power, or privilege.

Section 9.05 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

Section 9.06 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Minnesota. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder may be instituted in the federal courts of the United States or the courts of the State of Minnesota, in each case located in the city of Minneapolis and County of Hennepin, and each Party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.

Section 9.07 Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

Section 9.08 Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval) that prohibit or restrict the export or re-export of the Provider IP or any Customer Data outside the US.

Section 9.09 Survival. Sections 5, 6, 7, 8, and 9 survive any termination of this Agreement. 

Section 9.10 No Third Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

EXHIBIT A

The following third-party products are used in or may be used with the Downloadable Software:

• Blazor – https://github.com/dotnet/blazor/blob/master/LICENSE A free, open-source web framework developed by Microsoft using C# and .NET
• MudBlazor – https://github.com/MudBlazor/MudBlazor/blob/dev/LICENSE MidBlazor/License at dev MudBlazor/MudBlazor Blazor Component Library based on Material Design principles. Do more with Blazor, utilizing CSS and keeping JavaScript to a bare minimum – MudBlazor/MudBlazor (GitHub). An open-source, Material Design inspired component and UI library for Blazor.
• Dapper – https://github.com/DapperLib/Dapper/blob/main/License.txt Dapper/License.txt at main DapperLib/Dapper Dapper – a simple object mapper for.Net. Contribute to DapperLib/Dapper development by creating an account on GitHub.A highly performant, open-source “micro-ORM” (Object-Relational Mapper) developed by the Stack Overflow team for .NET applications.
• DbUp – https://github.com/DbUp/DbUp/blob/main/license.txt A lightweight, open-source NET library designed to help deploy and manage database schema changes in a predictable and repeatable manner.
• Zoom – https://www.zoom.com/en/trust/legal/zoom-api-license-and-tou/ A cloud-based communications platform that provides high-definition video conferencing, voice calling and real-time team with a single, unified digital environment.
• Gemini – https://ai.google.dev/gemini-api/terms A powerful AI created by Google Gemini API Additional Terms of Service Google AI for Developers Google AI for Developers App Marketplace Terms of Service Read: API License and Terms of User – Zoom.
• SignalR – https://github.com/SignalR/SignalR/blob/main/LICENSE.txt SignalR/LICENSE.txt at main SignalR/SignalR Incredibly simple ream-time web for NET. Contribute to SignalR/SignalR development by creating an account on GitHub
• Puppeteer – https://github.com/puppeteer/puppeteer/blob/main/LICENSE puppeteer/LICENSE at main pupperteer/puppeteer JavaScript API for Chrome and Firefox. Contribute to puppeteer/puppeteer development by creating an account on GitHub.A high-level, open-source Node.js library developed by Google that provides a powerful API to programmatically control headless Chrome or Chromium browsers.
• ASP.NET – ASP.NET Core, an open-source web development framework I.NET Build web apps and services that run on Windows, Linux, and macOS using C#.HTML. CSS, and JavaScript. Get started for free on Windows, Linux, or macOS Microsoft A powerful, open-source ASP.NET library developed by Microsoft that simplifies the process of adding real-time, bidirectional communication to web application using web sockets.
• QRCoder – https://github.com/Shane32/QRCoder/blob/master/LICENSE.txt QRCoder/LICENSE.txt at master Shane32/QRCoder A pure C# Open Source QR Code implementation. Contribute to Shane32/QRCoder development by creating an account on GitHub A lightweight, open-source.NET library designed to generate Quick Response (QR) codes entirely within C#.
• Serilog – [Serilog: https://github.com/serilog/serilog/blob/dev/LICENSE serilog/LICENSE at dev.serilog/serilog Simple.NET logging with fully-structured events. Contribute to serilog/serilog development by creating an account on GitHub. An ope-source diagnostic logging library for .NET applications.
• Gemini – https://ai.google.dev/gemini-api/terms Gemini API Additional Terms of Service Google AI for Developers Google AI for Developers App Marketplace Terms of Service Read: API License and Terms of User – Zoom

EXHIBIT B

Services, Service Levels, and Support

Description of Services: Access to the following platforms, software, and Services will be provided under this Agreement:

• SKIPS Platform
  • SKIPS platform tools
  • All screen features including generalized data visuals
  • All AI-informed prompting activities
  • All assessments and learning objectives format
  • Mapping process for generating data results
  • Exclusive management of SKIPS platform
  • All updates
  • All purchased add-on tools
• SKIPS Methodology
  • Mapping configuration
  • Coaching framework design
  • Learning Assessments (3)

Support: Provider will provide the following maintenance services and support:

• IT Help Desk
• Technical Support
• Bug Fixes
• Software Updates and Enhancements
• Security Patching and Maintenance 
• Documentation maintenance

MINNESOTA PUBLIC ENTITY CUSTOMER ADDENDUM 

TO 

SOFTWARE AS A SERVICE LICENSE AGREEMENT

THIS MINNESOTA PUBLIC ENTITY CUSTOMER ADDENDUM (“Addendum”), by and between Mighty Metrics Solutions, L.L.C., a Minnesota limited liability company (“Provider”) and a public entity, government agency, political subdivision, or other governmental or quasi-governmental entity organized under and subject to Minnesota law (“Public Entity Customer”), applies only to Public Entity Customers that are governmental or quasi-governmental entities and is incorporated into the Agreement by reference. 

1. Applicability and Definitions

1.1 If you are a Public Entity Customer, this Addendum modifies and supplements the Software as a Service License Agreement (“Agreement”) between Provider and Public Entity Customer. Public Entity Customer is a Minnesota state agency, political subdivision, or other governmental entity subject to Minnesota law. This Addendum supplements the only to the extent required by applicable law governing Public Entity Customer. 

1.2 In the event of any conflict between this Addendum and the Agreement, this Addendum shall control with respect to the Public Entity Customer, but only to the minimum extent necessary to comply with applicable law. Otherwise, the Agreement shall be and remains in full force and effect.

2. Sovereign Immunity

2.1 Public Entity Customer expressly retains all rights and benefits of sovereign immunity in accordance with applicable Minnesota law. Nothing in the Agreement or this Addendum shall be deemed as a waiver of sovereign immunity or as increasing Public Entity Customer’s liability beyond any statutory limitation of liability.

2.2 Nothing in the Agreement or this Addendum shall inure to the benefit of any third party for the purpose of allowing any claim against Public Entity Customer that would otherwise be barred under the doctrine of sovereign immunity or operation of law. 

3. Indemnification

3.1 Provider shall indemnify, defend, and hold harmless Public Entity Customer and its governing body, officials, employees, agents, and volunteers from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees and court costs) arising out of or resulting from:

1. Any breach by Provider of its obligations under the Agreement or this Addendum; or
2. Any claim that the Downloadable Software infringes or misappropriates any intellectual property rights of any third party.

3.2 Public Entity Customer shall not indemnify, defend, or hold harmless Provider or any other party except to the extent expressly authorized by Minnesota law. Any provision in the Agreement exceeding what is required of Public Entity Customer under Minnesota law is void and unenforceable as applied to Public Entity Customer.

3.3 Nothing in this Addendum or Agreement shall be construed as creating any indemnification obligation on the part of Public Entity Customer that exceeds or is inconsistent with Minnesota law.

4. Governing Law and Venue

4.1 This Addendum and the Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, without giving effect to any conflict of laws provisions.

4.2 Any action or proceeding to enforce this Addendum or the Agreement shall be brought only in state or federal courts located in the State of Minnesota. The parties irrevocably submit to the exclusive jurisdiction of such courts.

4.3 Any provision in the Agreement selecting the law of another state or requiring dispute resolution outside Minnesota is void and unenforceable.

5. Data Practices

5.1 Provider acknowledges that Public Entity Customer is subject to the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13 (“MGDPA”).

5.2 All data created, collected, received, stored, or maintained by Provider on behalf of Public Entity Customer is subject to the MGDPA. Provider shall comply with the MGDPA in handling such data and shall assist Public Entity Customer in responding to data requests as required by law.

5.3 Provider shall implement and maintain administrative, physical, and technical safeguards to protect government data in compliance with Minnesota law and the MGDPA.

5.4 Upon request, Provider shall provide Public Entity Customer with access to and copies of all government data in a format that allows Public Entity Customer to comply with its obligations under the MGDPA.

6. Payment Terms

6.1 For State Agency Public Entities: Public Entity Customer shall pay all fees and amounts listed on an invoice within thirty (30) days of the date of the invoice. Public Entity Customer shall make all payments in U.S. dollars by bank account, wire transfer, credit card, or cash check. Provider may charge interest on past due amounts at the rate of 1.5% per month as provided by Minnesota Statutes Section 16A.124.

6.2 For Municipal Public Entities: Public Entity Customer shall pay all fees and amounts listed on an invoice within thirty (30) days of the date of the invoice. Provider may charge interest on past due amounts at the rate of 1.5% per month as provided by Minnesota Statutes Section 471.425.

6.3 Public Entity Customer shall not be liable for interest or penalties during any period when payment is delayed due to Provider’s failure to submit a proper invoice or to correct a deficient invoice.

7. Multi-Year Terms and Appropriations

7.1 If the Agreement term extends beyond one fiscal year, Public Entity Customer’s obligations under the Agreement are contingent upon appropriation of funds by its governing body for each fiscal year of the term.

7.2 If funds are not appropriated for any fiscal year during the term, Public Entity Customer may terminate the Agreement without penalty upon 30 days’ written notice to Provider. Public Entity Customer shall pay for services rendered and accepted prior to the effective date of termination.

7.3 No provision of the Agreement shall be construed to create a debt of Public Entity Customer beyond the current fiscal year or to obligate future appropriations by Public Entity Customer’s governing body.

7.4 Any acceleration clause or provision requiring payment of future amounts upon termination for non-appropriation is void and unenforceable.

8. Limitation of Liability

8.1 Any provision in the Agreement limiting Provider’s liability to Public Entity Customer for damages arising from Provider’s breach, negligence, or other wrongful conduct is void and unenforceable as applied to Public Entity Customer.

8.2 Nothing in the Agreement shall limit Public Entity Customer’s right to recover all damages allowed by law for Provider’s breach of contract, negligence, or violation of statute.

9. Audit Rights and Costs

9.1 Provider shall the right to audit the Public Entity Customer’s records with respect to matters necessary for accurately determining amounts due. Such audits shall be conducted:

1. During Public Entity Customer’s regular business hours;
2. Upon at least 15 days’ prior written notice;
3. No more than once in any 12-month period; and
4. In a manner that does not unreasonably interfere with Public Entity Customer’s operations.

9.2 Provider shall bear all costs of conducting audits. Public Entity Customer shall not be required to pay audit costs regardless of audit findings.

9.3 If an audit reveals underpayment, Public Entity Customer shall promptly pay the shortfall within thirty days of the audit finding.

10. Web Accessibility

10.1 Provider shall ensure that the Downloadable Software and all related web-based or mobile applications comply with the Web Content Accessibility Guidelines (WCAG) 2.1, Level AA, and all applicable requirements of the Americans with Disabilities Act Title II.

10.2 Provider shall promptly remedy any accessibility deficiencies identified by Public Entity Customer at no additional cost to Public Entity Customer.

11. Warranties

12.1 Provider warrants that it has full authority to enter into this Addendum and to grant the rights granted herein.

12. Assignment

12.1 Provider may not assign the Agreement or this Addendum without Public Entity Customer’s prior written consent.

12.2 Public Entity Customer may assign the Agreement and this Addendum without Provider’s consent to any successor governmental entity or in connection with any reorganization or transfer of governmental functions.

13. No Waiver of Rights

13.1 No waiver by Public Entity Customer of any breach or default shall be deemed a waiver of any subsequent breach or default.

13.2 Public Entity Customer’s failure to enforce any provision of the Agreement or this Addendum shall not constitute a waiver of Public Entity Customer’s right to enforce such provision or any other provision in the future.

15. Entire Understanding

This Addendum, together with the Agreement, constitutes the entire understanding between the parties concerning the subject matter hereof and supersedes all prior negotiations, understandings, and agreements.

16. Severability

If any provision of this Addendum is held invalid or unenforceable, the remaining provisions shall continue in full force and effect.

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