MiaRec Terms and Conditions

LAST UPDATED: Sept 2024

IMPORTANT, READ CAREFULLY:  CUSTOMER’S USE OF AND ACCESS TO THE MIARECMIAREC PLATFORM (AND ANY ASSOCIATED SOFTWARE AND WEBSITES) AND PRODUCTS AND SERVICES DESCRIBED ON CUSTOMER’S ORDER FORM(S) (COLLECTIVELY, THE “SERVICES”) PROVIDED BY MIAREC INC. AND ITS AFFILIATES (“MIAREC”) IS CONDITIONED UPON CUSTOMER’S COMPLIANCE WITH AND ACCEPTANCE OF THESE TERMS AND CONDITIONS, INCLUDING USE IN ACCORDANCE WITH THE CURRENT VERSION OF ANY SUPPORTING TECHNICAL DOCUMENTATION PROVIDED TO CUSTOMER BY MIAREC OR AVAILABLE ON MIAREC’S WEBSITES.

BY PURCHASING, USING, OR OTHERWISE ACCESSING ANY OF THE SERVICES, CUSTOMER EXPRESSLY AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS AND ALL ORDER FORMS AND POLICIES INCORPORATED HEREIN BY REFERENCE (THE “AGREEMENT”). THE SERVICES ARE NOT AVAILABLE TO PERSONS WHO ARE NOT LEGALLY ELIGIBLE TO BE BOUND BY THESE TERMS.

1. MiaRec Services

1.1 Provision and Access. MiaRec will make the Services available to Customer pursuant to this Agreement and the applicable Order Form and then-current version of any supporting technical documentation provided to Customer by MiaRec or available on MiaRec’s website (“Documentation”). The Services are provided on a subscription basis for the applicable subscription term. MiaRec hereby grants to Customer a non-exclusive, non-transferable, worldwide right during the subscription term to access and use the Services solely for Customer’s internal business purposes and pursuant to the Documentation, including any restrictions designated on an applicable Order Form. Customer may provide users with user IDs and passwords to access and use the Services (“Permitted Users”).

1.2 Affiliate Access and Use. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.2.1 Access Through Customer. Customer may, at its option, provide access and use rights to the Services to one or more Customer Affiliates, subject to all terms in this Agreement. If Customer provides such access and use rights, Customer will be wholly responsible for the acts and omissions of the Customer Affiliate. No Customer Affiliate shall have the right to take any legal action against MiaRec under this Agreement or any Order Form hereunder who has not entered into a direct Order Form with MiaRec under Section 1.2.2 (Separate Affiliate Ordering) below.

1.2.2 Separate Affiliate Ordering. Subject to the parties executing a mutually agreed upon Order Form, Customer Affiliates may purchase the Services, hosted on a separate instance, by signing an Order Form that references this Agreement directly with MiaRec, which will establish a new and separate agreement between the Customer Affiliate and the MiaRec entity signing such Order Form.

1.3 Customer Responsibilities. Customer will (a) be responsible for Permitted Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify MiaRec promptly of any such unauthorized access or use, (d) use Services only in accordance with this Agreement, Documentation, Order Forms and applicable laws and (e) comply with terms of service of any third-party applications with which Customer elects to use the Services. Any use of the Services in breach of the foregoing by Customer or Permitted Users that in MiaRec’s judgment threatens the security, integrity or availability of the Services, may result in MiaRec’s immediate suspension of the Services, however MiaRec will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

1.4 Use Restrictions. Customer shall not use the Services in a manner that violates any applicable laws. Further, Customer shall not, and shall not allow or assist any Permitted User or third party to: (a) use the Services for non-business calls; (b) unless in accordance with the terms herein, grant third parties permission to use the Services, resell, transfer, pledge, lease, rent, or share Customer`s rights under this Agreement; (c) modify, remove or amend MiaRec’s name or logo, update, reproduce, duplicate, copy all or any part of the Services; (d) make the Services or content generated by the Services available to anyone other than Customer’s employees and consultants for use for its benefit as intended pursuant to this Agreement, or use the Services for the benefit of any entity other than Customer; (e) access or attempt to access any of MiaRec’s systems, programs or data that are not made available for public use, or attempt to bypass any of the Services’ security and traffic management devices; (f) use the Services for benchmarking or for developing a product which is competitive with any MiaRec product offering; or (g) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code, object code or underlying ideas, structure, know-how, algorithms, file formats or programming or interoperability interfaces relevant to the Services or any software, documentation or data related to the Services by any means whatsoever. Customer may not access or use the Services if it is a direct competitor of MiaRec.

1.5 Support. MiaRec uses commercially reasonable efforts to maintain the highest service availability. However, MiaRec cannot guarantee that the Services will operate in an uninterrupted or error-free manner. MiaRec performs service maintenance and uses commercially reasonable efforts to schedule system downtime during off-peak hours and to avoid service interruptions and delays. MiaRec will use commercially reasonable efforts to notify Customer in advance of any scheduled downtime. MiaRec will provide access to its Customer Support team weekdays from 6:00am – 6:00pm Pacific Time via an online portal.

1.6 Evaluation Services. MiaRec may offer the Services to Customer on an evaluation basis (“Evaluation Services”) until the earlier of (i) the end of the applicable evaluation period, (ii) the start date of any subscription to the Services that Customer purchases pursuant to an Order Form, or (iii) any termination of the evaluation by MiaRec for any reason, or for no reason at all, by sending Customer a termination notice with immediate effect. THE EVALUATION SERVICES ARE PROVIDED “AS IS” FOR LIMITED EVALUATION PURPOSES ONLY.

2. PROPRIETARY RIGHTS AND LICENSES

2.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, MiaRec and its Affiliates and licensors reserve all of their right, title and interest in and to the Services, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

2.2 Customer Data; License by Customer to MiaRec. “Customer Data” means electronic data and information (including data sets, compilations, or aggregations of the foregoing) submitted by or for Customer to the Services or collected and processed by or for Customer using the Services. Customer grants MiaRec a non-exclusive, worldwide, limited term, royalty-free right to host, use, copy, transmit and display Customer Data as appropriate for MiaRec to provide and ensure proper operation of the Services in accordance with this Agreement, including to provide insights, recommendations and other analysis to optimize Customer’s use of the Services. Subject to the limited licenses granted herein, MiaRec acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data.

2.3 Feedback. Customer grants to MiaRec and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of MiaRec’s or its Affiliates’ services.

3. SUBSCRIPTIONS; TERM; FEES AND PAYMENT

3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) the Services are purchased as subscriptions for the term stated in the applicable Order Form, (b) subscriptions for Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by MiaRec regarding future functionality or features.

3.2 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.

3.3 Term of Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one-year periods unless either party gives the other written notice (email acceptable) at least 60 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at MiaRec’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

3.4 Fees and Payment. All fees are as set forth on the Order Form and shall be paid by Customer within 30 days of the effective date of the Order Form, unless otherwise specified on such Order Form. Payment obligations are noncancelable and fees are non-refundable. Unless timely provided with a valid certificate of exemption or other evidence that items are not taxable, MiaRec will invoice Customer for all applicable taxes including, but not limited to, VAT, GST, sales tax, consumption tax and service tax. Customer will make all payments free and clear of, and without reduction for, any withholding or other taxes; any such taxes imposed on payments by Customer hereunder will be Customer’s sole responsibility. Any late payments shall be subject to a service charge equal to 1.0% per month of the amount due or the maximum amount allowed by law, whichever is less. If Customer believes that MiaRec has billed Customer incorrectly, Customer must contact MiaRec no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Customer is responsible for providing complete and accurate billing and contact information to MiaRec and notifying MiaRec of any changes to such information.

3.5 Suspension of Service and Acceleration. If any charge owing by Customer is 30 days or more overdue (or 10 or more days overdue in the case of amounts Customer has authorized MiaRec to charge to Customer’s credit card), MiaRec may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, MiaRec will give Customer at least 10 days’ prior notice that its account is overdue, before suspending services to Customer.

4. CONFIDENTIAL INFORMATION

4.1 Confidentiality. Each party hereto acknowledges that the Confidential Information of the disclosing party constitutes valuable confidential and proprietary information. Each party will (i) hold the Confidential Information of the other party in confidence, (ii) not disclose to any other person or use such Confidential Information or any part thereof, except in connection with the limited purpose of performing its obligations pursuant to the terms of this Agreement and except if compelled to do so under applicable law and has delivered a written notice to that effect to the disclosing party and taken all reasonable steps to avoid the disclosure of such Confidential Information, and (iii) use at least the same degree of care with respect to the other party’s Confidential Information as it uses to avoid the unauthorized use, disclosure or dissemination of its own Confidential Information of a similar nature, but not less than reasonable care. Each party will disclose the other party’s Confidential Information, to the extent such disclosure is permitted under the terms of this Agreement, to its employees and agents on a “need to know” basis; provided in each case that such employees and agents are bound by confidentiality obligations similar to those in this Agreement.

“Confidential Information” means any proprietary information, trade secret and other information, which is disclosed by a party to the other party, whether tangible or intangible, including, but not limited to, the terms of this Agreement and information relating to the Services, technical and financial information and any improvements, enhancements, product specifications and plans, technical data, know-how, show-how, techniques, algorithms, routines, compositions, processes, formulas, methods, designs, design rules, drawings, flow charts, samples, inventions (whether reduced to practice or not), discoveries, concepts, ideas, past, current and planned research, development or experimental work, hardware, software (object code and source code), databases, systems, structures, architectures, current and planned distribution methods and processes, customer lists, current and anticipated customer requirements, price lists and market studies, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the receiving party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Confidential Information does not include information which (a) is or becomes publicly known through no act or omission of the receiving party; (b) was in the receiving party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the receiving party by a third party without restriction on disclosure; or (d) is independently developed by the receiving party, which independent development can be shown by written evidence.

5. REPRESENTATIONS; WARRANTIES; EXCLUSIVE REMEDIES AND DISCLAIMERS

5.1 Representations. Each of Customer and MiaRec represent to the other that: (a) it has the full corporate right, power and authority to enter into, and perform its obligations under, this Agreement; (b) the execution of this Agreement, and the performance of its obligations herein, does not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes its legal, valid and binding obligation.

5.2 Warranties. MiaRec warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable security measures for protection of the security, confidentiality and integrity of Customer Data, in all material respects, (b) MiaRec will not materially decrease the overall security of the Services, (c) the Services will perform in accordance with the applicable Documentation, in all material respects, and (d) MiaRec will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in termination and refund of payment provisions in Section 9.2 below.

5.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED ABOVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, MIAREC EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE ABOVE, MIAREC MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO (I) THE SERVICES MEETING CUSTOMER’S REQUIREMENTS, OR BEING UNINTERRUPTED, CONTINUOUS, TIMELY, OR ERROR OR VIRUS FREE; (II) WHETHER CUSTOMER’S USE OF THE SERVICES OR CUSTOMER DATA WILL GENERATE ANY RESULTS OR CONSEQUENCES; OR (III) WHETHER CUSTOMER’S USE OF THE SERVICES IS LAWFUL IN ANY PARTICULAR JURISDICTION.

6. INDEMNIFICATION

6.1 MiaRec Indemnification. MiaRec shall (a) defend Customer and its shareholders, directors, officers, employees, successors and assigns (collectively, the “Customer Indemnitees”) from and against any claim by a third party alleging that the technology underlying the Services, when used as authorized under this Agreement, directly infringes such third party’s copyright, U.S. patent, or trademark and (b) in relation to such claim, indemnify and hold harmless the Customer Indemnitees from any damages and costs finally awarded or agreed to in settlement by MiaRec (including reasonable attorneys’ fees). If Customer’s use of the Services is, or in MiaRec’s opinion is likely to be, enjoined due to the type of infringement specified above, if required by settlement, or if MiaRec determines such actions are reasonably necessary to avoid material liability, MiaRec may, in its sole discretion: (i) substitute substantially functionally similar products or services; (ii) procure for Customer the right to continue using the Services; or if (i) and (ii) are not commercially reasonable, (iii) terminate the Agreement and refund to Customer the fees paid by Customer for the portion of the subscription term which was paid by Customer but not rendered by MiaRec. The foregoing indemnification obligation of MiaRec shall not apply: (1) if the Services are modified by any party other than MiaRec, but solely to the extent the alleged infringement is caused by such modification; (2) the Services are combined with other services or processes not authorized by MiaRec, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Services; (4) to any action arising as a result of Customer Data or any third-party components contained within or operating with the Services; or (5) if Customer settles or makes any admissions with respect to a claim without MiaRec’s prior written consent. This Section 6.1 sets forth MiaRec’s sole liability and Customer’s sole and exclusive remedy with respect to any claim of intellectual property infringement.

6.2 Customer Indemnification. Customer shall (a) defend MiaRec and its shareholders, directors, officers, employees, successors and assigns (collectively, the “MiaRec Indemnitees”) from and against any claim by a third party alleging that the Customer Data, or Customer’s use of the Services in breach of this Agreement infringes or misappropriates such third party’s intellectual property rights or violates applicable laws, and (b) in relation to such claim, indemnify and hold harmless the MiaRec Indemnitees from any damages and costs finally awarded or agreed to in settlement by Customer (including reasonable attorneys’ fees).

6.3 Procedures. The obligations of each indemnifying party are conditioned upon receiving from the party seeking indemnification: (i) prompt written notice of the claim (but in any event notice in sufficient time for the indemnifying party to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense and settlement (except that the indemnifying party may not settle any claim unless it unconditionally releases indemnified party of all liability) of such claim; and (iii) all reasonable assistance of the indemnified party, at indemnifying party’s expense.

7. LIMITATION OF REMEDIES AND DAMAGES

7.1 Limitation of Liability. EXCEPT FOR LIABILITIES ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6 (INDEMNIFICATION), EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES WILL NOT EXCEED THE FEES ACTUALLY RECEIVED BY MIAREC FROM CUSTOMER FOR THE SERVICES UNDER THE APPLICABLE ORDER FORM IN THE TWELVE MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER’S OR ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

7.2 Exclusion of Consequential and Related Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL A PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, IN EACH CASE, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. THE ABOVE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES.

8. DATA SECURITY

8.1 Protection of Customer Data. The terms of the MiaRec Data Processing Addendum (“DPA”) are hereby incorporated by reference and apply to the processing on MiaRec information systems of personal information which is part of Customer Data. Third party users of the Services may view the terms of MiaRec Privacy Policy at www.miarec.com/privacy.

8.2 Data Maintenance and Backup Procedures. In the event of any loss or corruption of Customer Data, MiaRec shall use its commercially reasonable efforts to restore the lost or corrupted Customer Data from the latest backup of such Customer Data maintained by MiaRec. MiaRec shall not be responsible for any loss or corruption of Customer Data caused by Customer or any third party.

9. TERMINATION

9.1 Termination. Either party may terminate this Agreement if the other party materially breaches its obligations hereunder, which default is incapable of cure or which, being capable of cure, has not been cured within 30 days after receipt of written notice from the non-defaulting party.

9.2 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 9.1 above, MiaRec will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by MiaRec in accordance with Section 9.1 above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to MiaRec for the period prior to the effective date of termination.

9.3 Surviving Provisions. The sections titled “Evaluation Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Indemnification,” “Limitation of Remedies and Damages,” “Refund or Payment upon Termination,” “Surviving Provisions” and “General” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as MiaRec retains possession of Customer Data.

9.4 Effect of Termination. Upon termination or expiration of this Agreement for any reason whatsoever, all rights granted to Customer under this Agreement will immediately cease to exist and Customer shall immediately stop using the Services. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, MiaRec will make Customer Data, including recorded calls, available to Customer for export or download as provided in the Documentation. After such 30-day period, MiaRec will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.

10. FEDERAL GOVERNMENT END USE PROVISIONS

MiaRec provides the Services for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in the Agreement. If a government agency has a need for rights not conveyed under these terms, it must negotiate with MiaRec to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

11. BETA SERVICES

“Beta Services” means MiaRec services, feature or functionality that may be made available to Customer to try at its option at no additional charge or which is clearly designated as pre-release, beta, limited release, developer preview, non-production, or by a similar description. From time to time, MiaRec may make Beta Services available to Customer at a nominal fee or no charge. Customer may choose to try such Beta Services in its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to supplemental terms. Beta Services are not considered “Services” under this Agreement; however, all restrictions, MiaRec’s reservation of rights and Customer’s obligations concerning the Services, and use of any MiaRec services shall apply equally to Customer’s use of Beta Services. Unless otherwise stated or communicated to Customer, any Beta Services trial period will expire upon the date that a version of the Beta Services becomes generally available. MiaRec may discontinue any Beta Services at any time in MiaRec’s sole discretion and may never make them generally available. MiaRec will have no liability for any harm or damage arising out of or in connection with Beta Services.

12. INJUNCTIVE RELIEF

Customer acknowledges that any use of the Services contrary to this Agreement, or any transfer, sublicensing, copying or disclosure of technical information or materials related to the Services, may cause irreparable injury to MiaRec, its affiliates, suppliers and any other party authorized by MiaRec to resell, distribute, or promote the Services (“Resellers”), and, under such circumstances MiaRec, its affiliates, suppliers and Resellers will be entitled to equitable relief, without posting bond or other security, including, but not limited to, preliminary and permanent injunctive relief.

13. GENERAL PROVISIONS

Any claim or cause of action arising out of or related to use of the Services or this Agreement must be filed within two years after such claim or cause of action arose, or be forever barred.

13.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, MiaRec will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

13.2 Severability. If any provision of this Agreement is adjudged by a court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.

13.3 Governing Law; Jurisdiction and Venue. Excluding conflict of laws rules, this Agreement shall be governed by and construed under the laws of the State of California, U.S.A. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the competent federal and state courts in Santa Clara County, California. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement. EACH PARTY WAIVES ANY OBJECTION (ON THE GROUNDS OF LACK OF JURISDICTION, FORUM NON CONVENIENS OR OTHERWISE) TO THE EXERCISE OF SUCH JURISDICTION OVER IT BY ANY SUCH COURTS.

13.4 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs in connection with such action.

13.5 Marketing. Customer grants MiaRec the right to use its company name and logo as a reference for marketing or promotional purposes on MiaRec’s website and in other public or private communications or disclosures with its existing or potential customers and investors, subject to Customer’s standard trademark usage guidelines as provided to MiaRec from time to time. Customer may send an email MiaRec at marketing@miarec.com if it does not wish to be used for marketing or promotional purposes.

13.6 Notice. All notices to MiaRec shall be valid only if sent via pre-paid first class certified mail or overnight courier to MiaRec attn: Chief Legal Officer, 1999 South Bascom Ave, Suite 928, Campbell, CA 95008 or legal@miarec.com, or such other address for notification authorized by MiaRec. Notices relating to payments must be sent to billing@miarec.com. MiaRec may give notice applicable to the MiaRec software as a service customer base by means of a general notice through the MiaRec portal for the MiaRec Services, and notices specific to Customer by electronic mail to Customer e-mail address on record in MiaRec account information or by written communication sent by first class mail or pre-paid post to the most recent Customer address provided by Customer to MiaRec. Customer’s current address shall be the address provided on the Order Form.

13.7 Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer, including any electronic invoicing portals and vendor registration processes, will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.

13.8 Entire Agreement. This Agreement (including mutually agreed exhibits or attachments) is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.

13.9 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

13.10 Third Party Beneficiaries. No third party is intended to be a beneficiary of this Agreement entitled to enforce its terms directly.

13.11 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

13.12 Government End-Users. The Services are based upon commercial computer software. If the user or subscriber of the Services is an agency, department or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the Services, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.

13.13 Export Control. In its use of the Services, Customer agrees to comply with all export and import laws and regulations of the United States and other applicable jurisdictions. Without limiting the foregoing, (i) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) Customer shall not (and shall not permit any of its Permitted Users or others to) access or use the Services in violation of any U.S. export embargo, prohibition or restriction.