Master Subscription Agreement (US)
MULTIVERSE MASTER SUBSCRIPTION AGREEMENT
GENERAL
This Master Subscription Agreement (“MSA”) forms the Agreement between Customer and Multiverse (each a “Party” and jointly the “Parties”) in respect of the provision of the Services.
In the event of conflicting terms in the Order Form and this Master Subscription Agreement the terms of the Order Form shall prevail.
DEFINITIONS. In the Agreement, the following definitions apply:
“Administrator” means an authorized individual who is given access to Customer administrative tools and settings made available by Multiverse.
“AI Technology” means any large language model(s) or other machine learning or artificial intelligence features of the Services.
“Affiliate” means any corporation or other business entity that directly or indirectly controls, is controlled by or is under common control with a Party. Control means direct or indirect ownership of or other beneficial interest in fifty percent (50 %) or more of the voting stock, other vesting interest, or income of a corporation or other business entity.
“Agreement” means the agreement between Customer (the legal entity accessing or using the Services) and Multiverse regarding the Services on the terms and conditions set out in an Order Form, this Master Subscription Agreement, the Data and Security Exhibit, Privacy Notice, including any other documents referenced in an Order Form and/or this Master Subscription Agreement.
“Applicable Privacy Laws” means all applicable international, national, federal, and state data protection and privacy laws, including as applicable to the processing of Personal Data in the UK and United States.
“Customer” means the legal entity that obtains the subscription of Services as identified in the Order Form.
“Customer Data” means all data, information or material uploaded to, or transmitted via the Service by the Users through an application or automated system or any third party system using the Customer’s account, however excluding any Performance Data, Feedback and Outputs.
“Fees” means all fees payable under the Agreement as set out in the Order Form.
“Feedback” refers to any communication for support, and any suggestion or idea for improving or otherwise modifying, or otherwise relating to, any of Multiverse’s products or services, including but not limited to the Services.
“Indemnified Party(ies)” means the Party (whether Multiverse or Customer) being indemnified under the Indemnification section herein, including its employees, directors, officers, agents, and representatives.
“Learner” means an individual (e.g., employees, consultants, suppliers and/or other third parties) who is authorized by Customer to access and use the Service and for whom a Learner Subscription has been purchased by Customer.
“Manager” means an individual who is authorized by Customer to access and use the Service solely to track progress of Learners.
“Multiverse” means the legal entity identified on the Order Form.
“Multiverse Materials” means any programmes or materials provided to Customer and Users in connection with the provision of its Training Services.
“Order Form” means the order form(s), including any supplements thereto, that Customer has executed to confirm its use or subscription of the Services on the terms and conditions set out in the Order Form and in this Master Subscription Agreement.
“Personal Data” means any information that relates to an identified or identifiable individual or otherwise constitutes “personal data,” personal information,” “personally identifiable information,” or equivalent terms in Applicable Privacy Laws;
“Services” means the assessment and learning offerings provided by Multiverse, including through Multiverse’s technology and cloud-based solution (and all versions thereof) to Customer, as further described in the applicable Order Form.
“Users” means Administrators, Managers and Learners.
SERVICES AND CUSTOMER’S RIGHT TO USE
Right to Access and Use. Subject to the terms of the Agreement, Multiverse hereby grants Customer a non-exclusive, non-sublicensable right to access and use the Services in such quantities as are set forth in the applicable Order Form, during the Service Period identified on the Order Form, and solely for Customer and its Affiliates’ business purposes.
Each User’s use and access to the Services are subject to their acceptance of and governed by the Terms of Service (https://www.multiverse.io/en-US/our-policies/us-terms-of-use) and Privacy Notice (https://www.multiverse.io/en-US/our-policies/privacy-notice-us), as may be updated by MV.Such Terms of Service and Privacy Notice are not intended to govern or modify the terms of the Agreement between Customer and Multiverse.
Customer may not sublicense the Services to third parties, nor provide third parties with access to the Services other than to Users or as otherwise specified under this Agreement and/or in the Order Form.
Customer is fully liable and responsible for its Users’ compliance with the terms of the Agreement, the Terms of Service, as well as its Users’ acts and omissions.
Customer is aware that Multiverse may at any time implement new versions and upgrades of the Services without prior notice. Furthermore, Multiverse may revise the features and functions of the Services at any time without any notice, provided no such revision materially reduces features or functionality expressly agreed to be provided pursuant to an outstanding Order Form.
The Services are normally available over the internet 24 hours a day, 7 days a week. Multiverse does not guarantee that the Services will be uninterrupted or error free and reserves the right to make updates, improvements and error corrections that may temporarily affect access to and use of the Service. Multiverse will schedule planned maintenance to the extent practicable during weekends and/or outside normal business hours in the United States.
CUSTOMER DATA
Customer owns and retains all right, title, and interest in their Customer Data, including any intellectual property rights in their Customer Data.
Solely to the extent needed for fulfilling Multiverse’s rights and obligations under the Agreement as well as for the purpose of developing and/or improving the functionalities and features of the Services, Customer grants Multiverse a perpetual, world-wide, irrevocable, and royalty-free right to use Customer Data in any manner and form during the MSA Term and solely in aggregated form after termination and/or expiry of the Agreement.
It is the sole obligation of Customer to ensure the necessary back-up of Customer Data at all times. Customer acknowledges and agrees that, following expiry or termination of this Agreement, Customer will not have access to the Services or to any Customer Data stored in or as part of the Services, and Customer will be solely responsible for maintenance of Customer Data outside of the Services after such point.
SERVICE USAGE
Customer shall promptly furnish, or if applicable ensure that the Users furnish, to Multiverse all Customer Data and other information or access to the Customer’s systems required for Multiverse’s provision of the Services under the Agreement.
Customer represents and warrants that it will only use the Services (and any part thereof) in full compliance with the Agreement and applicable laws. Customer shall not use, or permit the use of, the Service in any manner that, in Multiverse’s reasonable opinion, involves or attempts any of the following: violating or circumventing laws, regulations, or third-party rights; damaging or interfering with Multiverse's services; unauthorized third-party exploitation of the Services; sharing of passwords or non-public content; modification or sublicensing of the Service; reverse engineering the Services; creating competitive products; distributing malicious software; using automated means to access or disrupt the Services; engaging in web or data scraping related to the Services.
Without limiting the generality of the Term and Termination Section's Material Breach provision, if Multiverse suspects any breach of the requirements of this section, including without limitation by Users, Multiverse may (i) limit, suspend and/or withhold access to the Service without advanced notice and (ii) take technical and/or legal steps to prevent further use of the Service (or part thereof), in addition to such other remedies as Multiverse may have.
Any and all Customer Data uploaded to, transferred through, processed or entered into the Service by Customer and/or Users shall be the sole responsibility of Customer.
In order to enhance community and the social learning environment among learners, certain areas or features of the Services may allow Users to interact with learners from other Multiverse customers. Notwithstanding anything herein to the contrary including the Confidentiality Section, the parties agree that any information shared by Users with learners from other Multiverse customers shall not be considered Confidential Information.
Customer may submit Customer Data (including in the form of prompts or queries) to the Services and receive outputs, which may include, but not be limited to, learning pathway designs, assistance/support with learning tasks or projects, and summary reports (“Outputs”). Customer hereby acknowledges that Outputs provided to Customer may be similar to outputs independently provided by the Service to third parties. To the extent not prohibited by law, Multiverse does not warrant or represent that any Output does not infringe any third party intellectual property rights.
Customer hereby acknowledges that: (i) Outputs associated with Customer’s use of the AI Technology are reliant on inputs provided by Customer or Users; and (ii) these Outputs are generated through machine learning processes, and are not tested, verified, endorsed or guaranteed to be accurate, complete or current by Multiverse.
FEES AND PAYMENT TERMS
Customer shall: (i) pay Multiverse the Fees as set forth in the Order Form. Customer’s payment obligations are non-terminable, and Multiverse will not be required to refund Fees under any circumstances, except due to a material, uncured breach by Multiverse or as otherwise explicitly set out under this Agreement. All Fees are stated exclusive of VAT, taxes and withholdings which are payable by Client in addition.
Multiverse shall issue invoices for Fees prior to making applicable Services hereunder available and payment shall be due within thirty (30) days of issuance of the applicable invoice. For late payment of the full outstanding amount, Customer shall pay to Multiverse interest charges on the outstanding amount from the time the payment was due at a rate that is the lesser of: (i) of 1.5% per month; and (ii) the highest interest rate permitted by applicable law. Customer will be responsible for any reasonable attorneys’ fees, costs, and expenses incurred by Multiverse in collecting any amounts that are not paid when due.
STANDARD TECHNICAL SUPPORT
Multiverse will, as part of the Service and at no additional cost to Customer, provide Customer with technical support related to Customer’s and/or Users’ access and use of the Service. Any such technical support shall be provided in Multiverse’s sole discretion without any warranty and Multiverse may determine that a technical issue is beyond the scope of the standard technical support. The technical support will be provided during normal business hours, Eastern Time (US), excluding public holidays, unless otherwise agreed in writing by Customer and Multiverse.
PERFORMANCE DATA
Notwithstanding anything else in the Agreement, Multiverse shall have the right to monitor Customer’s and Users’ use of the Service and Multiverse shall retain all right, title and interest in data and data elements collected by the Service which, as applicable, pertains to the usage and performance of the Service (“Performance Data“). Without limiting the foregoing, Multiverse may collect and use Performance Data for the purpose of compiling statistical and performance information, and to improve predictive capabilities related to the provision and operation of the Service. Multiverse may make such Performance Data publicly available, provided that it does not include Personal Data and/or contain Confidential Information of Customer or Users.
INTELLECTUAL PROPERTY RIGHTS
Multiverse owns and retains all right, title, and interest in and to the Services, including without limitation all components used to provide the Services (except for as described in the Third-Party Services Section), all graphics, user interfaces, logos, and trade marks reproduced through the Service. This Agreement does not grant Customer any intellectual property license or rights in or to the Services or any of its components, except to the limited extent that this Agreement specifically sets forth rights for the Customer to access and use the Services. Customer recognizes that the Services and its components are protected by copyright and other intellectual property laws.
Multiverse shall own all rights in the Feedback. Customer hereby undertakes to do anything that is necessary to vest in Multiverse the full benefit of the rights in the Feedback.
The provisions under this section shall survive any expiration, termination or cancellation of this Agreement.
THIRD-PARTY SERVICES.
The Services may enable you to use third-party applications or services (“Third-Party Services”), now or in the future. Such Third-Party Services are considered part of the Services under this MSA and your right to use them is included in the access rights granted in the 'Services and Customer's Right to Use' section, unless otherwise specified in this MSA, an Order Form, or a conspicuous notice within the Services. If a separate agreement is required to use any Third-Party Service, then those third party applications, products or services are referred to herein as a 'Non-Multiverse Service’.
By enabling Non-Multiverse Services, you acknowledge and agree that the Non-Multiverse Services may allow the providers of those services to access or use your content or data. Multiverse is not responsible for any use by you of Non-Multiverse Services, or the disclosure, modification or deletion of your data resulting from any such access or use. Any access to or exchange of content or data between you and any Non-Multiverse Services, is solely between you and them and you bear all risks associated with such access and use. Multiverse does not provide any warranties (or otherwise accept responsibility) for the performance or non-performance ofNon-Multiverse Services. Except as provided in an applicable Order Form, the purchase of Non-Multiverse Services is not required in order to use the Services. Notwithstanding the foregoing,Customer and Users will require, at their own cost, a supported computing device, operating system, web browser and Internet connection to use the Services.
If the provider of any such Non-Multiverse Service ceases to make the Non-Multiverse Service available for interoperation with the corresponding Services features on terms that are in Multiverse’s opinion reasonable, Multiverse may cease providing those affected Services without entitling you to any refund, credit, or other compensation.
IN-DEVELOPMENT SERVICES.
Multiverse may make available to Customer aspects of the Services and/or particular features/functionality within the Services that are in the development stage and not generally available on an early-access pilot basis (“In-Development Services”). Certain features or functionality of In-Development Services may be inoperable, incomplete or include features or functionality that may not be released in subsequent versions of the Services. Multiverse provides In-Development Services on an “AS IS” basis with no warranty or support guarantees and its liability for In-Development Services shall not exceed $10,000 in aggregate (excluding Multiverse’s indemnity obligations under the Indemnification Section).
The following Sections shall not be applicable to In-Development Services, and the terms of this Section shall govern with respect to In-Development Services notwithstanding the provision of the following Sections: Standard Technical Support; Limited Warranty, Disclaimers; Limitations of Liability; and Term and Termination.
CONFIDENTIALITY
In connection with this Agreement, each Party ("Recipient") may receive Confidential Information from the other Party ("Discloser") or third parties to whom the Discloser has a duty of confidentiality. Both Parties agree to treat this information as confidential and not to disclose it except as set forth herein.
"Confidential Information" refers to non-public information that is confidential or proprietary, disclosed in any form, which the Discloser designates as confidential or which should reasonably be understood by the Recipient to be confidential due to the nature of the information or the circumstances of disclosure. Confidential Information does not include information that: (i) is or becomes part of the public domain (other than through a breach of this Agreement by the Recipient); (ii) was already known to the Recipient without an obligation of confidentiality and can be demonstrated as such; (iii) Is independently developed by the Recipient without the use of the Discloser’s Confidential Information; or (iv) is rightfully obtained by the Recipient from a third party without an obligation of confidentiality.
The Recipient agrees to: (i) only disclose Confidential Information to its principals, employees, advisers, or agents on a need-to-know basis, ensuring they are bound by confidentiality agreements or policies at least as restrictive as the confidentiality terms herein; (ii) take precautions to protect the confidentiality of the Confidential Information using measures at least as rigorous as the precautions it takes to protect its own confidential information of similar importance, but in any case, the Recipient shall treat theConfidential Information with no less than reasonable care; (iii) notify the Discloser promptly if disclosure of the Confidential Information is required by any governmental, regulatory, or administrative authority, to the extent it is lawful to do so, and to cooperate with the Discloser's reasonable and lawful efforts to resist, limit, or delay such disclosure, at the Discloser's expense.
The confidentiality obligations described in this section will survive any expiration, termination, or cancellation of this Agreement for a period of two (2) years thereafter. Upon expiration or termination of the Agreement, either Party may request the deletion or return of Confidential Information held by the other Party.
LIMITED WARRANTY, DISCLAIMERS
Subject to the provisions of the following paragraph in this Section, Multiverse warrants that: (a) during the MSA Term, the Services, when used in accordance with the terms of the Agreement, will perform substantially in conformance with description herein and as described in the applicable Order Form; (b) Multiverse will use commercially reasonable efforts to ensure that the Services do not introduce files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs, and Trojan horses into Customer's system; and (c) the operation of its business as it relates to delivery of the Services will comply with all applicable laws and regulations. Customer’s sole and exclusive remedy for any breach of the warranties in (a) and (b) above by Multiverse is for Multiverse to use its reasonable efforts to correct such non-performance or replace the affected Services to make them conform, or, if Multiverse determines that the foregoing remedy is not commercially reasonable, then either Party may terminate the Agreement and/or applicable Order Form, and, in such event, Multiverse will provide a prorated refund to Customer for any prepaid fees received by Multiverse under the Agreement that correspond to materially nonconforming Services for the unused portion of the applicable Service Period (as identified in the Order Form).
Except for the express warranties set forth in preceding paragraph of this section, the Service is provided on an “AS IS” basis. To the furthest extent permitted under applicable law, Multiverse expressly disclaims and excludes from the Agreement all other conditions, terms and/or warranties of any kind with respect to the Service, whether express or implied, including without limitation any conditions, terms and/or warranties for merchantability of the Service and/or for the fitness of the Service for a particular purpose and/or the correspondence of the Service to any description and/or that the Service will be uninterrupted and/or error free, will be complete or accurate or fit for a particular purpose. Customer acknowledges that there are risks inherent in internet connectivity that could result in the loss of privacy, Confidential Information and property.
INDEMNIFICATION
By Multiverse. Multiverse will defend and, in accordance with the Procedures provision of this Section, indemnify Customer Indemnified Parties from and against, any: (a) third-party claim; (b) third-party legal action; or (c) administrative agency action or proceeding (each, a “Claim”) to the extent arising from: (i) any actual breach by Multiverse of its obligations under the Confidentiality Section; and (ii) any alleged infringement of any third-party intellectual property right resulting from Customer’s use of the Services as authorised under the Agreement. Notwithstanding the foregoing, Multiverse will not be responsible for any Claim due to Customer’s or any User’s combination of the Services with services provided by third parties, or Customer’s modification of the Services if that was not expressly authorised by Multiverse in writing.
By Customer. Customer will defend and, in accordance with the Procedures provision of this Section, indemnify Multiverse Indemnified Parties for Claims to the extent arising from: (i) any actual breach by Customer of its obligations under the Confidentiality Section; (ii) any alleged infringement of any third-party intellectual property right resulting from Multiverse’s possession or use of Customer Data or other materials provided by Customer in accordance with the terms of the Agreement; and (iii) employment-related claims brought by Users against Multiverse attributable to Customer’s or Users’ use of the Services.
Procedures. The Parties’ respective obligations in this Section are conditioned on: (a) the Indemnified Parties giving the Indemnifying Party prompt written notice of the Claim, except that the failure to provide prompt notice will only limit the indemnification obligations to the extent the Indemnifying Party is prejudiced by the delay or failure; (b) the Indemnifying Party being given full and complete control over the defense and settlement of the Claim; and (c) the relevant Indemnified Parties providing assistance in connection with the defense and settlement of the Claim, as the Indemnifying Party may reasonably request. The Indemnifying Party will only indemnify the Indemnified Parties against: (i) all damages, costs, and attorneys’ fees finally awarded against any of them with respect to any Claim; (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of the Claim (other than attorneys’ fees and costs incurred without the Indemnifying Party’s consent after it has accepted defense of such Claim); and (iii) all amounts that the Indemnifying Party agreed to pay to any third party in settlement of any Claims and settled by the Indemnifying Party or with its approval. The Indemnifying Party shall not, without the Indemnified Parties’ prior written consent, agree to any settlement on behalf of such Indemnified Parties which includes either the obligation to pay any amounts, or any admissions of liability, whether civil or criminal, on the part of any of the Indemnified Parties.
Infringement Remedy. If Customer is enjoined or otherwise prohibited from using any of the Services or a portion thereof based on a Claim covered by Multiverse’s indemnification obligations under this Section, then Multiverse will, at its sole expense and option, either: (a) obtain for Customer the right to use the affected portions of the Services; (b) modify the allegedly infringing portions of the Services so as to remediate the basis of the Claim without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Services with items of substantially similar functionality so as to avoid the Claim. If Multiverse determines that the foregoing remedies are not commercially reasonable and notifies Customer of such determination, then either Party may terminate the Agreement, and in such case, Multiverse will provide a prorated refund to Customer for any prepaid fees for the infringing Services received by Multiverse under the Agreement that correspond to the unused portion of the Term. The remedies set out in this Infringement Remedy provision are Customer’s sole and exclusive remedies for any actual or alleged infringement by the Services of any third-party intellectual property right.
LIMITATION OF LIABILITY
Customer acknowledges that it shall be solely responsible for the acts and omissions of all its Users. Multiverse shall not be liable for any loss of data or functionality caused directly or indirectly by Users.
Multiverse shall not be liable for Customer’s loss of profits, loss of business, loss of contracts, loss of revenue or loss of anticipated savings or any other indirect or consequential costs, losses or damages however arising and whether or not such Multiverse had been advised of the possibility of such loss or damage. Such limitation shall however not apply to the extent that such costs, losses or damages are shown to have been caused by Multiverse with intent or gross negligence.
Multiverse shall not be liable for any errors resulting from incorrect data being uploaded to the Service by Customer or User which has been subsequently shared within the Service.
Defects and deficiencies in the Service are regularly rectified during scheduled maintenance. In the event of major defects that seriously impede Customer’s and/or Users’ use of the Service and that are solely attributable to Multiverse, Multiverse undertakes to use its reasonable efforts to rectify such defect without unreasonable delay. Such rectification of the Service and features therein is Multiverse’s sole liability in relation to operational disruption or errors that impede data traffic or otherwise the use of the Service.
LIABILITY CAP
EXCEPT (A) IN RELATION TO MULTIVERSE’S LIABILITY FOR IN-DEVELOPMENT SERVICES (IN RELATION TO WHICH SECTON 11 APPLIES); (B) CUSTOMER’S OBLIGATIONS UNDER THE FEES AND PAYMENT TERMS SECTION; AND (C) FOR A PARTY’S OBLIGATIONS UNDER THE INDEMNIFICATION SECTION, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO MULTIVERSE UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
EACH PARTY’S OBLIGATIONS UNDER THE INDEMNIFICATION SECTION SHALL BE NOT EXCEED THE GREATER OF $500,000 OR THE TOTAL AMOUNT PAID BY CUSTOMER TO MULTIVERSE UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION).
INSURANCE
During the Term and for a period of two years thereafter, each party will maintain, at its sole cost and expense, a General Commercial Liability Insurance Policy, with coverage limits not less than five million dollars (US$5,000,000) per occurrence. Each party will, upon the other party’s request, provide the other party with a certificate evidencing such insurance.
FORCE MAJEURE
Each Party shall be entitled to suspend performance of its obligations under the Agreement to the extent that such performance is impeded or made unreasonably onerous by any of the following circumstances: industrial disputes and any other circumstance beyond the reasonable control of the affected Party such as fire, war, acts of terror, insurrection, requisition, seizure, embargo, restrictions in the use of power and defects or delays in deliveries by sub-contractors caused by any such circumstances referred to in this Section. A circumstance referred to above which has occurred prior to the formation of the Agreement shall give a right to suspension only if its effect on the performance of the Agreement could not be foreseen at the time of the formation of the Agreement. The Party claiming to be affected by force majeure shall notify the other party in writing without delay immediately upon the commencement of the event of force majeure.
COMPLIANCE WITH LAWS
Customer and its Users shall not use the Services in a manner contrary to applicable laws and regulations.
In its operation of its business as it relates to delivery of the Services, Multiverse will comply with all applicable laws and regulations.
Without limiting the generality of the preceding paragraph, Multiverse and the Customer agree that they are independent Data Controllers and shall comply with its responsibilities under any Applicable Privacy Laws and process any Personal Data in accordance with Exhibit A: Data and Security Exhibit.
Customer hereby acknowledges that Personal Data which has been anonymised, deidentified, aggregated, or otherwise processed so that it is no longer possible to identify the individual to whom that information relates, no longer constitutes Personal Data and is not subject to Applicable Privacy Laws.
TERM AND TERMINATION
This Agreement enters into force upon execution by Customer of an Order Form and the Agreement remains in force and effect as long as an Order Form referencing this MSA remains valid and in effect, and for a period of 12 months thereafter (the “MSA Term”), unless terminated in accordance with the terms of this Agreement.
If not otherwise specified in the Order Form, with respect to Platform Access, each Order Form shall automatically renew for additional periods of twelve (12) calendar months (a “Renewal Term”), unless either Party gives the other written notice of non-renewal at least two (2) months before the end of the applicable Service Period (as identified in the Order Form).
The Fees during any such Renewal Terms may be subject to annual increases as stipulated in any applicable Order Form.
Material Breach. Each Party shall be entitled to terminate the Agreement and/or any Order Form hereunder in writing where the other Party is in material breach of its obligations under the Agreement and fails to cure such breach within thirty (30) days of a written demand to cure that breach or if the other Party becomes bankrupt or otherwise insolvent. Upon termination by Customer for Multiverse’s material breach under this section, Multiverse shall refund Customer any prepaid Fees for the remainder of the applicable Order Form term(s). Upon termination by Multiverse for Customer’s material breach under this section, Customer shall pay all Fees for the remainder of the applicable Order Form term(s).
ASSIGNMENT
Neither Party may assign any of its rights or obligations under this Agreement without the prior written consent of the other Party, not to be unreasonably withheld. Notwithstanding the above, Multiverse shall be entitled, in whole or in part, to assign its rights and obligations under the Agreement without Customer’s and/or User’s prior consent (i) to a company within the same group of companies as Multiverse: or (ii) in connection with a sale of all, or substantially all, of the assets of Multiverse to a third party.
SEVERABILITY
If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
GOVERNING LAW AND JURISDICTION
This Agreement, and any dispute arising in relation to it, will be governed by the law of New York state, without regard to its conflict of laws principles. The parties agree that the courts of New York County, New York will have exclusive jurisdiction to settle any dispute arising out of or in relation to this Agreement.
WAIVER OF JURY TRIAL
Each party hereby irrevocably waives to the fullest extent allowed by applicable law any and all right to trial by jury in any action, proceeding, claim or counterclaim, of any nature whatsoever, arising out of or in any way relating to the Agreement and the transactions contemplated under it or to the actions of such party in the negotiation, administration, performance and enforcement of this agreement. Each Party certifies that it makes this waiver knowingly and voluntarily and that it has been induced to enter into this agreement by, among other things, the mutual waivers and certifications set forth above in this Section.
ENTIRE AGREEMENT AND VARIATION
This Agreement constitutes the complete and entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all previous and contemporaneous negotiations and understandings between the Parties, whether written or oral. No variation of this Agreement will be effective unless it is in writing and signed by the parties.
NOTICES
All notices regarding this Agreement must be in writing and either e-mailed to notices@multiverse.io (for Multiverse) and Customer email address provided by Customer on an Order Form or otherwise provided to Multiverse in writing, or posted (by first class post or other next day delivery service) to the registered address of the relevant party. If sent by email, such notices will be deemed to have been given one hour after transmission and if posted, all such notices will be deemed to have been given and received on the second business day (in the place of receipt) after posting.
NO WAIVER
No failure or delay by a party to exercise any right or remedy (in whole or in part) provided under this Agreement or by law will be a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.
NO THIRD-PARTY RIGHTS
This Agreement is between Multiverse and Customer. No other party has any rights to enforce any of its terms.
SURVIVING TERMS
The following provisions shall survive termination or expiry of the Agreement: Definitions; Confidentiality); Limited Warranty, Disclaimers; Indemnification; Limitation of Liability; Liability Cap; Governing Law and Jurisdiction; Notices; No Waiver; No Third-Party Rights; and Surviving Terms.
LIST OF EXHIBITS
Exhibit A - Data and Security Exhibit
Exhibit A: Data and Security Exhibit
Background
This Data & Security Exhibit by and between Customer and Multiverse is incorporated into and forms a part of the Multiverse Master Services Agreement (the “MSA”).
This Data & Security Exhibit is entered into between Multiverse and Customer to assist each Party in the discharge of its duties to protect Personal Data.
Contact Information
Multiverse US Responsible Party, Privacy
David Roud
Director, Data Protection and Privacy, and Data Protection Officer
david.roud@multiverse.io
Multiverse US Responsible Party, Commercial
[Name]
[Title]
[email]
Customer Responsible Party
[Name]
[Title]
[email]
Definitions
Any terms used but not defined in this DSE have the meaning given to them in the MSA.
Breach means a breach of the security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data.
CCPA means the California Consumer Privacy Act, Cal. Civ. Code § 1798, 100 et seq., its implementing regulations, and amendments, including the California Privacy Rights Act (“CPRA”) and its implementing regulations.
Controller means the entity which, alone or jointly with others, determines the purposes and means of the processing of Personal Data.
DSE means this Data & Security Exhibit including any annexes, notes, or documents incorporated by reference.
Invite Data means the names and work email addresses of Learners which Customer provides to Multiverse to invite them to the Multiverse Platform.
Learner Record means certificates, results and learning completion details of Learners.
Role of the Parties
This DSE applies to the processing of Personal Data by Multiverse to provide the Services. Multiverse will provide access to and use of the Multiverse Services to Usersand the Customer.
With respect to Invite Data, Customer is the controller and Multiverse is the processor of the Invite Data. Customer shall have sole responsibility for (i) the accuracy, quality, and legality of the Invite Data; and (ii) the means by which it acquires the Invite Data.
With respect to Personal Data processed in connection with this Agreement other than Invite Data, Multiverse and Customer acknowledge and agree that each separately determines the purposes and means of its own processing of such information in connection with the Agreement and each Party acts as an independent Controller.
Customer acknowledges that Learner Record is separate and distinct from Customer Data, and Multiverse processes the Learner Record as an independent Controller. Customer further acknowledges that Learners may be able to access the Learner Record independently of the Customer during and following the termination of the Agreement with Customer.
Roles of Parties as Independent Controllers Processing Personal Data
Multiverse and Customer each warrant that they will each duly observe all their obligations under Applicable Privacy Laws which arise in connection with the performance of their respective obligations under the Agreement, and that they shall not, in respect of Personal Data to be processed under or in connection with the Agreement, do any act or make any omission which puts the other Party in breach of its obligations under Applicable Privacy Laws.
Each Controller will be responsible for responding to requests by data subjects to exercise their rights under Applicable Privacy Laws. Each Controller will provide reasonable assistance to the other Controller to enable the Controller to respond to requests by data subjects to exercise their rights.
Each Controller will maintain technical and organisational measures to protect Personal Data as set forth in this DSE and as required by Applicable Privacy Laws. The technical and organisational measures set forth in this DSE have been implemented by Multiverse and designed to ensure an appropriate level of security, taking into account the nature, scope, context and purpose of the processing, and the risks for the rights and freedoms of natural persons.
Each Controller will without undue delay notify the other Party in the event of a Breach of Disclosed Personal Data and take appropriate measures to address and mitigate the adverse effects of the Breach.
Data Disclosures
The provisions which follow set out the framework for the disclosure of Personal Data between the Parties as independent Controllers. Each Party acknowledges that the Party disclosing the Personal Data (the “Data Discloser”) will disclose to the other Party (the “Data Recipient”) Personal Data collected by it as an independent Controller (such Personal Data is the “Disclosed Personal Data”).
Each Party shall:
- When acting as the Data Discloser, give any information and notices required by Applicable Privacy Laws to any data subject whose Personal Data constitutes Disclosed Personal Data;
- Ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Disclosed Personal Data and against accidental loss or destruction of, or damage to, the Disclosed Personal Data;
- Where required under Applicable Privacy Laws, ensure that it has an appropriate lawful basis and safeguards for cross-border transfers of Disclosed Personal Data;
- Comply with the Applicable Privacy Laws and agree that in the event of any material breach of Applicable Privacy Laws which involves Disclosed Personal Data (including any security breaches which affect Disclosed Personal Data), the breaching Party shall take appropriate measures to address the breach and shall notify the other Party without undue delay after having become aware of the breach; and
- Provide the other Party with contact details of at least one employee as point of contact and responsible manager for all data protection matters.
Multiverse Processing of Invite Data
Customer may provide Invite Data to Multiverse under the MSA for purposes of inviting Users to the Multiverse platform and facilitate Multiverse’s provision of the Services.
For purposes of clarity under laws such as the CCPA, and without limiting Multiverse’s other obligations under the Agreement, in no event will Multiverse (a) sell the Invite Data; (b) share the Invite Data for cross-contextual behavioural advertising; (c) retain, use, or disclose the Invite Data for any purpose other than performing the Services, including retaining, using, or disclosing the Invite Data for a commercial purpose outside of its direct business relationship with the Customer, such as in providing services to other businesses; or (d) combine the Invite Data with personal data that it receives from other parties, other than as permitted under applicable law.
Multiverse shall comply with any obligations applicable to Multiverse under the CCPA with respect to the Invite Data and will provide the same level of privacy protection as required of businesses by the CCPA, including by cooperating with the Customer in responding to and complying with consumers’ requests made pursuant to the CCPA and in implementing reasonable security procedures and practices.
The Customer may take reasonable and appropriate steps, consistent with any applicable rights under the MSA, to help to ensure that Multiverse uses the Invite Data in a manner consistent with the Customer’s obligations under the CCPA and, upon notice to Multiverse, to take reasonable and appropriate steps to stop and remediate any unauthorized use of Invite Data.Multiverse will notify the Customer if Multiverse makes a determination that it can no longer meet its obligations under the CCPA. Multiverse certifies that it understands and will comply with the foregoing restrictions under this Section.
Use of De-identified or Anonymised Data.Notwithstanding anything to the contrary herein, nothing in the Agreement shall prohibit Multiverse, both during and after the term of the Agreement, from collecting or analysing data derived from Customer Data, as well as data about or demonstrating the effectiveness of the Services, for developing and improving the Services or conducting research, or any other purpose, provided that Multiverse may not use Customer Data for purposes unrelated to providing the Services or (ii) share or publicly disclose information that is derived from Customer Data, unless the data is de-identified and/or aggregated such that the information does not identify a specific individual, or as otherwise provided in the Agreement.
Audit. Multiverse will, at Customer’s request and subject to the confidentiality terms set forth in the Agreement, make a summary of its most recent data security audit reports and certifications available to Customer. To the extent the Customer requires additional assistance to satisfy obligations strictly necessary under Applicable Privacy Laws, Multiverse will, considering the nature of the processing and the information available to Multiverse, provide reasonable assistance to Customer.
Duration and Termination
Customer acknowledges and agrees that, following expiry or termination of this Agreement, Multiverse will retain Invite Data which has been de-identified or anonymised, such that it no longer constitutes Personal Data and is not subject to Applicable Privacy Laws. Customer acknowledges that Customer will not have access to the Service or to any Customer Data stored in or as part of the Services following termination or expiry of the Agreement.
The Customer will be solely responsible for maintenance of Customer Data outside of the Service from the expiry or termination of the Agreement.
Subject to the first paragraph of this Duration and Termination Section, the terms of the Agreement will remain in effect as to all Invite Data and Customer Data provided to Multiverse prior to termination. Termination or expiration of this DSE shall not discharge the Customer from its confidentiality obligations under the Agreement.
Miscellaneous. In the event of any inconsistency between the provisions of this DSE and any other provisions of the Agreement, the provisions of this DSE shall prevail.