This Service Agreement (“Agreement”) is entered into between MigrateX Inc., a Delaware corporation (“MigrateX”), and the entity identified on the applicable Order Form (“Customer”). By executing an Order Form that references this Agreement, Customer agrees to be bound by the terms herein.
1. Definitions
The following terms have the meanings set forth below:
- “Affiliate” means any entity that controls, is controlled by, or is under common control with a party.
- “Authorized Users”means the Customer’s employees, contractors, and agents who are authorized to access and use the Services under this Agreement.
- “Customer Data” means all data submitted by or on behalf of Customer to the Services, including records, attachments, configurations, and metadata from the source and target platforms.
- “Documentation” means the user guides, technical documentation, and other materials made available by MigrateX describing the features and functionality of the Services.
- “Migration Project” means a discrete data migration engagement as defined in an Order Form.
- “Order Form” means a written or electronic ordering document executed by both parties that references this Agreement and specifies the Services, fees, and project scope.
- “Output Data” means the data produced by the Services as a result of processing Customer Data during a Migration Project.
- “Services” means the MigrateX cloud-based data migration platform and related professional services as described in the applicable Order Form.
- “Sub-processor” means a third party engaged by MigrateX to process Customer Data on behalf of Customer in connection with the Services.
2. Access and Use
2.1 License Grant
Subject to the terms of this Agreement and the applicable Order Form, MigrateX grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services during the term of the applicable Migration Project solely for Customer’s internal business purposes.
2.2 Restrictions
Customer shall not, and shall not permit any third party to:
- Copy, modify, or create derivative works of the Services or any component thereof;
- Reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Services;
- Use the Services to build a competing product or service;
- Sublicense, sell, resell, lease, or otherwise make the Services available to any third party, except Authorized Users;
- Remove or alter any proprietary notices, labels, or marks on the Services;
- Use the Services in violation of applicable law or regulation.
2.3 Customer Responsibilities
Customer is responsible for:
- Configuring source and target platforms as reasonably directed by MigrateX;
- Obtaining all necessary consents and permissions required for the migration of Customer Data;
- Maintaining appropriate backups of Customer Data prior to migration;
- Ensuring compliance with all applicable laws regarding the data being migrated.
2.4 Suspension
MigrateX may suspend Customer’s access to the Services immediately if MigrateX reasonably determines that Customer’s use poses a security risk, may adversely impact the Services or other customers, or violates applicable law or this Agreement.
3. Fees
3.1 Fee Structure
Customer shall pay MigrateX a per-record migration fee for each Migration Project as specified in the applicable Order Form. The per-record rate and any minimum fees shall be set forth in the Order Form.
3.2 Payment Terms
Fees are invoiced upon execution of the Order Form and are due and payable in advance. Late payments accrue interest at a rate of 1.5% per month, or the maximum rate permitted by law, whichever is less.
3.3 Non-Refundable
All fees are non-refundable except as expressly set forth in this Agreement.
3.4 Taxes
All fees are exclusive of taxes, levies, and duties. Customer is responsible for all applicable taxes (excluding taxes based on MigrateX’s net income).
4. Support and Service Levels
4.1 Support Channels
MigrateX provides support via the following channels:
- Live chat
- Ticket submission through the MigrateX support portal
4.2 Support Hours and Response Times
MigrateX aims to provide 24/7 support availability. At present, MigrateX commits to responding to all support requests within 24 hours of receipt. MigrateX will update this commitment as support capacity expands.
4.3 Resolution Times
MigrateX will work diligently to resolve all issues as quickly as possible. Due to the varying nature and complexity of data migration issues, MigrateX does not guarantee specific resolution times. MigrateX will keep Customer informed with regular progress updates throughout the resolution process.
4.4 Exclusions
This support commitment does not apply when:
- Customer has caused a problem by making changes to the migration configuration without informing or consulting MigrateX;
- Customer has obstructed necessary maintenance and update tasks;
- Customer has caused data corruption or an unsatisfactory outcome, for example by not thoroughly reviewing test migration results before proceeding with a full migration.
4.5 Customer Obligations for Support
When contacting MigrateX support, Customer must provide:
- A valid email address (and whitelist support@migratex.com if using spam protection);
- A clear and specific description of the problem or request, including any error messages received.
If Customer does not provide the required information or take required actions after 3 contact attempts by MigrateX, the support ticket may be marked as resolved. MigrateX reserves the right to cease support if abusive language or behavior is encountered.
4.6 Data Access for Support
Customer acknowledges and consents to providing MigrateX’s support and technical teams with access to migration data and settings as needed for troubleshooting and issue resolution. This access will remain in effect until the migration is complete or until Customer manually revokes it. Without such access, MigrateX’s ability to resolve data migration issues may be limited.
5. Data Handling
5.1 Data Retention
MigrateX stores Customer Data and related migration information for 7 (seven) days after the completion of a full data migration to address any potential issues. If no problems are reported within this period, MigrateX considers the migration successful and will proceed to delete the data.
5.2 Demo Migration Data
During a free demo migration and for 7 (seven) days after its completion, MigrateX stores the relevant information to resolve issues and answer questions. If Customer does not initiate a full data migration within 30 (thirty) days of the demo, MigrateX will delete all data related to the demo migration.
5.3 Data Re-migration
MigrateX offers unlimited re-migration at no additional charge. Re-migration involves migrating data between the same source and target for a second time. This may be necessary when:
- Data was migrated to a sandbox instance and needs to be re-migrated to a live instance;
- Migration needs customization to better fit requirements;
- The target platform has been updated or upgraded;
- Audit fields need to be enabled;
- Source data has changed.
Important: All previously migrated data, including any changes Customer has made to records on the target, will be automatically removed from the target during re-migration. To request re-migration, submit a support ticket describing the request.
5.4 Delta Migration
MigrateX offers one free delta migration per Migration Project. Delta migration allows Customer to migrate only the records that have changed since the original full migration. To arrange a delta migration, contact MigrateX support.
5.5 Data Protection
The parties’ respective obligations regarding data protection are set forth in the Data Processing Addendum, which is incorporated by reference into this Agreement. Customer Data is processed in the United States by default unless otherwise agreed in writing.
5.6 Aggregated Data
MigrateX may use aggregated and de-identified data derived from Customer Data for analytics, benchmarking, and service improvement, provided that such data does not identify Customer or any individual.
5.7 Credential Security
MigrateX recommends that Customer change passwords and restrict any access granted to MigrateX within 5 (five) days after the full data migration is completed.
6. Custom Migration Services
If the standard Services do not meet Customer’s needs, Customer may request custom migration development. The standard timeframe for custom development is 2 (two) business days, though this may be extended depending on complexity.
Upon receiving a request, MigrateX will:
- Gather Customer’s requirements;
- Estimate the complexity of the customization;
- Provide a quote and estimated completion timeframe.
Important: Customization requires that Customer has completed a demo migration and granted MigrateX access to the demo migration data. Custom migration services are available at additional cost. Payment is required before evaluation of the custom work. Customer has 7 (seven) days after delivery to report any issues. If no issues are reported within this period, the customization is deemed successful. Any further changes will incur additional charges. Custom migration services are non-refundable.
7. Confidentiality
Each party (“Receiving Party”) agrees to hold in confidence all non-public information disclosed by the other party (“Disclosing Party”) that is designated as confidential or that reasonably should be understood to be confidential (“Confidential Information”). The Receiving Party shall not disclose Confidential Information to any third party except to its employees, contractors, and advisors who have a need to know and are bound by obligations of confidentiality at least as protective as those herein.
Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the Receiving Party; (b) was rightfully known to the Receiving Party prior to disclosure; (c) is independently developed by the Receiving Party without use of Confidential Information; or (d) is rightfully obtained from a third party without restriction.
The Receiving Party may disclose Confidential Information to the extent required by law, regulation, or court order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice (where permitted) and cooperates in seeking protective treatment.
8. Intellectual Property
MigrateX and its licensors retain all right, title, and interest in and to the Services, Documentation, and all related intellectual property. Customer retains all right, title, and interest in and to Customer Data. To the extent Customer provides feedback, suggestions, or recommendations regarding the Services, Customer grants MigrateX a perpetual, irrevocable, royalty-free license to use and incorporate such feedback into the Services.
9. Warranty Disclaimer
THE SERVICES ARE PROVIDED “AS IS.” MIGRATEX DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. MIGRATEX DOES NOT WARRANT AND IS NOT RESPONSIBLE FOR THE AVAILABILITY, PERFORMANCE, OR BEHAVIOR OF THIRD-PARTY PLATFORMS, INCLUDING THROTTLING, RATE LIMITS, API CHANGES, OR DOWNTIME IMPOSED BY SOURCE OR TARGET PLATFORM PROVIDERS.
10. Indemnification
MigrateX Indemnification.MigrateX shall defend, indemnify, and hold harmless Customer from and against any third-party claim alleging that Customer’s use of the Services in accordance with this Agreement infringes a third party’s intellectual property rights.
Customer Indemnification.Customer shall defend, indemnify, and hold harmless MigrateX from and against any third-party claim arising from (a) Customer Data, (b) Customer’s use of the Services in violation of this Agreement, or (c) Customer’s violation of applicable law.
11. Limitation of Liability
THE AGGREGATE LIABILITY OF EITHER PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE SPECIFIC MIGRATION PROJECT GIVING RISE TO THE CLAIM.
The foregoing limitation does not apply to: (a) either party’s indemnification obligations; (b) either party’s breach of confidentiality obligations; (c) Customer’s payment obligations; or (d) either party’s willful misconduct.
IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS, DATA, OR BUSINESS OPPORTUNITIES, REGARDLESS OF THE THEORY OF LIABILITY. Any claim arising under this Agreement must be brought within one (1) year after the cause of action accrues.
12. Term and Termination
12.1 Term
This Agreement commences on the Effective Date and continues for the duration specified in each Order Form. Each Migration Project has its own term as set forth in the applicable Order Form.
12.2 Termination for Cause
Either party may terminate this Agreement for cause if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice thereof.
12.3 Termination for Service Failures
If MigrateX fails to meet the support response time commitments set forth in Section 4.2 more than five (5) times within a single calendar month, Customer shall have the right to terminate the applicable Migration Project and this Agreement without penalty.
12.4 Survival
Sections that by their nature should survive termination shall survive, including but not limited to Sections 7, 8, 9, 10, and 11.
13. Assignment
Customer may not assign this Agreement without MigrateX’s prior written consent, except in connection with a merger, acquisition, or sale of all or substantially all of Customer’s assets. MigrateX may assign this Agreement without restriction.
14. Sanctions
Each party shall comply with all applicable export control and sanctions laws and regulations, including those administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the U.S. Department of Commerce’s Bureau of Industry and Security (BIS).
15. Governing Law
This Agreement is governed by and construed in accordance with the laws of the State of Delaware, without regard to conflict of law principles. The parties submit to the exclusive jurisdiction of the state and federal courts located in the State of Delaware.
16. Notices
All legal notices to MigrateX shall be sent to legal@migratex.com or by mail to: 8 The Green, STE R, Dover, DE 19901, USA. Notices to Customer shall be sent to the address specified in the applicable Order Form.
17. Force Majeure
Neither party shall be liable for any failure or delay in performance resulting from events beyond its reasonable control, including but not limited to acts of God, natural disasters, pandemics, war, terrorism, government actions, labor disputes, power failures, internet disturbances, or failures of third-party platforms or services.
18. Publicity
Neither party shall use the other party’s name, logo, or trademarks in any publicity, advertising, or marketing materials without the other party’s prior written consent.
19. Entire Agreement
This Agreement, together with all Order Forms, the Data Processing Addendum, and the Website Terms of Use, constitutes the entire agreement between the parties with respect to the subject matter hereof. In the event of a conflict, the order of precedence shall be: (1) the applicable Order Form, (2) the Data Processing Addendum, (3) this Agreement, and (4) the Website Terms of Use.
20. Counterparts
This Agreement may be executed in counterparts, each of which shall be deemed an original. Electronic signatures shall be deemed valid and binding.