Mathesia Terms and Regulations

This TERMS AND REGULATIONS FOR MATHESIA, (the “Agreement”) constitutes a legal agreement between you (“Company”) and Mathesia srl for purposes of providing Company with access to and utilization of the mathesia.com website (the “Site”) and engagement of Mathesia to perform certain services for Company, all in regard of Mathesia Projects (as defined below). As used in this Agreement , “we” (and variations such as “us” or “our”) means Mathesia srl or any of our affiliate companies, as the case may be (“Mathesia”), and “you” (and variations such as “your”) means the Company. THIS IS A LEGAL AND BINDING CONTRACT. YOU SHOULD PRINT AND SAVE THIS AGREEMENT FOR FUTURE REFERENCE.

  1. MATHESIA PROJECTS

    1. Scope of Services. Mathesia shall perform all services hereunder (“Services”) pursuant to this Agreement, including any additional services that may be included in Exhibit A to this Agreement, and shall not be obligated to perform any services that are not expressly provided for herein or in Exhibit A.

      1. Access to Site. Mathesia, through the Site, will provide you with a neutral forum that enables:

        1. You to post the business, technical, engineering, scientific, logistical, or manufacturing problem more fully described on Exhibit A hereto (the “Mathesia Project”) and to offer to specialists in applied mathematics that have registered on the Site (each, a “Brainy” and, collectively, the “Brainies”) a specified payment amount or range (a “Reward”) for a solution obtained from a quoted proposal to solve a Mathesia Project that is ultimately accepted by you (“Accepted Quote”), and

        1. Brainies to review, subject to entering into a non-disclosure agreement provided by Mathesia or you (“Project NDA”), project briefs describing Mathesia Projects (“Project Briefs”), to have access to a message based project forum (“Project Forum”) to ask you questions and obtain additional information about the Mathesia Project, and to submit their proposed quotes for solving Mathesia Projects (“Proposed Quotes”).

      1. Project Abstract; Project Brief. Company will be responsible for preparing a brief abstract of the Mathesia Project (“Project Abstract”), and Project Briefs. Mathesia will provide Company with a web-based wizard to guide the Company through the Mathesia Project steps in a structured way, which includes short descriptions of what information is requested at each step of the process. Upon completion of the Project Brief compilation, Mathesia will provide an analyst to review the Project Brief before it is published and made available to Brainies.

      1. Review Period; Reward. Company will establish and specify in the [Project Abstract and] Project Brief (i) a specific amount or range for the Reward, and (ii) a period of time (the “Review Period”) during which Brainies may (x) review the Project Brief and any other information made available with respect to the Mathesia Project and (y) submit their Proposed Quote in order to be eligible for a Reward.

 

      1. Brainy Review; Project Forum. Company will permit each Brainy that desires to submit a Proposed Quote and enters into a Project NDA to access the Project Brief through the Site. In addition, during the Review Period, Company will interact with Brainies in the Project Forum and use reasonable efforts to provide such additional information as may be reasonably requested by Brainies for purposes of completing a Proposed Quote.

 

      1. Project-Specific Agreements. Upon your acceptance of one or more Proposed Quotes, you will interact directly with the successful Brainy or Brainies to enter into a contract that covers the terms of the Accepted Quote and any other terms and conditions that may be negotiated between you and the Brainy (the “Project-Specific Agreement”). [Mathesia will provide you with a base form of Project-Specific Agreement that may be used as a starting point for your negotiations with a Brainy.]1

 

      1. Additional Services. At the request of Company, Mathesia will provide a more detailed review to assist the Company in completing the process through the point at which an Accepted Quote is obtained, and any such additional review and consulting hours will be available at the rate specified in Exhibit A.

    1. Company Information. Company agrees, represents and warrants that any information relating to a Mathesia Project that is provided by Company to Mathesia or is included in any Project Abstract, Project Brief, Project Forum or made available on the Site (“Company Information”) will be accurate and will not, to the best of Company’s knowledge, (i) infringe on any third party’s copyright, trademark, or other proprietary rights or rights of publicity or privacy; (ii) violate any law or regulation, or request that Brainies violate any law or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); or (iii) be defamatory, libelous, unlawfully threatening or unlawfully harassing.

 

    1. Non-Exclusivity. Unless otherwise agreed by Company and Mathersia in writing and stated in the relevant Project Brief, posting of a Mathesia Project does not guarantee Company any exclusivity with respect to the subject matter, and all Mathesia Briefs will be made available to Brainies on a non-exclusive basis.

 

    1. Proposed Quote Procedures. Project Briefs must not require a Brainy to submit any proprietary or confidential information. Mathesia shall deliver to Company all Proposed Quotes received by Mathesia as they are received, but in any event no later than fourteen (14) days following the end of the Review Period stated therein. The Review Period for each Mathesia Project shall be no longer than [forty-five (45) days] from the date of posting. Company will notify Mathesia and follow up directly with Brany(ies) of interest to determine whether to enter into Project-Specific Agreement with any Brainy. Company agrees to notify Mathesia and Brainies within [thirty (30)] days after receiving all Proposed Quotes from Mathesia whether Company will be continuing to evaluate each Brainy’s Proposed Quote for further business discussions or rejects the Proposed Quote. Company further agrees to promptly notify Mathesia of any resulting contractual or other business relationships with Brainy(ies).

 

    1. Disclaimers. Mathesia makes no representations regarding the sufficiency of Proposed Quotes or whether a Proposed Quote will be received at all with respect to any particular Mathesia Project. Mathesia acts as an intermediary only and does not make any representation or warranty of any kind whatsoever with respect to any Proposed Quote. Mathesia makes no representations or warranties regarding the sufficiency of Proposed Quotes, whether a Proposed Quote will be received at all to any particular Project Brief, or regarding the confidentiality or ownership of any Proposed Quotes. Company acknowledges that it is solely responsible for any verification of Brainy and any resulting business relationship.

 

    1. Non-Circumvention. Company hereby agrees that, during the term of this Agreement and thereafter for [one year] from the end of the most recent Mathesia Project for which the Company has used the Site or, if later, the date on which this Agreement is terminated, Company will not enter into any agreement, transaction or arrangement similar to the Mathesia Project with any of the Brainies (including their agents, principals and affiliates) which Mathesia has introduced, directly or indirectly, through the Site (collectively, the “Mathesia Contacts”), regardless of whether a transaction is consummated with such Mathesia Contact, unless Company notifies Mathesia in writing of the agreement, transaction or arrangement, and pays Mathesia a fee equal to the amount that would be due under Section 2 if such agreement, transaction or arrangement were completed through Mathesia as contemplated herein.

  1. PAYMENTS AND PRICING

    1. Payments. In consideration of the Services and any rights transferred, assigned or granted to Company under this Agreement, Company shall pay to Mathesia the referral fee and all other fees set forth in Exhibit A (“Fees”) promptly, but in any event within ten (10) days after the date on which a Proposed Quote has been accepted by the Company and becomes an Accepted Quote.

    1. Rewards. Company shall pay Rewards related to an Accepted Quote, in full on the terms set forth in the Project-Specific Agreement.2

    1. Taxes. Company shall be responsible for payment of all applicable taxes that may arise by virtue of the transactions contemplated hereunder, except taxes on the income of Mathesia or taxes arising out of any Reward payable to a Brainy.

  1. LICENSE GRANT

    1. Ownership by Company. Company (and its licensors) has and shall retain sole and exclusive title and ownership of all by Company Information. For purposes of this Agreement, “Company Information” means all information provided by Company or its licensors or suppliers in connection with a Mathesia Project, including without limitation, the subject matter, ideas, suggestions, and know-how embodied in a Project Brief. Subject to the terms and conditions of this Agreement, Company grants to Mathesia a non-exclusive, worldwide, royalty-free license to distribute, display and reproduce the Company Information solely in order to perform the Services hereunder. Unless otherwise specified in the relevant Project Brief, Mathesia shall use commercially reasonable efforts to prevent third party visitors to the Site from determining that Company is the author of, or is associated with, a particular Mathesia Project.

    1. Ownership by Mathesia. All computer software (in object code and source code form), script, programming code, data, methodologies, techniques, intellectual property, or other information developed by Mathesia or its licensors or suppliers and provided to Company hereunder (“Mathesia Property”), shall be and remain the property of Mathesia and its licensors. Subject to the terms and conditions of this Agreement, Mathesia grants to Company a non-exclusive, worldwide, royalty-free license to use the Mathesia Property to the extent necessary to use or receive the Services. Mathesia acknowledges that it has no rights in and to any intellectual property made or developed by Company or Brainy during the course of this Agreement.

    1. Ownership by Brainy. A “Proposed Quote” is what a Brainy provides in response to a published Project Brief. Unless otherwise agreed by Brainy pursuant to the terms of the Project-Specific Agreement, Proposed Quotes submitted by Brainy in response to a Project Brief remain the property of the Brainy unless [and until an Reward is paid by Company to such Brainy].

  1. REPRESENTATIONS AND WARRANTIES

    1. Representations and Warranties of Company. Company represents and warrants to Mathesia that, to the best of Companys’ knowledge: (a) Company has sufficient rights in the Company Information to grant Mathesia the license set forth in Section 3; and (b) the information provided in connection with a Mathesia Project, including the information contained in a Project Brief, will not directly or indirectly infringe or violate any patent, copyright, trade secret, trademark or other third party intellectual property right.

    1. Representations and Warranties of Mathesia. Mathesia represents and warrants to Company that, to the best of Mathesia’s knowledge, it is not aware of any potential or threatened claim and is not aware of any facts which could give rise to a claim of infringement of such third party’s intellectual property relating to the use of the Site in the manner contemplated hereunder.

  1. CONFIDENTIALITY

    1. Confidential Information” means all financial, technical and other information regarding Mathesia or Company, or either party’s products or services, which is proprietary and/or confidential in nature or which is marked or otherwise deemed to be confidential. Confidential Information shall not include information which, as proven by the receiving party’s records, and through no act or failure to act on the part of the receiving party: (a) is, at the time of disclosure by the disclosing party hereunder, or thereafter becomes, a part of the public domain or publicly known or available through no fault or negligence of the receiving party or any of its Affiliates; or (b) is otherwise in the receiving party’s lawful possession prior to disclosure by the disclosing party as demonstrated by the receiving party’s written records; or (c) is lawfully disclosed to the receiving party or any of its Affiliates on a non-confidential basis by a third party who is not in violation of an obligation of confidentiality to the disclosing party relative to such information; or (d) is required by law, regulation or legal process to be disclosed, provided, however, that the receiving party shall take all reasonable steps to restrict and maintain the confidentiality of such disclosure and shall (subject to the requirements of such law, regulation or legal process) provide reasonable prior written notice to the disclosing party of the requirement to disclose such information and the specific disclosure(s) proposed to be made to satisfy such law, regulation or legal process; or (e) is independently developed by the receiving party or an Affiliate of such party without the use of any of the disclosing party’s Confidential Information. For the avoidance of doubt, all Company Information shall be considered Confidential Information of the Company, and every Proposed Quote shall be considered Confidential Information of the Brainy that submitted such Proposed Quote.

    1. Limitations Regarding Confidential Information. During the term of this Agreement and at all times thereafter, a receiving party shall not disclose to any third party nor use for any purpose, other than for the performance of this Agreement, any Confidential Information of a disclosing party without the express prior written consent of the disclosing party. A receiving party shall make the disclosing party’s Confidential Information available to the receiving party’s employees, agents and contractors only on a need-to-know basis. Each party shall cause all of its employees, agents and contractors who have access to the Confidential Information of the disclosing party to maintain the confidentiality thereof to the same extent as is required of a receiving party hereunder. Company agrees that the terms and conditions of this Section 5 apply to information contained in Proposed Quotes received from Brainys, unless otherwise stated in a Project Brief.

    1. Return of Confidential Information. Upon termination or expiration of this Agreement, or earlier upon the request of the disclosing party, a receiving party shall return all Confidential Information within its possession or control to the disclosing party, including all copies thereof in any media, and shall purge any electronic copies thereof from any electronic storage device; provided, however, that Company’s legal department (or legal representative) may retain a single copy of Confidential Information, segregated and access-restricted, solely for archival purposes. The receiving party shall also certify in writing its compliance with the obligations set forth in this Section 5.3.

    1. Confidentiality Breaches. Each party acknowledges that any breach of its obligations hereunder with respect to the Confidential Information of the other party may cause the other party immediate and irreparable injury for which there are inadequate remedies at law and, notwithstanding anything in this Agreement to the contrary, that the other party may be entitled to seek equitable relief, to recovery of its reasonable attorneys’ fees and other reasonable costs associated with any such proceeding, and to all other remedies available to it.

  1. TERM AND TERMINATION

    1. Term. This Agreement shall take effect on the Effective Date and continue in force until terminated as described in this Section 6. Termination of this Agreement shall terminate all existing Sales Orders without refund of any prepaid fees to Company.

    1. Termination by Either Party for Convenience. Each party may terminate this Agreement at any time for any reason by delivering thirty (30) days’ prior written notice to the other in the manner provided in this Agreement. Termination will be effective thirty (30) days following receipt by the other party of such notice unless a later date is specified in the notice; provided, however that the obligations of Company to pay the amounts set forth in Section 2 shall survive any termination of this Agreement.

  1. LIMITATION OF LIABILITY AND WARRANTY DISCLAIMERS

    1. No Warranties. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE BASIS. MATHESIA MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SITE OR THE SERVICES. MATHESIA DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT YOUR ACCESS TO OR USE OF THE SITE OR THE SERVICES: (A) WILL BE UNINTERRUPTED OR ERROR FREE; OR (B) WILL RESULT IN ANY PROPOSED QUOTES. MATHESIA AND THE SITE FUNCTION AS AN ON-DEMAND LEAD GENERATION AND RELATED SERVICE ONLY AND MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES AS TO THE ACTIONS OR INACTIONS OF USERS WHO MAY PROVIDE PROPOSED QUOTES TO YOU. MATHESIA EXPRESSLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF YOU OR OTHER THIRD PARTY. MATHESIA DOES NOT GUARANTEE THE AVAILABILITY OR UPTIME OF THE SITE. YOU ACKNOWLEDGE AND AGREE THAT THE SITE MAY BE UNAVAILABLE AT ANY TIME AND FOR ANY REASON (e.g., DUE TO SCHEDULED MAINTENANCE OR NETWORK FAILURE). FURTHER, THE SITE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATION AND YOUR DEVICE, AND MATHESIA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES, LIABILITIES OR LOSSES RESULTING FROM SUCH PROBLEMS.

    1. Limitation of Liability and Disclaimer. Mathesia has no control over, and is not responsible for the acts or omissions of Brainies, or the quality or legality of the Proposed Quotes provided thereby. Mathesia does not warrant or guarantee the accuracy or completeness of any Proposed Quote, nor endorse any Brainy. MATHESIA SHALL NOT BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS, EXPENSES OR OTHER COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES) YOU SUFFER OR INCUR AS A RESULT OF THIRD PARTY CLAIMS RELATING TO YOUR USE OF THE SERVICES. UNDER NO CIRCUMSTANCES WILL MATHESIA BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR ANY DAMAGES [IN EXCESS OF $100 REGARDLESS OF THE CAUSE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, IN SUCH STATES AND JURISDICTIONS, LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. You agree that you will be responsible for, and at Mathesia’s request indemnify and defend Mathesia from any and all third party claims arising out of any Mathesia Project-related information that you provide to Mathesia for publication or any breach by you of this Agreement.

    1. Release. You hereby release Mathesia from any and all claims of any kind arising out of any claim relating to individual Mathesia Projects. If you are a California resident, you waive California Civil Code, Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”

    1. Limited Claims. The parties agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Services must be filed within one (1) years after such claim or cause of action arose, or be forever barred.

  1. INDEMNIFICATION

    1. By Company. Company agrees to indemnify and hold Mathesia and its Affiliates and each of their employees, agents, contractors, officers, and directors, harmless from, any and all third party claims, costs, damages, expenses and liabilities (including reasonable attorneys’ fees and costs of litigation or defense incurred by any of them) (collectively, “Claims”) arising out of or relating to (a) any violation or breach of this Agreement by Company; (b) an allegation that a Project Brief or other materials related to a Mathesia Project infringe or contribute to infringement or induces infringement of a patent, misappropriates a trade secret, or infringes a copyright, trademark, trade name or other third party intellectual property right to the extent such claim or allegation of infringement or misappropriation is based upon Company’s information, materials, instructions or specifications; (c) any allegation that the Company’s use of a Proposed Quote, or any portion or derivative thereof (including any product or service based in whole or in part on such use), infringes or contributes to infringement or induces infringement of a patent, misappropriates a trade secret, or infringes a copyright, trademark, trade name or other third party intellectual property right; or (d) the gross negligence or willful misconduct of Company.

    1. By Mathesia. Mathesia agrees to indemnify and hold Company and its employees, agents, contractors, officers, and directors, harmless from, any and all Claims, arising out of or relating to: (i) any violation or breach of this Agreement by Mathesia; (ii) any Claim that the Services or the Site violate applicable law; (iii) any claim that publication of a Mathesia Brief (except to the extent such claims are directly attributable to the acts or omissions of Company) constitutes contributory infringement or an inducement of infringement of any patent, copyright, trade secret, trademark, trade name or other intellectual property right of a third party; or (iv) the gross negligence or willful misconduct of Mathesia.

    1. Notice, Control and Participation. Promptly after receipt by the indemnified party of notice of the assertion or the commencement of any Claim in respect of which the indemnified party will seek indemnification pursuant to any such section, the indemnified party shall promptly notify the indemnifying party of such Claim in writing. No failure to so notify an indemnifying party shall relieve it of its obligations under this Agreement except to the extent that it can demonstrate damages attributable to such failure. The indemnified party shall give the indemnifying party sole control of the defense and/or settlement of the Claim, and provide the indemnifying party with all reasonable information and assistance (at the indemnifying party expense). The indemnified party may participate in any action with its own counsel, at its own expense. Any settlement that purports to bind the indemnified party, or adversely affect its rights or obligations, shall require the written consent of the indemnified party.

    1. Limitation on Indemnity. For purposes of clarity, the parties acknowledge that neither party’s obligation to indemnify the other shall be for the benefit of any Brainy.

  1. GENERAL

    1. Status. Nothing in this Agreement shall be construed to establish a joint venture, agency, partnership, franchise, employment or other business relationship between Company and Mathesia or grant either party the right to bind the other, except as expressly set forth herein.

    1. Governing Law; Arbitration. This Agreement and the relationship between Company and Mathesia shall be governed by the substantive laws of the United States of America and the State of New York, without regard to any conflict of law provisions of any jurisdiction. Any dispute, controversy or claim arising out of or in relation to this Agreement, including the validity, invalidity, breach or termination thereof, shall be settled by arbitration in accordance with the commercial rules of American Arbitration Association (the “Rules”) in force on the date when the Notice of Arbitration is submitted in accordance with the Rules. The parties shall attempt to jointly designate the sole arbitrator within 30 days from the date when the Notice of Arbitration was received by the Respondent (the date of such receipt being referred to as the “Reference Date”). In the event that the parties cannot agree on a designation of the sole arbitrator within 30 days from the Reference Date, then there shall be three arbitrators, one designated by the initiating party within 45 days from the Reference Date, the second designated by the other party within 45 days of the Reference Date, and the third, who shall act as presiding arbitrator, designated by the two-party designated arbitrators within 30 days of the designation of the first and second arbitrators. If any arbitrators are not designated within these time periods, the American Arbitration Association shall proceed with the appointment(s). The arbitration shall be conducted in New York, New York. The arbitral proceedings shall be conducted in English. All capitalized terms contained in this paragraph (b) that are not here defined shall have the meaning assigned by the Rules.

    1. Survival. Sections of this Agreement that by their nature survive termination or expiration of this Agreement shall survive any expiration or termination of this Agreement.

    1. Assignment. Each party shall have the right to assign this Agreement, in its entirety, without the written consent of, but upon written notice to, the other, in connection with a merger, acquisition, asset sale, or other business combination of such party, provided that any entity to which this Agreement is so assigned shall assume, in writing, all obligations and responsibilities of such party hereunder. Any other assignment, without the written consent of the other party, shall be void and of no effect. This Agreement shall be binding upon the successors and permitted assigns of both parties.

    1. Notices. All notices, requests, consents and other communications hereunder shall be in writing, addressed to the receiving party’s address as set forth on a Sales Order or to such other address as a party may designate by notice hereunder, and either (i) delivered by hand, (ii) made by confirmed facsimile transmission, (iii) sent by overnight courier, or (iv) sent by registered or certified mail, return receipt requested, postage prepaid.

    1. Amendments, Waivers and Consents. Except as otherwise stated herein, the terms and provisions of this Agreement may be modified or amended only by written agreement executed by all parties hereto. Notwithstanding the foregoing, any correspondence (electronic or otherwise), which complies with this Section 9(f) but which does not expressly reference this Agreement and the intent of such correspondence to amend this Agreement, shall not operate to amend this Agreement. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by a written document signed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent.

    1. Headings and Captions. The headings and captions contained in this Agreement are for convenience only and shall not affect the meaning or interpretation of this Agreement or of any of its terms or provisions.

    1. Third Party Beneficiary. Mathesia expressly acknowledges and agrees that Company is an intended third party beneficiary of any Brainy Terms and Conditions, entitled to the rights and protections afforded under its terms.

    1. Compliance With Laws. Company is solely responsible for compliance with applicable laws and regulations regarding the content of any Project Brief, the use or acquisition of any Proposed Quotes received from Brainies, or the transfer to Brainy of any technologies in which Company may be involved, including without limitation, import/export requirements, and Mathesia will have no responsibility or liability thereto.

    1. Force Majeure. Mathesia shall not be liable for any delay or failure in the performance of this Agreement or for loss or damage of any nature whatsoever suffered by Company due to causes beyond Mathesia’s reasonable control.