Magma Master Cloud Agreement (Fusion / Enterprise)
Effective date: Jan 1, 2025
This Master Service Agreement (“MCA”) is the standard cloud agreement for Magma’s Enterprise Fusion Plan. A signed Order Form is required for Enterprise-level purchases. If you have purchased the Fusion Plan (Enterprise) through a custom quote or negotiated agreement, this MCA applies. If you purchased Fusion through our standard self-serve portal, you are governed by our Terms of Service.
For more information or assistance, please contact: sales@magma.com
This Master Cloud Agreement (the “MCA”) is entered into by and between Code Charm, Inc. dba Magma (“Magma”) and the customer identified in the applicable Order (“Customer”) and governs Customer’s use of Magma’s cloud-based Services (defined below). This MCA is effective on the date of last signature or acceptance by the parties (the “Effective Date”).
Certain capitalized terms are defined in Section 18 and others are defined contextually in this MCA.
1. OVERVIEW
Magma provides a software-as-a-service (SaaS) platform for real-time creative collaboration, digital art creation, and communication (the “SaaS Service”). This MCA, together with any applicable Order(s), Data Processing Addendum (if required), and referenced policies govern Customer’s subscription to and use of the Services (defined below).
2. THE SAAS SERVICE
2.1. Permitted Use
Magma grants to Customer a worldwide, non-transferable, non-exclusive, and non-sublicensable right to access and use the SaaS Service during the Subscription Term for Customer’s internal business purposes, in accordance with (a) this MCA, (b) the applicable Order, and (c) the Documentation.
2.2. Orders
Order Process. Customer may subscribe to the SaaS Service (and any related Technical Services) by executing a mutually agreed Order Form referencing this MCA (“Order”). An executed Order is required for Enterprise Plan purchases.
Affiliate Orders. Any Affiliate of Customer may place its own Order under this MCA, forming a separate contract between Magma and such Affiliate.
2.3. Users
Access and Use. Only authorized Users may access or use the SaaS Service. Customer is solely responsible for (i) managing Users and their use of the SaaS Service, (ii) ensuring the security of User credentials, and (iii) any actions occurring under those credentials (excluding misuse directly caused by Magma’s breach).
Breach Notification. Each party shall promptly notify the other upon discovery of any unauthorized disclosure or use of log-in credentials.
2.4. Administrators
Customer may designate one or more Users as administrator(s), each with the ability to control certain aspects of Customer’s SaaS Service account, including the authority to manage other Users and Customer Content as described in the Documentation.
2.5. Access to External Artspaces/Drawings/Boards
Where a User is invited to collaborate on or access a Drawing, Artspace or Board hosted by another Magma customer, that third party controls the data in that space, including any content that Customer’s User contributes. Magma is not liable for such third-party interactions.
2.6. Sharing Settings
Customer can configure sharing and collaboration settings (e.g., public links, external participants) in the SaaS Service. If content is shared publicly, Magma will not be responsible for how external parties access or use it.
2.7. Restrictions
Except as expressly permitted in this MCA, Customer shall not (and shall ensure its Users do not):
Provide the Services on a timeshare, service bureau, or outsourcing basis to third parties without Magma’s prior written consent.
Use the Services to build a competing product or service or reverse engineer any part of the Services except to the extent allowed by applicable law (with prior notice to Magma).
Remove or obscure any proprietary notices from the Services or Documentation.
Share User log-in credentials among multiple individuals.
Store or transmit any malicious code or material that is infringing, unlawful, or otherwise in violation of this MCA or applicable law.
Conduct security or vulnerability tests on the Services without Magma’s written consent.
Modify or create derivative works of the Services outside authorized use cases described in the Documentation.
2.8. Username and Artspace Naming
To the extent Customer’s Users create usernames or Artspace names within the SaaS Service, Customer agrees such Users shall comply with Magma’s Username and Artspace Naming Policy. Failure to abide by these guidelines may result in restricted or reassigned usernames at Magma’s discretion.
3. SLA AND SUPPORT
During the Subscription Term, Magma shall provide the SaaS Service in accordance with any Service Level Agreement (“SLA”) referenced in the Order and provide support in accordance with Magma’s Support Policy (if attached or referenced). Customer’s exclusive remedy for service availability issues is as set forth in the SLA.
4. CUSTOMER CONTENT
4.1. License to Magma
Customer grants Magma a non-exclusive, worldwide license to use, copy, store, transmit, and display Customer Content, and to modify or create derivative works of it (e.g., for technical operations such as undo functionality, thumbnail generation) solely to provide and improve the Services in accordance with this MCA.
4.2. Security
Magma implements commercially reasonable technical and organizational measures to protect Customer Content from unauthorized access or disclosure, as outlined in any Security Policy provided. Magma will use reasonable efforts to detect and prevent the introduction of viruses, malware, and harmful code.
4.3. Privacy and Personal Data
Data Processing. If Customer or its Users upload personal data and Magma acts as a processor under applicable law, both parties will comply with the Data Processing Addendum (“DPA”), if required.
Privacy Policy. Magma processes account or usage data as described in its Privacy Policy.
4.4. Data Export
Customer may export its Customer Content during the Subscription Term and for a commercially reasonable period (minimum 30 days) thereafter (the “Data Export Period”), using the built-in export functions within the SaaS Service or with assistance from Magma's support staff. After this period, Magma may delete or anonymize Customer Content according to its standard data retention schedules unless prohibited by law.
5. CUSTOMER OBLIGATIONS
5.1. Responsibility for Customer Content
Customer is solely responsible for:
Ensuring it has all necessary rights and consents to upload and use Customer Content in connection with the Services.
Ensuring its Customer Content (including data of third parties) does not violate any law or regulation or infringe any third-party rights.
5.2. Prohibited Data
Customer agrees it will not store or transmit Prohibited Data (such as healthcare data subject to HIPAA, minors’ data under COPPA unless specifically allowed, or payment card data subject to PCI DSS) within the SaaS Service, unless Magma agrees in writing. Magma disclaims liability arising from unauthorized entry of Prohibited Data in the Services.
6. SUSPENSION OF SERVICE
Magma may suspend (in whole or part) the SaaS Service if (a) Customer fails to timely pay undisputed fees within ten (10) days of notice, or (b) Magma reasonably believes Customer’s (or its User’s) breach of this MCA risks the Services’ security or integrity. Magma will make reasonable efforts to provide prior notice of suspension. Upon resolution of the underlying issue, Magma will promptly restore access.
7. INTEGRATION WITH THIRD-PARTY PLATFORMS
If Customer enables any Third-Party Platform to integrate with the Services,
Such use is at Customer’s sole discretion and subject to separate terms between Customer and the third-party provider.
Magma is not liable for, nor does it control, any Third-Party Platform, including how it processes Customer Content.
Customer grants Magma the right to access and exchange Customer Content as necessary to enable integration with the Third-Party Platform.
8. TECHNICAL SERVICES
If Customer orders Technical Services (implementation, training, etc.), the details (scope, deliverables, and fees) will appear in the Order (or a statement of work referencing this MCA). Any deliverables provided by Magma in connection with Technical Services:
Are for Customer’s internal use solely with the SaaS Service.
Retain Magma’s proprietary rights and shall not be shared, repurposed, or sublicensed unless explicitly stated.
9. COMMERCIAL TERMS
9.1. Subscription Term
The “Subscription Term” for Customer’s access to the SaaS Service is set out in the applicable Order. Unless otherwise specified, subscriptions may renew upon mutual agreement or automatically as stated in the Order.
9.2. Fees and Payment
Fees. All fees, billing cycles, and payment schedules are stated in the Order.
Invoicing. Invoices are generally payable within thirty (30) days of receipt unless stated otherwise in the Order.
Dispute. If Customer disputes an invoice in good faith, Customer must notify Magma before the due date, detailing the dispute. Customer shall promptly pay any undisputed portion.
Late Payment. Magma may charge late payment interest of up to 1.5% per month (or the maximum allowed by law) on undisputed amounts.
Taxes. Fees are exclusive of Taxes. Customer is responsible for all Taxes (excluding taxes on Magma’s net income). If Customer is tax-exempt, it must provide valid exemption documentation.
9.3. Reseller Purchases
If Customer purchases Services through an authorized Reseller:
Customer pays the Reseller, not Magma; any refunds owed under this MCA will be remitted by Magma to Reseller, which is then responsible for paying Customer.
Reseller has no authority to modify this MCA or create binding obligations on Magma’s behalf.
For liability limits, the relevant calculations are based on amounts Reseller pays to Magma for Customer’s subscription.
10. WARRANTIES AND DISCLAIMERS
10.1. Limited Warranty
Magma warrants:
Performance Warranty. The SaaS Service shall materially conform to the Documentation during the Subscription Term, and Magma shall not materially reduce its overall functionality.
Technical Services Warranty. Any Technical Services shall be provided in a professional and workmanlike manner.
10.2. Warranty Remedy
If the SaaS Service or Technical Services fail to meet the above warranties and Customer provides a detailed written notice within thirty (30) days of discovery:
Magma will use commercially reasonable efforts to cure the non-conformity.
If Magma cannot remedy the issue within sixty (60) days, Customer may terminate the affected Order, and Magma shall refund any pre-paid, unused fees for that portion of the Subscription Term.
These remedies are Customer’s exclusive remedies for breach of the warranties in Section 10.1. The warranties do not apply to unauthorized modifications, misuse, or Third-Party Platforms, or to Trials and Betas as outlined in Section 16.
10.3. Disclaimers
Except as expressly stated herein, the Services are provided “AS IS.” Magma and its suppliers disclaim all other warranties, express or implied, including implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Magma does not warrant that the Services will be uninterrupted or error-free or that the Services will meet Customer’s requirements.
11. TERM AND TERMINATION
11.1. Term
This MCA is effective on the Effective Date and remains in effect until all Orders have expired or terminated, unless this MCA is earlier terminated under Section 11.2.
11.2. Termination
Either party may terminate this MCA (including all Orders) if:
(a) The other party fails to cure a material breach within thirty (30) days of written notice,
(b) The other party ceases operation without a successor, or
(c) The other party enters bankruptcy or a similar proceeding that is not dismissed within sixty (60) days.
11.3. Effect of Termination
Upon expiration or termination of this MCA or an Order:
Customer’s rights to use the Services under that Order terminate (subject to the Data Export Period).
Each party shall delete (or return, if requested) the other party’s Confidential Information in its possession, except for archival backups or as required by law. Magma shall handle Customer Content as described in its retention policies after the Data Export Period.
The surviving provisions of this MCA remain in effect per Section 11.4.
11.4. Survival
The following sections (and any definitions needed to interpret them) survive termination or expiration: 2.7, 4.4, 5, 9.2 (for outstanding obligations), 10.3, 11.3, 11.4, 12, 13, 14, 15, 17, and 18.
12. OWNERSHIP
12.1. Customer
Customer retains all rights in Customer Content and Customer Materials (subject to Magma’s license in Section 4.1).
12.2. Magma
Magma retains all rights in and to the Services, Documentation, methodologies, and associated intellectual property (including any enhancements, derivative works, or know-how).
12.3. Usage Data & Feedback
Usage Data. Magma may collect and use de-identified usage or telemetry data to operate, analyze, and improve the Services, provided it does not incorporate Customer Content in a non-anonymized manner.
Feedback. If Customer provides suggestions or feedback, Magma may freely use and incorporate it without obligation.
13. LIMITATIONS OF LIABILITY
13.1. Exclusions
To the extent permitted by law and subject to Section 13.3, neither party is liable for any:
Indirect, incidental, special, or consequential damages.
Loss of revenue, profits, goodwill, or data.
13.2. Liability Cap
Except for the uncapped claims in Section 13.3, each party’s total liability arising out of or relating to this MCA shall not exceed, in the aggregate, the amount paid or payable by Customer to Magma under the relevant Order in the twelve (12) months preceding the event giving rise to liability.
13.3. Uncapped Claims
Nothing in this Section 13 limits or excludes liability for:
(a) Breach of Section 2.7 or a party’s intellectual property rights.
(b) Indemnification obligations under Section 14.
(c) Willful misconduct.
(d) Death or personal injury caused by negligence.
(e) Any liability that cannot be excluded under law.
13.4. Failure of Essential Purpose
These limitations and exclusions apply regardless of the form of action (contract, tort, negligence, strict liability) and even if any limited remedy fails of its essential purpose.
14. INDEMNIFICATION
14.1. By Magma
Magma will defend and indemnify Customer against any third-party claim alleging that Customer’s authorized use of the SaaS Service infringes or misappropriates such third party’s intellectual property rights. Magma will pay damages or costs finally awarded (or agreed to in settlement) arising from such claim.
14.2. By Customer
Customer will defend and indemnify Magma against any third-party claim arising from (a) Customer Content (including alleged infringement of intellectual property rights), (b) Customer’s breach of Section 2.7 or Section 5, or (c) alleged violation of law by Customer in its use of the Services.
14.3. Conditions
The indemnifying party’s obligations are subject to the indemnified party:
Promptly notifying the indemnifying party of any claim (delay only reducing obligation if prejudicial).
Giving sole control of the defense and settlement to the indemnifying party.
Providing reasonable assistance at the indemnifying party’s expense.
14.4. Mitigation and Exceptions
To mitigate potential infringement claims, Magma may:
(a) Procure continued use of the SaaS Service,
(b) Modify or replace the Service to avoid infringement, or
(c) Terminate the affected Order and refund pre-paid, unused fees.
Magma’s indemnification does not apply to claims arising from modifications, misuse, unauthorized combination with third-party products, or Trials and Betas.
15. CONFIDENTIALITY
15.1. Definition
“Confidential Information” means any non-public information disclosed by one party (“Disclosing Party”) to the other (“Receiving Party”) that is designated as confidential or by its nature should be understood to be confidential. Customer Content is deemed Customer’s Confidential Information. The MCA and all Magma technical or performance information are Magma’s Confidential Information.
15.2. Obligations
The Receiving Party agrees to: (a) use the Disclosing Party’s Confidential Information solely to exercise rights or perform obligations under this MCA, and (b) not disclose Confidential Information to third parties except employees, Affiliates, and contractors who have a “need to know” and are bound by obligations of confidentiality no less strict than these.
15.3. Exclusions
Confidential Information does not include information that:
Becomes public through no fault of the Receiving Party,
Was lawfully known to the Receiving Party prior to disclosure,
Is independently developed without reference to the Confidential Information, or
Is obtained from a third party not bound by confidentiality obligations.
15.4. Required Disclosure
A party may disclose Confidential Information if required by law or court order, provided it notifies the Disclosing Party (if legally permitted) so the Disclosing Party may seek a protective order.
15.5. Injunctive Relief
A breach of this section may cause irreparable harm for which monetary damages may not be adequate. Each party may seek equitable relief to prevent the unauthorized use or disclosure of Confidential Information.
16. TRIALS AND BETAS
Trials or beta versions are provided solely for internal evaluation. Magma may terminate or modify Trials and Betas at any time. They are provided “AS IS” and excluded from warranties, indemnities, or service commitments. Either party may end use of Trials and Betas at any time.
17. GENERAL TERMS
17.1. Assignment
Neither party may assign or transfer this MCA without the other party’s prior written consent, except in connection with a merger or sale of substantially all assets. Any unauthorized assignment is void.
17.2. Governing Law and Venue
Unless otherwise specified in the Order, this MCA is governed by Delaware law, without reference to its conflict-of-law rules. Any disputes will be resolved in the state or federal courts located in [e.g., Wilmington, Delaware], and the parties submit to such courts’ exclusive jurisdiction.
17.3. Attorneys’ Fees
The prevailing party in any legal action to enforce this MCA is entitled to recover its reasonable attorneys’ fees and costs.
17.4. Notices
Legal Notices must be in writing and delivered by personal service, courier, certified mail, or email (with proof of delivery).
Operational Communications (like routine updates) may be sent electronically (e.g., via email to admin contact or in-product notifications).
17.5. Entire Agreement
This MCA (including Orders, any referenced policies, and any DPA) constitutes the entire agreement between the parties and supersedes prior agreements on the subject matter. In case of conflict:
The Order prevails over the MCA,
The MCA prevails over any policy,
No other document (e.g., PO terms) modifies or supersedes this MCA unless agreed by both parties in writing.
17.6. Amendments
All amendments to this MCA or an Order must be in writing and signed by authorized representatives or agreed to through a documented electronic process provided by Magma.
17.7. Waivers and Severability
A party’s failure to enforce a right under this MCA does not waive that right. If any provision of this MCA is held invalid, the remainder stays effective.
17.8. Force Majeure
Neither party is liable for delays or failures caused by events beyond its reasonable control (e.g., natural disasters, strikes, internet outages), except for payment obligations.
17.9. Subcontractors
Magma may use subcontractors (e.g., cloud hosting providers) to fulfill its obligations but remains responsible for their performance.
17.10. Independent Contractors
The parties are independent contractors. Nothing in this MCA forms a partnership, joint venture, agency, or franchise relationship.
17.11. Export Control
Each party shall comply with applicable export laws regarding the transfer of technical data. Customer represents it is not on any restricted entity list.
17.12. Open Source Software
The Services may incorporate open source software (“OSS”). Where OSS is distributed under a separate license, that license controls to the extent required by law.
17.13. Insurance
Magma will maintain industry standard insurance (e.g., commercial general liability, errors & omissions, cyber coverage) to support its obligations under this MCA.
17.14. U.S. Government End Users
The SaaS Service is commercial computer software. If used by U.S. Government agencies, usage is subject to the terms of this MCA under FAR 12.212 or DFARS 227.7202.
17.15. Publicity Rights
Unless otherwise specified in an Order, Customer grants Magma the right to include Customer’s name, logo, and (if provided) testimonials in Magma’s promotional materials (e.g., web pages, presentations, and customer listings). If Customer wishes to opt out of these publicity rights at any time, Customer must notify Magma at sales@magma.com, and Magma will remove such references within a commercially reasonable period (e.g., 15 days).
18. DEFINITIONS
“Affiliate” means any entity that controls, is controlled by, or is under common control with a party, where control means ownership of more than 50% of voting shares.
"Drawing", “Board” or “Artspace” means a shared online workspace for collaboration within the SaaS Service.
“Confidential Information” means any non-public information disclosed by one party to the other that is marked or should reasonably be understood as confidential.
“Customer Content” means data or material that Customer (or its Users) uploads or creates in the SaaS Service.
“Customer Materials” means materials or resources provided by Customer for Technical Services.
“DPA” means any Data Processing Addendum executed by the parties for handling personal data.
“Documentation” means Magma’s user manuals, guides, or technical specifications for the SaaS Service.
“Order” means a mutually agreed order form or statement of work that incorporates this MCA by reference.
“Prohibited Data” means personal data requiring heightened protection (e.g., under HIPAA, PCI DSS) that Magma does not explicitly support.
“Reseller” means an authorized third party allowed to resell Magma’s Services.
“SaaS Service” means Magma’s hosted software platform made available to Customer under an Order.
“Services” includes the SaaS Service, Technical Services, and all related offerings Magma provides under an Order.
“Subscription Term” means the period during which Customer is authorized to use the SaaS Service under an Order.
“Technical Services” means professional services (e.g., training, implementation) provided by Magma, as specified in an Order.
“Third-Party Platform” means any non-Magma service or application that integrates with the SaaS Service.
“Trials and Betas” means any free, trial, alpha, or beta features or services offered for evaluation.
“Usage Data” means aggregated or analytical information regarding use of the SaaS Service (excluding direct Customer Content).
ACCEPTANCE
By signing an Order Form referencing this MCA or by otherwise accessing or using Magma’s Enterprise Plan Services, Customer agrees to be bound by this Master Cloud Agreement.
