Contracts
Hapara TOS
Version 1.2
Effective June 3rd 2024
DownloadTable of Contents
HĀPARA
TERMS OF SERVICE
These Terms of Service (“Terms”) constitute a legal agreement between the person or organization agreeing to these Terms (“Customer” or “you”) and Hapara, a business unit of Cordance Operations LLC (the “Company,” “us” or we”). By signing an Order, accepting these Terms, or using the Services, you represent that you have the authority to bind the Customer to the Order, these Terms, and any applicable schedules, exhibits, or appendices incorporated or referenced herein.
1. DEFINITIONS
1.1. “Affiliate” of a party means an entity which, directly or indirectly is controlled by, controls or is under common control with that party where “control” of the party or other entity is the possession of the power to direct or cause the direction of the management and policies of the party or other entity, whether by voting, contract or otherwise.
1.2. “Agreement” means the Order, these terms and conditions including all referenced schedules, exhibits, or appendices hereto, and any mutually executed agreements incorporated herein by reference. No provisions of either party’s pre-printed purchase orders, acknowledgements, or click-through terms may modify this Agreement, and such other or additional terms or conditions are void and of no effect.
1.3. “Customer Content” means content, data, and information, including text, graphics, videos, or other material, submitted, uploaded, imported, or otherwise provided to or through the Services by Customer or by a third party on behalf of or for the benefit of Customer, including, but not limited to Customer’s customers, prospective customers, students and other Users of the Services including teachers and students, and expressly excludes Personal Data.
1.4. “Documentation” means Company’s then-current generally available documentation, specifications, and user manuals for the Services which are available upon login to the Services, as well as any documentation included in or attached to this Agreement, or such other Services-related documents provided by Company to Customer.
1.5. “Order” has the meaning assigned in Section 3.1.
1.6. “Overages” means any additional seats using the Services above the number for which you pay, which we may invoice you for, and you will pay.
1.7. “Personal Data” means any information relating to an identified or identifiable natural person where an identifiable natural person is one who can be identified, directly or indirectly by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
1.8. “Reseller” means an agent authorized by us to offer and resell Services to Customer.
1.9. “Service Configuration Data” means any configuration data, files, text, and any other information that is required to configure and operate the Services, excluding Student Data.
1.10. “Student” means a student enrolled by the Customer and designated by the Customer to be included in the Services.
1.11. “Student Data” means the Student content and related metadata, and Student personally identifiable information.
1.12. “Subscriber Domain Names” mean the Cloud Apps for Education domain names owned or controlled by Subscriber, which will be used in connection with the Services and specified in the Order Page.
1.13. “User” means an individual employee, consultant, contractor, student, agent of Customer who has been authorized by Customer to use the Services on behalf of Customer and/or its Affiliates.
2. ACCESS AND USE OF THE SERVICES.
2.1. Our Provision of the Services. We will make our software-as-a-service offerings available to you pursuant to the terms of the Agreement, and the Documentation (the “Services”). We will use commercially reasonable efforts to make the Services available 24x7. You acknowledge that your use of the Services requires third-party hardware, software, internet and/or telecommunications access (which may involve extra charges) which are solely your responsibility, and that your ability to access and use the Services may be affected by your choices and the performance of these products and services.
2.2. Changes to Services. We reserve the right to enhance, upgrade, improve, modify or discontinue features of our Services as we deem appropriate and in our discretion. We will not materially reduce the core functionality or discontinue any Services unless we provide you with prior written notice. We may offer additional functionality to our standard Services or premium feature improvements for an additional cost. You agree to use commercially reasonable efforts to utilize our most current version/release of the Software.
2.3. Your Registration for the Services. Your Users may be required to provide information about themselves in order to register for and/or use certain Services. You agree that any such information will be accurate. Your Users may also be asked to choose a username and password. You are entirely responsible for maintaining the security of those usernames and passwords and agree not to permit the disclosure of such to any third party.
2.4. Your Use of the Services. We grant you a limited right to use our Services and Documentation only for business (as an education institution) and professional purposes. Your Affiliates, third party agents, contractors, service providers or customers may use the Services or Documentation as Users under your account, provided that you will take full responsibility for such Users’ compliance with this Agreement.
2.5. Limitations on Your Use. By using our Services, you agree on behalf of yourself, your Affiliates and Users, not to (i) modify, prepare derivative works of, or reverse engineer, our Services; (ii) access or use the Services or Documentation for any competitive purpose; (iii) use our Services in a way that abuses or disrupts our networks, user accounts, or the Services; (iv) transmit through the Services any harassing, indecent, obscene, or unlawful material; (v) market, or resell the Services to any third party; (vi) use the Services in violation of applicable laws, or regulations; (vii) use the Services to send unauthorized advertising, or spam; (viii) harvest, collect, or gather user data without their consent; (ix) transmit through the Services any material that may infringe the intellectual property, privacy, or other rights of third parties; or (x) use the Services to commit fraud or impersonate any person or entity.
2.6. Responsibility for Users. You are responsible for the activities of all Users who access or use the Services through your account, and you agree to ensure that any such Users will comply with the terms of this Agreement and applicable law. If you become aware of any violation of this Agreement or applicable law in connection with use of the Services by any person, please contact us.
2.7. High-Risk Use. You understand that the Services are not designed or intended for use during high-risk activities which include, but are not limited to, use in hazardous environments and/or life support systems.
2.8. Professional Services. We will, upon execution of a mutually agreed Statement of Work (“SOW”) provide professional services as mutually agreed by the parties.
3. ORDERS, FEES AND PAYMENT.
3.1. Orders. You may order Services using our or our Reseller’s then-current ordering processes (“Order”). All Orders are effective on the earlier of (i) the date you submit your Order, or (ii) the date on the signature block of the Order (“Effective Date”). Acceptance of your Order may be subject to our verification and credit approval process. Each Order will be treated as a separate and independent Order.
3.2. Fees and Payment. You agree to pay all applicable, undisputed fees for the Services on the terms set forth in the Order, this Agreement, or your invoice from us or Reseller. Unless otherwise specified in the Order or Invoice, you agree to pay all undisputed fees set forth in an invoice within 30 days of the date thereof. Except as set forth in Sections 4.3 and 8 below, any payments you make to us for access to the Services are final and non-refundable. You are responsible for all fees and charges imposed by third parties such as hardware, software, internet, voice and/or data transmission providers related to your access and use of the Services. You are responsible for providing accurate and current billing, contact and payment information to us. You agree that we may charge your payment card or bill you for all amounts due for your use of the Services and take steps to update your payment card information (where permitted) to ensure payment can be processed. You agree that your credit card information and related personal data may be provided to third parties for payment processing and fraud prevention purposes. We may suspend or terminate your Services if at any time we determine that your payment information is inaccurate or not current, and you are responsible for fees and overdraft charges that we may incur when we charge your card for payment. We reserve the right to update the price for Services annually. We will give you notice of any price increase at least 30 days in advance of such increase.
3.3. Taxes and Withholdings. You are responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs, or any other similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Services, except those based on our or our Reseller’s net income, or for which you have provided an exemption certificate. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
3.4. Disputes; Delinquent Accounts. You must notify us or Reseller of any fee dispute within 15 days of the invoice date, and once resolved, you agree to pay those fees within 15 days. We may, on 10 days’ notice to you, suspend your Services if you do not pay undisputed fees by their due date, and you agree to reimburse us for all reasonable costs and expenses, including overdraft charges, collection costs and attorneys’ fees, incurred in collecting delinquent amounts. You further agree that we may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
4. TERM AND TERMINATION.
4.1. Term. The initial term commitment for your purchase of Services will be as specified in the Order (“Initial Term”) and begins on the Effective Date. If the Order is silent, the Initial Term will be 12 months from the Effective Date. After the Initial Term, the Services will automatically renew for additional 12-month periods (“Renewal Terms”), unless either party provides notice of non-renewal at least 30 days before the current term expires unless prohibited by applicable law. Terminating specific Services does not affect the term of any other Services still in effect.
4.2. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice, or (ii) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.
4.3. Effect of Termination. If the Agreement or any Services are terminated, you will immediately discontinue all use of the terminated Services, except that we will provide you with limited access to the Services for a period of at least 30 days solely to enable you to retrieve your Customer Content from the Services. Upon your request made before the end of such 30-day period, we will securely destroy your Customer Content. We have no obligation to maintain your Customer Content after such 30-day period. Termination will not affect any claim arising prior to the termination date. If we discontinue Services or materially reduce the core functionality in accordance with Section 2.2 above, and you elect to terminate the affected Services or this Agreement, we will provide you with a pro rata refund of any prepaid, unused fees. Notwithstanding anything to the contrary herein, the terms of this Agreement will continue to apply to any Services that are still in effect.
4.4. Survival. The provisions of Sections 3 (Orders, Fees and Payment), 4.3 (Effect of Termination), 5 (Proprietary Rights), 9 (Indemnification), 10 (Limitation on Liability), 13.2 (Arbitration), and 13.5 (Notices) survive any termination of the Agreement.
5. PROPRIETARY RIGHTS.
5.1. Our Proprietary Rights and Marks. You acknowledge that we and, as applicable, our licensors retain all proprietary right, title and interest in the Services, all Documentation our name, logo, or other marks (together, the “Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Except for the express limited rights set forth in this Agreement, no right, title or interest in our Services, Documentation, or Marks is granted to you. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part our Marks or is similar to any of these.
5.2. Customer Content. You retain all rights to your Customer Content and are solely responsible for the Customer Content sent or transmitted by you or displayed or uploaded by you in using the Services and for compliance with all laws pertaining to the Customer Content, including, but not limited to, laws requiring you to obtain the consent of a third party to use the Customer Content and to provide appropriate notices of third-party rights. You hereby grant us a worldwide, royalty-free, non-exclusive license to use, modify, reproduce, and distribute your Customer Content in order to provide and operate the Services, and to access your cloud education domain as necessary for us to provide the Services. We will not view, access, or process any of your Customer Content, except: (x) as authorized or instructed by you or your users in this Agreement or in any other agreement between the parties, or (y) as required to comply with our policies, applicable law, or governmental request.
5.3. Feedback. You agree that we will have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback (specifically excluding Personal Data) we receive from you, your Affiliates and Users (“Feedback”). We also reserve the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by your Feedback.
5.5. Publicity. Customer agrees that Company may use Customer’s name and refer to Customer directly or indirectly as Customer or user of the Software in any media release, public announcement, or public disclosure relating to this Agreement or its subject matter, including in any promotional or marketing materials and its website, lists and business presentations.
6. DATA PRIVACY AND SECURITY.
6.1. Security Safeguards. Each party will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Customer Content and any associated personal data that is collected and/or processed through the Services. On our part, those safeguards will include commercially reasonable measures designed to prevent unauthorized access, use, modification, deletion, and disclosure of Customer Content. Customer (not us) bears sole responsibility for adequate security, protection, and backup of Customer Content when in Customer’s or its representatives’ or agents’ possession or control.
6.2. Sub-processors. You acknowledge and agree that we may use Sub-processors to help provide the Service, who may access your Customer Content and any associated personal data, to provide, secure and improve the Services. Before sharing Customer Content with any of our Sub-processors, we will mandate that the third party maintains, at a minimum, commercially reasonable data practices for maintaining (in compliance with applicable law) the confidentiality and security of your Customer Content and preventing unauthorized access. We will be responsible for the acts and omissions of such Sub-processors to the same extent that we would be responsible if we were performing the Services.
6.3. Data Protection Laws. To the extent that our provision of the Services involves the processing of Personal Data under applicable data protection law, the parties agree that you will be deemed to be the Data Controller, and we will be deemed to be the Data Processor, as those terms are understood under the applicable data protection law. For the purposes of this Agreement, the term.
7. CONFIDENTIALITY.
7.1. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Customer Content will be deemed Confidential Information of Customer without any marking or further designation. Company’s Services, Documentation, and any related intellectual property rights, and the terms and conditions of this Agreement will be deemed Confidential Information of Company without any marking or further designation. Confidential Information will not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
7.2. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
8. WARRANTIES.
8.1. We provide our Services using a commercially reasonable level of care and warrant that the Services will materially conform to the Documentation under normal use. WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) OUR SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS. Our entire liability and your exclusive remedy under this warranty will be, at our sole option and subject to applicable law, to provide conforming Services, or to terminate the non-conforming Services and provide a pro-rated refund of any prepaid fees from the date you notify us of the non-conformance through the end of the remaining term. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE.
8.2. Use of the Services may be available through a compatible mobile device, internet access, and may require software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees, as well as the terms of your agreement with your mobile device and telecommunications provider. WE MAKE NO WARRANTIES OR REPRESENTATION OF ANY KIND, EXPRESS, STATUORY OR IMPLED AS TO (I) THE AVAILABILITY OF INTERNET OR TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION, (II) ANY LOSS, DAMAGE OR OTHER SECURITY INTRUSION OF THE INTERNET OR TELECOMMUNICATION SERVICES, AND (III) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTING CONNECTED WITH THE SERVICES.
9. INDEMNIFICATION.
9.1. Our Indemnity. We will indemnify and defend you against any third-party claim alleging that any of the Services infringes upon any patent or copyright, or violates a trade secret of any such third-party (“IP Claim”), and we agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. You will promptly notify us of any claim and cooperate with us in defending the claim. We will reimburse you for reasonable expenses incurred in providing any cooperation or assistance. We will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring you to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) you may join in the defense with your own counsel at your own expense.
9.1.1. If (i) Company becomes aware of an actual or potential IP Claim, or (ii) Customer provides Company with notice of an actual or potential IP Claim, Company may (or in the case of an injunction against Customer, will), at Company’s sole option and determination: (a) procure for Customer the right to continue to use the Services; or (b) replace or modify the Services with equivalent or better functionality so that Client’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Services and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Company.
9.1.2. The obligations in Sections 9.1 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Services with other products, software or services not provided by Company; (ii) any IP Claim related to any Customer Content, or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
9.2. Your Indemnity. Unless prohibited by applicable law, you will indemnify and defend us against any third-party claim resulting from a breach of Sections 2.5 or 5.2 or alleging that any of your Customer Content infringes upon any patent or copyright, or violates a trade secret of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. We will promptly notify you of any claim and cooperate with you in defending the claim. You will reimburse us for reasonable expenses incurred in providing any cooperation or assistance. You will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring us to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) we may join in the defense with our own counsel at our own expense.
10. LIMITATION ON LIABILITY.
10.1. LIMITATION ON INDIRECT LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY DAMAGES OR DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, OR (iv) CUSTOMER’S LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
10.2. LIMITATION ON AMOUNT OF LIABILITY. EXCEPT FOR A PARTY’S BREACH OF SECTIONS 2.5, 5.1, 5.2, 7 (EXCLUDING CLAIMS RELATED TO CUSTOMER CONTENT), and 10.3, A PARTY’S INDEMNIFICATION OBLIGATION UNDER SECTION 9, OR A PARTY’S GROSS NEGLIGENCE, WILLFUL MIDCONDUCT OR FRAUD, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT IS LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY (“GENERAL LIABILITY CAP”). THE FOREGOING DOES NOT LIMIT YOUR OBLIGATIONS TO PAY ANY UNDISPUTED FEES AND OTHER AMOUNTS DUE UNDER THIS AGREEMENT.
10.3. SUPERCAP FOR DATA PROTECTION CLAIMS. IN THE CASE OF “DATA PROTECTION CLAIMS,” EACH PARTY’S AND ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED TWO TIMES (2X) THE “GENERAL LIABILITY CAP”. FOR THE PURPOSES OF THIS AGREEMENT, “DATA PROTECTION CLAIMS” MEANS ANY CLAIMS ARISING FROM A PARTY’S BREACH OF SECTION 6 (YOUR PRIVACY AND SECURITY), SECTION 7 (CONFIDENTIALITY IN RELATION TO CUSTOMER CONTENT), OR BREACH OF APPLICABLE DATA PROTECTION LAWS WHICH RESULTS IN THE UNAUTHORIZED ACCESS TO OR USE OF ANY CUSTOMER CONTENT.
10.4. IN NO EVENT WILL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE DATA PROTECTION CLAIMS CAP.
11. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, data protection and anti-bribery laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Further, Customer will not permit its users to access or use any Service or Content Product in a U.S. embargoed country or in violation of any U.S. export law or regulation. If necessary and in accordance with applicable law, we will cooperate with local, state, federal and international government authorities with respect to the Services. Notwithstanding any other provision in these Terms, we may immediately terminate the Agreement for noncompliance with applicable laws.
12. SUSPENSION OF SERVICES. We reserve the right to suspend the Services or restrict access or functionalities if (a) we reasonably believe that you, your Affiliates or Users have materially violated this Agreement, or (b) we reasonably determine that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities. Unless legally prohibited, we will use commercially reasonable efforts to notify you when taking any of the foregoing actions. We will not be liable to you, your Affiliates or Users or any other third party for any such suspension of Services or reduced functionality. Any suspected fraudulent, abusive, or illegal activity by you, your Affiliates or Users may be referred to law enforcement authorities at our sole discretion.
13. ADDITIONAL TERMS.
13.1. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it will provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within 30 days after such notice, knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation, or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section will not apply to claims subject to indemnification under Section 9 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
13.2. Limitation on Bringing Claims/No Jury. By entering into this Agreement, each party is waiving the right to a jury. Any claim arising out of this Agreement must be brought, if at all, within two years of the claim arising. You may only resolve disputes with us on an individual basis and you agree not to bring or participate in any class, consolidated, or representative action against us or any of our employees or affiliates.
13.3. Governing Law and Jurisdiction. These Terms will be governed by the laws of the State of Delaware. Each party agrees to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Delaware.
13.4. Assignment. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which will not be unreasonably withheld, except that either party may assign the Agreement to an affiliated entity, or as part of a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of its business or assets to which this Agreement relates without prior written consent. Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.
13.5. Notices. Notices must be sent by personal delivery, overnight courier, or registered or certified mail. We may also provide notice to the email last designated on your account, electronically via postings on our website, in-product notices, or via our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at 16 W. Martin Street, Raleigh, NC 27601, Attn: President, Hapara BU; e-mail: legal@cordance.co, with a copy to the attention of the Revenue department at the same address; e-mail: revenue@cordance.co, and we will send notices to the address last designated on your account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting.
13.6. Entire Agreement; Order of Precedence. This Agreement, including the Order(s) and any applicable schedules, exhibits, and appendices, and any mutually signed DPA and/or an SOW set forth the entire agreement between you and us relating to the Services and/or Professional Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between any of the above referenced documents, the conflict will be resolved in that order but only for the specific Services described in the applicable Order. No modification of amendment to this Agreement will be effective unless mutually agreed in writing.
13.7. Updates to Terms. Upon at least 30 days’ notice, we may update this Agreement from time to time, which will be identified by the last updated date. Your continued access to and use of the Services constitutes your acceptance of the then-current Terms. In the event of a material change of terms, you may terminate the Agreement by giving us written notice within 30 days of our notice of the change of terms and we will refund to you any pre-paid fees that are applicable to the period after such termination.
13.8. General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third-party beneficiary or have the right to modify the Agreement or to make commitments binding on us. Failure to enforce any right under the Agreement will not waive that right. The Agreement may be agreed to online or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g., natural disasters; terrorist activities, activities of third-party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.
Last Updated 2024-06-03
Ithos TOS
Version 2.2
Effective June 4th 2024
DownloadTable of Contents
ITHOS GLOBAL
TERMS OF SERVICES
These Terms of Service (“Terms”) constitute a legal agreement between the person or organization agreeing to these Terms (“Customer” or “you”) and Ithos Global, a business unit of Cordance Operations LLC, Delaware limited liability company (the “Company,” “us” or “we”). By signing an Order, accepting these Terms, or using the Services, you represent that you have the authority to bind the Customer to the Order, these Terms, and any applicable schedules, exhibits, or appendices incorporated or referenced herein.
1. DEFINITIONS
1.1. “Affiliate” of a party means an entity which, directly or indirectly is controlled by, controls or is under common control with that party where “control” of the party or other entity is the possession of the power to direct or cause the direction of the management and policies of the party or other entity, whether by voting, contract or otherwise.
1.2. “Agreement” means these terms and conditions including all referenced Exhibits or Annexes hereto, and Orders as mutually executed by the parties, and any amendments to the foregoing executed by authorized representatives of the parties. In the event of a conflict between other provisions of this Agreement and an Order, the provisions of the Order will govern and control, but only with respect to the Services provided under that Order. No provisions of either party’s pre-printed purchase orders, acknowledgements, or click-through terms may modify this Agreement, and such other or additional terms or conditions are void and of no effect.
1.3. “Content Products” means all defined data products (such as Ithos Data Systems and the Compliance Engine, and any other data products) as detailed in Schedule A or otherwise on the Ithos Global website. The definition of Content Products also includes updates to the Content Products and all data and documents stored therein.
1.4. “Customer Content” means content, data, and information, including text, graphics, videos, or other material, submitted, uploaded, imported, or otherwise provided to or through the Services by Customer or by a third-party on behalf of or for the benefit of Customer, including Customer’s customers, prospective customers and users of the Services.
1.5. “Documentation” means Company’s then-current generally available documentation, specifications, and user manuals for the Services which can be located at https://ithosglobal.com/documentation/or such other URL as Company may provide from time to time, as well as any documentation included in or attached to any Order Form or such other Services-related documents provided by Company to Customer.
1.6. "Overages" means when any use limit is exceeded during the subscription term of an Order Form.
1.7. “User means an individual employee, consultant, contractor, or agent of Customer who has been authorized by Customer to use the Services on behalf of Customer and/or its Affiliates.
2. ACCESS AND USE OF THE SERVICES.
2.1. Our Provision of the Services. We will make our software-as-a-service offerings and Content Products as described in Schedule A (the “Services”) available to you pursuant to the terms of the Agreement and the Documentation. We will use commercially reasonable efforts to make the Services available 24x7. You acknowledge that your use of the Services requires third-party hardware, software, internet and/or telecommunications access (which may involve extra charges), and that your ability to access and use the Services may be affected by your choices and the performance of these products and services.
2.2. Changes to Services. We reserve the right to enhance, upgrade, improve, modify or discontinue features of our Services as we deem appropriate and in our discretion. We will not materially reduce the core functionality or discontinue any Services unless we provide you with prior written notice. We may offer additional functionality to our standard Services or premium feature improvements for an additional cost. You agree to use commercially reasonable efforts to utilize our most current version/release of the Services.
2.3. Your Registration for the Services. Your Users may be required to provide information about themselves to register for and/or use certain Services. You agree that any such information will be accurate. Your Users may also be asked to choose a username and password. You are entirely responsible for maintaining the security of your username and password and agree not to disclose such to any third party.
2.4. Your Use of the Services. You agree to use the Services in accordance with the use levels by which we measure, price and offer our Services as posted on our websites, your Order, or in the Documentation (“Use Levels”). We grant you a limited right to use our Services only for business and professional purposes. Your Affiliates, third party agents, contractors or service providers may use the Services as Users under your account, provided that you will take full responsibility for such third parties’ compliance with this Agreement. If you submit an Order on behalf of your Affiliate, you warrant that you have the authority to bind that Affiliate and you will be liable if your Affiliate does not comply with the Agreement. In addition, your Affiliates may submit their own Orders as mutually agreed with us, and this creates a separate agreement between the Affiliate and us that incorporates this Agreement and treats the Affiliate as the Customer.
2.5. Limitations on Your Use. By using our Services, you agree on behalf of yourself, your Affiliates and Users, not to (i) modify, prepare derivative works of, or reverse engineer, our Services; (ii) use our Services in a way that abuses or disrupts our networks, user accounts, or the Services; (iii) transmit through the Services any harassing, indecent, obscene, or unlawful material; (iv) market, or resell the Services to any third party; (v) use the Services in violation of applicable laws, or regulations; (vi) use the Services to send unauthorized advertising, or spam; (vii) harvest, collect, or gather user data without their consent; (viii) transmit through the Services any material that may infringe the intellectual property, privacy, or other rights of third parties; or (ix) use the Services to commit fraud or impersonate any person or entity.
2.6. Responsibility for Users. You are responsible for the activities of all Users who access or use the Services through your account and you agree to ensure that any such Users will comply with the terms of this Agreement. If you become aware of any violation of this Agreement in connection with use of the Services by any person, please contact us.
2.7. Professional Services. We will, upon execution of a mutually agreed Statement of Work (“SOW”) provide professional services as set forth in Exhibit A.
3. ORDERS, FEES AND PAYMENT.
3.1. Orders. Your order for Services is detailed in an executed Order, quote, Schedule A, statement of work or similar document (each, an “Order”). You may order Services using our then-current ordering processes. All Orders are effective on the earlier of (i) the date you submit your Order, or (ii) the date on the signature block of the Order (“Effective Date”). Acceptance of your Order may be subject to our verification and credit approval process. Each Order will be treated as a separate and independent Order.
3.2. Fees and Payment. You agree to pay all applicable, undisputed fees for the Services and Overages on the terms set forth in an Order Form, this Agreement, a SOW or your invoice. Unless otherwise specified in the Order or Invoice, you agree to pay all undisputed fees set forth in an invoice within 30 days of the date thereof. Except as set forth in Sections 4.3 and 8 below, any payments you make to us for access to the Services are final and non-refundable. You are responsible for all fees and charges imposed by third parties such as hardware, software, internet, voice and/or data transmission providers related to your access and use of the Services. You are responsible for providing accurate and current billing, contact and payment information to us. We may suspend or terminate your Services if at any time we determine that your payment information is inaccurate or not current. We reserve the right to update the price for Services annually after your Initial Term. We will give you notice of any price increase at least 30 days in advance of such increase.
3.3. Taxes and Withholdings. You are responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs, or any other similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Services, except those based on our net income, or for which you have provided an exemption certificate. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
3.4. Disputes; Delinquent Accounts. You must notify us of any fee dispute within 15 days of the invoice date, and once resolved, you agree to pay those fees within 15 days. We may, on 10 days’ notice to you, suspend your Services if you do not pay undisputed fees by their due date, and you agree to reimburse us for all reasonable costs and expenses, including overdraft charges, collection costs and attorneys’ fees, incurred in collecting delinquent amounts. You further agree that we may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
4. TERM AND TERMINATION.
4.1. Term. The initial term commitment for your purchase of Services will be as specified on an Order (“Initial Term”) and begins on the Effective Date. If the Order is silent, the Initial Term will be 36 months. After the Initial Term, the Services will automatically renew for additional 12-month periods (“Renewal Terms”), unless either party provides notice of non-renewal at least 30 days before the current term expires. We may agree to align the invoicing under multiple Orders, but this will not reduce the term of any Order. Terminating specific Services does not affect the term of any other Services still in effect.
4.2. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice, or (ii) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business. In addition, we may suspend access or terminate immediately if we believe the Services are being used by Customer or its Users in violation of applicable law or Sections 2.5 or 5.2 of this Agreement.
4.3. Effect of Termination. If the Agreement or any Services are terminated, you will immediately discontinue all use of the terminated Services, except that we will provide you with limited access to the Services for a period of at least 30 days solely to enable you to retrieve your Customer Content from the Services. Upon your request made before the end of such 30-day period, we will securely destroy your Customer Content. We have no obligation to maintain your Customer Content after such 30-day period. Termination will not affect any claim arising prior to the termination date. If we discontinue Services or materially reduce the core functionality in accordance with Section 2.2 above, and you elect to terminate the applicable Order, we will provide you with a pro rata refund of any prepaid, unused fees. Notwithstanding anything to the contrary herein, the terms of this Agreement will continue to apply to any Order that is still in effect.
4.4. Survival. The terms of this Agreement will survive the termination or expiration of this Agreement to the extent reasonably necessary to carry out the intent of the parties as indicated therein.
5. PROPRIETARY RIGHTS.
5.1. Our Proprietary Rights and Marks. You acknowledge that we or our licensors retain all proprietary right, title and interest in the Services, all Documentation, all Content Products, our name, logo or other marks (together, the “Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Except for the express limited rights set forth in this Agreement, no right, title or interest in our Services, Documentation, Content Products or Marks is granted to you. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part our Marks or is similar to any of these.
5.2. Your Customer Content. You retain all rights to your Customer Content and are solely responsible for the Customer Content sent or transmitted by you or displayed or uploaded by you in using the Services and for compliance with all laws pertaining to the Customer Content, including, but not limited to, laws requiring you to obtain the consent of a third party to use the Customer Content and to provide appropriate notices of third-party rights. You hereby grant us a worldwide, royalty-free, non-exclusive license to use, modify, reproduce, and distribute your Customer Content in order to provide and operate the Services to you. We will not view, access or process any of your Customer Content, except: (a) as authorized or instructed by you or your Users in this Agreement or in any other agreement between the parties, (b) as required to comply with our policies, applicable law, or governmental request, or (c) to provide our Services and Content Products to other customers to the extent that such Customer Content constitutes generic product or ingredient data that does not identify you and is not marked as confidential.
5.3. Feedback. You agree that we will have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you, our Affiliates and Users (“Feedback”). We also reserve the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by your Feedback.
5.5. Publicity. Customer agrees that Company may use Customer’s name and refer to Customer in its promotional or marketing materials and its website, lists and business presentations.
6. YOUR PRIVACY AND SECURITY.
6.1. Security Safeguards. Each party will maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of your Customer Content and any associated personal data that is collected and/or processed through the Services. On our part, those safeguards will include measures designed to prevent unauthorized access, use, modification, deletion and disclosure of Customer Content. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Content when in Customer’s or its representatives’ or agents’ possession or control.
6.2. Privacy Laws. To the extent that Customer Content contains “personal information” that is subject to the California Consumer Privacy Act of 2018, its implementing regulations, and any amendments thereto (collectively, the “CCPA”), or any other substantially similar privacy laws, Company agrees that it will comply with all such laws and process such personal information as a service provider (as defined under the CCPA) and will not (a) retain, use or disclose personal information for any purpose other than the purposes set out in this Agreement and/or as permitted by the CCPA; or (b) "sell" (as defined and understood within the requirements of the CCPA) personal information.
7. CONFIDENTIALITY.
7.1. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Customer Content will be deemed Confidential Information of Customer without any marking or further designation except as set forth in Section 5.2(c). All Company technology, Documentation, Content Products and the terms and conditions of this Agreement will be deemed Confidential Information of Company without any marking or further designation. Confidential Information will not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
7.2. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind but not less than reasonable care to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
8. WARRANTIES.
8.1. We provide our Services using a commercially reasonable level of care and warrant that the Services will materially conform to the Documentation under normal use. Our entire liability and your exclusive remedy under this warranty will be, at our sole option and subject to applicable law, to provide conforming Services, or to terminate the non-conforming Services and provide a pro-rated refund of any prepaid fees from the date you notify us of the non-conformance through the end of the remaining term. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) OUR SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS.
8.2. THE DATA PROVIDED THROUGH THE CONTENT PRODUCTS HAS BEEN OBTAINED FROM SELECTED GOVERNMENT SOURCES, THIRD PARTY VENDORS AND OTHER RESOURCES THAT WE BELIEVE TO BE DEPENDABLE, AND WE HAVE OTHERWISE USED COMMERCIALLY REASONABLE EFFORTS TO PROVIDE FOR THE ACCURACY AND COMPLETENESS OF SUCH DATA AS OF THE DATE OF DELIVERY. HOWEVER, THE NATURE AND VOLUME OF SUCH DATA ARE SUCH THAT (I) OCCASIONAL ERRORS OF FACT, OMISSION AND JUDGMENT CANNOT BE COMPLETELY EXCLUDED AND (II) THE ACCURACY AND COMPLETENESS OF SUCH DATA AFTER THE DATE OF DELIVERY CANNOT BE ASSURED. LICENSEE ACKNOWLEDGES AND AGREES THAT ALL USE OF SUCH DATA IS “AS IS” AND “WITH ALL FAULTS.”
8.3. Use of the Services may be available through a compatible mobile device, internet access, and may require third party software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees, as well as the terms of your agreement with your mobile device and telecommunications provider. WE MAKE NO WARRANTIES OR REPRESENTATION OF ANY KIND, EXPRESS, STATUORY OR IMPLED AS TO (I) THE AVAILABILITY OF INTERNET OR TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION, (II) ANY LOSS, DAMAGE OR OTHER SECURITY INTRUSION OF THE INTERNET OR TELECOMMUNICATION SERVICES, AND (III) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTING CONNECTED WITH THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD IT LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PROVIDERS OF THE THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER.
9. INDEMNIFICATION.
9.1. Our Indemnity. We will indemnify and defend you against any third-party claim alleging that any of the Services infringes upon any patent or copyright, or violates a trade secret of any such third-party an (“IP Claim”), and we agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. You will promptly notify us of any claim and cooperate with us in defending the claim. We will reimburse you for reasonable expenses incurred in providing any cooperation or assistance. We will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring you to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) you may join in the defense with your own counsel at your own expense.
9.1.1. If (i) Company becomes aware of an actual or potential IP Claim, or (ii) Customer provides Company with notice of an actual or potential IP Claim, Company may (or in the case of an injunction against Customer, will), at Company’s sole option and determination: (a) procure for Customer the right to continue to use the Services; or (b) replace or modify the Services with equivalent or better functionality so that Client’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Services and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Company.
9.1.2. The obligations in Sections 8.1 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Services with other products, software or services not provided by Company; (ii) any IP Claim related to any Customer Data, or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
9.2. Your Indemnity. You will indemnify and defend us against any third-party claim resulting from a breach of Sections 2.5 or 5.2 or alleging that any of your Customer Content infringes upon any patent or copyright, or violates a trade secret of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. We will promptly notify you of any claim and cooperate with you in defending the claim. You will reimburse us for reasonable expenses incurred in providing any cooperation or assistance. You will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring us to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) we may join in the defense with our own counsel at our own expense.
10. LIMITATION ON LIABILITY.
10.1. EXCLUSION OF DAMAGES. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY DAMAGES, OR DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, OR (iv) CUSTOMER’S LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
10.2. LIMITATION ON AMOUNT OF LIABILITY. EXCEPT FOR A PARTY’S BREACH OF SECTIONS 2.5, 5.1, 5.2, 7 (EXCLUDING CLAIMS RELATED TO CUSTOMER CONTENT), A PARTY’S INDEMNIFICATION OBLIGATION UNDER SECTION 9, A PARTY’S LIABILITY UNDER SECTION 10.3, OR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT IS LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY (“GENERAL LIABILITY CAP”). The foregoing does not limit your obligations to pay any undisputed fees and other amounts due under any Order.
10.3. SUPERCAP FOR DATA PROTECTION CLAIMS. IN THE CASE OF “DATA PROTECTION CLAIMS,” EACH PARTY’S AND ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED TWO TIMES THE “GENERAL LIABILITY CAP”. FOR THE PURPOSES OF THIS AGREEMENT, “DATA PROTECTION CLAIMS” MEANS ANY CLAIMS ARISING FROM A PARTY’S BREACH OF SECTION 6.1 (SECURITY SAFEGUARS), SECTION 7 (CONFIDENTIALITY IN RELATION TO CUSTOMER CONTENT), OR BREACH OF APPLICABLE DATA PROTECTION LAWS WHICH RESULTS IN THE UNAUTHORIZED ACCESS TO OR USE OF ANY CUSTOMER CONTENT.
10.4. IN NO EVENT SHALL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE DATA PROTECTION CLAIMS CAP.
11. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, data protection and anti-bribery laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Further, Customer will not permit its Users to access or use any Service or Content Product in a U.S. embargoed country or in violation of any U.S. export law or regulation. If necessary and in accordance with applicable law, we will cooperate with local, state, federal and international government authorities with respect to the Services and Content Products. Notwithstanding any other provision in these Terms, we may immediately terminate the Agreement for noncompliance with applicable laws.
12. SUSPENSION OF SERVICES. We reserve the right to suspend the Services or restrict functionalities if (a) we reasonably believe that you, your Affiliates or Users have materially violated this Agreement, or (b) we reasonably determine that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities. Unless legally prohibited, we will use commercially reasonable efforts to notify you when taking any of the foregoing actions. We will not be liable to you, your Affiliates or Users or any other third party for any such suspension of Services or reduced functionality. Any suspected fraudulent, abusive, or illegal activity by you, your Affiliates or Users may be referred to law enforcement authorities at our sole discretion.
13. ADDITIONAL TERMS.
13.1. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it will provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within 30 days after such notice, knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section will not apply to claims subject to indemnification under Section 9 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
13.2. Arbitration. If the parties do not reach an agreed upon solution within a period of 30 days from the time of the commencement of the informal dispute resolution process described above, then either party may initiate binding arbitration by a single arbitrator before the American Arbitration Association using its Commercial Arbitration Rules as the sole means to resolve claims subject to the terms set forth below. YOU AGREE THAT ANY DISPUTE OR CLAIM RELATING TO THIS AGREEMENT WILL BE RESOLVED BY BINDING ARIBTRATION RATHER THAN IN COURT AND THAT YOU WILL ARBITRATE WITH US ONLY IN YOUR INDIVIDUAL OR CORPORATE CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. Any arbitration claim must be brought within one year of the claim arising. The arbitrator will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award will be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You understand and agree that unless you can demonstrate that arbitration in Delaware would create an undue burden for you, any arbitration hearing will be held in Delaware. You understand and agree that by entering into this Agreement, each party is waiving the right to a jury trial or a trial before a judge in a public court. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (meaning patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights) or Confidential Information. Furthermore, you have the right to opt out and not be bound by these arbitration provisions by sending written notice of your decision to opt out to the following address legal@cordance.co within 30 days of the date of this Agreement.
13.3. Governing Law and Jurisdiction. These Terms will be governed by the laws of the State of Delaware. For any dispute not subject to arbitration, each party agrees to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Delaware.
13.4. Assignment. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which will not be unreasonably withheld, except that either party may assign the Agreement to an affiliated entity, or as part of a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of its business or assets to which this Agreement relates. Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.
13.5. Notices. Notices must be sent by personal delivery, overnight courier, or registered or certified mail. We may also provide notice to the email last designated on your account, electronically via postings on our website, in-product notices, or via our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at 16 W Martin Street, Raleigh, NC 27601 attn: Contract Admin., with a copy to legal@cordance.co, and we will send notices to the address last designated on your account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting.
13.6. Entire Agreement; Order of Precedence. This Agreement, including the Order(s) and any applicable schedules, exhibits, and appendices, and any mutually signed SOW set forth the entire agreement between Customer and Company relating to the Services, Content Products, and or Professional Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between an executed Order, this Agreement, and the Documentation, in each case, as applicable, the conflict will be resolved in that order, but only for the specific Services described in the applicable Order. No modification of or amendment to this Agreement will be effective unless mutually agreed in writing.
13.7. Updates to Terms. We reserve the right to propose changes to this Agreement that are generally applicable to all customers at any time and will, if such changes are material, provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined in our sole discretion. By continuing to access or use our Services after any revisions become effective, you agree to be bound by the revised terms of the Agreement. If you do not agree to the new terms, you are no longer authorized to use the Services. In the event of a material change of terms, you may terminate the Agreement by giving us written notice within 30 days of our notice of the change of terms and we will refund to you any pre-paid fees that are applicable to the period after such termination.
13.8. General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third-party beneficiary or have the right to modify the Agreement or to make commitments binding on us. Failure to enforce any right under the Agreement will not waive that right. The Agreement may be agreed to online or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g., natural disasters; terrorist activities, activities of third party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.
Last updated 2024-06-04
EXHIBIT A
Provision of Professional Services. Company will provide those professional services (the “Professional Services”), as needed for special regulatory service assignments, described in a separate Statement of Work (“SOW”), in accordance with the following:
(a) Customer will appoint a project manager who will oversee Company’s performance of the Professional Services.
(b) Customer will supply to Company at no cost access to all relevant technical information, regulatory files and information, computer facilities and office space specified in such additional schedule as a responsibility of Customer.
(c) Customer will pay fees for Professional Services at the rates as provided in such SOW.
(d) Travel time to and from Customer locations will not be billed to Customer. All bills for Professional Services will be rendered monthly in arrears and are payable within thirty (30) days of Customer’s receipt thereof; provided, however, that Customer may withhold payment of any portion that it in good faith disputes if it notifies Company of such dispute by the date payment would otherwise be due.
(e) In addition to Professional Services fees and if specified in such additional schedule, Customer is responsible to reimburse for those reasonable out of pocket travel and living expenses as incurred by Company directly in its performance of the Professional Services only if approved by Customer in advance. All such travel and living expenses must conform to Customer’s travel and expense reimbursement policies, must be individually itemized on each invoice, and must be supported by reasonable documentation; otherwise, such expenses will not be reimbursed.
(f) Either party may terminate a SOW and the parties’ respective obligations thereunder if the other party is in material breach of its obligations under this Exhibit A, the SOW or this Agreement, and such party has not cured the breach within thirty (30) days of written notice from the non-breaching party specifying the breach.
(g) For any breach by Company of this Exhibit A or a SOW, Company will re-perform the Professional Services and if Company fails to re-perform the Professional Services as warranted and within a reasonable time period, Customer, as its sole remedy for the breach, will be entitled to recover the fees paid to Company for the Professional Services found to be unsatisfactory after re-performance or inability or failure to perform.
(h) Except as otherwise specified in a SOW, all deliverables specified in a SOW and all other work product or other materials resulting from Company’s performance of the Professional Services (the “Work Product”) will be the sole and exclusive property of Company.
Last Updated 2024-06-04
SPOL TOS
Version 2.4
Effective September 24th 2024
DownloadTable of Contents
SPOL
TERMS OF SERVICES
These Terms of Service (“Terms”) constitute a legal agreement between the person or organization agreeing to these Terms (“Customer” or “you”) and SPOL, a business unit of Cordance Operations LLC, Delaware limited liability company (the “Company,” “us” or “we”). By signing an Order, accepting these Terms, or using the Services, you represent that you have the authority to bind the Customer to the Order, these Terms, and any applicable schedules, exhibits, or appendices incorporated or referenced herein.
1. DEFINITIONS
1.1. “Agreement” means these terms and conditions including all referenced schedules, exhibits, or appendices hereto, and any mutually executed agreements incorporated herein by reference. No provisions of either party’s pre-printed purchase orders, acknowledgements, or click-through terms may modify this Agreement, and such other or additional terms or conditions are void and of no effect.
1.2. “Customer Content” means content, data, and information, including text, graphics, videos, or other material, submitted, uploaded, imported, or otherwise provided to or through the Services by Customer or by a third party on behalf of or for the benefit of Customer, including Customer’s customers, prospective customers, and users of the Services.
1.3. “Documentation” means Company’s then-current generally available documentation, specifications, and user manuals for the Services which are available upon login to the Services, as well as any documentation included in or attached to this Agreement, or such other Services-related documents provided by Company to Customer.
1.4. “User means an individual employee, consultant, contractor, student, or agent of Customer who has been authorized by Customer to use the Services on behalf of Customer and/or its Affiliates.
2. ACCESS AND USE OF THE SERVICES.
2.1. Our Provision of the Services. We will make our software-as-a-service offerings available to you pursuant to the terms of the Agreement, and the Documentation (the “Services”). We will use commercially reasonable efforts to make the Services available 24x7. You acknowledge that your use of the Services requires third-party hardware, software, internet and/or telecommunications access (which may involve extra charges), and that your ability to access and use the Services may be affected by your choices and the performance of these products and services.
2.2. Initial Set-Up. Upon execution of this Agreement, we will provide the following services:
2.2.1. provide set-up services and Administrator training in the use of the Services;
2.2.2. test the Services after they have been implemented by Customer to ensure that the Services are performing to the Company’s current generally available documentation, specifications, and user manuals for the Services.
2.2.3. For purposes of this Agreement, the term “Administrator” is defined as Customer’s primary contact person who coordinates and works with the Company to setup, support, and train the Customer’s system users on their use of the Service.
2.3. Changes to Services. We reserve the right to enhance, upgrade, improve, modify or discontinue features of our Services as we deem appropriate and in our discretion. We will not materially reduce the core functionality or discontinue any Services unless we provide you with prior written notice. We may offer additional functionality to our standard Services or premium feature improvements for an additional cost. You agree to use commercially reasonable efforts to utilize our most current version/release of the Software.
2.4. Your Registration for the Services. Your Users may be required to provide information about themselves to register for and/or use certain Services. You agree that any such information will be accurate. Your Users may also be asked to choose a username and password. You are entirely responsible for maintaining the security of those usernames and passwords and agree not to disclose such to any third party.
2.5. Your Use of the Services. We grant you a limited right to use our Services and Documentation only for business and professional purposes. Your third party agents, contractors or service providers may use the Services or Documentation as Users under your account, provided that you will take full responsibility for such third parties’ compliance with this Agreement.
2.6. Limitations on Your Use. By using our Services, you agree on behalf of yourself, and Users, not to (i) modify, prepare derivative works of, or reverse engineer, our Services; (ii) access or use the Services or Documentation for any competitive purpose; (iii) use our Services in a way that abuses or disrupts our networks, user accounts, or the Services; (iv) transmit through the Services any harassing, indecent, obscene, or unlawful material; (v) market, or resell the Services to any third party; (vi) use the Services in violation of applicable laws, or regulations; (vii) use the Services to send unauthorized advertising, or spam; (viii) harvest, collect, or gather user data without their consent; (ix) transmit through the Services any material that may infringe the intellectual property, privacy, or other rights of third parties; or (x) use the Services to commit fraud or impersonate any person or entity.
2.7. Responsibility for Users. You are responsible for the activities of all Users who access or use the Services through your account, and you agree to ensure that any such Users will comply with the terms of this Agreement. If you become aware of any violation of this Agreement in connection with use of the Services by any person, please contact us.
2.8. Training. At mutually agreeable dates and times, Company will provide virtual implementation and training of Customer’s administration team on a reasonable, as needed basis at no cost. Virtual implementation and training is limited to SPOL’s training curriculum covering basic module setup and functionality. Training does not include virtual or onsite customized training beyond SPOL’s training curriculum, onsite curriculum training, or end-user training. These additional services can be purchased via a mutually executed SOW.
2.9. Support Services. We will, at no additional charge, provide standard customer support for the Services as described on our customer portal or through email. Our standard support hours are 9:00am to 5:00pm, Eastern Time, Monday to Friday, excluding national holidays.
2.10. Professional Services. We will, upon execution of a mutually agreed Statement of Work (“SOW”) provide professional or consulting services, such as creation of custom reports, data importing services, advanced training services or pre-accreditation visit simulation as mutually agreed by the parties.
3. ORDERS, FEES AND PAYMENT.
3.1. Orders. Your order for Services is detailed in an executed Order, quote, statement of work (“SOW”) or similar document (each, an “Order”). All Orders (i) are effective on the earlier of the date you submit your Order and the date you begin using the Services (“Order Effective Date”); (ii) will be treated as separate and independent Orders; form part of the Agreement; and (iii) may be subject to our verification and credit approval process.
3.2. Fees and Payment. You agree to pay all applicable, undisputed fees for the Services on the terms set forth in the Order, this Agreement, a SOW, or your invoice. Unless otherwise specified in the Order or Invoice, you agree to pay all undisputed fees set forth in an invoice within 30 days of the date thereof. Except as set forth in Sections 4.3 and 8 below, any payments you make to us for access to the Services are final and non-refundable. You are responsible for all fees and charges imposed by third parties such as hardware, software, internet, voice and/or data transmission providers related to your access and use of the Services. You are responsible for providing accurate and current billing, contact and payment information to us. You agree that we may charge your payment card or bill you for all amounts due for your use of the Services, and we may take steps to update your payment card information (where permitted) to ensure payment can be processed. You agree that your credit card information and related personal data may be provided to third parties for payment processing and fraud prevention purposes. We may suspend or terminate your Services if at any time we determine that your payment information is inaccurate or not current, and you are responsible for fees and overdraft charges that we may incur when we charge your card for payment. We reserve the right to update the price for Services annually in an amount not to exceed CPI plus 5%. We will notify you of any price changes by publishing them on our website, emailing, quoting, or invoicing you. All references to currency will be in US dollars ($USD).
3.3. Taxes and Withholdings. You are responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs, or any other similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Services, except those Taxes and Fees based on our net income, or Taxes and Fees for which you have provided an exemption certificate. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
3.4. Disputes; Delinquent Accounts. You must notify us of any fee dispute within 15 days of the invoice date, and once resolved, you agree to pay those fees within 15 days. We may, on 10 days’ notice to you, suspend your Services if you do not pay undisputed fees by their due date, and you agree to reimburse us for all reasonable costs and expenses, including overdraft charges, collection costs and attorneys’ fees, incurred in collecting delinquent amounts. You further agree that we may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
4. TERM AND TERMINATION.
4.1. Term. The initial term commitment for your purchase of Services will be for the period of time stated in the Order. If no period is specified in the Order the initial term will be 36 months commencing on the Order Effective Date (“Initial Term”). After the Initial Term, the Services will automatically renew for additional periods of equal length as the Initial Term (“Renewal Terms”) unless either party provides written notice of non-renewal at least 90 days before the current term expires. Terminating specific Services does not affect the term of any other Services still in effect.
4.2. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice, or (ii) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.
4.3. Effect of Termination. If the Agreement or any Services are terminated, you will immediately discontinue all use of the terminated Services, except that we will provide you with limited access to the Services for a period of at least 30 days solely to enable you to retrieve your Customer Content from the Services. Upon your request made before to the end of such 30-day period, we will securely destroy your Customer Content. We have no obligation to maintain your Customer Content after such 30-day period. Termination will not affect any claim arising prior to the termination date. If we discontinue Services or materially reduce the core functionality in accordance with Section 2.3 above, and you elect to terminate the affected Services or this Agreement, we will provide you with a pro rata refund of any prepaid, unused fees. Notwithstanding anything to the contrary herein, the terms of this Agreement will continue to apply to any Services that are still in effect.
4.4. Survival. The terms of this Agreement will survive the termination or expiration of this Agreement to the extent reasonably necessary to carry out the intent of the parties as indicated therein.
5. PROPRIETARY RIGHTS.
5.1. Our Proprietary Rights and Marks. You acknowledge that we or our licensors retain all proprietary right, title and interest in the Services, all Documentation our name, logo, or other marks (together, the “Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Except for the express limited rights set forth in this Agreement, no right, title or interest in our Services, Documentation, or Marks is granted to you. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part our Marks or is similar to any of these.
5.2. Your Customer Content. You retain all rights to your Customer Content and are solely responsible for the Customer Content sent or transmitted by you or displayed or uploaded by you in using the Services and for compliance with all laws pertaining to the Customer Content, including, but not limited to, laws requiring you to obtain the consent of a third party to use the Customer Content and to provide appropriate notices of third-party rights. You hereby grant us a worldwide, royalty-free, non-exclusive license to use, modify, reproduce, and distribute your Customer Content in order to provide and operate the Services. We will not view, access, or process any of your Customer Content, except: (x) as authorized or instructed by you or your Users in this Agreement or in any other agreement between the parties, or (y) as required to comply with our policies, applicable law, or governmental request.
5.3. Feedback. You agree that we will have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you and your Users (“Feedback”). We also reserve the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by your Feedback.
5.5. Publicity. Customer agrees that Company may use Customer’s name and refer to Customer in its promotional or marketing materials and its website, lists and business presentations.
6. DATA PRIVACY AND SECURITY.
6.1. Privacy Policy. Your use and our provision of the Services is subject to our Privacy Policy at https://spol.com/privacy-statement/ which is incorporated herein by reference. By using the Services, you indicate that you have read, understand, and agree to the terms and conditions of our Privacy Policy, including its disclosures regarding collection, use, and disclosure of your information in accordance with our Privacy Policy.
6.2. Security Safeguards. Each party will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Customer Content and any associated personal data that is collected and/or processed through the Services. On our part, those safeguards will include commercially reasonable measures designed to prevent unauthorized access, use, modification, deletion, and disclosure of Customer Content. Customer (not us) bears sole responsibility for adequate security, protection, and backup of Customer Content when in Customer’s or its representatives’ or agents’ possession or control.
6.3. Sub-processors. You acknowledge and agree that we may use Sub-processors to help provide the Service, who may access your Customer Content and any associated personal data, to provide, secure and improve the Services. Before sharing Customer Content with any of our Sub-processors, we will ensure that the third party maintains, at a minimum, commercially reasonable data practices for maintaining the confidentiality and security of your Customer Content and preventing unauthorized access. We will be responsible for the acts and omissions of such Sub-processors to the same extent that we would be responsible if we were performing the Services.
6.4. Data Protection Laws. To the extent that our provision of the Services involves the processing of Personal Data under applicable data protection law, the parties agree that you will be deemed to be the Data Controller, and we will be deemed to be the Data Processor, as those terms are understood under the applicable data protection law. For the purposes of this Agreement, the term “Personal Data” means any information relating to an identified or identifiable natural person where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
6.5. State Privacy Laws. To the extent that Customer Content contains “personal information” that is subject to the California Consumer Privacy Act of 2018, its implementing regulations, and any amendments thereto (collectively, the “CCPA”), or any other substantially similar state privacy laws, Company agrees that it will comply with all such laws and process such personal information as a service provider (as defined under the CCPA) and will not (a) retain, use or disclose personal information for any purpose other than the purposes set out in this Agreement and/or as permitted by the CCPA; or (b) “sell” (as defined and understood within the requirements of the CCPA) personal information.
7. CONFIDENTIALITY.
7.1. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Customer Content will be deemed Confidential Information of Customer without any marking or further designation. Company’s Services, Documentation, any related intellectual property rights, and the terms and conditions of this Agreement will be deemed Confidential Information of Company without any marking or further designation. Confidential Information will not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
7.2. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
8. WARRANTIES.
8.1. We provide our Services using a commercially reasonable level of care and warrant that the Services will materially conform to the Documentation under normal use. Our entire liability and your exclusive remedy under this warranty will be, at our sole option and subject to applicable law, to provide conforming services, or to terminate the non-conforming services and provide a pro-rated refund of any prepaid fees from the date you notify us of the non-conformance through the end of the remaining term. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) OUR SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS.
8.2. WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE.
8.3. Use of the Services may be available through a compatible mobile device, internet access, and may require software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees, as well as the terms of your agreement with your mobile device and telecommunications provider. WE MAKE NO WARRANTIES OR REPRESENTATION OF ANY KIND, EXPRESS, STATUORY OR IMPLED AS TO (I) THE AVAILABILITY OF INTERNET OR TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION, (II) ANY LOSS, DAMAGE OR OTHER SECURITY INTRUSION OF THE INTERNET OR TELECOMMUNICATION SERVICES, AND (III) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTING CONNECTED WITH THE SERVICES.
9. INDEMNIFICATION.
9.1. Our Indemnity. We will indemnify and defend you against any third-party claim alleging that any of the Services infringes upon any patent or copyright, or violates a trade secret of any such third-party (an “IP Claim”), and we agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. You will promptly notify us of any claim and cooperate with us in defending the claim. We will reimburse you for reasonable expenses incurred in providing any cooperation or assistance. We will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring you to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) you may join in the defense with your own counsel at your own expense.
9.1.1. If (i) Company becomes aware of an actual or potential IP Claim, or (ii) Customer provides Company with notice of an actual or potential IP Claim, Company may (or in the case of an injunction against Customer, will), at Company’s sole option and determination: (a) procure for Customer the right to continue to use the Services; or (b) replace or modify the Services with equivalent or better functionality so that Client’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Services and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Company.
9.1.2. The obligations in Sections 9.1 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Services with other products, software or services not provided by Company; (ii) any IP Claim related to any Customer Content, or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
9.2. Your Indemnity. Unless prohibited by applicable law, you will indemnify and defend us against any third-party claim resulting from a breach of Sections 2.5 or 5.2 or alleging that any of your Customer Content infringes upon any patent or copyright, or violates a trade secret of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. We will promptly notify you of any claim and cooperate with you in defending the claim. You will reimburse us for reasonable expenses incurred in providing any cooperation or assistance. You will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring us to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) we may join in the defense with our own counsel at our own expense.
10. LIMITATION ON LIABILITY.
10.1. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY DAMAGES, OR DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, OR (iv) CUSTOMER’S LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
10.2. EXCEPT FOR SPOL’S INDEMNITY OBLIGATIONS FOR AN IP CLAIM, SPOL'S ENTIRE LIABILITY TO LICENSEE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY), WILL BE LIMITED TO THE FEES ACTUALLY PAID BY CUSTOMER TO SPOL DURING THE PRIOR 12 MONTHS.
11. COMPLIANCE WITH LAWS. I n connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, data protection and anti-bribery laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Further, Customer will not permit its Users to access or use any Service or Content Product in a U.S. embargoed country or in violation of any U.S. export law or regulation. If necessary and in accordance with applicable law, we will cooperate with local, state, federal and international government authorities with respect to the Services. If access to the Services or the Documentation are acquired by or on behalf of a unit or agency of the United States government, the government agrees that such Services or Documentation is “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the government’s rights with respect to such Services or Documentation are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable. Notwithstanding any other provision in these Terms, we may immediately terminate the Agreement for noncompliance with applicable laws.
12. SUSPENSION OF SERVICES. We reserve the right to suspend the Services or restrict access or functionalities if (a) we reasonably believe that you or your Users have materially violated this Agreement, or (b) we reasonably determine that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities. Unless legally prohibited, we will use commercially reasonable efforts to notify you when taking any of the foregoing actions. We will not be liable to you or your Users or any other third party for any such suspension of Services or reduced functionality. Any suspected fraudulent, abusive, or illegal activity by you or your Users may be referred to law enforcement authorities at our sole discretion.
13. ADDITIONAL TERMS.
13.1. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it will provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within 30 days after such notice, knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation, or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section will not apply to claims subject to indemnification under Section 9 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
13.2. Arbitration. If the parties do not reach an agreed upon solution within a period of 30 days from the time of the commencement of the informal dispute resolution process described above, then either party may initiate binding arbitration by a single arbitrator before the American Arbitration Association using its Commercial Arbitration Rules as the sole means to resolve claims subject to the terms set forth below. YOU AGREE THAT ANY DISPUTE OR CLAIM RELATING TO THIS AGREEMENT WILL BE RESOLVED BY BINDING ARIBTRATION RATHER THAN IN COURT AND THAT YOU WILL ARBITRATE WITH US ONLY IN YOUR INDIVIDUAL OR CORPORATE CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. Any arbitration claim must be brought within one year of the claim arising. The arbitrator will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award will be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You understand and agree that unless you can demonstrate that arbitration in Delaware would create an undue burden for you, any arbitration hearing will be held in Delaware. You understand and agree that by entering into this Agreement, each party is waiving the right to a jury trial or a trial before a judge in a public court. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (meaning patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights) or Confidential Information. Furthermore, you have the right to opt out and not be bound by these arbitration provisions by sending written notice of your decision to opt out to the following address, Cordance Operations LLC, 6 W. Martin Street Raleigh, NC 27601, within 30 days of the date of this Agreement.
13.3. Governing Law and Jurisdiction. These Terms will be governed by the laws of the State of Delaware. For any dispute not subject to arbitration, each party agrees to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Delaware.
13.4. No Class Actions. You may only resolve disputes with us on an individual basis and you agree not to bring or participate in any class, consolidated, or representative action against us or any of our employees or affiliates.
13.5. Assignment. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which will not be unreasonably withheld, except that either party may assign the Agreement to an affiliated entity, or as part of a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of its business or assets to which this Agreement relates without prior written consent. Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.
13.6. Notices. Notices must be sent by personal delivery, overnight courier, or registered or certified mail. We may also provide notice to the email last designated on your account, electronically via postings on our website, in-product notices, or via our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at 16 W. Martin Street, Raleigh, NC 27601, Attn: contract Admin; e-mail: help@SPOL.com, with a copy to the attention of the Revenue Department at the same address; e-mail: revenue@cordance.co, and legal@cordance.co. We will send notices to the address last designated on your account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting.
13.7. Entire Agreement; Order of Precedence. This Agreement, including any applicable schedules, exhibits, and appendices, and any mutually signed SOW set forth the entire agreement between you and us relating to the Services and/or Professional Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between any of the above referenced documents, the conflict will be resolved in that order. No modification of or amendment to this Agreement will be effective unless mutually agreed in writing.
13.8. General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third-party beneficiary or have the right to modify the Agreement or to make commitments binding on us. Failure to enforce any right under the Agreement will not waive that right. The Agreement may be agreed to online or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g., natural disasters; terrorist activities, activities of third-party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.
13.9. Beta Services. We may offer you access to beta services that are being provided prior to general release (“Beta Services”). You understand and agree that the Beta Services may contain bugs, errors and other defects, and use of the Beta Services is at your sole risk. You acknowledge that your use of Beta Services is on a voluntary and optional basis, and we have no obligation to provide technical support and may discontinue provision of Beta Services at any time in our sole discretion and without prior notice to you. These Beta Services are offered “AS-IS”, and to the extent permitted by applicable law, we disclaim any liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise. If you are using Beta Services, you agree to receive related correspondence and updates from us and acknowledge that opting out may result in cancellation of your access to the Beta Services. If you provide Feedback about the Beta Service, you agree that we own any Feedback that you share with us. For Beta Services only, these Terms supersede any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict. When, if at all, we release a Beta Service for general availability, it is no longer a “Beta Service” and is treated as a part of Services for all purposes under this Agreement (including the payment of applicable additional Fees).
Last edited 2024-09-24
LabStats TOS
Version 2.1
Effective June 4th 2024
DownloadTable of Contents
LABSTATS
TERMS OF SERVICES
These Terms of Service (“Terms”) constitute a legal agreement between the person or organization agreeing to these Terms (“Customer” or “you”) and Labstats, a business unit of Cordance Operations LLC, Delaware limited liability company (the “Company,” “us” or “we”). By signing an Order, accepting these Terms, or using the Services, you represent that you have the authority to bind the Customer to the Order, these Terms, and any applicable schedules, exhibits, or appendices incorporated or referenced herein.
1. DEFINITIONS
1.1. “Affiliate” of a party means an entity which, directly or indirectly is controlled by, controls or is under common control with that party where “control” of the party or other entity is the possession of the power to direct or cause the direction of the management and policies of the party or other entity, whether by voting, contract or otherwise.
1.2. “Agreement” means the Order, these Terms of Service including all referenced schedules, exhibits, or appendices hereto, and any mutually executed agreements incorporated herein by reference. No provisions of either party’s pre-printed purchase orders (other than the Order), acknowledgements, or click-through terms may modify this Agreement, and such other or additional terms or conditions are void and of no effect.
1.3. “Customer Content” means content, data, and information, including text, graphics, videos, or other material, submitted, uploaded, imported, or otherwise provided to or through the Services by Customer or by a third party on behalf of or for the benefit of Customer, including Customer’s customers, prospective customers, and Users of the Services.
1.4. “Documentation” means Company’s then-current generally available documentation, specifications, and user manuals for the Product which are available upon login to the Services or on our website, as well as any documentation included in or attached to this Agreement.
1.5. “Products” means the Company’s Services, professional services and or Software products listed on the Order.
1.6. “Services” has the meaning provided in Section 2.1.
1.7. “Software” means the Company’s software application(s) provided by Company, in object code form, to Customer to install and run on Customer’s computer(s).
1.8. “User” means an individual employee, consultant, contractor, student, alumni, or agent of Customer who has been authorized by Customer to use the Services on behalf of Customer and/or its Affiliates.
2. ACCESS AND USE OF PRODUCTS.
2.1. Our Provision of the Services. If your Order includes our software-as-a-services offerings (the “Services”), we will make the Services available to you pursuant to the terms of the Agreement, and the Documentation. We grant you a limited right to access and use the Services and Documentation only for your internal purposes. Your Affiliates, third party agents, contractors or service providers may use the Services or Documentation as Users under your account, provided that you take full responsibility for such third parties’ compliance with this Agreement. We will use commercially reasonable efforts to make the Services available 24x7. You acknowledge that your use of the Services requires third-party hardware, software, internet and/or telecommunications access (which may involve extra charges), and that your ability to access and use the Services may be affected by your choices and the performance of these products and services.
2.2. Limitations on Your Use. By using our Services, you agree on behalf of yourself, your Affiliates and Users, not to (i) modify, prepare derivative works of, or reverse engineer, our Services; (ii) access or use the Services or Documentation for any competitive purpose; (iii) use our Services in a way that abuses or disrupts our networks, user accounts, or the Services; (iv) transmit through the Services any harassing, indecent, obscene, or unlawful material; (v) market, or resell the Services to any third party; (vi) use the Services in violation of applicable laws, or regulations; (vii) use the Services to send unauthorized advertising, or spam; (viii) harvest, collect, or gather user data without their consent; (ix) transmit through the Services any material that may infringe the intellectual property, privacy, or other rights of third parties; or (x) use the Services to commit fraud or impersonate any person or entity.
2.3. License to Software. If your Order includes Software, we grant you a non-exclusive license to download and install an object code copy of the Software on your devices up to the maximum number of licenses stated on your Order. You may only use the Software during the Term (as defined below) and only for your own internal business purposes. If you install more copies than the maximum number of licenses on your Order, you will automatically be locked out of your account until you purchase additional licenses. Once you have, our support team will help to restore your account. You agree to use commercially reasonable efforts to install and use our most current version/release of the Software. You agree on behalf of yourself, your Affiliates and Users, not to (i) decompile, modify, prepare derivative works of, or reverse engineer, the Software; (ii) use the Software or Documentation for any competitive purpose; (iii) knowingly or negligently use the Software in a way that abuses or disrupts our networks, user accounts, or the Services; (iv) market, or resell the use of the Software to any third party; (v) use the Software in violation of applicable laws, or regulations; or (vi) use the Software to commit fraud or impersonate any person or entity.
2.4. Changes to Products. We reserve the right to enhance, upgrade, improve, modify or discontinue features of the Products as we deem appropriate and in our discretion. We will not materially reduce the core functionality or discontinue any Product unless we provide you with prior written notice. We may offer additional functionality to our standard Products or premium feature improvements for an additional cost.
2.5. Your Registration for the Services. Your Users may be required to provide information about themselves to register for and/or use certain Services. You agree that any such information will be accurate. Your Users may also be asked to choose a username and password. You are entirely responsible for maintaining the security of those usernames and passwords and agree not to disclose such to any third party.
2.6. Responsibility for Users. You are responsible for the activities of all Users who access or use the Software or the Services through your account, and you agree to ensure that any such Users will comply with the terms of this Agreement. If you become aware of any violation of this Agreement in connection with use of the Services by any person, please contact us.
2.7. Training. At mutually agreeable dates and times, Company will provide standard virtual implementation and training of Customer’s administration team on a reasonable, as needed basis for the set-up fee specified in the Order. Training does not include customized training, onsite training, or end-user training. These additional services can be purchased via a mutually executed SOW (as defined below).
2.8. Support and Maintenance. We will, at no additional charge, provide standard customer support for the Services and Software, available by contacting us at https://support.labstats.com.
2.9. Professional Services. We will, upon execution of a mutually agreed Statement of Work (“SOW”) provide professional services as mutually agreed by the parties.
3. ORDERS, FEES AND PAYMENT.
3.1. Orders. Your order for Product is detailed in an executed Order, quote, statement of work or similar document (each, an “Order”). You may order Products using our then-current ordering processes. All Orders are effective on the earlier of (i) the date you submit your Order, or (ii) the date on the signature block of the Order (“Effective Date”). Acceptance of your Order may be subject to our verification and credit approval process. Each Order will be treated as a separate and independent Order.
3.2. Fees and Payment. You agree to pay all applicable, undisputed fees for the Products on the terms set forth in the Order, this Agreement, or your invoice. Unless otherwise specified in the Order or invoice, you agree to pay all undisputed fees within 30 days of the date thereof. Except as set forth in Sections 4.3 and 8 below, any payments you make to us for access to the Product are final and non-refundable. You are responsible for all fees and charges imposed by third parties such as hardware, software, internet, voice and/or data transmission providers related to your access and use of the Products. You are responsible for providing accurate and current billing, contact and payment information to us. You agree that we may charge your payment card or bill you for all amounts due for your use of the Products and take steps to update your payment card information (where permitted) to ensure payment can be processed. You agree that your credit card information and related personal data may be provided to third parties for payment processing and fraud prevention purposes. We may suspend or terminate your use of the Product if at any time we determine that your payment information is inaccurate or not current, and you are responsible for fees and overdraft charges that we may incur when we charge your card for payment. We reserve the right to update the price for Products annually after your Initial Term. We will give you notice of any price change at least 30 days in advance of such change.
3.3. Taxes and Withholdings. You are responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs, or any other similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Products, except those taxes and fees based on our net income, or Taxes and Fees for which you have provided an exemption certificate. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
3.4. Disputes; Delinquent Accounts. You must notify us of any fee dispute within 15 days of the invoice date, and once resolved, you agree to pay those fees within 15 days. We may, on 10 days’ notice to you, suspend your use of the Products if you do not pay undisputed fees by their due date, and you agree to reimburse us for all reasonable costs and expenses, including overdraft charges, collection costs and attorneys’ fees, incurred in collecting delinquent amounts. You further agree that we may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
4. TERM AND TERMINATION.
4.1. Term. The initial term commitment for your purchase of Products will be as specified in the Order (“Initial Term”) and begins on the Effective Date. If the Order is silent, the Initial Term will be 12 months. After the Initial Term, the Term will automatically renew for additional 12-month periods (“Renewal Terms”), unless either party provides notice of non-renewal at least 30 days before the current term expires. Terminating use of a specific Product does not affect the term of any other Product still in effect.
4.2. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice, or (ii) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.
4.3. Effect of Termination. If the Agreement or the Order(s) for any Products is terminated, you will immediately discontinue all use of the terminated Product, except that we will provide you with limited access to the Product for a period of at least 60 days solely to enable you to retrieve your Customer Content from the Product. Unless otherwise agreed in writing, we have no obligation to maintain your Customer Content after the agreed upon retention period. Upon your request made before the end of such 60-day period, we will securely destroy your Customer Content. Termination of the Agreement, and termination will not affect any claim arising prior to the termination date. If we discontinue a Product or materially reduce the core functionality in accordance with Section 2.2 above, and you elect to terminate the affected Product or this Agreement, we will provide you with a pro rata refund of any prepaid, unused fees. Notwithstanding anything to the contrary herein, the terms of this Agreement will continue to apply to any Product(s) that are still in effect.
4.4. Survival. Upon termination of the Agreement, any provision which, by its nature or express terms should survive, will survive such termination or expiration.
5. PROPRIETARY RIGHTS.
5.1. Our Proprietary Rights and Marks. You acknowledge that we or our licensors retain all proprietary right, title and interest in the Products, all Documentation our name, logo, or other marks (together, the “Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Except for the express limited rights set forth in this Agreement, no right, title or interest in our Products, Documentation, or Marks is granted to you. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part our Marks or is similar to any of these.
5.2. Your Customer Content. You retain all rights to your Customer Content and are solely responsible for the Customer Content sent or transmitted by you or displayed or uploaded by you in using the Services and for compliance with all laws pertaining to the Customer Content, including, but not limited to, laws requiring you to obtain the consent of a third party to use the Customer Content and to provide appropriate notices of third-party rights. You hereby grant us a worldwide, royalty-free, non-exclusive license to use, modify, reproduce, and distribute your Customer Content in order to provide and operate the Services. We will not view, access, or process any of your Customer Content, except: (x) as authorized or instructed by you or your Users in this Agreement or in any other agreement between the parties, or (y) as required to comply with our policies, applicable law, or governmental request.
5.3. Feedback. You agree that we will have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Products or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you, your Affiliates and Users (“Feedback”). We also reserve the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by your Feedback.
5.4. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that we may collect and compile data and information related to your use of the Services to be used by us in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between us and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by us. You agree that we may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify you or your Customer Content.
5.5. Publicity. Customer agrees that Company may use Customer’s name and refer to Customer in its promotional or marketing materials and its website, lists and business presentations.
6. DATA PRIVACY AND SECURITY.
6.1. Security Safeguards. Each party will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Customer Content and any associated personal data that is collected and/or processed through the Services. On our part, those safeguards will include commercially reasonable measures designed to prevent unauthorized access, use, modification, deletion, and disclosure of Customer Content. Customer (not us) bears sole responsibility for adequate security, protection, and backup of Customer Content when in Customer’s or its representatives’ or agents’ possession or control.
6.2. Sub-processors. You acknowledge and agree that we may use sub-processors to help provide the Service who may access your Customer Content and any associated personal data, to provide, secure and improve the Services. Before sharing Customer Content with any of our sub-processors, we will ensure that the sub-processor maintains, at a minimum, commercially reasonable data practices for maintaining the confidentiality and security of your Customer Content and preventing unauthorized access. We will be responsible for the acts and omissions of such sub-processors to the same extent that we would be responsible if we were performing the Services.
6.3. Data Protection Laws. To the extent that our provision of the Services involves the processing of Personal Data under applicable data protection law, the parties agree that you will be deemed to be the Data Controller, and we will be deemed to be the Data Processor, as those terms are understood under the applicable data protection law. For the purposes of this Agreement, the term “Personal Data” means any information relating to an identified or identifiable natural person where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
6.4. State Privacy Laws. To the extent that Customer Content contains “personal information” that is subject to the California Consumer Privacy Act of 2018, its implementing regulations, and any amendments thereto (collectively, the “CCPA”), or any other substantially similar state privacy laws, Company agrees that it will comply with all such laws and process such personal information as a service provider (as defined under the CCPA) and will not (a) retain, use or disclose personal information for any purpose other than the purposes set out in this Agreement and/or as permitted by the CCPA; or (b) “sell” (as defined and understood within the requirements of the CCPA) personal information.
7. CONFIDENTIALITY.
7.1. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Customer Content will be deemed Confidential Information of Customer without any marking or further designation. The Products and Documentation, any related intellectual property rights, and the terms and conditions of this Agreement will be deemed Confidential Information of Company without any marking or further designation. Confidential Information will not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
7.2. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
7.3. FERPA. The Parties acknowledge that (a) Customer Content may include personally identifiable information from education records that are subject to FERPA ("FERPA Records"); and (b) to the extent that Customer Data includes FERPA Records, Company will be considered a "School Official" (as that term is used in FERPA and its implementing regulations) and the Parties will comply with FERPA.
8. WARRANTIES.
We provide our Services using a commercially reasonable level of care. We warrant that the Products will materially conform to their documentation under normal use. Our entire liability and your exclusive remedy under this warranty will be, at our sole option and subject to applicable law, to provide conforming Products, or to terminate your use of the non-conforming Product and provide a pro-rated refund of any prepaid fees from the date you notify us of the non-conformance through the end of the remaining term. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR PRODUCTS WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) OUR PRODUCTS WILL MEET YOUR SPECIFIC REQUIREMENTS. .
9. INDEMNIFICATION.
9.1. Our Indemnity. We will indemnify and defend you against any third-party claim alleging that any of the Services infringes upon any patent or copyright, or violates a trade secret of any such third-party (an “IP Claim”), and we agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. You will promptly notify us of any claim and cooperate with us in defending the claim. We will reimburse you for reasonable expenses incurred in providing any cooperation or assistance. We will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring you to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) you may join in the defense with your own counsel at your own expense.
9.1.1. If (i) Company becomes aware of an actual or potential IP Claim, or (ii) Customer provides Company with notice of an actual or potential IP Claim, Company may (or in the case of an injunction against Customer, will), at Company’s sole option and determination: (a) procure for Customer the right to continue to use the Services; or (b) replace or modify the Services with equivalent or better functionality so that Client’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Services and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Company.
9.1.2. The obligations in Sections 9.1 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Services with other products, software or services not provided by Company; (ii) any IP Claim related to any Customer Content, or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
9.2. Your Indemnity. Unless prohibited by applicable law, you will indemnify and defend us against any third-party claim resulting from a breach of Sections 2.6 or 5.2 or alleging that any of your Customer Content infringes upon any patent or copyright, or violates a trade secret of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. We will promptly notify you of any claim and cooperate with you in defending the claim. You will reimburse us for reasonable expenses incurred in providing any cooperation or assistance. You will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring us to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) we may join in the defense with our own counsel at our own expense.
10. LIMITATION ON LIABILITY.
10.1. LIMITATION ON INDIRECT LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY DAMAGES, OR DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, OR (iv) CUSTOMER’S LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
10.2. LIMITATION ON AMOUNT OF LIABILITY. EXCEPT FOR A PARTY’S BREACH OF SECTIONS 2.3, 5.1, 5.2, 7, A PARTY’S INDEMNIFICATION OBLIGATION UNDER SECTION 9, LIABIITY UNDER SECTION 10.3, OR A PARTY’S GROSS NEGLIGENCE, WILLFUL MIDCONDUCT OR FRAUD, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT IS LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY (“GENERAL LIABILITY CAP”). THE FOREGOING DOES NOT LIMIT YOUR OBLIGATIONS TO PAY ANY UNDISPUTED FEES AND OTHER AMOUNTS DUE UNDER THIS AGREEMENT.
10.3. SUPERCAP FOR DATA PROTECTION CLAIMS. IN THE CASE OF “DATA PROTECTION CLAIMS,” EACH PARTY’S AND ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) SHALL NOT EXCEED TWO TIMES THE “GENERAL LIABILITY CAP”. FOR THE PURPOSES OF THIS AGREEMENT, “DATA PROTECTION CLAIMS” MEANS ANY CLAIMS ARISING FROM A PARTY’S BREACH OF SECTION 6 (YOUR PRIVACY AND SECURITY), SECTION 7 (CONFIDENTIALITY IN RELATION TO CUSTOMER CONTENT), OR BREACH OF APPLICABLE DATA PROTECTION LAWS WHICH RESULTS IN THE UNAUTHORIZED ACCESS TO OR USE OF ANY CUSTOMER CONTENT.
10.4. IN NO EVENT SHALL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE DATA PROTECTION CLAIMS CAP.
11. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the Products under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, data protection and anti-bribery laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Further, Customer will not permit its users to access or use any Service or Product in a U.S. embargoed country or in violation of any U.S. export law or regulation. If necessary and in accordance with applicable law, we will cooperate with local, state, federal and international government authorities with respect to the Products. If access to the Products or the Documentation are acquired by or on behalf of a unit or agency of the United States government, the government agrees that such Products or Documentation is “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the government’s rights with respect to such Products or Documentation are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable. Notwithstanding any other provision in these Terms, we may immediately terminate the Agreement for noncompliance with applicable laws.
12. SUSPENSION OF SERVICES. We reserve the right to suspend your use of the Products or restrict access or functionalities if (a) we reasonably believe that you, your Affiliates or Users have materially violated this Agreement, or (b) we reasonably determine that the security of our Products or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities. Unless legally prohibited, we will use commercially reasonable efforts to notify you when taking any of the foregoing actions. We will not be liable to you, your Affiliates or Users or any other third party for any such suspension of use or reduced functionality. Any suspected fraudulent, abusive, or illegal activity by you, your Affiliates or Users may be referred to law enforcement authorities at our sole discretion.
13. ADDITIONAL TERMS.
13.1. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it will provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within 30 days after such notice, knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation, or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section will not apply to claims subject to indemnification under Section 9 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
13.2. Governing Law and Jurisdiction. The Agreement will be governed by the laws of the State of Delaware without giving effect to applicable principles of conflicts of law to the extent that the application of the laws of another jurisdiction would be required thereby. For any dispute not resolved by informal dispute resolution as prescribed under Section 13.1 above, each party agrees to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Delaware and agrees to submit to personal jurisdiction in the State of Delaware. Furthermore, the parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of any court of the State of Delaware or any federal court sitting in the State of Delaware for purposes of any suit, action or other proceeding arising out of this Agreement.
13.3. No Jury. THE PARTIES HEREBY IRREVOCABLY WAIVE ANY AND ALL RIGHTS TO A TRIAL BY JURY IN ANY ACTION, SUIT OR OTHER PROCEEDING ARISING OUT OF OR RELATING TO THE TERMS, OBLIGATIONS AND/OR PERFORMANCE OF THIS AGREEMENT.
13.4. No Class Actions. You may only resolve disputes with us on an individual basis and you agree not to bring or participate in any class, consolidated, or representative action against us or any of our employees or affiliates.
13.5. Assignment. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which will not be unreasonably withheld, except that either party may assign the Agreement to an affiliated entity, or as part of a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of its business or assets to which this Agreement relates without prior written consent. Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.
13.6. Notices. Notices must be sent by personal delivery, overnight courier, or registered or certified mail. We may also provide notice to the email last designated on your account, electronically via postings on our website, in-product notices, or via our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at 16 W. Martin Street, Raleigh, NC 27601, Attn: President Cordance Operations LLC, LabStats Business Unit; with a copy to the attention of the legal department at the same address; e-mail: legal@cordance.co, and we will send notices to the address last designated on your account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting.
13.7. Entire Agreement; Order of Precedence. This Agreement, including any applicable Order, SOW, schedules, exhibits, and appendices, set forth the entire agreement between you and us relating to the Products and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between an executed Order, this Agreement, and the Documentation, in each case, as applicable, the conflict will be resolved in that order, but only for the specific Products described in the applicable Order. No modification of amendment to this Agreement will be effective unless mutually agreed in writing.
13.8. High-Risk Use. You understand that the Products are not designed or intended for use during high-risk activities which include, but are not limited to, use in hazardous environments and/or life support systems.
13.9. Third Party Services. The Products may provide the capability for you to link to or integrate with third party sites or applications separately accessed by you and not purchased from us. We are not responsible for and do not endorse such services. You have sole discretion whether to purchase or connect to any third-party services and your use is governed solely by the terms for those services.
13.10. Beta Services. We may offer you access to beta services that are being provided prior to general release (“Beta Services”). You understand and agree that the Beta Services may contain bugs, errors and other defects, and use of the Beta Services is at your sole risk. You acknowledge that your use of Beta Services is on a voluntary and optional basis, and we have no obligation to provide technical support and may discontinue provision of Beta Services at any time in our sole discretion and without prior notice to you. These Beta Services are offered “AS-IS”, and to the extent permitted by applicable law, we disclaim any liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise. If you are using Beta Services, you agree to receive related correspondence and updates from us and acknowledge that opting out may result in cancellation of your access to the Beta Services. If you provide Feedback about the Beta Services, you agree that we own any Feedback that you share with us. For Beta Services only, these Terms supersede any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict.
13.11. Changes. We reserve the right to propose changes to this Agreement that are generally applicable to all customers at any time and will, if such changes are material, provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. By continuing to access or use our Products after any revisions become effective, you agree to be bound by the revised terms of the Agreement. If you do not agree to the new terms, you are no longer authorized to use the Products. In the event of a material change of terms, you may terminate the Agreement by giving us written notice within 30 days of our notice of the change of terms and we will refund to you any pre-paid fees that are applicable to the period after such termination.
13.12. General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third-party beneficiary or have the right to modify the Agreement or to make commitments binding on us. Failure to enforce any right under the Agreement will not waive that right. The Agreement may be agreed to online or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g., natural disasters; terrorist activities, activities of third-party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.
Last Updated 2024-06-04
FieldConnect TOS
Version 1.2
Effective May 29th 2024
DownloadTable of Contents
FIELDCONNECT
TERMS OF SERVICE
These Terms of Service (“Terms”) constitute a legal agreement between the person or organization agreeing to these Terms (“Customer” or “you”) and FieldConnect, a business unit of Cordance Operations LLC, Delaware limited liability company (the “Company,” “us” or “we”). By signing an Order, accepting these Terms, or using the Services, you represent that you have the authority to bind the Customer to the Order, these Terms, and any applicable schedules, exhibits, or appendices incorporated or referenced herein.
1. DEFINITIONS
1.1. “Affiliate” of a party means an entity which, directly or indirectly is controlled by, controls or is under common control with that party where “control” of the party or other entity is the possession of the power to direct or cause the direction of the management and policies of the party or other entity, whether by voting, contract or otherwise.
1.2. “Agreement” means the Order(s), these terms and conditions including all referenced schedules, exhibits, or appendices hereto, and any mutually executed agreements incorporated herein by reference. No provisions of either party’s pre-printed purchase orders, acknowledgements, or click-through terms may modify this Agreement, and such other or additional terms or conditions are void and of no effect.
1.3. “Customer Content” means content, data, and information, including text, graphics, videos, or other material, submitted, uploaded, imported, or otherwise provided to or through the Services by Customer or by a third party on behalf of or for the benefit of Customer, including by Users.
1.4. “Documentation” means Company’s then-current generally available documentation, specifications, and user manuals for the Services which are available upon login to the Services, as well as any documentation included in or attached to this Agreement, or such other Services-related documents provided by Company to Customer.
1.5. “Order” means a written description of Services and Professional Services, and the applicable pricing as mutually agreed to by the parties in an order form, quote, schedule, statement of work or similar document.
1.6. “User” means an individual employee or contractor, of Customer who has been authorized by Customer to use the Services on behalf of Customer and/or its Affiliates.
2. ACCESS AND USE OF THE SERVICES.
2.1. Our Provision of the Services. We will make our software-as-a-service offerings available to you pursuant to the terms of the Agreement, and the Documentation (the “Services”). We will use commercially reasonable efforts to make the Services available 24x7. You acknowledge that your access and use of the Services requires third-party hardware, software, internet and/or telecommunications access, and that your ability to access and use the Services may be affected by your choices and the performance of these products and services. You are responsible for all fees and charges imposed by these third parties.
2.2. Changes to Services. We reserve the right to enhance, upgrade, improve, modify or discontinue features of our Services as we deem appropriate and in our discretion. We will not materially reduce the core functionality or discontinue any Services unless we provide you with prior written notice. We may offer additional functionality to our standard Services or premium feature improvements for an additional cost.
2.3. Your Registration for the Services. Your Users may be required to provide information about themselves to register for and/or use certain Services. You agree that any such information will be accurate. Your Users may also be asked to choose a username and password. You are entirely responsible for maintaining the security of those usernames and passwords and agree not to disclose such to any third party.
2.4. Your Use of the Services. We grant you a limited right to use our Services and Documentation only for business and professional purposes. Your Affiliates, third party agents, contractors or service providers may use the Services or Documentation as Users under your account, provided that you will take full responsibility for such third parties’ compliance with this Agreement.
2.5. Limitations on Your Use. By using our Services, you agree on behalf of yourself, your Affiliates and Users, not to (i) modify, prepare derivative works of, or reverse engineer, our Services; (ii) access or use the Services or Documentation for any competitive purpose; (iii) use our Services in a way that abuses or disrupts our networks, user accounts, or the Services; (iv) transmit through the Services any harassing, indecent, obscene, or unlawful material; (v) market, or resell the Services to any third party; (vi) use the Services in violation of applicable laws, or regulations; (vii) use the Services to send unauthorized advertising, or spam; (viii) harvest, collect, or gather User data without their consent; (ix) transmit through the Services any material that may infringe the intellectual property, privacy, or other rights of third parties; or (x) use the Services to commit fraud or impersonate any person or entity.
2.6. Responsibility for Activity under Account. You are responsible for all activity under your account. If you become aware of any violation of this Agreement in connection with use of the Services by any person, please contact us.
2.7. Onboarding. At mutually agreeable dates and times, Company will provide standard onboarding services for the set-up fee specified in the Order.
2.8. Support and Maintenance. We will, at no additional charge, provide standard customer support for the Services as detailed at https://www.fieldconnect.com/sla/.
2.9. Professional Services. We will, upon execution of a mutually agreed Statement of Work (“SOW”) provide professional services as mutually agreed by the parties.
3. ORDERS, FEES AND PAYMENT.
3.1. Orders. All Orders (i) are effective on the earlier of the date Customer submits an Order or the date Customer begins using the Services (“Order Effective Date”); (ii) will be treated as separate and independent Orders; form part of the Agreement; and (iii) may be subject to Company’s verification and credit approval process. You may add additional Users under an Order at any time during the Term of the Order, at the same per user charge as stated in the initial Order. The Order(s) for additional Users will be coterminous with the initial Order.
3.2. Fees and Payment. You agree to pay all applicable, undisputed fees for the Services on the terms set forth in the Order, this Agreement, or your invoice. Unless otherwise specified in the Order or Invoice, you agree to pay all undisputed fees set forth in an invoice within 30 days of the date thereof. Except as set forth in Sections 4.3 and 8 below, any payments you make to us for access to the Services are final and non-refundable. You are responsible for providing accurate and current billing, contact and payment information to us. You agree that we may charge your payment card or bill you for all amounts due for your use of the Services, and we may take steps to update your payment card information (where permitted) to ensure payment can be processed. You agree that your credit card information and related personal data may be provided to third parties for payment processing and fraud prevention purposes. We may suspend or terminate your Services if at any time we determine that your payment information is inaccurate or not current, and you are responsible for fees and overdraft charges that we may incur when we charge your card for payment. We reserve the right to update the price for Services annually after your Initial Term. We will give you notice of any price increase at least 45 days in advance of such increase. All references to currency will be in US dollars ($USD).
3.3. Taxes and Withholdings. You are responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs, or any other similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Services, except those based on our net income, or for which you have provided an exemption certificate. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
3.4. Disputes; Delinquent Accounts. You must notify us of any fee dispute within 15 days of the invoice date, and once resolved, you agree to pay those fees within 15 days. We may, on 10 days’ notice to you, suspend your Services if you do not pay undisputed fees by their due date, and you agree to reimburse us for all reasonable costs and expenses, including overdraft charges, collection costs and attorneys’ fees, incurred in collecting delinquent amounts. You further agree that we may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
4. TERM AND TERMINATION.
4.1. Term. The initial term commitment for your purchase of Services will be as specified in the Order (“Initial Term”) and begins on the Effective Date. If the Order is silent, the Initial Term will be 12 months. After the Initial Term, the Services will automatically renew for additional 12-month periods (“Renewal Terms”), unless either party provides notice of non-renewal at least 30 days before the current term expires. Terminating specific Services does not affect the term of any other Services still in effect.
4.2. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice, or (ii) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.
4.3. Effect of Termination. If the Agreement or any Services are terminated, you will immediately discontinue all use of the terminated Services. Upon your written request within 60 days after termination, we agree to retrieve and provide you with a copy of your Customer Content, if you have not already accessed it, for a fee based on the number of hours required to perform such services multiplied by the Company’s then standard professional services rates. Unless otherwise agreed in writing, we have no obligation to maintain your Customer Content after the agreed upon 60-day retention period. Upon your request made before the end of such 60-day period, we will securely destroy your Customer Content. Termination will not affect any claim arising prior to the termination date. If we discontinue Services or materially reduce the core functionality in accordance with Section 2.2 above, and you elect to terminate the affected Services or this Agreement, we will provide you with a pro rata refund of any prepaid, unused fees. Notwithstanding anything to the contrary herein, the terms of this Agreement will continue to apply to any Services that are still in effect.
4.4. Survival. Upon termination of the Agreement, any provision which, by its nature or express terms should survive, will survive such termination or expiration.
5. PROPRIETARY RIGHTS.
5.1. Our Proprietary Rights and Marks. You acknowledge that we or our licensors retain all proprietary right, title and interest in the Services, all Documentation, our name, logo, or other marks (together, the “Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Except for the express limited rights set forth in this Agreement, no right, title or interest in our Services, Documentation, or Marks is granted to you. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part our Marks or is similar to any of these.
5.2. Your Customer Content. You retain all rights to your Customer Content and are solely responsible for the Customer Content sent or transmitted by you or displayed or uploaded by you or Users in using the Services and for compliance with all laws pertaining to the Customer Content, including, but not limited to, laws requiring you to obtain the consent of a third party to use the Customer Content and to provide appropriate notices of third-party rights. You hereby grant us a worldwide, royalty-free, non-exclusive license to use, modify, reproduce, and distribute your Customer Content in order to provide and operate the Services. We will not view, access, or process any of your Customer Content, except: (x) as authorized or instructed by you or your Users in this Agreement or in any other agreement between the parties, or (y) as required to comply with our policies, applicable law, or governmental request.
5.3. Feedback. Customer hereby grants Company a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you, your Affiliates and Users (“Feedback”). We also reserve the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by your Feedback.
5.5. Publicity. Customer agrees that Company may use Customer’s name and refer to Customer in its promotional or marketing materials and its website, lists and business presentations.
6. DATA PRIVACY AND SECURITY.
6.1. Security Safeguards. Each party will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Customer Content and any associated personal data that is collected and/or processed through the Services. On our part, those safeguards will include commercially reasonable measures designed to prevent unauthorized access, use, modification, deletion, and disclosure of Customer Content. Customer (not us) bears sole responsibility for adequate security, protection, and backup of Customer Content when in Customer’s or its representatives’ or agents’ possession or control.
6.2. Sub-processors. You acknowledge and agree that we may use Sub-processors to help provide the Services who may access your Customer Content and any associated personal data, to provide, secure and improve the Services. Before sharing Customer Content with any of our Sub-processors, we will ensure that the Sub-processor maintains, at a minimum, commercially reasonable data practices for maintaining the confidentiality and security of your Customer Content and preventing unauthorized access. We will be responsible for the acts and omissions of such Sub-processors to the same extent that we would be responsible if we were performing the Services.
6.3. Data Protection Laws. To the extent that our provision of the Services involves the processing of Personal Data under applicable data protection law, the parties agree that you will be deemed to be the Data Controller, and we will be deemed to be the Data Processor, as those terms are understood under the applicable data protection law. For the purposes of this Agreement, the term “Personal Data” means any information relating to an identified or identifiable natural person where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
6.4. State Privacy Laws. To the extent that Customer Content contains “personal information” that is subject to the California Consumer Privacy Act of 2018, its implementing regulations, and any amendments thereto (collectively, the “CCPA”), or any other substantially similar state privacy laws, Company agrees that it will comply with all such applicable laws and process such personal information as a service provider (as defined under the CCPA) and will not (a) retain, use or disclose personal information for any purpose other than the purposes set out in this Agreement and/or as permitted by the CCPA; or (b) “sell” (as defined and understood within the requirements of the CCPA) personal information.
7. CONFIDENTIALITY.
7.1. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Customer Content will be deemed Confidential Information of Customer without any marking or further designation. Company’s Services and Documentation, any related intellectual property rights, and the terms and conditions of this Agreement will be deemed Confidential Information of Company without any marking or further designation. Confidential Information will not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
7.2. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
8. WARRANTIES.
8.1. We provide our Services using a commercially reasonable level of care and warrant that the Services will materially conform to the Documentation under normal use. Our entire liability and your exclusive remedy under this warranty will be, at our sole option and subject to applicable law, to provide conforming services, or to terminate the non-conforming services and provide a pro-rated refund of any prepaid fees from the date you notify us of the non-conformance through the end of the remaining term. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) OUR SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS.
9. INDEMNIFICATION.
9.1. Our Indemnity. We will indemnify and defend you against any third-party claim alleging that any of the Services infringes upon any patent or copyright or violates a trade secret of any such third-party (an “IP Claim”), and we agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. You will promptly notify us of any claim and cooperate with us in defending the claim. We will reimburse you for reasonable expenses incurred in providing any cooperation or assistance. We will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring you to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) you may join in the defense with your own counsel at your own expense.
9.1.1. If (i) Company becomes aware of an actual or potential IP Claim, or (ii) Customer provides Company with notice of an actual or potential IP Claim, Company may (or in the case of an injunction against Customer, will), at Company’s sole option and determination: (a) procure for Customer the right to continue to use the Services; or (b) replace or modify the Services with equivalent or better functionality so that Client’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Services and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Company.
9.1.2. The obligations in Sections 9.1 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Services with other products, software or services not provided by Company; (ii) any IP Claim related to any Customer Content, or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
9.2. Your Indemnity. Unless prohibited by applicable law, you will indemnify and defend us against any third-party claim resulting from a breach of Sections 2.5 or 5.2 or alleging that any of your Customer Content infringes upon any patent or copyright, or violates a trade secret of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. We will promptly notify you of any claim and cooperate with you in defending the claim. You will reimburse us for reasonable expenses incurred in providing any cooperation or assistance. You will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring us to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) we may join in the defense with our own counsel at our own expense.
10. LIMITATION ON LIABILITY.
10.1. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY DAMAGES OR DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, OR (iv) CUSTOMER’S LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT, OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. EXCEPT FOR COMPANY’S INDEMNITY OBLIGATIONS FOR AN IP CLAIM, COMPANY'S ENTIRE LIABILITY TO CUSTOMER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY), WILL BE LIMITED TO THE FEES ACTUALLY PAID BY CUSTOMER TO COMPANY DURING THE PRIOR 12 MONTHS.
11. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, data protection and anti-bribery laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Further, Customer will not permit its users to access or use any Service or Content Product in a U.S. embargoed country or in violation of any U.S. export law or regulation. If necessary and in accordance with applicable law, we will cooperate with local, state, federal and international government authorities with respect to the Services. If access to the Services or the Documentation are acquired by or on behalf of a unit or agency of the United States government, the government agrees that such Services or Documentation is “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the government’s rights with respect to such Services or Documentation are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable. Notwithstanding any other provision in these Terms, we may immediately terminate the Agreement for noncompliance with applicable laws.
12. SUSPENSION OF SERVICES. We reserve the right to suspend the Services or restrict access or functionalities if (a) we reasonably believe that you, your Affiliates or Users have materially violated this Agreement, or (b) we reasonably determine that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities. Unless legally prohibited, we will use commercially reasonable efforts to notify you when taking any of the foregoing actions. We will not be liable to you, your Affiliates or Users or any other third party for any such suspension of Services or reduced functionality. Any suspected fraudulent, abusive, or illegal activity by you, your Affiliates or Users may be referred to law enforcement authorities at our sole discretion.
13. ADDITIONAL TERMS.
13.1. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it will provide written notice to the other party of the specific issue(s) in dispute and reference the relevant provisions of the contract between the parties which are allegedly being breached. Within 30 days after such notice, knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation, or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section will not apply to claims subject to indemnification under Section 9 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
13.2. Limitation on Bringing Claims; No Jury. By entering into this Agreement, each party is waiving the right to a jury. Any claim arising out of this Agreement must be brought, if at all, within two years of the claim arising. You may only resolve disputes with us on an individual basis and you agree not to bring or participate in any class, consolidated, or representative action against us or any of our employees or Affiliates.
13.3. Governing Law and Jurisdiction. These Terms will be governed by the laws of the State of Delaware. Each party agrees to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Delaware.
13.4. Assignment. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which will not be unreasonably withheld, except that either party may assign the Agreement to an affiliated entity, or as part of a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of its business or assets to which this Agreement relates without prior written consent. Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.
13.5. Notices. Notices must be sent by personal delivery, overnight courier, or registered or certified mail. We may also provide notice to the email last designated on your account, electronically via postings on our website, in-product notices, or via our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at Cordance Operations LLC,16 W. Martin Street, Raleigh, NC 27601, Attn: FieldConnect: e-mail to notices@fieldconnect.com with a copy to: legal@cordance.co, and we will send notices to the address last designated on your account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting.
13.6. Entire Agreement; Order of Precedence. This Agreement, including the Order(s) and any applicable schedules, exhibits, and appendices, and any mutually signed SOW set forth the entire agreement between Customer and Company relating to the Services and/or Professional Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between an executed Order, this Agreement, and the Documentation, in each case, as applicable, the conflict will be resolved in that order, but only for the specific Services described in the applicable Order. No modification of or amendment to this Agreement will be effective unless mutually agreed in writing.
13.7. High-Risk Use. You understand that the Services are not designed or intended for use during high-risk activities which include, but are not limited to, use in hazardous environments and/or life support systems.
13.8. Third Party Services. The Services may provide the capability for you to link to or integrate with third party sites or applications separately accessed by you and not purchased from us. We are not responsible for and do not endorse such services. You have sole discretion whether to purchase or connect to any third-party services and your use is governed solely by the terms for those services.
13.9. Beta Services. We may offer you access to beta services that are being provided prior to general release (“Beta Services”). You understand and agree that the Beta Services may contain bugs, errors and other defects, and use of the Beta Services is at your sole risk. You acknowledge that your use of Beta Services is on a voluntary and optional basis, and we have no obligation to provide technical support and may discontinue provision of Beta Services at any time in our sole discretion and without prior notice to you. Beta Services are offered “AS-IS”, and to the extent permitted by applicable law, we disclaim any liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise. If you are using Beta Services, you agree to receive related correspondence and updates from us and acknowledge that opting out may result in cancellation of your access to the Beta Services. If you provide Feedback about the Beta Services, you agree that we own any Feedback that you share with us. For the Beta Services only, these terms supersede any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict.
13.10. Changes. We reserve the right to propose changes to this Agreement that are generally applicable to all customers at any time and will, if such changes are material, provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined in our sole discretion. By continuing to access or use our Services after any revisions become effective, you agree to be bound by the revised terms of the Agreement. If you do not agree to the new terms, you are no longer authorized to use the Services. In the event of a material change of terms, you may terminate the Agreement by giving us written notice within 30 days of our notice of the change of terms and we will refund to you any pre-paid fees that are applicable to the period after such termination.
13.11. General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third-party beneficiary or have the right to modify the Agreement or to make commitments binding on us. Failure to enforce any right under the Agreement will not waive that right. The Agreement may be agreed to online or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g., natural disasters; terrorist activities, activities of third-party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist. Customer will provide all information, access, and full, good faith cooperation reasonably necessary for the delivery and provisioning of the Services. In the event Customer fails to comply with the foregoing, Company will be relieved of its obligations hereunder to the extent such obligations are dependent on Customer’s cooperation and Customer’s payment obligations will remain in full force and effect.
Last Updated 2024-05-29
Blue Link ERP TOS
Version 2.2
Effective June 4th 2024
DownloadTable of Contents
BLUE LINK ERP
TERMS OF SERVICE
These Terms of Service (“Terms”) constitute a legal agreement between the person or organization agreeing to these Terms (“Customer” or “you”) and Permanent Software Group Canada Ltd, a Canadian corporation dba Blue Link ERP, (the “Company” “us” or “we”). By signing an Order, accepting these Terms, or using the Services, you represent that you have the authority to bind the Customer to the Order, these Terms, and any applicable schedules, exhibits, or appendices incorporated or referenced herein.
1. DEFINITIONS
1.1. “Administrator” means the Customer’s primary contact person who coordinates and works with the Company to implement, support, and train the Customer’s Users on their use of the Service.
1.2. “Affiliate” of a party means an entity which, directly or indirectly is controlled by, controls or is under common control with that party where “control” of the party or other entity is the possession of the power to direct or cause the direction of the management and policies of the party or other entity, whether by voting, contract or otherwise.
1.3. “Agreement” means the Order(s), these terms and conditions and all referenced schedules, exhibits, or appendices hereto, and any mutually executed agreements incorporated herein by reference. The pre-printed terms in any of either party’s purchase orders, acknowledgements, or click-through terms do not apply to modify this Agreement, and such other or additional terms or conditions are void and of no effect.
1.4. “Consulting Services” means implementation, training and help desk services provided by Company’s staff or contractors.
1.5. “Customer Content” means content, data, and information, including text, multimedia images (e.g., graphics and audio and video files), or other material submitted, uploaded, imported, or otherwise provided to or through the Services by Customer or by a third party on behalf of or for the benefit of Customer, including Customer’s customers, prospective customers, and users of the Services.
1.6. “Documentation” means Company’s then-current generally available documentation, specifications, and user manuals for the Services which are available upon login to the Services, as well as any documentation included in or attached to this Agreement, or such other Services-related documents provided by Company to Customer.
1.7. “Order” means a written description of Services or Consulting Services, and the applicable pricing as mutually agreed to by the parties in an order form, enrollment form, proposal, schedule, statement of work, work order or similar document.
1.8. “User(s)” means an individual employee of Customer or its Affiliates, or their respective contractor(s) who has been authorized by Customer to use the Services on behalf of Customer and/or its Affiliates (including Administrators).
2. ACCESS AND USE OF THE SERVICES.
2.1. Our Provision of the Services. We will make our proprietary, enterprise resource planning software as a service (the “Services”) available to you pursuant to the terms of the Agreement and the Documentation. We will use commercially reasonable efforts to make the Services available 24x7. You acknowledge that your use of the Services requires third-party hardware, software, internet and/or telecommunications access (which may involve extra charges), and that your ability to access and use the Services may be affected by your choices and the performance of these products and services.
2.2. Implementation. Upon execution of this Agreement, we will provide the implementation and the training service Consulting Services as described in a mutually agreed Order.
2.3. Changes to Services. We reserve the right to enhance, upgrade, improve, modify or discontinue features of our Services as we deem appropriate and in our sole discretion. We will not materially reduce the core functionality or discontinue any Services unless we provide you with prior written notice. If we discontinue Services or materially reduce the core functionality, you may terminate the affected Services or this Agreement with 60 days prior written notice to us. We may offer additional functionality to our standard Services or premium feature improvements for an additional cost.
2.4. Registration for the Services. Your Users may be required to provide information about themselves in order to register for and/or use certain Services. You agree that any such information will be accurate. Your Users may also be asked to choose a username and password. You are entirely responsible for maintaining the security of those usernames and passwords and agree not to permit the disclosure to any third party.
2.5. Your Use of the Services. We grant you a limited, non-exclusive right to use our Services and Documentation only for your internal business purposes, subject to the terms of this Agreement. Your Affiliates and third-party contractors may use the Services or Documentation as Users under your account, provided that you take full responsibility for such third parties’ compliance with this Agreement.
2.6. Limitations on Your Use. By using our Services, you agree on behalf of yourself, your Affiliates and Users, not to (i) modify, prepare derivative works of, or reverse engineer our Services; (ii) access or use the Services or Documentation for any purpose competitive with Company; (iii) use our Services in a way that abuses or disrupts our networks, user accounts, or the Services; (iv) transmit through the Services any harassing, indecent, obscene, or unlawful material; (v) market or resell the Services to any third party; (vi) use the Services in violation of applicable laws or regulations; (vii) use the Services to send unauthorized advertising, or spam; (viii) harvest, collect, or gather user data without their consent; (ix) transmit through the Services any material that may infringe the intellectual property, privacy, or other rights of third parties; or (x) use the Services to commit fraud or impersonate any person or entity. Customer understands and acknowledges that Company does not monitor the content passing through its servers, and that it is Customer’s sole responsibility to ensure that the information it and its users transmit and receive complies with all applicable laws and regulations and does not infringe upon the rights of any third party. Customer will be solely responsible for the Customer Content. In no event will Company be responsible for Customer Content or its accuracy or completeness, or for any loss of Customer Content.
2.7. Responsibility for Users. You are responsible for the activities of all Users who access or use the Services through your account, and you agree to ensure that any such Users will comply with the terms of this Agreement. You agree to provide us prompt notice, if you become aware of any violation of this Agreement in connection with use of the Services by any person.
2.8. Support Services. We will provide standard support for the Services (excluding Consulting Services). Our standard support hours are 9:00am to 5:00pm, Eastern Time, Monday to Friday, excluding national holidays. Further details of our Support Services are on the attached Exhibit A.
3. ORDERS, FEES AND PAYMENT.
3.1. Order(s). Your order for Services or Consulting Services is detailed in an executed Order. You may order additional Services using our then-current ordering processes. All Orders are effective and the Term of the Order begins: (i) for the initial Order, the Effective Date of this Agreement, and (ii) for subsequent Orders, the date that the Order is signed by both parties (“Order Effective Date”). Each Order will be treated as separate and independent Order; form part of the Agreement; and may be subject to our verification and credit approval process.
3.2. Fees and Payment. You agree to pay all applicable, undisputed fees for the Services or Consulting Services on the terms set forth in the Order, this Agreement, or our invoice. Unless otherwise specified in an Order or invoice, you agree to pay all undisputed fees set forth in an invoice within 30 days of the date thereof. Except as otherwise expressly stated in the Agreement, any payments you make to us for the Services are final and non-refundable. You are responsible for all fees and charges imposed by third parties such as your providers of hardware, software, internet, voice and/or data transmission, related to your access and use of the Services. You are responsible for providing accurate and current billing, contact and payment information to us. You agree that we may charge your payment card or bill you for all amounts due for your use of the Services, and we may take steps to update your payment card information (where permitted) to ensure payment can be processed. We may suspend or terminate your Services if at any time we determine that your payment information is inaccurate or not current, and you are responsible for fees and overdraft charges that we may incur when we charge your card for payment. We reserve the right to update the fees annually. We will give you notice of any price increase at least 30 days in advance of such increase. All references to currency will be in US dollars ($USD) or Canadian dollars ($CAD), depending on which is specified in the Order.
3.3. Taxes and Withholdings. You are responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs, or any other similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Services, except those taxes and fees based on our net income, or Taxes and Fees for which You have provided an exemption certificate. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
3.4. Disputes; Delinquent Accounts. You must notify us of any fee dispute within 15 days of the invoice date, and once resolved, you agree to pay those fees within 15 days of such dispute notice. We may, upon 10 days’ notice to you, suspend your Services if you do not pay undisputed fees by their due date, and you agree to reimburse us for all reasonable costs and expenses, including overdraft charges, collection costs and attorneys’ fees, incurred in collecting delinquent amounts. You further agree that we may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
4. TERM AND TERMINATION.
4.1. Term. The initial term commitment for your purchase of Services will be as specified on an Order (“Initial Term”) and begins on the Order Effective Date stated in the applicable Order. If the Order is silent, the Initial Term shall be 12 months. After the Initial Term, the Services will automatically renew for additional 12-month periods (“Renewal Terms”), unless either party provides notice of non-renewal at least 30 days before the Initial Term or then current Renewal Term of the Order expires. We may agree to align the invoicing under multiple Orders, but this will not reduce the term of any Order. Terminating specific Services under one Order does not affect the term of any other Order still in effect.
4.2. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice of such breach by the other party, or (ii) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.
4.3. Effect of Termination. If the Agreement or any Services are terminated, you will immediately discontinue all use of the terminated Services, except that we will provide you with limited access to the Services for a period of at least 30 days solely to enable you to retrieve your Customer Content from the Services. Unless otherwise agreed in writing, we have no obligation to maintain your Customer Content after this 30-day period. If we discontinue Services or materially reduce the core functionality in accordance with Section 2.3 above, and you elect to terminate the affected Services or this Agreement, we will provide you with a pro rata refund of any prepaid, unused fees. Termination of the Agreement will not affect any claim arising prior to the termination date.
4.4. Survival. The terms of this Agreement will survive the termination or expiration of this Agreement to the extent reasonably necessary to carry out the intent of the parties as indicated therein.
5. PROPRIETARY RIGHTS.
5.1. Our Proprietary Rights and Marks. You acknowledge that we or our licensors retain all proprietary right, title and interest in the Services, all Documentation our name, logo, or other marks (together, the “Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Except for the express limited rights set forth in this Agreement, no right, title or interest in our Services, Documentation, or Marks is granted to you. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part our Marks or is similar to any of these.
5.2. Your Customer Content. You retain all rights to your Customer Content and are solely responsible for the Customer Content sent or transmitted by you or displayed or uploaded by you in using the Services and for compliance with all Laws pertaining to the Customer Content, including, but not limited to, Laws requiring you to obtain the consent of a third party to use the Customer Content and to provide appropriate notices of third-party rights. You hereby grant us a worldwide, royalty-free, non-exclusive license to use, modify, reproduce, and distribute your Customer Content in order to provide and operate the Services. We will not view, access, or process any of your Customer Content, except: (x) as authorized or instructed by you or your users in this Agreement or in any other agreement between the parties, or (y) as required to comply with our policies, applicable law, or governmental request, or (z) as may be necessary for the performance of the Services.
5.3. Feedback. You hereby grant us a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you, your Affiliates and Users (“Feedback”). We also reserve the right to seek intellectual property protection for any features, functionality or components that may be based on or initiated by your Feedback.
6. DATA PRIVACY AND SECURITY.
6.1. Security Safeguards. Each party will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Customer Content and any associated personal data that is collected and/or processed through the Services. On our part, those safeguards will include commercially reasonable measures designed to prevent unauthorized access, use, modification, deletion, and disclosure of Customer Content. Customer (not us) has sole responsibility for adequate security, protection, and backup of Customer Content when in Customer’s or its representatives’ or agents’ possession or control.
6.2. Sub-processors. You acknowledge and agree that we may use sub-processors to help provide the Service, who may access your Customer Content and any associated personal data, to provide, secure and improve the Services. Before sharing Customer Content with any of our sub-processors, we will require that the sub-processor maintains, at a minimum, commercially reasonable data practices for maintaining the confidentiality and security of your Customer Content and preventing unauthorized access. We will be responsible for the acts and omissions of our sub-processors to the same extent that we would be responsible if we were performing the Services.
6.3. Data Protection Laws. To the extent that our provision of the Services involves the processing of Personal Data under applicable data protection law, the parties agree that You will be deemed to be the Data Controller, and we will be deemed to be the Data Processor, as those terms are understood under the applicable data protection law. For the purposes of this Agreement, the term “Personal Data” means any information relating to an identified or identifiable natural person where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
6.4. Privacy Laws. Company acknowledges that Customer Content which includes Personal Data may be protected from disclosure by provincial and or federal law. Company agrees to only retain, use and disclose such data for the purposes of fulfilling its duties under this Agreement and to keep all such data to which it has access in the performance of this Agreement in a secure manner and disclose it only on direction by Customer.
6.5. Publicity. Customer agrees that Company may use Customer’s name and refer to Customer in its promotional or marketing materials and its website, lists and business presentations.
7. CONFIDENTIALITY.
7.1. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Customer Content will be deemed Confidential Information of Customer without any marking or further designation. Company’s Services, Documentation and Marks, any related intellectual property rights, and the terms and conditions of this Agreement will be deemed Confidential Information of Company without any marking or further designation. Confidential Information will not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
7.2. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
8. WARRANTIES.
8.1. We provide our Services using a commercially reasonable level of care and warrant that the Services will materially conform to the Documentation under normal use, and that we will perform the Consulting Services in a professional manner consistent with industry standards. Our entire liability and your exclusive remedy under this warranty will be, at our sole option and subject to applicable law, to provide conforming services, or to terminate the non-conforming services and provide a pro-rated refund of any prepaid fees from the date you notify us of the non-conformance through the end of the remaining term. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) OUR SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS.
8.2. Use of the Services may be available through a compatible mobile device, internet access, and may require third party software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees, as well as the terms of your agreement with your mobile device and telecommunications provider. WE MAKE NO WARRANTIES OR REPRESENTATION OF ANY KIND, EXPRESS, STATUORY OR IMPLED AS TO (I) THE AVAILABILITY OF INTERNET OR TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION, (II) ANY LOSS, DAMAGE OR OTHER SECURITY INTRUSION OF THE INTERNET OR TELECOMMUNICATION SERVICES, AND (III) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTING CONNECTED WITH THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
8.3. No Liability in Connection With Data Accessed Through the Services. Company will not have any liability for damages or issues resulting from the data or other information accessed by Customer or Users through the Services, including any damage to User’s computer systems or loss or corruption of data caused by computer viruses contained in such accessed data or information.
9. INDEMNIFICATION.
9.1. Company Indemnity. We will indemnify and defend you against any third-party claim alleging that any of the Services infringes upon any patent or copyright, or violates a trade secret of any such third-party (“IP Claim”), and we agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. You will promptly notify us of any claim and cooperate with us in defending the claim. We will reimburse you for reasonable expenses incurred in providing any cooperation or assistance. We will have full control and authority over the defense and settlement of any claim, except that any settlement requiring you to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) you may join in the defense with your own counsel at your own expense.
9.1.1. If (i) Company becomes aware of an actual or potential IP Claim, or (ii) Customer provides Company with notice of an actual or potential IP Claim, Company may (or in the case of an injunction against Customer, will), at Company’s sole option and determination: (a) procure for Customer the right to continue to use the Services; or (b) replace or modify the Services with equivalent or better functionality so that Client’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Services and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Company.
9.1.2. The obligations in Section 9.1 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Services with other products, software or services not provided by Company; (ii) any IP Claim related to any Customer Content, or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
9.2. Your Indemnity. Unless prohibited by applicable law, you will indemnify and defend us against any third-party claim resulting from a breach of Sections 2.6 or 5.2 or alleging that any of your Customer Content infringes upon any patent or copyright, or violates a trade secret of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. We will promptly notify you of any claim and cooperate with you in defending the claim. You will reimburse us for reasonable expenses incurred in providing any cooperation or assistance. You will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring us to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) we may join in the defense with our own counsel at our own expense.
10. LIMITATION ON LIABILITY.
10.1. LIMITATION ON LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR INCIDENTAL LOSS, OR DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, OR (iv) CUSTOMER’S LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
10.2. LIMITATION ON AMOUNT OF LIABILITY. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATION UNDER SECTION 9; OR A PARTY’S GROSS NEGLIGENCE, WILLFUL MIDCONDUCT OR FRAUD, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT IS LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. The foregoing does not limit your obligations to pay any undisputed fees and other amounts due under this Agreement.
11. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, data protection and anti-bribery laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Further, Customer will not permit its users to access or use any Service or Content Product in a U.S. embargoed country or in violation of any U.S. export law or regulation. Notwithstanding any other provision in these Terms, we may immediately terminate the Agreement for noncompliance with applicable laws.
12. SUSPENSION OF SERVICES. We reserve the right to suspend the Services or restrict access or functionalities if (a) we reasonably believe that you, your Affiliates or Users have materially violated this Agreement, or (b) we reasonably determine that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities. Unless legally prohibited, we will use commercially reasonable efforts to notify you when taking any of the foregoing actions. We will not be liable to you, your Affiliates or Users or any other third party for any such suspension of Services or reduced functionality. Any suspected fraudulent, abusive, or illegal activity by you, your Affiliates or Users, may be referred to law enforcement authorities at our sole discretion.
13. ADDITIONAL TERMS.
13.1. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it will provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within 30 days after such notice, knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation, or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section will not apply to claims subject to indemnification under Section 9 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
13.2. Limitation on Bringing Claims; No Jury. By entering into this Agreement, each party is waiving the right to a jury. Any claim arising out of this Agreement must be brought, if at all, within two years of the claim arising. You may only resolve disputes with us on an individual basis and you agree not to bring or participate in any class, consolidated, or representative action against us or any of our employees or affiliates.
13.3. Governing Law and Jurisdiction. This Agreement will be governed by the laws of the Province of Ontario. Each party agrees to the personal and exclusive jurisdiction of and venue in the federal and state courts located in the city of Ottawa, Province of Ontario, Canada.
13.4. Assignment. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which will not be unreasonably withheld, except that either party may assign the Agreement to an affiliated entity, or as part of a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of its business or assets to which this Agreement relates without prior written consent. Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.
13.5. Notices. Notices must be sent by personal delivery, overnight courier, or registered or certified mail. We may also provide notice to the email last designated on your account, electronically via postings on our website, in-product notices, or via our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at 16 W. Martin Street, Raleigh, NC 27601, Attn: Contract Admin, with a copy to the attention of the Revenue Department at the same address; e-mail: revenue@cordance.co, and for notice related to legal matters, to Legal@Cordance.co. We will send notices to the address last designated on your account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting.
13.6. Entire Agreement; Order of Precedence. This Agreement, including any applicable Order and any schedules, exhibits, and appendices thereto, and any mutually signed SOW set forth the entire agreement between you and us relating to the Services and/or Consulting Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between any of the above referenced documents, the conflict will be resolved in that order. No modification of or amendment to this Agreement will be effective unless mutually agreed in writing.
13.7. General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third-party beneficiary or have the right to modify the Agreement or to make commitments binding on us. Failure to enforce any right under the Agreement will not waive that right. The Agreement may be agreed to online or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g., natural disasters; epidemics, pandemics, terrorist activities, activities of third-party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.
13.8. Beta Services. We may offer you access to beta services that are being provided prior to general release (“Beta Services”). You understand and agree that the Beta Services may contain bugs, errors and other defects, and use of the Beta Services is at your sole risk. You acknowledge that your use of Beta Services is on a voluntary and optional basis, and we have no obligation to provide technical support and may discontinue provision of Beta Services at any time in our sole discretion and without prior notice to you. These Beta Services are offered “AS-IS”, and to the extent permitted by applicable law, we disclaim any liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise. If you are using Beta Services, you agree to receive related correspondence and updates from us and acknowledge that opting out may result in cancellation of your access to the Beta Services. If you provide Feedback about the Beta Service, you agree that we own any Feedback that you share with us. For the Beta Services only, this Section supersedes any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict. When, if at all, we release a Beta Service for general availability, it is no longer a “Beta Service” and is treated as a part of Services for all purposes under this Agreement (including the payment of applicable additional Fees).
Last updated 2024-06-04
Exhibit A – Help Desk and Support Services, Version Updates, and FAQ
Help Desk and Support Services
- Availability. Blue Link maintains standard help desk hours between 9:00am – 5:00pm Monday to Friday, Eastern Time excluding all public holidays in Ontario, Canada. Help desk availability may occasionally deviate from published hours due to downtime for systems and server maintenance, company events, observed statutory holidays, and events beyond Blue Link’s control.
- For SaaS availability / connectivity problems only, support is available 7 days per week.
2. After-Hours. Routine Help Desk requests submitted after daily business hours or on weekends or holidays will receive a response during the next normal business day. For SaaS availability / connectivity problems only, please call the emergency after-hours number provided during implementation.
3. Tickets. A “ticket” is (a) a single request, issue, or problem that a customer asks a help desk representative to analyze or resolve or (b) a product or ERP usage question involving a single topic submitted as provided above. Only employees and affiliates of Customers with authorized access to the Blue Link help desk portal are eligible to submit tickets. It is expected that end users of the Services would submit their requests to Customer’s administrators who would then communicate that to Blue Link in the form of a ticket.
4. Blue Link’s target response time for critical incidents is within 4 normal business hours after the ticket is submitted. If a solution or work-around cannot be provided immediately, Blue Link will provide ongoing communication of the analysis of the issue and what attempts are being made to resolve it. Blue Link’s target response time for standard incidents is within 1 business day of the ticket being submitted subject to variations due to downtime for systems and server maintenance, company events, observed statutory holidays, and events beyond Blue Link’s reasonable control. Blue Link uses commercially reasonable efforts to meet these target response time but does not warrant or guaranty that target times will be met.
5. Uptime Commitment. Blue Link uses commercially reasonable efforts to provide a Service Availability of 99% or higher as measured per calendar quarter using industry standard monitoring tools. Service Availability excludes: regularly scheduled maintenance of the Service; any problems not caused by Blue Link that result from (a) computing or networking hardware, (b) other equipment or software under Customer’s control, (c) the Internet, (d) other issues with electronic communications, or (e) a Force Majeure event; Blue Link’s suspension or termination of the Services in accordance with the Agreement; negligent or intentional misuse of the Services by Customer; or “Beta” products, features and functions identified as such by Blue Link. The 99% Service Availability is applicable only to production tenants (i.e. not test, training, or other non-production tenants) and will be suspended at any time Blue Link has suspended the Services for any reason permitted under the Agreement.
6. Remote Support. Unless otherwise specified all help desk services will be provided remotely. On-site services may be available at the then current prices.
Annual Version Updates
Blue Link’s annual version update program is designed to offer you peace of mind. The program allows you to:
· Stay Current:
o Take advantage of the latest features, issue fixes and innovations in the software, including version upgrades.
o Staying current allows you to stay productive and evolve your business as the feature set evolves.
· Stay Involved:
o Your base app feature requests are given priority:
§ As an up-to-date customer, the feature requests and product suggestions you make are flagged and given priority when product design decisions are being made.
o Optionally participate in user-forums:
§ Blue Link product designers may solicit your feedback from time to time on features that are under consideration for future releases.
As a Blue Link SaaS Services customer, you are automatically enrolled in the annual update program, and the cost of obtaining those annual updates is included in your monthly fees.
Frequently Asked Questions
What happens to my customizations with version updates?
· Any customizations you’ve purchased will be included in each annual version update.
· To facilitate this, in addition to the basic SaaS fees, your monthly fee includes a portion based on any customizations you’ve made to the application.
When is my Version Update due / how is it scheduled?
Blue Link keeps track of the last time you received a version update. You’re eligible to receive a new release at a minimum once a year from your previous upgrade. You will be notified when a new release is available to begin scheduling the upgrade.
Are Version Updates Optional?
Taking delivery of a version upgrade any given year is optional, however, in order to maintain supportability, you cannot skip more than one upgrade.
· Please note that skipping more than one upgrade may mean you miss a breaking change to the app which could make your version unsupportable and therefore help desk services and support may be denied or terminated.
· If you report an issue, the help desk may require you to update to the current release before fixing an issue if an update has not been delivered in the last 12 months.
What happens if I miss a monthly payment or one of my payments is refused?
Should any payment be refused, a $30 administration fee per period will apply.
· Replacement payment plus the $30 admin fee is required within 30 days.
o If replacement is not received within that time entitlement to version upgrades will lapse, and all benefits will be forfeit.
· To get back onto version upgrade status, any unpaid periods and administration fees per period must be paid, up to and including the current period.
I’m on a pre-authorized payment schedule, when is my account debited?
Payments are processed on the due date, or on the Friday prior to the due date when a due date lands on a weekend.
DocXellent TOS
Version 2.4
Effective July 22nd 2024
DownloadTable of Contents
DOCXELLENT
TERMS OF SERVICE
These Terms of Service (“Terms”) constitute a legal agreement between the person or organization agreeing to these Terms (“Customer” or “you”) and DocXellent, a business unit of Cordance Operations LLC, a Delaware limited liability company (the “Company,” “us” or “we”). By signing an Order, accepting these Terms, or using the Services, you represent that you have the authority to bind the Customer to the Order, these Terms, and any applicable schedules, exhibits, or appendices incorporated or referenced herein (collectively, the “Agreement”). Pre-printed terms of either party’s purchase orders, acknowledgements, or click-through terms do not apply or modify this Agreement, and such other or additional terms or conditions are void and of no effect.
1. DEFINITIONS
1.1. “Affiliate” of a party means an entity which, directly or indirectly is controlled by, controls or is under common control with that party where “control” of the party or other entity is the possession of the power to direct or cause the direction of the management and policies of the party or other entity, whether by voting, contract or otherwise.
1.2. “Agreement” means these Terms of Service including all referenced schedules, exhibits or appendices hereto, and any mutually executed agreements incorporated herein by reference.
1.3. “Customer Content” means content, data, and information, including text, graphics, videos, or other material, submitted, uploaded, imported, or otherwise provided to or through the SaaS Software by Customer or by a third party on behalf of or for the benefit of Customer, including Customer’s customers, prospective customers and Users of the SaaS Software.
1.4. “Documentation” means Company’s then-current generally available documentation, specifications, and user manuals for the Software located in Company’s Help Portal, as well as any documentation included in or attached to any Order or Software related documents provided by Company to Customer.
1.5. “On-Premise Software” means the ENSUR on-premise software provided to Customer in object code form and listed on an Order.
1.6. “Order” means a written description of Software and or Professional Services, and the applicable pricing as mutually agreed to by the parties in an order form, quote, schedule, statement of work or similar document.
1.7. “Professional Services” means services provided by Company’s staff pursuant to a mutually agreed Order.
1.8. “SaaS Software” means the ENSUR hosted software-as-a-service offerings listed on an Order.
1.9. “Software” means the ENSUR On-Premise Software and or the SaaS Software identified in an Order.
1.10 “User” means an individual employee, consultant, contractor, or agent of Customer who has been authorized by Customer to use the Software, as an Approver, Editor or Viewer (or other defined User category), on behalf of Customer and/or its Affiliates.
2. ACCESS AND USE OF THE SOFTWARE.
2.1. Our Provision of the Software. We will make our Software available to you pursuant to the terms of the Agreement and the Documentation.
2.1.1. If your Order includes On-Premise Software, we grant you a limited term, non-exclusive, non-sublicensable and non-transferable (except as otherwise provided herein) license to install the On-Premise Software and use it only for your internal business use up to the maximum number of concurrent Users (approvers and editors) stated on your Order.
2.1.2. You may use the Software only during the Term as defined in the Order. If you exceed the Term on your Order (beyond any renewals), you will automatically be locked out of your account until you sign a renewal Order. Once you have, our support team will help to restore your account. Your Affiliates, contractors or service providers may use the Software as Users under your account, provided that you will take full responsibility for such third parties’ compliance with this Agreement.
2.1.3. You acknowledge that your use of the On-Premises Software requires third-party hardware, software, internet and/or telecommunications access (which may involve extra charges from those third parties), and that your ability to access and use the On-Premise Software may be affected by your choices and the performance of these products and services.
2.1.4. If your Order includes SaaS Software, we will make our proprietary SaaS Software available to you pursuant to the terms of the Agreement and the Documentation. We will use commercially reasonable efforts to make the SaaS Software available 24x7.
2.1.5. We grant you a limited right to access and use the Software and Documentation only for your internal business purposes and only up to the maximum number of concurrent approvers and editors Users stated on your Order. Your Affiliates, contractors or service providers may use the Software or Documentation as Users under your account, provided that you take full responsibility for such third parties’ compliance with this Agreement.
2.1.6. You agree to use commercially reasonable efforts to upgrade to our most current version/release of the Software promptly after the latest release is made available.
2.2. Changes to Software. We reserve the right to enhance, upgrade, improve, modify or discontinue features of our Software as we deem appropriate and in our discretion. We will not materially reduce the core functionality or discontinue any Software unless we provide you with prior written notice. We may offer additional optional functionality, or premium feature improvements, for both our standard On-Premise and SaaS Software for an additional cost.
2.3. Login Information. You are entirely responsible for maintaining the security of your Users’ login information.
2.4. Limitations on Your Use. By using our Software, you agree on behalf of yourself, your Affiliates and Users, not to (i) use our Software in a way that abuses or disrupts our networks, user accounts, or the Software; (ii) transmit through the Software any harassing, indecent, obscene, or unlawful material; (iii) use the Software in violation of applicable laws, or regulations; (iv) use the Software to send unauthorized advertising, or spam; (v) decompile, modify, prepare derivative works of, or reverse engineer the Software (vi) ) market, sublicense or resell the use of the Software to any third party; (vii) harvest, collect, or gather User data without their consent; (viii) transmit through the Software any material that may infringe the intellectual property, privacy, or other rights of third parties; or (ix) use the Software to commit fraud or impersonate any person or entity.
2.5. Responsibility for Users. You are responsible for the activities of all Users who access or use the Software through your account, and you agree to ensure that any such Users will comply with the terms of this Agreement. If you become aware of any violation of this Agreement in connection with use of the Software by any person, please contact us.
2.6. Support and Maintenance. We will, at no additional charge, provide customer support and maintenance for the Software as detailed in Exhibit A hereto.
3. ORDERS, FEES AND PAYMENT.
3.1. Orders. You may order licenses for Software (or additional User licenses) or Professional Services using our then-current ordering processes. All Orders are effective on the date on the signature block of the Order (“Effective Date”). Our acceptance of your Order may be subject to our verification and credit approval process. Each Order will be treated as a separate and independent Order.
3.2. Payments. Unless otherwise specified in the Order or invoice, Customer will pay all undisputed fees set forth in an invoice within 30 days of the date thereof. Company may update the fees for the Software annually. Except as set forth in Sections 4.3 and 9.1 below, any payments Customer makes to Company are final and non-refundable.
3.3. Purchase Orders. If Customer’s payment process requires that it issue a purchase order, the following process will apply: (i) not less than 60 days prior to the end of each year of the Term, Company will send an Order to document pricing for the upcoming 12 month period; and (ii) Customer will return the countersigned Order and its purchase order not more than 30 days after receipt of the Order from Company, except in the event of a non-renewal.
3.4. Payment Information. Customer is responsible for providing accurate and current billing, contact and payment information to Company. Customer agrees that Company may charge Customer's payment card or bill Customer for all amounts due from Customer, and Company may take steps to update Customer's payment information to ensure payment can be processed. Customer agrees that Customer's payment information may be provided to third parties for payment processing and fraud prevention purposes. Company may suspend or terminate Customer's use of the Software if at any time Company determines that Customer's payment information is inaccurate or not current, and Customer is responsible for fees and overdraft charges that Company may incur when Company charges Customer's card for payment. All references to currency will be in US dollars ($USD) unless otherwise stated on the Order.
3.5. Taxes and Withholdings. You are responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs, or any other similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Software, except those taxes and fees based on our net income, or Taxes and Fees for which you have provided an exemption certificate. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
3.6. Disputes; Delinquent Accounts. You must notify us of any fee dispute within 15 days of the invoice date, and once resolved, you agree to pay those fees within 15 days. We may, on 10 days’ notice to you, suspend your right to use the Software if you do not pay undisputed fees by their due date, and you agree to reimburse us for all reasonable costs and expenses, including collection costs and attorneys’ fees, incurred in collecting delinquent amounts. You further agree that we may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
3.7. Sales, Promotional Offers, Coupons and Pricing. Sales, promotions, and other special discounted pricing offers are temporary, and upon the renewal of your subscription, any such discounted pricing offers may expire. We reserve the right to discontinue or modify any coupons, credits, sales, and special promotional offers in our sole discretion.
4. TERM AND TERMINATION.
4.1. Term. The initial term commitment for your purchase of licenses to the Software will begin on the date you sign the initial Order (the “Initial Term”). If the Order is silent, the Initial Term will be 24 months. After the Initial Term, an Order will automatically renew for additional 12-month periods or longer term if agreed by the parties in the Order (each a “Renewal Term”), unless either party provides notice of non-renewal at least 30 days before the current term expires. Company may agree to align the invoicing under multiple Orders, but this will not reduce the term of any Order. Terminating specific Orders does not affect the term of any Order still in effect, and the terms of this Agreement will continue to apply to any Order that is still in effect.
4.2. Termination for Cause. Either party may terminate the Agreement or an Order (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice, or (ii) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.
4.3. Effect of Termination. If the Agreement or any Order is terminated, you will immediately discontinue all use of the terminated Software, and delete, destroy or return all copies of the On-Premise Software and Documentation in your procession and certify in writing to us that such On-Premise Software and Documentation has been deleted or destroyed. (a) For SaaS Software, prior to the expiration or termination of this Agreement or Order, if you request, we will transmit your Customer Content in the SaaS Software in a mutually agreeable format to you via a Professional Services engagement, and upon termination or expiration, we will securely destroy your Customer Content. (b) For On-Premise Software, prior to the expiration or termination of this Agreement or Order, if you request, we will assist you with the transmission of your Customer Content in the On-Premise Software in a mutually agreeable format via a Professional Services engagement. Termination will not affect any claim arising prior to the termination date. If we discontinue the SaaS Software or materially reduce the core functionality in accordance with Section 2.2 above, and you elect to terminate the applicable Order, we will provide you with a pro rata refund of any prepaid fees attributable to the period after the termination.
4.4. Survival. The terms of this Agreement will survive the termination or expiration of this Agreement to the extent reasonably necessary to carry out the intent of the parties as indicated therein.
5. PROPRIETARY RIGHTS.
5.1. Our Proprietary Rights and Marks. You acknowledge that we or our licensors retain all proprietary right, title and interest in the Software, all Documentation, our name, logo or other marks (together, the “Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Except for the express limited rights set forth in this Agreement, no right, title or interest in our Software, Documentation, or Marks is granted to you. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part our Marks or is similar to any of these.
5.2. Your Customer Content. You retain all rights to your Customer Content and are solely responsible for the Customer Content sent or transmitted by you or displayed or uploaded by you in using the Software and for compliance with all laws pertaining to the Customer Content, including, but not limited to, laws requiring you to obtain the consent of a third party to use the Customer Content and to provide appropriate notices of third-party rights. You hereby grant us a worldwide, royalty-free, non-exclusive license to use, modify, reproduce, and distribute your Customer Content in order to provide and operate the SaaS Software. We will not view, access or process any of your Customer Content, except: (x) as authorized or instructed by you or your Users in this Agreement (including as necessary to provide ongoing support for the Software) or in any other agreement between the parties, or (y) as required to comply with our policies, applicable law, or governmental request.
5.3. Feedback. You agree that we will have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Software or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you, our Affiliates and Users (“Feedback”). We also reserve the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by your Feedback.
5.4. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that we may collect and compile data and information related to your use of the SaaS Software to be used by us in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the SaaS Software ("Aggregated Statistics"). As between us and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by us. You agree that we may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify you or your Customer Content.
5.5. Publicity. Customer agrees that Company may use Customer’s name and logo, and refer to Customer, in its promotional and marketing materials including on its website, lists and business presentations.
6. PRIVACY AND SECURITY.
6.1. Security Safeguards. Each party will maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of your Customer Content and any associated personal data that is collected and/or processed through the Software. On our part, those safeguards will include measures designed to prevent unauthorized access, use, modification, deletion and disclosure of Customer Content when using the SaaS Software. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Content when in Customer’s or its representatives’ or agents’ possession or control.
6.2. Sub-processors. You acknowledge and agree that we may use sub-processors to help provide the SaaS Services, who may access your Customer Content and any associated personal data, to provide, secure and improve the SaaS Software. Before sharing Customer Content with any of our sub-processors, we will require that the sub-processor maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of your Customer Content and preventing unauthorized access. We will be responsible for the acts and omissions of such sub-processors to the same extent that we would be responsible if we were performing the SaaS Software.
6.3. State Privacy Laws. To the extent that Customer Content contains “personal information” that is subject to the California Consumer Privacy Act of 2018, its implementing regulations, and any amendments thereto (collectively, the “CCPA”), or any other substantially similar state privacy laws, Company agrees that it will comply with all such laws and process such personal information as a service provider (as defined under the CCPA) and will not (a) retain, use or disclose personal information for any purpose other than the purposes set out in this Agreement and/or as permitted by the CCPA; or (b) "sell" (as defined and understood within the requirements of the CCPA) personal information.
7. CONFIDENTIALITY.
7.1. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Customer Content will be deemed Confidential Information of Customer without any marking or further designation. All Company technology and the terms and conditions of this Agreement will be deemed Confidential Information of Company without any marking or further designation. Confidential Information does not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
7.2. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
8. WARRANTIES.
8.1. We provide our Software using a commercially reasonable level of care and warrant that the Software will materially conform to the documentation under normal use. WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF THE SOFTWARE WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) OUR SOFTWARE WILL MEET YOUR SPECIFIC REQUIREMENTS. OUR ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT OUR SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SOFTWARE, OR TO TERMINATE USE OF THE NON-CONFORMING SOFTWARE AND PROVIDE A PRO-RATED REFUND OF ANY PREPAID FEES FROM THE DATE YOU NOTIFY US OF THE NON-CONFORMANCE THROUGH THE END OF THE REMAINING CURRENT TERM. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE.
9. INDEMNIFICATION.
9.1. Our Indemnity. We will indemnify and defend you against any third-party claim alleging that any of the Software infringes upon any patent or copyright, or violates a trade secret of any such third-party (“IP Claim”), and we agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. You will promptly notify us of any claim and cooperate with us in defending the claim. We will reimburse you for reasonable expenses incurred in providing any cooperation or assistance. We will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring you to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) you may join in the defense with your own counsel at your own expense.
9.1.1. If (i) Company becomes aware of an actual or potential IP Claim, or (ii) Customer provides Company with notice of an actual or potential IP Claim, Company may (or in the case of an injunction against Customer, will), at Company’s sole option and determination: (a) procure for Customer the right to continue to use the Software; or (b) replace or modify the Software with equivalent or better functionality so that Customer’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Software and refund to Customer any pre-paid Service fees for any periods after the termination of the Software, less any outstanding moneys owed by Customer to Company.
9.1.2. The obligations in Sections 9.1 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Software with other products, software or services not provided by Company; (ii) any IP Claim related to any Customer Content, or (iii) any IP Claim related to any use or exercise of any other right in respect to the Software outside the scope of the rights granted in this Agreement.
9.2. Your Indemnity. You will indemnify and defend us against any third-party claim resulting from a breach of Sections 2.4 or 5.2 or alleging that any of your Customer Content infringes upon any patent or copyright, or violates a trade secret of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. We will promptly notify you of any claim and cooperate with you in defending the claim. You will reimburse us for reasonable expenses incurred in providing any cooperation or assistance. You will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring us to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) we may join in the defense with our own counsel at our own expense.
10. LIMITATION ON LIABILITY.
10.1. LIMITATION ON LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY DAMAGES OR DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, OR (iv) CUSTOMER’S LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
10.2. LIMITATION ON AMOUNT OF LIABILITY. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATION UNDER SECTION 9, OR A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT IS LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SOFTWARE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DOES NOT LIMIT YOUR OBLIGATIONS TO PAY ANY UNDISPUTED FEES AND OTHER AMOUNTS DUE UNDER ANY ORDER.
11. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the Software under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, data protection and anti-bribery laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Further, Customer will not permit its Users to access or use any Service in a U.S. embargoed country or in violation of any U.S. export law or regulation. If necessary and in accordance with applicable law, we will cooperate with local, state, federal and international government authorities with respect to the Software. Notwithstanding any other provision in these Terms, we may immediately terminate the Agreement for noncompliance with applicable laws.
12. SUSPENSION OF ACCESS TO SOFTWARE. We reserve the right to suspend your access to the Software or restrict functionalities if (a) we reasonably believe that you, your Affiliates or Users have materially violated this Agreement, or (b) we reasonably determine that the security of our SaaS Software or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities. Unless legally prohibited, we will use commercially reasonable efforts to notify you when taking any of the foregoing actions. We will not be liable to you, your Affiliates or Users or any other third party for any such suspension of access to the Software or reduced functionality. Any suspected fraudulent, abusive, or illegal activity by you, your Affiliates or Users may be referred to law enforcement authorities at our sole discretion.
13. ADDITIONAL TERMS.
13.1. Inspections and Audits. Customer or Customer’s authorized representative may, at reasonable times during the term of the Agreement and upon a minimum of 60 days advance notice, inspect and audit our quality program (“Quality Program”) of the SaaS Software for the sole purpose of evaluating Company’s compliance with the Standard Operating Procedures (SOPs) and Customer-specific artifacts in the Quality Program. At the request of Customer, any governmental agency which regulates Customer, may, at reasonable times during the term of the Agreement and upon as much advance notice as possible, inspect and audit the applicable records of the Company which are solely related to Customer for the sole purpose of evaluating the Software’s role in supporting Customer’s regulated operations. Company will retain applicable books and records for one year subsequent to the expiration or termination of this Agreement, or such later date as may be required by applicable law. For inspections and audits, Company will provide a qualified quality or validation resource for regulatory support. The support will include responding to audit findings and providing documentation reasonably requested by regulatory agencies.
13.2. Third Party Services. The Software may provide the capability for you to link to or integrate with third party sites or applications separately accessed by you and not purchased from us. We are not responsible for and do not endorse such services. You have sole discretion whether to purchase or connect to any third-party services and your use is governed solely by the terms for those services. Any third-party services we have sold you are subject to this Agreement, including any additional terms specific to those services. Unless otherwise specified, we and our contractors, suppliers, and licensors disclaim all warranties, express or implied, and all liability for any third-party services we have sold to you.
13.3. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it will provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within 30 days after such notice, knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section will not apply to claims subject to indemnification under Section 9 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
13.4. Arbitration. If the parties do not reach an agreed upon solution within a period of 30 days from the time of the commencement of the informal dispute resolution process described above, then either party may initiate binding arbitration by a single arbitrator before the American Arbitration Association using its Commercial Arbitration Rules as the sole means to resolve claims subject to the terms set forth below. YOU AGREE THAT ANY DISPUTE OR CLAIM RELATING TO THIS AGREEMENT WILL BE RESOLVED BY BINDING ARIBTRATION RATHER THAN IN COURT AND ATHAT YOU WILL ARBITRATE WITH US ONLY IN YOUR INDIVIDUAL OR CORPORATE CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. Any arbitration claim must be brought within one year of the claim arising. The arbitrator will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award will be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You understand and agree that unless you can demonstrate that arbitration in Delaware would create an undue burden for you, any arbitration hearing will be held in Delaware. You understand and agree that by entering into this Agreement, each party is waiving the right to a jury trial or a trial before a judge in a public court. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (meaning patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights) or Confidential Information. Furthermore, you have the right to opt out and not be bound by these arbitration provisions by sending written notice of your decision to opt out to the following address Legal@Cordance.co within 30 days of the Effective Date of this Agreement.
13.5. Governing Law and Jurisdiction. These Terms will be governed by the laws of the State of Delaware. For any dispute not subject to arbitration, each party agrees to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Delaware.
13.6. Assignment. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which will not be unreasonably withheld, except that either party may assign the Agreement to an affiliated entity, or as part of a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of its business or assets to which this relates. Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.
13.7. Notices. Notices must be sent by personal delivery, overnight courier, or registered or certified mail. We may also provide notice to the email last designated on your account, electronically via postings on our website, in-product notices, or via our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at 16 W. Martin Street, Raleigh, NC 27601, attention Contract Admin; e-mail support@docxellent.com; and for notice related to legal matters, e-mail to legal@cordance.co. We will send notices to the address last designated on your account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting.
13.8. Entire Agreement; Order of Precedence. This Agreement, including the Order(s) and any applicable schedules, exhibits, and appendices, and any mutually signed SOW set forth the entire agreement between Customer and Company relating to the Software and Professional Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between an executed Order, this Agreement, and the Documentation, in each case, as applicable, the conflict will be resolved in that order, but only for the specific Software described in the applicable Order. No modification of or amendment to this Agreement will be effective unless mutually agreed in writing.
13.9. General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third-party beneficiary or have the right to modify the Agreement or to make commitments binding on us. Failure to enforce any right under the Agreement will not waive that right. The Agreement may be agreed to online or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g. natural disasters; terrorist activities, activities of third party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.
Last updated 2024-07-22
EXHIBIT A
to the Terms of Service
SUPPORT AND MAINTENANCE SERVICES
1. Service Level Agreement (SLA)
1.1. Overview
This Service Level Agreement (“SLA”) describes the commitments by Company to Customer for providing services as they relate to the application and hosting infrastructure, collectively referred to as the On-Premise Software or the SaaS Software.
This SLA specifies the services, service levels, conditions and responsibilities required to establish and maintain the operational state of the Software for Customer. Company reserves the right to change the terms of this SLA as it deems necessary to provide the highest appropriate level of product operational excellence and customer satisfaction.
The SLA applies to both the On-Premise Software and SaaS Software except where otherwise specified. Sections of this SLA that pertain only to the SaaS Software are designated by “SaaS Software Only” and do not pertain to the On-Premise Software, and therefore, are the responsibility of Customer’s IT department or equivalent.
Any support/technical services not expressly provided to Customer under the terms of this Exhibit may be available to Customer for a separate charge, pursuant to a separate Order mutually agreed by the parties.
1.2. Definitions & Abbreviations
| Term/Abbreviation | Definition |
| A/I | Anti-Intrusion software, typically installed on the server. |
| A/V | Anti-virus software, typically installed on the server. |
| AWS | Amazon Web Services – an industry leading cloud platform hosting provider. |
| Backup | Copying data and files to protect against loss of integrity or availability of the original. |
| Change Request (CR) | Request from Customer or datacenter for changes to documents, application, environments or security |
| Customer | As defined in the MSA. |
| Emergency Maintenance | Maintenance that Company determines, in its sole discretion, must be performed immediately to respond to an emergency situation. |
| On-Premise Software | As defined in the MSA. |
| SaaS Software | As defined in the MSA. |
| Incident | A problem report or support request pertaining to the provisions of this SLA. |
| Maintenance | The execution of activities required to keep the On-Premise Software functioning at the highest appropriate level of operational readiness. |
| Monitoring | Continuous manual or automated observation of the On-Premise Software operational readiness. |
| N/A | Not Applicable |
| OS | Operating System, typically referring to one that is installed on a hosted server. |
| Outage | The On-Premise Software is unexpectedly offline or otherwise not available for normal business usage. |
| Planned Maintenance | A planned period of time in which preventive maintenance is performed such as application or OS updates (Customer may experience a limitation of services during this timeframe). |
| Recovery | The restoring of data and files back to an original state after a “disaster” event occurrence or Customer request. |
| Response Time | Measure of time to start the diagnosis. |
| SLA | Service Level Agreement – this Exhibit. |
1.3. Duties & Responsibilities – SaaS Software Only
1.3.1. Scope & Segregation of Services
Company provides technical services pertaining to the application layer of the SaaS Software. These services include, but are not limited to, the application installation, updates, backup, disaster recovery, and Cloud hosting services for the SaaS Software. The services also include platform setup, qualification, performance monitoring, anti-virus, anti-intrusion, anti-malware, data protection, security and incident response services.
Successful implementation of the SaaS Software requires Customer to identify an ENSUR System Administrator and designated backup administrators. These individuals will be trained by Company on SaaS Software system configuration and related administration consoles as part of the Implementation Package purchased by Customer. It is the responsibility of Customer’s System Administrator to maintain all SaaS Software configuration settings as they relate to Customer business process need.
The following section identifies the Roles and Responsibilities for Company and Customer.
1.3.2. Roles & Responsibilities
| Service | Company | Customer |
| Establishment, availability, management, and support of the IT infrastructure | X |
|
| Availability of hosting platform products and services | X |
|
| Change Management of the infrastructure and platform products | X |
|
| Support and Maintenance of the infrastructure and platform | X |
|
| Platform provisioning and configuration | X |
|
| Access control to platform/servers | X |
|
| Platform qualification | X |
|
| Support and Maintenance of the platform configuration |
| |
| Platform Backup and Disaster Recovery | X |
|
| Maintenance of server and Database Management Systems (e.g., MS SQL Server) updates and patches | X |
|
| Installation and configuration of security services | X |
|
| Vulnerability scanning and testing | X |
|
| A/V, A/I A/M installation and maintenance | X |
|
| Server log inspections | X |
|
| Performance and Health Monitoring Services | X |
|
| SSL Certificate Administration | X |
|
| Software installation and validation | X |
|
| Change management of the platform configuration and hosted software environment | X |
|
| Customer VPN access to server (if required) | X | X |
| Microsoft Active Directory Administration (optional) |
| X |
| DNS URL Administration | X | X |
| ENSUR user account creation and permissions settings |
| X |
| ENSUR Administrative configuration / maintenance |
| X |
| Change management of software system settings |
| X |
| Business Continuity Planning |
| X |
| Technical Support | X |
|
| ENSUR System Administrator Support | X |
|
| End User Support |
| X |
| Audit Support | X | X |
1.4. Support for all Software (unless otherwise specified)
1.4.1. Scope
Company accepts requests for support 24x7x365. Our support staff will respond to all requests for support per the availability and response times of this SLA. This is inclusive of, but not limited to, system outages or responsiveness issues, application functionality issues, problem reports, application usage questions, administrative configuration assistance, training requests and software or services improvement suggestions.
1.4.2. Provisions for Obtaining Support
Company will provide support to Customer subject to the following conditions:
a. Company will make telephone and online support available to two designated representatives of Customer. It is expected that these representatives are fully trained in the use of the Software so that they are able to triage end user inquiries to determine if the issues are reproducible, respond to any internal workflow questions, and provide thoroughly vetted inquiries to Company support.
b. Company will make available to Customer feature and maintenance enhancements as Company may release from time to time, including software optimization, bug fixes, minor changes in architecture and documentation at no additional cost, and only for the most recent version of the Software made available by Company for general release. Customer will use its reasonable best efforts to implement all such releases in production promptly after Company makes Customer aware that the enhancements are available, and in any event no less often than once in each 12 months. Customer’s failure to implement enhancements in a timely manner may result in additional charges.
c. Company’s Customer Help Portal is available 24/7.
d. Support provided under the terms of this Exhibit may be withheld, at the sole and absolute discretion of Company, if On-Premise Software has been modified or, in any manner, altered without the express written permission of Company in each instance.
1.4.3. Support Incident Handling
Customer can report any Incidents to the Company’s Support team by email, chat or phone. Response Time metrics are stated in the table in the Priorities Section below. Company’s Support team will notify Customer of any inquiry received that is not within Company’s standard support obligations and requires a separate Order for Professional Services before working on the request.
1.4.4. Priorities
| Priority | Description | Response Times / RTO |
| 1 | Production outage – System Unavailable* | Commercially reasonable efforts for ≤ 1 hour System Recovery Time |
| 2 | Operational readiness issues with production causing degraded persistent availability and/or connectivity and prohibiting critical business functions. | ≤ 4 hours Response |
| 3 | Operational Issues with production inhibiting non-critical business functions. | ≤ 8 hours Response |
| 4 | Usage questions or user training issues/requests | ≤ 8 hours Response |
| 5 | Other non-critical support request | ≤ 24 hours Response |
* System Unavailable is defined as either #1) the web application is non-operational, and all Users are not able to access the system or #2) normal system functions have become non-operational at a system level, causing significant and sustained disruption to critical business needs. Examples include Customer web server is offline or inaccessible or database server is inaccessible to the web server and, as a result, Users cannot log into the system or critical normal functions such as opening SOPs are not working or resulting in abnormal system errors preventing access to content.
This definition of System Unavailability for Priority 1 issues excludes all Priority 2-5 issues and any internal Customer IT networking problems preventing access to Cloud web applications. Examples of excluded Priority 2 issues include (and are not limited to): operational issues for which there is a temporary workaround; individual user authentication issues (i.e., bad or expired user passwords); individual user configuration issues such as a lack system rights to perform a needed function that may be resolved by the System Administrator; and usages issues due to system misconfiguration by the System Administrator requiring Company support consultation to determine proper configuration. In addition, for On-Premise Software , Priority 1 Response Time metrics do not apply when the System Unavailability is due to Customer’s infrastructure, and Company reserves the right to charge for help Customer may request from Company.
1.4.5. Availability
| Service Window | Delivery Hours | Priorities Serviced |
| Office Hours | Monday-Thursday: 8:00 AM – 5:30 PM Eastern Time* Friday: 8:00 AM – 3:00 PM Eastern Time* Saturday-Sunday: Closed
All Office Hours services are provided by Company Staff *Excludes certain US Holidays | 1, 2, 3, 4, 5 |
| Extended Hours | Monday-Thursday: 5:30 PM – 9:00 PM Eastern Time Friday: 3:00 PM – 9:00 PM Eastern Time Saturday-Sunday: 9:00 AM – 9:00 PM Eastern Time US Holidays: 9:00 AM – 9:00 PM Eastern Time
All Extended Hours services are provided by Company Staff. | 1, 2, 3 |
| After Hours (Emergency Support) | Monday-Friday: 9:00 PM – 8:00 AM Eastern Time Saturday-Sunday: 9:00 PM – 9:00 AM Eastern Time US Holidays: 9:00 PM – 9:00 AM Eastern Time
During After Hours support, phone calls are triaged by Company’s automated system. Priority 1 issues are escalated to Company staff for immediate response. Priority 2-5 issues are responded to by Company staff during the next Office Hours or Extended Hours time window | 1 |
1.4.6. Service Methods
| Service Window | Service Request Method | Priorities Serviced |
| Office Hours | Email - support@docxellent.com Phone – 860-887-2900:
ASAP reply for priority 1 issue Timely reply for priority 2, 3, 4 issues
| 1, 2, 3, 4, 5 |
| Extended Hours | Email – support@docxellent.com: Phone – 860-887-2900:
ASAP responses for priority 1 issue Timely reply for priority 2, 3, 4 issues | 1,2,3,4 |
| After Hours (Emergency Support) | Phone – 860-887-2900: Answering System with automated triage or Priority 1 issues. ASAP action to restore system access and callback or email response | 1
|
1.5. Change Management
1.5.1. Software Change Management
All Software application change requests will be submitted via email and will be handled under the Company’s Software Change Management Procedure and a Product Change Request (PCR) will be created by Company Support. All PCRs are reviewed by the Change Control Board (CCB) for approval and release version assignment. The PCR may be approved, or not, in the sole discretion of the CCB and, if approved, will be released in the future, at a time in Company’s sole discretion.
1.5.2. Platform Change Management –SaaS Software Only
Changes to the hosting environment are typical and may be initiated by Customer or Company to optimize performance, User experience, or for other business purposes; however, all changes to the Software, virtual server(s) or environment of the Customer’s SaaS Software will follow a strictly controlled and fully documented change management process defined in Company’s Environment Change Management standard procedures.
1.6. Maintenance
1.6.1. Overview – SaaS Software only
There are two classifications of system maintenance: Planned Maintenance and Emergency Maintenance. Planned Maintenance includes Application Installation, Application Updates and Platform updates as described in the sections below. Emergency Maintenance would only occur as a reactionary measure to a significant negative event or threat of an impending negative event.
1.6.2. Application Installation - SaaS Software only
Company will perform the following activities to establish each SaaS Software application instance:
· Contract with the Cloud hosting provider Company selects to provide the appropriate hardware, networking and related IT services (such as Amazon Web Services) to establish the needed cloud server(s) and supporting infrastructure
· Procure, install, renew, and administer certificate for HTTPS communications
· Procure a DNS URL for site access and provide DNS configuration assistance
· Install Anti-Virus/Intrusion software on all cloud servers
· Establish Data Volume encryption
· Install the SaaS Software application (execute IQ as needed for validated Customers)
· Configure backup snapshot schedule per this SLA
· Establish monitoring alarms per this SLA
1.6.3. Software Application Updates
Company will provide resources to fully manage the deployment of all new Software application updates. As new versions of the Software application are released, Company will perform the following activities:
· Send Customer a Release Notice email announcing the new version and providing release notes that detail changes and enhancements.
· SaaS Software only - Initiate an application update process with Customer per the change management requirements of this SLA.
· Schedule environment update dates and times with Customer.
· Send update reminders to Customer on the day of the installation of updates.
· SaaS Software only - Install application update and verify proper operational readiness.
· For On-Premise Software – using web meeting with Customer or remote access, install application update and verify proper operational readiness.
· For validated Customers, provide any needed OQ and/or PQ documents.
· Notify Customer that the update has been completed.
1.6.4. Platform Updates – SaaS Software only
Company will provide resources to manage the deployment of all supporting software on the SaaS Software servers. This will include updates/patches to the OS (performed on a monthly basis), SQL Server Database, Anti-Virus/Intrusion tools and the MS Office suite. When it has been determined that updates need to be applied, Company will perform the following activities:
· Notify Customer of the scheduled update window
· Send update reminders to Customer on the day of the deployment of updates.
· Apply pending updates and verify successful completion
· Verify proper SaaS Software application operational readiness
· Platform updates are performed monthly as needed for each platform software package per the recommendations of the vendor of the supporting software. Platform updates are typically deployed in either the early morning or late day hours (Eastern Time) on Sundays to minimize potential disruptions to Users of the system.
1.6.5. Emergency Maintenance – SaaS Software only
Company reserves the right to perform Emergency Maintenance to a SaaS Software server if it has been determined, in Company’s sole discretion, that either 1) an adverse event has resulted or will imminently result in significantly degraded performance or complete application outage or 2) a security threat poses an immediate risk to the hosted environment and requires urgent mitigation. Emergency Maintenance services may include a disaster recovery process as defined by this SLA. While Emergency Maintenance is rare, Company will notify Customer of the emergency event and the corrective actions being taken. However, Customer response is not required before corrective actions are implemented to resolve the emergency situation.
EXHIBIT B
to Terms of Service
PROFESSIONAL SERVICES
If Customer requests and Customer (i) has a current Support Agreement with Company and (ii) is not in default on any payment obligations to Company, Company will provide Professional Services pursuant to an executed Order governed by the terms of this Exhibit and, if applicable, a Statement of Work (SOW) governed by the terms of this Agreement). Professional Services requested by Customer outside of the normal business hours of the Professional Services team (9:00 am – 5:00 pm Eastern time Monday through Friday excluding local holidays) or any services not scheduled in advance may be subject to additional charges. The rates for professional services are based on Company’s then-standard time and materials rates.
The following are examples of Professional Services that may be requested by Customer. This list is not exhaustive but provided as examples of work for which Company charges an hourly or fixed-price fee:
§ Training beyond initial allotment of training hours provided during Implementation phase. Training requests may include:
§ New Editor/Admin training (where the former Admin has been removed from Software responsibilities or separated from Customer)
§ Refresher Training
§ Training on features not initially utilized during implementation as they were tabled for latter roll-out(s)
§ Training on new versions of Software (Note: documentation and training videos are provided as part of standard support and posted to the Customer Portal)
§ Workflow (e.g., my goal is X, how do I use the software to accomplish this goal?)
§ Consulting (e.g., I need a field/form/report that does Y, how should I set it up?)
§ Design and Setup of customer Forms, Overlays, Reports.
§ Error reconciliation (e.g., I did A which causes result B and now need to fix it)
§ Infrastructure growth, workload balancing, etc.
§ Custom Reports, SQL Queries, Custom Logic (such as Stored Procedures/Triggers.)
§ Assistance with Auditor requests/questions posed to Customer by Auditors
§ Server migrations where ENSUR Software installation is to be moved to a different physical or virtual server by request of the Customer
§ Legacy data migrations
§ Validation Services (i.e., consulting on customer Requirements and associated UAT scripts, writing customer UAT scripts, executing customer UAT scripts)
§ Integration with other internal systems such as ERP, SAP, or LMS
§ Environment duplication; Database copying to replicate one instance to another (e.g., copy Production to TEST to have configured templates, content types, and document samples available in TEST)
§ If an adverse event necessitating recovery was a major functional “mistake” made by Customer within the Software that has caused the controlled data to no longer meet business needs (i.e., an unintended global cascade of folder permissions changes by an administrator), and Customer requires that Company perform an incremental database rollback.
Upright Labs TOS
Version 1.1
Effective June 3rd 2024
DownloadTable of Contents
Upright Labs - Lister
Terms of Service
These Terms of Service (“Terms”) constitute a legal agreement between the person or entity agreeing to these Terms (“Customer” or “you”) and Upright Labs, a business unit of Cordance Operations LLC (the “Company,” “us” or “we”) for the Company’s software-as-a-service product(s) (the “SaaS Services”). By signing an order or registering an account that references these Terms (the “Order”), or using the SaaS Services, you represent that you have the authority to bind the Customer to the Order, these Terms, and any applicable schedules, exhibits, or appendices incorporated or referenced herein (collectively the “Agreement”). Pre-printed terms of either party’s purchase orders, acknowledgements, or click-through terms do not apply or modify this Agreement, and such other or additional terms or conditions are void and of no effect.
1. DEFINITIONS
1.1. “Administrator” means Customer’s primary contact person who coordinates and works with the Company to set up, support, and train the Customer’s system Users on their use of the SaaS Services.
1.2. “Customer Content” means any content, data, and information, including text, graphics, videos, photos, or other material, submitted, uploaded, collected, generated, imported, or otherwise provided to or through the SaaS Services by Customer or by a third-party on behalf of or for the benefit of Customer.
1.3. “Documentation” means Company’s then-current generally available documentation, specifications, and user manuals for the SaaS Services which are available upon login to the SaaS Services as well as any related documentation Company provides to its customers regarding the SaaS Services.
1.4. “Gross Merchandise Value” or “GMV” means the total sale amount paid to you for all orders you have facilitated through a SaaS Service where applicable to the SaaS Service.
1.5. “User” means an individual employee of Customer who has been authorized by Customer to use the Services on behalf of Customer.
2. ACCESS AND USE OF THE SERVICES.
2.1. Our Provision of the SaaS Services. You acknowledge that your use of the SaaS Services requires you to have third-party hardware, software, internet and/or telecommunications access (which involve extra charges from such third parties at your sole expense). Your choices and the performance of these third-party products with the SaaS Services may affect your ability to access and use the SaaS Services.
2.2. Initial Set-Up. Upon commencement of this Agreement, we will provide the following: (i) set-up services and Administrator training in the use of the SaaS Services; and (ii) testing of the SaaS Services after your implementation to confirm that the SaaS Services are performing to our current generally available, applicable documentation, specifications, and user manuals.
2.3. Changes to the SaaS Services. Company reserves the right to enhance, upgrade, improve, modify or discontinue features of the SaaS Services, in its discretion. Company will not materially reduce the core functionality or discontinue the SaaS Services unless it provides Customer with prior written notice.
2.4. Registration for the SaaS Services. Your Users may be required to provide information about themselves to register for and/or use certain Services. You agree that any such information will be accurate. Your Users may also be asked to choose a username and password. You are entirely responsible for maintaining the security of those usernames and passwords and agree not to disclose such to any third party.
2.5. Your Use of the Service. Company grants Customer a limited, nonexclusive, non-sublicensable, nontransferable (except as specifically permitted in this Agreement) right to access and use the SaaS Service during the Term solely for Customer’s internal business purposes. You agree to use the SaaS Services solely in accordance with the use levels by which we measure, price and offer the SaaS Services, as set forth in your registration or Order and subject to your payment of all fees due under the Agreement. We will use commercially reasonable efforts to cause the SaaS Services to be available to you 24/7 excluding planned maintenance.
2.6. Limitations on Your Use. By using the SaaS Services, Customer agrees not to (i) modify, prepare derivative works of, or reverse engineer the SaaS Services; (ii) access or use the SaaS Services or Documentation for any competitive purpose; (iii) use the SaaS Services with any equipment other than equipment or computer authorized by Company; (iv) transmit through the SaaS Services any harassing, indecent, obscene, or unlawful material; (v) market, or resell to, or permit the use of the SaaS Services by any third party; (vi) use the SaaS Services in violation of applicable laws, or regulations; (vii) transmit through the SaaS Services any material that may infringe the intellectual property, privacy, or other rights of third parties; or (viii) use the SaaS Services to commit fraud.
2.7. Responsibility for Users. Customer is responsible for the activities of all Users who access or use the SaaS Services through its account and will ensure that any such Users comply with the terms of the Agreement. If Customer becomes aware of any violation of these Terms in connection with use of the SaaS Services by any person, Customer will promptly notify Company.
2.8. Feedback. You hereby grant Company a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the SaaS Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you or your Users (“Feedback”). We reserve the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by your Feedback.
3. ORDERS, FEES, PAYMENT, TAXES.
3.1 Orders. Your order for Services is detailed in an executed Order, quote, Schedule A, statement of work or similar document (each, an “Order”). You may order Services using our then-current ordering processes. All Orders are effective on the earlier of (i) the date you submit your Order, or (ii) the date on the signature block of the Order (“Effective Date”). Acceptance of your Order may be subject to our verification and credit approval process. Each Order will be treated as a separate and independent Order.
3.2 Fees and Payment. Fees for the SaaS Services which you have agreed to pay pursuant to Order are invoiced monthly in arrears and are due net on receipt of invoice. The SaaS Service is measured and priced based on GMV. Each monthly invoice will be determined by Customer’s previous month’s GMV and the applicable percentage or amount of the monthly minimum, as shown in the Order. We may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due. Payment may be made by ACH or credit card. You are responsible for providing accurate and current billing, contact and payment information to us. You agree that we may charge your payment card or bill you for all amounts due for your use of the SaaS Services. You agree that your credit card information and related personal information may be provided to third parties for payment processing and fraud prevention purposes. We may suspend or terminate the SaaS Services if at any time we determine that your payment information is inaccurate. You are responsible for fees and overdraft charges that we may incur when we charge your card for payment. We reserve the right to update the price for SaaS Services from annually. We will give you notice of any price update by publishing on our website, or emailing, at least 30 days in advance of such increase taking effect.
3.3 Taxes and Withholdings. You are responsible for all applicable sales, services, value- added, goods and services, withholding, tariffs, or any other similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Services, except those taxes and fees based on our net income, or Taxes and Fees for which you have provided an exemption certificate. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
4. TERM AND TERMINATION.
4.1. Term. The initial term commitment for your purchase of SaaS Services will be as specified in the Order (“Initial Term”) and begins on the Effective Date. If the Order is silent, the Initial Term will be 12 months beginning on the sooner of the date Company makes the SaaS Services accessible by Customer or 30 days after the date Customer signs the Order. After the Initial Term, the SaaS Services will automatically renew for additional 12-month periods (“Renewal Terms”), unless either party provides notice of non-renewal at least 30 days before the current term expires. Terminating a specific Service does not affect the term of any other SaaS Services still in effect.
4.2. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice of such breach by the other party, or (ii) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.
4.3. Effect of Termination. If the Agreement or any SaaS Services are terminated, you will immediately discontinue all use of the terminated SaaS Services, except that we will provide you with limited access to the SaaS Services for a period of at least 30 days solely to enable you to retrieve your Customer Content from the SaaS Services. Upon your request made before the end of such 30-day period, we will securely destroy your Customer Content. We have no obligation to maintain your Customer Content after such 30-day period. If we discontinue SaaS Services or materially reduce the core functionality in accordance with Section 2.3 above, and you elect to terminate the affected SaaS Services or this Agreement, we will provide you with a pro rata refund of any prepaid, unused fees. Termination of the Agreement will not affect any claim arising prior to the termination date.
4.4. Survival. The terms of this Agreement will survive the termination or expiration of this Agreement to the extent reasonably necessary to carry out the intent of the parties as indicated therein.
5. DATA PRIVACY.
5.1. Security Safeguards. Each party will maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of your Customer Content and any associated personal data that is collected and/or processed through the Services. On our part, those safeguards will include measures designed to prevent unauthorized access, use, modification, deletion and disclosure of Customer Content. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Content when in Customer’s or its representatives’ or agents’ possession or control.
5.2. Privacy Laws. To the extent that Customer Content contains “personal information” that is subject to the California Consumer Privacy Act of 2018, its implementing regulations, and any amendments thereto (collectively, the “CCPA”), or any other substantially similar privacy laws, Company agrees that it will comply with all such laws and process such personal information as a service provider (as defined under the CCPA) and will not (a) retain, use or disclose personal information for any purpose other than the purposes set out in this Agreement and/or as permitted by the CCPA; or (b) "sell" (as defined and understood within the requirements of the CCPA) personal information.
6. WARRANTIES.
6.1. We provide the SaaS Services using a commercially reasonable level of care and warrant that the SaaS Services will materially conform to the Documentation under normal use. Our entire liability and your exclusive remedy for a breach of this warranty will be, at our sole option, to provide conforming SaaS Services, or to terminate the non-conforming SaaS Services and receive a pro-rated refund of any prepaid fees for the SaaS Service from the date you notify us of the non-conformance through the end of the current Term. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) OUR SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS
6.2. Use of the SaaS Services may be available through a compatible mobile device, internet access, and may require third party software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees, as well as the terms of your agreement with your mobile device and telecommunications provider. WE MAKE NO WARRANTIES OR REPRESENTATION OF ANY KIND, EXPRESS, STATUORY OR IMPLED AS TO (I) THE AVAILABILITY OF INTERNET OR TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION, (II) ANY LOSS, DAMAGE OR OTHER SECURITY INTRUSION OF THE INTERNET OR TELECOMMUNICATION SERVICES, AND (III) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTING CONNECTED WITH THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
7. PROPRIETARY RIGHTS
7.1. Customer Content. You retain all rights to Customer Content and are solely responsible for the Customer Content sent or transmitted by you or displayed or uploaded by you or your Users in using the SaaS Services and for compliance with all laws pertaining to Customer Content, including, but not limited to, laws requiring you to obtain the consent of a third party to use the Customer Content and to provide appropriate notices of third-party rights. You hereby grant us a worldwide, royalty-free, non-exclusive license to use, modify, reproduce, and distribute your Customer Content in order to provide and operate the SaaS Services. You warrant that you have the right to upload or otherwise share Customer Content with us, and your uploading or processing of Customer Content in the context of our SaaS Services does not infringe on any rights of any third party. We will not view, access or process any of Customer Content except: (a) as authorized or instructed by you in this Agreement or in any other agreement between the parties, or (b) as required to comply with our policies, applicable law, or governmental request.
7.2. Our Proprietary Rights and Marks. You acknowledge that we or our licensors retain all proprietary right, title and interest in the SaaS Services, Documentation, and our name, logo, or other marks (together, the “Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Except for the express limited rights set forth in this Agreement, no right, title or interest in the SaaS Services, Documentation, or Marks is granted to you. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part our Marks or is similar to any of these.
7.3. Publicity. Customer agrees that Company may use Customer’s name and refer to Customer in its promotional or marketing materials and its website, lists and business presentations.
8. CONFIDENTIALITY.
8.1. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Customer Content is deemed Confidential Information of Customer without any marking or further designation. SaaS Services and Documentation are deemed Confidential Information of Company without any marking or further designation. Confidential Information does not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
8.2. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and that on any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
9. INDEMNIFICATION.
9.1. Company’s Indemnification of Customer. We will indemnify and defend you against any third-party claim alleging that any of the SaaS Services infringes upon any patent or copyright, or violates a trade secret of any such third-party (an “IP Claim”), and we agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. You will promptly notify us of any IP Claim and cooperate with us in defending the claim. We will have full control and authority over the defense and settlement of any IP Claim, except that any settlement requiring you to admit liability requires prior written consent, not to be unreasonably withheld or delayed.
9.1.1. If Customer provides Company with notice of an actual or potential IP Claim or Company becomes aware of an actual or potential IP Claim, Company may (or in the case of an injunction, will), at Company’s sole option: (a) procure for Customer the right to continue to use the SaaS Services; or (b) replace or modify the SaaS Services with equivalent or better functionality so that Customer’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the SaaS Services and refund to Customer any pre- paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Company.
9.1.2. The obligations in this Section 9.1 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the SaaS Services with other products, software or services not provided by Company; (ii) any IP Claim related to any Content, or (iii) any IP Claim related to any use in respect to the Service outside the scope of the rights granted in this Agreement.
9.2. Customer’s Indemnity of Company. You will indemnify and defend us against any third-party claim resulting from a breach of Section 2.5, or 2.6 or 7.1, or alleging that any of your Customer Content infringes upon any patent or copyright, or violates a trade secret of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. We will promptly notify you of any claim and cooperate with you in defending the claim. You will reimburse us for reasonable expenses incurred in providing any cooperation or assistance. You will have full control and authority over the defense and settlement of any claim, except that any settlement requiring us to admit liability requires prior written consent, not to be unreasonably withheld or delayed.
10. LIMITATIONS ON LIABILITY.
10.1. Limitation On Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY DAMAGES, OR DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, OR (iv) CUSTOMER’S LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
10.2. Limitation On Amount Of Liability. EXCEPT FOR BREACH OF SECTIONS 2.5, 2.6, 7.1, AND 7.2, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE AGGRERGATE AMOUNT PAID AND OR DUE TO BE PAID FOR THE APPLICABLE SERVICE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DOES NOT LIMIT YOUR OBLIGATIONS TO PAY ANY UNDISPUTED FEES AND OTHER AMOUNTS DUE UNDER THIS AGREEMENT.
11. SUSPENSION OF SERVICES. We reserve the right to suspend the SaaS Services or restrict functionalities if (a) we reasonably believe that you or your Users have materially violated this Agreement, or (b) we reasonably determine that the security of our SaaS Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities. Where commercially reasonable, and unless legally prohibited, we will use commercially reasonable efforts to notify you when taking any of these actions. We will not be liable for any such suspension of SaaS Services or reduced functionality.
12. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the SaaS Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, data protection and anti-bribery laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Further, Customer will not permit its users to access or use any Service or Content Product in a U.S. embargoed country or in violation of any U.S. export law or regulation. If necessary and in accordance with applicable law, we will cooperate with local, state, federal and international government authorities with respect to the SaaS Services. If access to the SaaS Services or the Documentation are acquired by or on behalf of a unit or agency of the United States government, the government agrees that such SaaS Services or Documentation is “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the government’s rights with respect to such SaaS Services or Documentation are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable. Notwithstanding any other provision in these Terms, we may immediately terminate the Agreement for noncompliance with applicable laws.
13. ADDITIONAL TERMS
13.1. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth herein) it will provide written notice to the other party of the specific issue(s) in dispute and reference the relevant provisions of the Agreement which are allegedly being breached. Within 30 days after such notice, knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation, or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section will not apply to claims subject to indemnification under Section 9 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
13.2. Limitation on Bringing Claims/No Jury. By entering into this Agreement, each party is waiving the right to a jury. Any claim arising out of this Agreement must be brought, if at all, within two years of the claim arising. You may only resolve disputes with us on an individual basis and you agree not to bring or participate in any class, consolidated, or representative action against us or any of our employees or affiliates.
13.3. Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of Delaware. Each party agrees to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Delaware.
13.4 Notices. Notices must be sent by personal delivery, overnight courier, or registered or certified mail. We may also provide notice to the email last designated on your account, electronically via postings on our website, in-product notices, or via our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at 16 W. Martin Street, Raleigh, NC 27601, Attn: contract Admin; e-mail: support@Uprightlabs.com, with a copy to the attention of the Revenue Department at the same address; e-mail: revenue@cordance.co, and to legal@cordance.co. We will send notices to the address last designated on your account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting.
13.5 Force Majeure. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g., natural disasters; epidemics, pandemics, terrorist activities, activities of third-party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.
Last Updated 2024-06-03
Neatoscan TOS
Version 1.3
Effective September 24th 2024
DownloadTable of Contents
Neatoscan
Terms of Service
These Terms of Service (“Terms”) constitute a legal agreement between the person or entity agreeing to these Terms (“Customer” or “you”) and Neatoscan, a business unit of Cordance Operations LLC (the “Company,” “us”, “our“ or “we”) for the Company’s software-as-a-service product(s) (the “SaaS Services”). By signing an order or registering an account that references these Terms (the “Order”), or using the SaaS Services, you represent that you have the authority to bind the Customer to the Order, these Terms, and any applicable schedules, exhibits, or appendices incorporated or referenced herein (collectively the “Agreement”). Pre-printed terms of either party’s purchase orders, acknowledgements, or click-through terms do not apply or modify this Agreement, and such other or additional terms or conditions are void and of no effect.
1. DEFINITIONS
1.1. “Administrator” means Customer’s primary contact person who coordinates and works with the Company to set up, support, and train the Customer’s system users on their use of the SaaS Services.
1.2. “Customer Content” means any content, data, and information, including text, graphics, videos, or other material, submitted, uploaded, imported, or otherwise provided to or through the SaaS Services by Customer or by a third-party on behalf of or for the benefit of Customer.
1.3. “Documentation” means Company’s then-current generally available documentation, specifications, and user manuals for the SaaS Services which are available upon login to the SaaS Services as well as any related documentation Company provides to its customers regarding the SaaS Services.
1.4. “Gross Merchandise Value” or “GMV” means the total sale amount paid to you for all orders you have facilitated through a SaaS Service where applicable to the SaaS Service.
1.5. “Seat” means a single sign-on to a SaaS Service which is priced by Seat.
1.6. “Software” means the Company’s software including, but not limited to, the software that gets installed and runs on Customer’s computer(s).
2. ACCESS AND USE OF THE SERVICES.
2.1. Our Provision of the SaaS Services. You acknowledge that your use of the SaaS Services: (i) requires you to install Software which is licensed to you by Company under the Company’s End User License Agreement and software under a third-party’s license provided with it; and (ii) requires you to have third-party hardware, software, internet and/or telecommunications access (which involve extra charges at your sole expense). Your choices and the performance of these third-party products with the SaaS Services may affect your ability to access and use the SaaS Services.
2.2. Initial Set-Up. Upon commencement of this Agreement, we will provide the following: (i) set-up services and Administrator training in the use of the SaaS Services; and (ii) testing of the SaaS Services after your implementation to confirm that the SaaS Services are performing to our current generally available, applicable documentation, specifications, and user manuals.
2.3. Changes to the SaaS Services. Company reserves the right to enhance, upgrade, improve, modify or discontinue features of the SaaS Services, in its discretion. Company will not materially reduce the core functionality or discontinue the SaaS Services unless it provides Customer with prior written notice.
2.4. Registration for the SaaS Services. Your Users may be required to provide information about themselves to register for and/or use certain Services. You agree that any such information will be accurate. Your Users may also be asked to choose a username and password. You are entirely responsible for maintaining the security of those usernames and passwords and agree not to disclose such to any third party.
2.5. Your Use of the Service. Company grants Customer a limited, nonexclusive, non-sublicensable, nontransferable (except as specifically permitted in this Agreement) right to access and use the SaaS Service during the Term solely for Customer’s internal business purposes. This grant includes the right to implement the Software for use solely with the SaaS Service, if applicable. You agree to use the SaaS Services solely in accordance with the use levels by which we measure, price and offer the SaaS Services, as set forth in your registration or Order and subject to your payment of all fees due under the Agreement. We will use commercially reasonable efforts to cause the SaaS Services to be available to you 24/7 excluding planned maintenance.
2.6. Limitations on Your Use. By using the SaaS Services, you agree on behalf of yourself, your Affiliates and Users not to (i) modify, prepare derivative works of, or reverse engineer, the Software or the SaaS Services; (ii) access or use the SaaS Services or Documentation for any competitive purpose; (iii) use the SaaS Services with any equipment other than equipment or computer authorized by Company; (iv) transmit through the SaaS Services any harassing, indecent, obscene, or unlawful material; (v) market, or resell to, or permit the use of the SaaS Services by any third party; (vi) use the SaaS Services in violation of applicable laws, or regulations; (vii) transmit through the SaaS Services any material that may infringe the intellectual property, privacy, or other rights of third parties; or (viii) use the SaaS Services to commit fraud.
2.7. Responsibility for Users. Customer is responsible for the activities of all users who access or use the SaaS Services through its account and will ensure that any such users comply with the terms of the Agreement. If Customer becomes aware of any violation of these Terms in connection with use of the SaaS Services by any person, Customer will promptly notify Company.
2.8. Feedback. You agree that Company will have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Software or SaaS Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you or your users (“Feedback”). We reserve the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by your Feedback.
3. ORDERS, FEES, PAYMENT, TAXES.
3.1 Orders. Your order for Services is detailed in an executed Order, quote, Schedule A, statement of work or similar document (each, an “Order”). You may order Services using our then-current ordering processes. All Orders are effective on the earlier of (i) the date you submit your Order, or (ii) the date on the signature block of the Order (“Effective Date”). Acceptance of your Order may be subject to our verification and credit approval process. Each Order will be treated as a separate and independent Order.
3.2 Fees and Payment. Fees for the SaaS Services and Software license which you have agreed to pay pursuant to Order are invoiced monthly and are due net on receipt of invoice. We may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due. If the SaaS Service is measured and priced based on GMV, each monthly invoice will be determined by Customer’s previous month’s GMV and the applicable percentage as shown in the Order. Payment may be made by ACH or credit card. You are responsible for providing accurate and current billing, contact and payment information to us. You agree that we may charge your payment card or bill you for all amounts due for your use of the SaaS Services and Software. You agree that your credit card information and related personal information may be provided to third parties for payment processing and fraud prevention purposes. We may suspend or terminate the SaaS Services if at any time we determine that your payment information is inaccurate. You are responsible for fees and overdraft charges that we may incur when we charge your card for payment. We reserve the right to update the price for SaaS Services from time to time. We will give you notice of any price update by publishing on our website, or emailing, at least 30 days in advance of such increase taking effect. You may terminate the Service due to such price update by providing notice of termination within 30 days of our notice of the update.
3.3 Taxes and Withholdings. You are responsible for all applicable sales, services, value- added, goods and services, withholding, tariffs, or any other similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Services, except those taxes and fees based on our net income, or Taxes and Fees for which you have provided an exemption certificate. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
4. TERM AND TERMINATION.
4.1. Term. The initial term commitment for your purchase of SaaS Services will be as specified in the Order (“Initial Term”) and begins on the Effective Date. If the Order is silent, the Initial Term will be 12 months from the Effective Date. After the Initial Term, the SaaS Services will automatically renew for additional 12-month periods (“Renewal Terms”), unless either party provides notice of non-renewal at least 30 days before the current term expires. Terminating a specific Service does not affect the term of any other SaaS Services still in effect.
4.2. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice of such breach by the other party, or (ii) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.
4.3. Effect of Termination. If the Agreement or any SaaS Services are terminated, you will immediately discontinue all use of the terminated SaaS Services, except that we will provide you with limited access to the SaaS Services for a period of at least 30 days solely to enable you to retrieve your Customer Content from the SaaS Services. Upon your request made before the end of such 30-day period, we will securely destroy your Customer Content. We have no obligation to maintain your Customer Content after such 30-day period. If we discontinue SaaS Services or materially reduce the core functionality in accordance with Section 2.3 above, and you elect to terminate the affected SaaS Services or this Agreement, we will provide you with a pro rata refund of any prepaid, unused fees. Termination of the Agreement will not affect any claim arising prior to the termination date.
4.4. Survival. The terms of this Agreement will survive the termination or expiration of this Agreement to the extent reasonably necessary to carry out the intent of the parties as indicated therein.
5. DATA PRIVACY. Each party will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Customer Content. On our part, those safeguards will include commercially reasonable measures designed to prevent unauthorized access, use, modification, deletion, and disclosure of Customer Content. Customer (not us) bears sole responsibility for adequate security, protection, and backup of Customer Content when in Customer’s or its representatives’ or agents’ possession or control.
6. WARRANTIES.
6.1. We provide the SaaS Services using a commercially reasonable level of care and warrant that the SaaS Services and Software will materially conform to the Documentation under normal use. Our entire liability and your exclusive remedy for a breach of this warranty will be, at our sole option, to provide conforming SaaS Services and or Software, or to terminate the non-conforming SaaS Services or Software and receive a pro-rated refund of any prepaid fees for the Service or Software from the date you notify us of the non-conformance through the end of the current Term. WE DO NOT REPRESENT OR WARRANT THAT THE USE OF THE SAAS SERVICES OR SOFTWARE (i) WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) WILL MEET YOUR SPECIFIC REQUIREMENTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE.
6.2. Use of the SaaS Services may be available through a compatible mobile device, internet access, and may require third party software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees, as well as the terms of your agreement with your mobile device and telecommunications provider. WE MAKE NO WARRANTIES OR REPRESENTATION OF ANY KIND, EXPRESS, STATUORY OR IMPLED AS TO (I) THE AVAILABILITY OF INTERNET OR TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION, (II) ANY LOSS, DAMAGE OR OTHER SECURITY INTRUSION OF THE INTERNET OR TELECOMMUNICATION SERVICES, AND (III) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTING CONNECTED WITH THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
7. PROPRIETARY RIGHTS
7.1. Customer Content. You retain all rights to Customer Content and are solely responsible for the Customer Content sent or transmitted by you or displayed or uploaded by you or your users in using the SaaS Services and for compliance with all laws pertaining to Customer Content, including, but not limited to, laws requiring you to obtain the consent of a third party to use the Customer Content and to provide appropriate notices of third-party rights. You hereby grant us a worldwide, royalty-free, non-exclusive license to use, modify, reproduce, and distribute your Customer Content in order to provide and operate the SaaS Services which may include downloading Customer Content (which may include personally identifiable information) from the production database within our Services to local servers for debugging purposes. You warrant that you have the right to upload or otherwise share Customer Content with us, and your uploading or processing of Customer Content in the context of our SaaS Services does not infringe on any rights of any third party. We will not view, access or process any of Customer Content except: (a) as authorized or instructed by you in this Agreement or in any other agreement between the parties, or (b) as required to comply with our policies, applicable law, or governmental request.
7.2. Our Proprietary Rights and Marks. You acknowledge that we or our licensors retain all proprietary right, title and interest in the Software, the SaaS Services, Documentation, and our name, logo, or other marks (together, the “Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Except for the express limited rights set forth in this Agreement, no right, title or interest in the Software, SaaS Services, Documentation, or Marks is granted to you. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part our Marks or is similar to any of these.
7.3. Publicity. Customer agrees that Company may use Customer’s name and logo and refer to Customer in its promotional or marketing materials and its website, lists and business presentations.
8. CONFIDENTIALITY.
8.1. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Customer Content is deemed Confidential Information of Customer without any marking or further designation. The Software, SaaS Services and Documentation are deemed Confidential Information of Company without any marking or further designation. Confidential Information does not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
8.2. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and that on any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
9. INDEMNIFICATION.
9.1. Company’s Indemnification of Customer. We will indemnify and defend you against any third-party claim alleging that any of the SaaS Services or Software infringes upon any patent or copyright, or violates a trade secret of any such third-party (an “IP Claim”), and we agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. You will promptly notify us of any IP Claim and cooperate with us in defending the claim. We will have full control and authority over the defense and settlement of any IP Claim, except that any settlement requiring you to admit liability requires prior written consent, not to be unreasonably withheld or delayed.
9.1.1. If Customer provides Company with notice of an actual or potential IP Claim or Company becomes aware of an actual or potential IP Claim, Company may (or in the case of an injunction, will), at Company’s sole option: (a) procure for Customer the right to continue to use the SaaS Services or Software; or (b) replace or modify the SaaS Services or Software with equivalent or better functionality so that Customer’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the SaaS Services or use of the Software and refund to Customer any pre- paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Company.
9.1.2. The obligations in this Section 9.1 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the SaaS Services or Software with other products, software or services not provided by Company; (ii) any IP Claim related to any Content, or (iii) any IP Claim related to any use in respect to the Service outside the scope of the rights granted in this Agreement.
9.2. Customer’s Indemnity of Company. You will indemnify and defend us against any third-party claim resulting from a breach of Section 2.5, or 2.6 or 7.1, or alleging that any of your Customer Content infringes upon any patent or copyright, or violates a trade secret of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. We will promptly notify you of any claim and cooperate with you in defending the claim. You will reimburse us for reasonable expenses incurred in providing any cooperation or assistance. You will have full control and authority over the defense and settlement of any claim, except that any settlement requiring us to admit liability requires prior written consent, not to be unreasonably withheld or delayed.
10. LIMITATIONS ON LIABILITY.
10.1. Limitation On Damages. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY DAMAGES, OR DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, OR (iv) CUSTOMER’S LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
10.2. Limitation On Amount Of Liability. EXCEPT FOR BREACH OF SECTIONS 2.5, 2.6, 7.1, AND 7.2, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT IS LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DOES NOT LIMIT YOUR OBLIGATIONS TO PAY ANY UNDISPUTED FEES AND OTHER AMOUNTS DUE UNDER THIS AGREEMENT.
11. SUSPENSION OF SERVICES. We reserve the right to suspend the SaaS Services, or your use of the Software, or restrict functionalities if (a) we reasonably believe that you or your users have materially violated this Agreement, or (b) we reasonably determine that the security of our SaaS Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities. Where commercially reasonable, and unless legally prohibited, we will use commercially reasonable efforts to notify you when taking any of these actions. We will not be liable for any such suspension of SaaS Services or use of the Software or reduced functionality.
12. ADDITIONAL TERMS
12.1. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth herein) it will provide written notice to the other party of the specific issue(s) in dispute and reference the relevant provisions of the Agreement which are allegedly being breached. Within 30 days after such notice, knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation, or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section will not apply to claims subject to indemnification under Section 9 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
12.2. Limitation on Bringing Claims/No Jury. By entering into this Agreement, each party is waiving the right to a jury. Any claim arising out of this Agreement must be brought, if at all, within two years of the claim arising. You may only resolve disputes with us on an individual basis and you agree not to bring or participate in any class, consolidated, or representative action against us or any of our employees or affiliates.
12.3. Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of Delaware. Each party agrees to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Delaware.
12.4 Notices. Notices must be sent by personal delivery, overnight courier, or registered or certified mail. We may also provide notice to the email last designated on your account, electronically via postings on our website, in-product notices, or via our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at 16 W. Martin Street, Raleigh, NC 27601, Attn: contract Admin; e-mail: help@neatoscan.com, with a copy to the attention of the Revenue Department at the same address; e-mail: revenue@cordance.co, and to legal@cordance.co. We will send notices to the address last designated on your account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting.
12.5 Force Majeure. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g., natural disasters; epidemics, pandemics, terrorist activities, activities of third-party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.
12.6 Assignment. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which will not be unreasonably withheld, except that either party may assign the Agreement to an affiliated entity, or as part of a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of its business or assets to which this Agreement relates. Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.
12.7 General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third- party beneficiary or have the right to modify the Agreement or to make commitments binding on us. Failure to enforce any right under the Agreement will not waive that right. The Agreement may be agreed to online or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g. natural disasters; terrorist activities, activities of third-party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.
12.8 Entire Agreement; Order of Precedence. This Agreement, including the Order(s) and any applicable schedules, exhibits, and appendices, and any mutually signed SOW set forth the entire agreement between Customer and Company relating to the Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between an executed Order, this Agreement, and the Documentation, in each case, as applicable, the conflict will be resolved in that order, but only for the specific Services described in the applicable Order. No modification of or amendment to this Agreement will be effective unless mutually agreed in writing.
Last Updated 2024-09-24
Webpresented TOS
Version 2.2
Effective June 4th 2024
DownloadTable of Contents
WEBPRESENTED
TERMS OF SERVICES
These Terms of Service (“Terms”) constitute a legal agreement between the person or organization agreeing to these Terms (“Customer” or “you”) and WebPresented, a business unit of Cordance Operations LLC, Delaware limited liability company (the “Company,” “us” or “we”). By signing an Order, accepting these Terms, or using the Services, you represent that you have the authority to bind the Customer to the Order, these Terms, and any applicable schedules, exhibits, or appendices incorporated or referenced herein (collectively, the “Agreement”). Pre-printed terms of either party’s purchase orders, acknowledgements, or click-through terms do not apply or modify this Agreement, and such other or additional terms or conditions are void and of no effect.
1. DEFINITIONS
1.1. “Administrator” means the Customer’s primary contact person who coordinates and works with Company to implement, support, and train the Customer’s Users on their use of the Service.
1.2. “Affiliate” of a party means an entity which, directly or indirectly is controlled by, controls or is under common control with that party where “control” of the party or other entity is the possession of the power to direct or cause the direction of the management and policies of the party or other entity, whether by voting, contract or otherwise.
1.3. “Customer Content” means content, data, and information, including text, multimedia images (e.g., graphics and audio and video files), or other material submitted, uploaded, imported, or otherwise provided to or through the Services by Customer or by a third party on behalf of or for the benefit of Customer, including Customer’s customers, prospective customers, and Users of the Services.
1.4. “Documentation” means Company’s then-current generally available documentation, specifications, and user manuals for the Services which are available upon login to the Services, as well as any documentation included in or attached to this Agreement, or such other Services-related documents provided by Company to Customer.
1.5. “Order” means a written description of Services and Professional Services, and the applicable pricing as mutually agreed to by the parties in an order form, quote, schedule, statement of work or similar document.
1.6. “User(s)” means an individual employee of Customer or its Affiliates, or their respective contractor(s) who has been authorized by Customer to use the Services on behalf of Customer and/or its Affiliates (including Administrators).
2. ACCESS AND USE OF THE SERVICES.
2.1. Our Provision of the Services. We will make our proprietary, hosted, customer relationship management WPCRMTM software (the “Services”) available to you pursuant to the terms of the Agreement and the Documentation. We will use commercially reasonable efforts to make the Services available 24x7. You acknowledge that your use of the Services requires third-party hardware, software, internet and/or telecommunications access (which may involve extra charges), and that your ability to access and use the Services may be affected by your choices and the performance of these products and services.
2.2. Implementation. Upon execution of this Agreement, we will provide the implementation and the training services (the “Professional Services”) described on the Order.
2.3. Changes to Services. We reserve the right to enhance, upgrade, improve, modify or discontinue features of our Services as we deem appropriate and in our sole discretion. We will not materially reduce the core functionality or discontinue any Services unless we provide you with prior written notice. If we discontinue Services or materially reduce the core functionality, you may terminate the affected Services or this Agreement with 60 days prior written notice to us. We may offer additional functionality to our standard Services or premium feature improvements for an additional cost.
2.4. Your Registration for the Services. Your Users may be required to provide information about themselves to register for and/or use certain Services. You agree that any such information will be accurate. Your Users may also be asked to choose a username and password. You are entirely responsible for maintaining the security of those usernames and passwords and agree not to disclose such to any third party.
2.5. Your Use of the Services. We grant you a limited, non-exclusive right to use our Services and Documentation only for your internal business purposes, subject to the terms of this Agreement. Your third-party contractors may use the Services or Documentation as Users under your account, provided that you take full responsibility for such third parties’ compliance with this Agreement.
2.6. Limitations on Your Use. By using our Services, you agree on behalf of yourself, your Affiliates and Users, not to (i) modify, prepare derivative works of, or reverse engineer our Services; (ii) access or use the Services or Documentation for any purpose competitive with Company; (iii) use our Services in a way that abuses or disrupts our networks, user accounts, or the Services; (iv) transmit through the Services any harassing, indecent, obscene, or unlawful material; (v) market or resell the Services to any third party; (vi) use the Services in violation of applicable laws or regulations; (vii) use the Services to send unauthorized advertising, or spam; (viii) harvest, collect, or gather user data without their consent; (ix) transmit through the Services any material that may infringe the intellectual property, privacy, or other rights of third parties; or (x) use the Services to commit fraud or impersonate any person or entity. Customer understands and acknowledges that Company does not monitor the content passing through its servers, and that it is Customer’s sole responsibility to ensure that the information it and its Users transmit and receive complies with all applicable laws and regulations and does not infringe upon the rights of any third party. Customer will be solely responsible for the Customer Content. In no event will Company be responsible for Customer Content or its accuracy or completeness, or for any loss of Customer Content.
2.7. Responsibility for Users. You are responsible for the activities of all Users who access or use the Services through your account, and you agree to ensure that any such Users will comply with the terms of this Agreement. You agree to provide us prompt notice if you become aware of any violation of this Agreement in connection with use of the Services by any person.
2.8. Support Services. We will, at no additional charge, provide standard customer support for the Services. Our standard support hours are 9:00am to 5:00pm, Eastern Time, Monday to Friday, excluding national holidays.
3. ORDERS, FEES AND PAYMENT.
3.1. Order(s). Your order for Services and or Professional Services is detailed in an executed Order. You may order additional Services using our then-current ordering processes. All Orders are effective and the Term of the Order begins: (i) for the initial, the Effective Date of this Agreement, and (ii) for subsequent Orders, the date that the Exhibit A form is signed by both parties (“Order Effective Date”). Each Order will be treated as separate and independent Orders; form part of the Agreement; and may be subject to our verification and credit approval process.
3.2. Fees and Payment. You agree to pay all applicable, undisputed fees for the Services or Professional Services on the terms set forth in the Order, this Agreement, a statement of work (“SOW”), or our invoice. Unless otherwise specified in the Order or invoice, you agree to pay all undisputed fees set forth in an invoice within 30 days of the date thereof. Except as otherwise expressly stated in the Agreement, any payments you make to us for the Services are final and non-refundable. You are responsible for all fees and charges imposed by third parties such as providers of hardware, software, internet, voice and/or data transmission, related to your access and use of the Services. You are responsible for providing accurate and current billing, contact and payment information to us. You agree that we may charge your payment card or bill you for all amounts due for your use of the Services, and we may take steps to update your payment card information (where permitted) to ensure payment can be processed. We may suspend or terminate your Services if at any time we determine that your payment information is inaccurate or not current, and you are responsible for fees and overdraft charges that we may incur when we charge your card for payment. We reserve the right to update the fees annually. We will give you notice of any price increase at least 30 days in advance of such increase. All references to currency will be in US dollars ($USD).
3.3. Taxes and Withholdings. You are responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs, or any other similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Services, except those based on our net income, or for which you have provided an exemption certificate. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
3.4. Disputes; Delinquent Accounts. You must notify us of any fee dispute within 15 days of the invoice date, and once resolved, you agree to pay those fees within 15 days of such dispute notice. We may, upon 10 days’ notice to you, suspend your Services if you do not pay undisputed fees by their due date, and you agree to reimburse us for all reasonable costs and expenses, including overdraft charges, collection costs and attorneys’ fees, incurred in collecting delinquent amounts. You further agree that we may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
4. TERM AND TERMINATION.
4.1. Term. The initial term commitment for your purchase of Services will be 12 months unless otherwise specified on the Order (“Initial Term”). After the Initial Term, the Term will automatically renew for additional periods of 12 months each (“Renewal Terms”), unless either party provides notice of non-renewal at least 30 days before the then-current term expires. Future Orders will commence on the date specified in the applicable Order. Terminating use of a specific Service does not affect the term of any other Service still in effect and these terms and conditions will continue to apply to those Services.
4.2. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice of such breach by the other party, or (ii) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.
4.3. Effect of Termination. If the Agreement or any Services are terminated, you will immediately discontinue all use of the terminated Services, except that we will provide you with limited access to the Services for a period of at least 30 days solely to enable you to retrieve your Customer Content from the Services. Unless otherwise agreed in writing, we have no obligation to maintain your Customer Content after this 30-day period. Upon your request made before the end of such 30-day period, we will securely destroy your Customer Content. Termination will not affect any claim arising prior to the termination date. If we discontinue Services or materially reduce the core functionality in accordance with Section 2.3 above, and you elect to terminate the affected Services or this Agreement, we will provide you with a pro rata refund of any prepaid, unused fees. Termination of the Agreement will not affect any claim arising prior to the termination date.
4.4. Survival. The terms of this Agreement will survive the termination or expiration of this Agreement to the extent reasonably necessary to carry out the intent of the parties as indicated therein.
5. PROPRIETARY RIGHTS.
5.1. Our Proprietary Rights and Marks. You acknowledge that we or our licensors retain all proprietary right, title and interest in the Services, all Documentation our name, logo, or other marks (together, the “Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Except for the express limited rights set forth in this Agreement, no right, title or interest in our Services, Documentation, or Marks is granted to you. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part our Marks or is similar to any of these.
5.2. Your Customer Content. You retain all rights to your Customer Content and are solely responsible for the Customer Content sent or transmitted by you or displayed or uploaded by you in using the Services and for compliance with all laws pertaining to the Customer Content, including, but not limited to, laws requiring you to obtain the consent of a third party to use the Customer Content and to provide appropriate notices of third-party rights. You hereby grant us a worldwide, royalty-free, non-exclusive license to use, modify, reproduce, and distribute your Customer Content in order to provide and operate the Services. We will not view, access, or process any of your Customer Content, except: (x) as authorized or instructed by you or your Users in this Agreement or in any other agreement between the parties, or (y) as required to comply with our policies, applicable law, or governmental request, or (z) as may be necessary for the performance of the Services.
5.3. Feedback. You hereby grant us a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you, your Affiliates and Users (“Feedback”). We also reserve the right to seek intellectual property protection for any features, functionality or components that may be based on or initiated by your Feedback.
5.4. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that we may collect and compile data and information related to your use of the Services to be used by us in an aggregated and anonymized manner, including, but not limited to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). All right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by us. You agree that we may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify you or your Customer Content.
5.5. Publicity. Customer agrees that Company may use Customer’s name and refer to Customer in its promotional or marketing materials and its website, lists and business presentations.
6. DATA PRIVACY AND SECURITY.
6.1. Security Safeguards. Each party will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Customer Content and any associated personal data that is collected and/or processed through the Services. On our part, those safeguards will include commercially reasonable measures designed to prevent unauthorized access, use, modification, deletion, and disclosure of Customer Content. Customer (not us) has sole responsibility for adequate security, protection, and backup of Customer Content when in Customer’s or its representatives’ or agents’ possession or control.
6.2. Sub-processors. You acknowledge and agree that we may use sub-processors to help provide the Service, who may access your Customer Content and any associated personal data, to provide, secure and improve the Services. Before sharing Customer Content with any of our sub-processors, we will require that the sub-processor maintains, at a minimum, commercially reasonable data practices for maintaining the confidentiality and security of your Customer Content and preventing unauthorized access. We will be responsible for the acts and omissions of our sub-processors to the same extent that we would be responsible if we were performing the Services.
6.3. Data Protection Laws. To the extent that our provision of the Services involves the processing of Personal Data under applicable data protection law, the parties agree that you will be deemed to be the Data Controller, and we will be deemed to be the Data Processor, as those terms are understood under the applicable data protection law. For the purposes of this Agreement, the term “Personal Data” means any information relating to an identified or identifiable natural person where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
6.4. State Privacy Laws. To the extent that Customer Content contains “personal information” that is subject to the California Consumer Privacy Act of 2018, its implementing regulations, and any amendments thereto (collectively, the “CCPA”), or any other substantially similar state privacy laws, Company agrees that it will comply with all such laws and process such personal information as a service provider (as defined under the CCPA) and will not (a) retain, use or disclose personal information for any purpose other than the purposes set out in this Agreement and/or as permitted by the CCPA; or (b) “sell” (as defined and understood within the requirements of the CCPA) personal information.
7. CONFIDENTIALITY.
7.1. “Confidential Information” will mean all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Customer Content will be deemed Confidential Information of Customer without any marking or further designation. Company’s Services and Documentation and any related intellectual property rights, and the terms and conditions of this Agreement will be deemed Confidential Information of Company without any marking or further designation. Confidential Information will not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
7.2. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
8. WARRANTIES.
8.1. We provide our Services using a commercially reasonable level of care and warrant that the Services will materially conform to the Documentation under normal use. Our entire liability and your exclusive remedy under this warranty will be, at our sole option and subject to applicable law, to provide conforming services, or to terminate the non-conforming services and provide a pro-rated refund of any prepaid fees from the date you notify us of the non-conformance through the end of the remaining term. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) OUR SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS.
8.2. Use of the Services may be available through a compatible mobile device, internet access, and may require third party software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees, as well as the terms of your agreement with your mobile device and telecommunications provider. WE MAKE NO WARRANTIES OR REPRESENTATION OF ANY KIND, EXPRESS, STATUORY OR IMPLED AS TO (I) THE AVAILABILITY OF INTERNET OR TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION, (II) ANY LOSS, DAMAGE OR OTHER SECURITY INTRUSION OF THE INTERNET OR TELECOMMUNICATION SERVICES, AND (III) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTING CONNECTED WITH THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
8.3. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD IT LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PROVIDERS OF THE THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER.
8.4. No Liability in Connection With Data Accessed Through the Services. Company will not have any liability for damages or issues resulting from the data or other information accessed by Customer or Users through the Services, including any damage to User’s computer systems or loss or corruption of data caused by computer viruses contained in such accessed data or information.
9. INDEMNIFICATION.
9.1. Company Indemnity. We will indemnify and defend you against any third-party claim alleging that any of the Services infringes upon any patent or copyright, or violates a trade secret of any such third-party (“IP Claim”), and we agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. You will promptly notify us of any claim and cooperate with us in defending the claim. We will reimburse you for reasonable expenses incurred in providing any cooperation or assistance. We will have full control and authority over the defense and settlement of any claim, except that any settlement requiring you to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) you may join in the defense with your own counsel at your own expense.
9.1.1. If (i) Company becomes aware of an actual or potential IP Claim, or (ii) Customer provides Company with notice of an actual or potential IP Claim, Company may (or in the case of an injunction against Customer, will), at Company’s sole option and determination: (a) procure for Customer the right to continue to use the Services; or (b) replace or modify the Services with equivalent or better functionality so that Client’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Services and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Company.
9.1.2. The obligations in Section 9.1 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Services with other products, software or services not provided by Company; (ii) any IP Claim related to any Customer Content, or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
9.2. Your Indemnity. Unless prohibited by applicable law, you will indemnify and defend us against any third-party claim resulting from a breach of Sections 2.6 or 5.2 or alleging that any of your Customer Content infringes upon any patent or copyright, or violates a trade secret of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. We will promptly notify you of any claim and cooperate with you in defending the claim. You will reimburse us for reasonable expenses incurred in providing any cooperation or assistance. You will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring us to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) we may join in the defense with our own counsel at our own expense.
10. LIMITATION ON LIABILITY.
10.1. LIMITATION ON LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY DAMAGES, OR DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, OR (iv) CUSTOMER’S LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
10.2. LIMITATION ON AMOUNT OF LIABILITY. EXCEPT FOR A PARTY’S BREACH OF SECTIONS 2.5, 5.1, 5.2, 7 or 10.3; A PARTY’S INDEMNIFICATION OBLIGATION UNDER SECTION 9; OR A PARTY’S GROSS NEGLIGENCE, WILLFUL MIDCONDUCT OR FRAUD, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT IS LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY (“GENERAL LIABILITY CAP”). The foregoing does not limit your obligations to pay any undisputed fees and other amounts due under this Agreement.
10.3. SUPERCAP FOR DATA PROTECTION CLAIMS. IN THE CASE OF “DATA PROTECTION CLAIMS,” EACH PARTY’S AND ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED TWO TIMES THE “GENERAL LIABILITY CAP”. FOR THE PURPOSES OF THIS AGREEMENT, “DATA PROTECTION CLAIMS” MEANS ANY CLAIMS ARISING FROM A PARTY’S BREACH OF SECTION 6 (DATA PRIVACY AND SECURITY), SECTION 7 (CONFIDENTIALITY) OR BREACH OF APPLICABLE DATA PROTECTION LAWS.
10.4. IN NO EVENT WILL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE DATA PROTECTION CLAIMS CAP.
11. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, data protection and anti-bribery laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Further, Customer will not permit its Users to access or use any Service or Content Product in a U.S. embargoed country or in violation of any U.S. export law or regulation. If necessary and in accordance with applicable law, we will cooperate with local, state, federal and international government authorities with respect to the Services. If access to the Services or the Documentation are acquired by or on behalf of a unit or agency of the United States government, the government agrees that such Services or Documentation is “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the government’s rights with respect to such Services or Documentation are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable. Notwithstanding any other provision in these Terms, we may immediately terminate the Agreement for noncompliance with applicable laws.
12. SUSPENSION OF SERVICES. We reserve the right to suspend the Services or restrict access or functionalities if (a) we reasonably believe that you, your Affiliates or Users have materially violated this Agreement, or (b) we reasonably determine that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities. Unless legally prohibited, we will use commercially reasonable efforts to notify you when taking any of the foregoing actions. We will not be liable to you, your Affiliates or Users or any other third party for any such suspension of Services or reduced functionality. Any suspected fraudulent, abusive, or illegal activity by you, your Affiliates or Users, may be referred to law enforcement authorities at our sole discretion.
13. ADDITIONAL TERMS.
13.1. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it will provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within 30 days after such notice, knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation, or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section will not apply to claims subject to indemnification under Section 9 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
13.2. Limitation on Bringing Claims; No Jury. By entering into this Agreement, each party is waiving the right to a jury. Any claim arising out of this Agreement must be brought, if at all, within two years of the claim arising. You may only resolve disputes with us on an individual basis and you agree not to bring or participate in any class, consolidated, or representative action against us or any of our employees or affiliates.
13.3. Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of Delaware. Each party agrees to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Delaware.
13.4. No Class Actions. You may only resolve disputes with us on an individual basis and you agree not to bring or participate in any class, consolidated, or representative action against us or any of our employees or affiliates.
13.5. Assignment. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which will not be unreasonably withheld, except that either party may assign the Agreement to an affiliated entity, or as part of a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of its business or assets to which this Agreement relates without prior written consent Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.
13.6. Notices. Notices must be sent by personal delivery, overnight courier, or registered or certified mail. may also provide notice to the email last designated on your account, electronically via postings on our website, in-product notices, or via our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at 16 W. Martin Street, Raleigh, NC 27601, Attn: Contract Admin, with a copy to the attention of the Revenue Department at the same address; e-mail: revenue@cordance.co, and for notice related to legal matters, to Legal@Cordance.co. We will send notices to the address last designated on your account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting.
13.7. Entire Agreement; Order of Precedence. This Agreement, including the Order(s) and any applicable schedules, exhibits, and appendices, and any mutually signed SOW set forth the entire agreement between Customer and Company relating to the Services and/or Professional Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between an executed Order, this Agreement, and the Documentation, in each case, as applicable, the conflict will be resolved in that order, but only for the specific Services described in the applicable Order. No modification of or amendment to this Agreement will be effective unless mutually agreed in writing.
13.8. General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third-party beneficiary or have the right to modify the Agreement or to make commitments binding on us. Failure to enforce any right under the Agreement will not waive that right. The Agreement may be agreed to online or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g., natural disasters; epidemics, pandemics, terrorist activities, activities of third-party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.
13.9. Beta Services. We may offer you access to beta services that are being provided prior to general release (“Beta Services”). You understand and agree that the Beta Services may contain bugs, errors and other defects, and use of the Beta Services is at your sole risk. You acknowledge that your use of Beta Services is on a voluntary and optional basis, and we have no obligation to provide technical support and may discontinue provision of Beta Services at any time in our sole discretion and without prior notice to you. Beta Services are offered “AS-IS”, and to the extent permitted by applicable law, we disclaim any liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise. If you are using Beta Services, you agree to receive related correspondence and updates from us and acknowledge that opting out may result in cancellation of your access to the Beta Services. If you provide Feedback about the Beta Service, you agree that we own any Feedback that you share with us. For the Beta Services only, this Section supersedes any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict. When, if at all, we release a Beta Service for general availability, it is no longer a “Beta Service” and is treated as a part of Services for all purposes under this Agreement (including the payment of applicable additional Fees).
Last Updated 2024-06-04
Rubber Tree Systems TOS
Version 1.1
Effective June 3rd 2024
DownloadTable of Contents
RUBBER TREE SYSTEMS
TERMS OF SERVICE
These Terms of Service (“Terms”) constitute a legal agreement between the person or organization agreeing to these Terms (“Customer” or “you”) and Rubber Tree Systems, a business unit of Cordance Operations LLC, Delaware limited liability company (the “Company,” “us” or “we”). By signing an Order, accepting these Terms, or using the Services, you represent that you have the authority to bind the Customer to the Order, these Terms, and any applicable schedules, exhibits, or appendices incorporated or referenced herein (collectively, the “Agreement”). The pre-printed terms in any of either party’s purchase orders, acknowledgements, or click-through terms do not apply to modify this Agreement, and such other or additional terms or conditions are void and of no effect.
1. DEFINITIONS
1.1. “Administrator” means the Customer’s primary contact person who coordinates and works with the Company to implement, support, and train the Customer’s Users on their use of the Service.
1.2. “Affiliate” of a party means an entity which, directly or indirectly is controlled by, controls or is under common control with that party where “control” of the party or other entity is the possession of the power to direct or cause the direction of the management and policies of the party or other entity, whether by voting, contract or otherwise.
1.3. “Customer Content” means content, data, and information, including text, graphics, videos, or other material, submitted, uploaded, imported, or otherwise provided to or through the Services by Customer or by a third party on behalf of or for the benefit of Customer, including Customer’s customers, prospective customers, and Users of the Services.
1.4. “Documentation” means Company’s then-current generally available documentation, specifications, and user manuals for the Services which are available upon login to the Services, as well as any documentation included in or attached to this Agreement, or such other Services-related documents provided by Company to Customer.
1.5. “User(s)” means an individual employee of Customer or its contractor(s) who has been authorized by Customer to use the Services on behalf of Customer and/or its Affiliates (including Administrators).
2. ACCESS AND USE OF THE SERVICES.
2.1. Our Provision of the Services. We will make our software-as-a-service offerings (the “Services”) available to you pursuant to the terms of the Agreement and the Documentation. We will use commercially reasonable efforts to make the Services available 24x7. The Services allow you to launch sales and business services on their computers, smart phones and tablets. You acknowledge that your use of the Services requires third-party hardware, software, internet and/or telecommunications access (which may involve extra charges), and that your ability to access and use the Services may be affected by your choices and the performance of these products and services.
2.2. Implementation. Upon execution of this Agreement, we will provide the following services:
2.2.1. set-up and Administrator and User training in the use of the Services; and
2.2.2. test the Services after they have been implemented by Customer to confirm that the Services are performing to Company’s current Documentation for the Services.
2.3. Changes to Services. We reserve the right to enhance, upgrade, improve, modify or discontinue features of our Services as we deem appropriate and in our sole discretion. We will not materially reduce the core functionality or discontinue any Services unless we provide you with prior written notice. If we discontinue Services or materially reduce the core functionality, you may terminate the affected Services or this Agreement with 60 days prior written notice to us. We may offer additional functionality to our standard Services or premium feature improvements for an additional cost.
2.4. Your Registration for the Services. Your Users may be required to provide information about themselves to register for and/or use certain Services. You agree that any such information will be accurate. Your Users may also be asked to choose a username and password. You are entirely responsible for maintaining the security of those usernames and passwords and agree not to disclose such to any third party.
2.5. Your Use of the Services. We grant you a limited, non-exclusive right to use our Services and Documentation only for your internal business purposes, subject to the terms of this Agreement including the User Rules in the attached Exhibit B. Your third-party contractors may use the Services or Documentation as Users under your account, provided that you take full responsibility for such third parties’ compliance with this Agreement.
2.6. Limitations on Your Use. By using our Services, you agree on behalf of yourself, your Affiliates and Users, not to (i) modify, prepare derivative works of, or reverse engineer, our Services; (ii) access or use the Services or Documentation for any purpose competitive with Company; (iii) use our Services in a way that abuses or disrupts our networks, user accounts, or the Services; (iv) transmit through the Services any harassing, indecent, obscene, or unlawful material; (v) market, or resell the Services to any third party; (vi) use the Services in violation of applicable laws, or regulations; (vii) use the Services to send unauthorized advertising, or spam; (viii) harvest, collect, or gather User data without their consent; (ix) transmit through the Services any material that may infringe the intellectual property, privacy, or other rights of third parties; or (x) use the Services to commit fraud or impersonate any person or entity. Customer understands and acknowledges that Company does not monitor the content passing through its servers, and that it is Customer’s sole responsibility to ensure that the information it and its Users transmit and receive complies with all applicable laws and regulations and does not infringe upon the rights of any third party. Customer will be solely responsible for the Customer Content. In no event will Company be responsible for Customer Content or its accuracy or completeness, or for any loss of Customer Content.
2.7. Responsibility for Activity under Account. You are responsible for the activities of all Users who access or use the Services through your account, and you agree to ensure that any such Users will comply with the terms of this Agreement. You agree to provide us prompt notice, if you become aware of any violation of this Agreement in connection with use of the Services by any person.
2.8. Training. At mutually agreeable dates and times, Company will provide virtual implementation and training of Customer’s administration team on a reasonable, as needed basis at no cost. Virtual implementation and training is limited to Company’s training curriculum covering basic module setup and functionality. Training does not include virtual or onsite customized training beyond Company’s training curriculum, onsite curriculum training or end-user training. These additional training services can be purchased via a mutually executed Order.
2.9. Support and Maintenance. We will, at no additional charge, provide standard customer support for the Services as described on our website and/or in the Documentation. Our standard support hours are 9:00am to 5:00pm, Eastern Time, Monday to Friday, excluding national holidays.
3. ORDERS, FEES AND PAYMENT.
3.1. Order. Your order for Services is detailed in an accepted quote or order (“Order”). You may order additional Services using our then-current ordering processes. All Orders are effective on the earlier of (i) the date you submit your Order, or (ii) the date on the signature block of the Order (“Effective Date”). Acceptance of your Order may be subject to our verification and credit approval process. Each Order will be treated as a separate and independent Order.
3.2. Fees and Payment. You agree to pay all applicable, undisputed fees for the Services on the terms set forth in the Order, this Agreement, a statement of work (“SOW”), or our invoice. Unless otherwise specified in the Order or invoice, you agree to pay all undisputed fees set forth in an invoice within 30 days of the date thereof. Except as otherwise expressly stated in the Agreement, any payments you make to us for the Services are final and non-refundable. You are responsible for all fees and charges imposed by third parties such as providers of hardware, software, internet, voice and/or data transmission, related to your access and use of the Services. You are responsible for providing accurate and current billing, contact and payment information to us. You agree that we may charge your payment card or bill you for all amounts due for your use of the Services, and we may take steps to update your payment card information (where permitted) to ensure payment can be processed. You agree that your credit card information and related personal data may be provided to third parties for payment processing and fraud prevention purposes. We may suspend or terminate your Services if at any time we determine that your payment information is inaccurate or not current, and you are responsible for fees and overdraft charges that we may incur when we charge your card for payment. We reserve the right to update the prices of our Services annually after your Initial Term. We will give you notice of any price increase at least 30 days in advance of such increase. All references to currency will be in US dollars ($USD).
3.3. Taxes and Withholdings. You are responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs, or any other similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Services, except those based on our net income, or for which you have provided an exemption certificate. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
3.4. Disputes; Delinquent Accounts. You must notify us of any fee dispute within 15 days of the invoice date, and once resolved, you agree to pay those fees within 15 days of such dispute notice. We may, on 10 days’ notice to you, suspend your Services if you do not pay undisputed fees by their due date, and you agree to reimburse us for all reasonable costs and expenses, including overdraft charges, collection costs and attorneys’ fees, incurred in collecting delinquent amounts. You further agree that we may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
4. TERM AND TERMINATION.
4.1. Term. The initial term commitment for your purchase of Services will be as specified in the Order (“Initial Term”) and begins on the earlier of the date that implementation (as described in Section 2.2) is complete and 30 days after the Effective Date. After the Initial Term, the Term will automatically renew for additional 30 day periods (“Renewal Terms”), unless either party provides notice of non-renewal at least 30 days before the then-current term expires. Terminating use of a specific Service does not affect the term of any other Service still in effect and these terms and conditions will continue to apply to those Services.
4.2. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice of such breach by the other party, or (ii) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.
4.3. Effect of Termination. If the Agreement or any Services are terminated, you will immediately discontinue all use of the terminated Services, except that we will provide you with limited access to the Services for a period of at least 30 days solely to enable you to retrieve your Customer Content from the Services. Upon your request made before the end of such 30-day period, we will securely destroy your Customer Content. Unless otherwise agreed in writing, we have no obligation to maintain your Customer Content after such 30-day period. If we discontinue Services or materially reduce the core functionality in accordance with Section 2.3 above, and you elect to terminate the affected Services or this Agreement, we will provide you with a pro rata refund of any prepaid, unused fees. Termination of the Agreement will not affect any claim arising prior to the termination date.
4.4. Survival. The terms of this Agreement will survive the termination or expiration of this Agreement to the extent reasonably necessary to carry out the intent of the parties as indicated therein.
5. PROPRIETARY RIGHTS.
5.1. Our Proprietary Rights and Marks. You acknowledge that we or our licensors retain all proprietary right, title and interest in the Services, all Documentation our name, logo, or other marks (together, the “Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Except for the express limited rights set forth in this Agreement, no right, title or interest in our Services, Documentation, or Marks is granted to you. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part our Marks or is similar to any of these.
5.2. Your Customer Content. You retain all rights to your Customer Content and are solely responsible for the Customer Content sent or transmitted by you or displayed or uploaded by you in using the Services and for compliance with all laws pertaining to the Customer Content, including, but not limited to, laws requiring you to obtain the consent of a third party to use the Customer Content and to provide appropriate notices of third-party rights. You hereby grant us a worldwide, royalty-free, non-exclusive license to use, modify, reproduce, and distribute your Customer Content in order to provide and operate the Services. We will not view, access, or process any of your Customer Content, except: (x) as authorized or instructed by you or your users in this Agreement or in any other agreement between the parties, or (y) as required to comply with our policies, applicable law, or governmental request, or (z) as may be necessary for the performance of the Services.
5.3. Feedback. You hereby grant us a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you, your Affiliates and Users (“Feedback”). We also reserve the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by your Feedback.
5.4. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that we may collect and compile data and information related to your use of the Services to be used by us in an aggregated and anonymized manner, including, but not limited to, statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between us and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by us. You agree that we may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify you or your Customer Content.
5.5. Publicity. Customer agrees that Company may use Customer’s name and refer to Customer in its promotional or marketing materials and its website, lists and business presentations.
6. DATA PRIVACY AND SECURITY.
6.1. Security Safeguards. Each party will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of your Customer Content and any associated personal data that is collected and/or processed through the Services. On our part, those safeguards will include commercially reasonable measures designed to prevent unauthorized access, use, modification, deletion, and disclosure of Customer Content. Customer (not us) has sole responsibility for adequate security, protection, and backup of Customer Content when in Customer’s or its representatives’ or agents’ possession or control.
6.2. Sub-processors. You acknowledge and agree that we may use sub-processors to help provide the Service, who may access your Customer Content and any associated personal data, to provide, secure and improve the Services. Before sharing Customer Content with any of our sub-processors, we will require that the sub-processor maintains, at a minimum, commercially reasonable data practices for maintaining the confidentiality and security of your Customer Content and preventing unauthorized access. We will be responsible for the acts and omissions of our sub-processors to the same extent that we would be responsible if we were performing the Services.
6.3. Data Protection Laws. To the extent that our provision of the Services involves the processing of Personal Data under applicable data protection law, the parties agree that you will be deemed to be the Data Controller, and we will be deemed to be the Data Processor, as those terms are understood under the applicable data protection law. For the purposes of this Agreement, the term “Personal Data” means any information relating to an identified or identifiable natural person where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
6.4. State Privacy Laws. To the extent that Customer Content contains “personal information” that is subject to the California Consumer Privacy Act of 2018, its implementing regulations, and any amendments thereto (collectively, the “CCPA”), or any other substantially similar state privacy laws, Company agrees that it will comply with all such applicable laws and process such personal information as a service provider (as defined under the CCPA) and will not (a) retain, use or disclose personal information for any purpose other than the purposes set out in this Agreement and/or as permitted by the CCPA; or (b) “sell” (as defined and understood within the requirements of the CCPA) personal information.
7. CONFIDENTIALITY.
7.1. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Customer Content will be deemed Confidential Information of Customer without any marking or further designation. Company’s Services, Documentation and Marks, any related intellectual property rights, and the terms and conditions of this Agreement will be deemed Confidential Information of Company without any marking or further designation. Confidential Information will not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
7.2. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
8. WARRANTIES.
8.1. We provide our Services using a commercially reasonable level of care and warrant that the Services will materially conform to the Documentation under normal use. Our entire liability and your exclusive remedy under this warranty will be, at our sole option and subject to applicable law, to provide conforming services, or to terminate the non-conforming services and provide a pro-rated refund of any prepaid fees from the date you notify us of the non-conformance through the end of the remaining term. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) OUR SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS.
8.2. Use of the Services may be available through a compatible mobile device, internet access, and may require third party software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees, as well as the terms of your agreement with your mobile device and telecommunications provider. WE MAKE NO WARRANTIES OR REPRESENTATION OF ANY KIND, EXPRESS, STATUORY OR IMPLED AS TO (I) THE AVAILABILITY OF INTERNET OR TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION, (II) ANY LOSS, DAMAGE OR OTHER SECURITY INTRUSION OF THE INTERNET OR TELECOMMUNICATION SERVICES, AND (III) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTING CONNECTED WITH THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
8.3. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD IT LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PROVIDERS OF THE THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER.
8.4. No Liability in Connection With Data Accessed Through the Services. Company will not have any liability for damages or issues resulting from the data or other information accessed by Customer or Users through the Services, including any damage to User’s computer systems or loss or corruption of data caused by computer viruses contained in such accessed data or information.
8.5. No Liability For Transactions Conducted Through the Services. Company will not have any liability for any damages or issues resulting from e-commerce transactions conducted through the Services.
9. INDEMNIFICATION.
9.1. Our Indemnity. We will indemnify and defend you against any third-party claim alleging that any of the Services infringes upon any patent or copyright or violates a trade secret of any such third-party (an “IP Claim”), and we agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. You will promptly notify us of any claim and cooperate with us in defending the claim. We will reimburse you for reasonable expenses incurred in providing any cooperation or assistance. We will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring you to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) you may join in the defense with your own counsel at your own expense.
9.1.1. If (i) Company becomes aware of an actual or potential IP Claim, or (ii) Customer provides Company with notice of an actual or potential IP Claim, Company may (or in the case of an injunction against Customer, will), at Company’s sole option and determination: (a) procure for Customer the right to continue to use the Services; or (b) replace or modify the Services with equivalent or better functionality so that Customer’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Services and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Company.
9.1.2. The obligations in Section 9.1 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Services with other products, software or services not provided by Company; (ii) any IP Claim related to any Customer Content, or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
9.2. Your Indemnity. Unless prohibited by applicable law, you will indemnify and defend us against any third-party claim resulting from a breach of Sections 2.6 or 5.2 or alleging that any of your Customer Content infringes upon any patent or copyright, or violates a trade secret of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. We will promptly notify you of any claim and cooperate with you in defending the claim. You will reimburse us for reasonable expenses incurred in providing any cooperation or assistance. You will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring us to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) we may join in the defense with our own counsel at our own expense.
10. LIMITATION ON LIABILITY.
10.1. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY DAMAGES, OR DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, OR (iv) CUSTOMER’S LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
10.2. EXCEPT FOR COMPANY’S INDEMNITY OBLIGATIONS FOR AN IP CLAIM, COMPANY'S ENTIRE LIABILITY TO LICENSEE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY), WILL BE LIMITED TO THE FEES ACTUALLY PAID BY CUSTOMER TO COMPANY DURING THE PRIOR 12 MONTHS.
11. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, data protection and anti-bribery laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Further, Customer will not permit its users to access or use any Service or Content Product in a U.S. embargoed country or in violation of any U.S. export law or regulation. If necessary and in accordance with applicable law, we will cooperate with local, state, federal and international government authorities with respect to the Services. If access to the Services or the Documentation are acquired by or on behalf of a unit or agency of the United States government, the government agrees that such Services or Documentation is “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the government’s rights with respect to such Services or Documentation are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable. Notwithstanding any other provision in these Terms, we may immediately terminate the Agreement for noncompliance with applicable laws.
12. SUSPENSION OF SERVICES. We reserve the right to suspend the Services or restrict access or functionalities if (a) we reasonably believe that you, your Affiliates or Users have materially violated this Agreement, or (b) we reasonably determine that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities. Unless legally prohibited, we will use commercially reasonable efforts to notify you when taking any of the foregoing actions. We will not be liable to you, your Affiliates or Users or any other third party for any such suspension of Services or reduced functionality. Any suspected fraudulent, abusive, or illegal activity by you, your Affiliates or Users may be referred to law enforcement authorities at our sole discretion.
13. ADDITIONAL TERMS.
13.1. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it will provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within 30 days after such notice, knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation, or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section will not apply to claims subject to indemnification under Section 9 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
13.2. Arbitration. If the parties do not reach an agreed upon solution within a period of 30 days from the time of the commencement of the informal dispute resolution process described above, then either party may initiate binding arbitration by a single arbitrator before the American Arbitration Association using its Commercial Arbitration Rules as the sole means to resolve claims subject to the terms set forth below. YOU AGREE THAT ANY DISPUTE OR CLAIM RELATING TO THIS AGREEMENT WILL BE RESOLVED BY BINDING ARIBTRATION RATHER THAN IN COURT AND ATHAT YOU WILL ARBITRATE WITH US ONLY IN YOUR INDIVIDUAL OR CORPORATE CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS. Any arbitration claim must be brought within one year of the claim arising. The arbitrator will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable, or whether a claim is subject to arbitration. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award will be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. You understand and agree that unless you can demonstrate that arbitration in Delaware would create an undue burden for you, any arbitration hearing will be held in Delaware. You understand and agree that by entering into this Agreement, each party is waiving the right to a jury trial or a trial before a judge in a public court. Other rights that you would have if you went to court, such as the right to appeal and to certain types of discovery, may be more limited or may also be waived. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (meaning patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights) or Confidential Information. Furthermore, you have the right to opt out and not be bound by these arbitration provisions by sending written notice of your decision to opt out to the following address, 16 W. Martin Street, Raleigh, North Carolina, 27601, within 30 days of the date of this Agreement.
13.3. Governing Law and Jurisdiction. These Terms will be governed by the laws of the State of Delaware. For any dispute not subject to arbitration, each party agrees to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Delaware.
13.4. No Class Actions. You may only resolve disputes with us on an individual basis and you agree not to bring or participate in any class, consolidated, or representative action against us or any of our employees or affiliates.
13.5. Assignment. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which will not be unreasonably withheld, except that either party may assign the Agreement to an affiliated entity, or as part of a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of its business or assets to which this Agreement relates without prior written consent. Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.
13.6. Notices. Notices must be sent by personal delivery, overnight courier, or registered or certified mail. We may also provide notice to the email last designated on your account, electronically via postings on our website, in-product notices, or via our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at 16 W. Martin Street, Raleigh, NC 27601, Attn: Contract Admin, with a copy to the attention of the Revenue Department at the same address; e-mail: revenue@cordance.co, and for notice related to legal matters, to Legal@Cordance.co. We will send notices to the address last designated on your account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting.
13.7. Entire Agreement; Order of Precedence. This Agreement, including the Order(s) and any applicable schedules, exhibits, and appendices, and any mutually signed SOW set forth the entire agreement between Customer and Company relating to the Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between an executed Order, this Agreement, and the Documentation, in each case, as applicable, the conflict will be resolved in that order, but only for the specific Services described in the applicable Order. No modification of or amendment to this Agreement will be effective unless mutually agreed in writing.
13.8. General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third-party beneficiary or have the right to modify the Agreement or to make commitments binding on us. Failure to enforce any right under the Agreement will not waive that right. The Agreement may be agreed to online or executed by electronic signature and in one or more counterparts.
13.9. High-Risk Use. You understand that the Services are not designed or intended for use during high-risk activities which include, but are not limited to, use in hazardous environments and/or life support systems.
13.10. Force Majeure. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g., natural disasters; epidemics, pandemics, terrorist activities, activities of third-party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.
13.11. Beta Services. We may offer you access to beta services that are being provided prior to general release (“Beta Services”). You understand and agree that the Beta Services may contain bugs, errors and other defects, and use of the Beta Services is at your sole risk. You acknowledge that your use of Beta Services is on a voluntary and optional basis, and we have no obligation to provide technical support and may discontinue provision of Beta Services at any time in our sole discretion and without prior notice to you. These Beta Services are offered “AS-IS”, and to the extent permitted by applicable law, we disclaim any liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise. If you are using Beta Services, you agree to receive related correspondence and updates from us and acknowledge that opting out may result in cancellation of your access to the Beta Services. If you provide Feedback about the Beta Service, you agree that we own any Feedback that you share with us. For the Beta Services only, this Section supersedes any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict.
Last Updated: 2024-06-03
EXHIBIT A
Support Services and Service Level
This Exhibit applies to all Services (including rubbertree.app, Mobile Sales, Dashboards, WebQuery, ExecuKeys, and ValueDocs).
1. Support Services
(a) Company provides support via email or phone for all Services as part of the monthly subscription price. Regular support services include: answering questions and resolving issues pertaining to the normal operation for the software, periodic program fixes, and automatic update services.
(b) We offer customers to request additional features, enhancements, and iterations via our online forum. One User per company will be made Administrator after the implementation process. This forum allows Users to request and vote for features, as well as stay up-to-date on development activities.
(c) Company regularly monitors the availability and operation of its production hardware and software. This monitoring service automatically checks each device several times an hour, and notifies multiple staff members if a device is found to be unavailable or inoperable. Company will continue to use this or a comparable third party service, or other in-house methods with similar functionality, so that it can respond to problems with its hardware or software that might interfere with the Services.
(d) Customer understands and acknowledges that the Services are provided, in part, through the Internet and other computer networks beyond our control. Consequently, Company will take commercially reasonable efforts to avoid such events, but it cannot guarantee that such events will not occur. Consequently, Company will not be liable for any downtime or other problems with the Services that are due to factors beyond its reasonable control.
2. Scheduled And Emergency Maintenance
Routine maintenance of the data centers and other components used in providing the Services will be performed pursuant to a schedule that we will make available to you. In addition to regular maintenance, emergency work may also need to be conducted at any time. During these scheduled and emergency maintenance periods there may be an interruption in the Services. You agree to reasonably cooperate with us during scheduled and emergency maintenance.
3. Excessive Downtime.
(a) In the event of “Excessive Downtime,” Customer may terminate the Agreement without penalty by notifying Rubber Tree within 5 days following the end of the calendar month in which the Excessive Downtime occurred. Such termination will be effective as of the end of the month in which the termination notice was given.
(b) Customer will be considered to have suffered “Excessive Downtime” if, subject to the last sentence of this Section (b) and Section 1(d) above: (i) Customer experiences more than 10 downtime periods of 15 minutes or more resulting from 3 or more downtime events during a calendar month; or (ii) Customer experiences more than 24 consecutive hours of downtime due to any single downtime event. Any packet loss or network unavailability during scheduled maintenance will not be considered “downtime,” so long as Customer is given reasonable advance notice of such maintenance, and such maintenance does not last longer than commercially reasonable.
4. Limitations of Support
Standard support service is offered at no additional cost, however, there are activities subject to a support charge. WebQuery Cloud Edition allows for up to 6 hours per calendar quarter of additional training, data integrations, customizations, or auditing at no additional charge.
Issues not covered by standard support and subject to an additional charge. Customer has the option to accept or decline the following optionally priced services.
(a) Moving the software or data to a different: facility, computer, disk and all other issues related to equipment changes or hardware failures outside of Company data center.
(b) Any issues related to the setup, configuration and/or maintenance of user and/or system security, and or networking hardware or software components outside of Company data center.
(c) Complications resulting from communications failures with host computers, internet, local or wide area networks, and/or telephone lines outside of Company data center. Sometimes these communication failures are related to changing IP addresses or passwords. In those cases we can easily advise you how to quickly adjust your configuration. However, failure to identify or report these problems quickly can lead to a cascade of negative events that may require a great deal of time to correct.
(d) Data auditing, balancing, additional data integration, and/or correction of data errors originating from the host transaction processing system (i.e., Epicor Prophet 21, Epicor 10, Epicor Acclaim, Infor SXE, Infor CSD, Tribute, TrulinX, or any others) or resulting from other user errors.
EXHIBIT B
RUBBER TREE USER RULES
These Rubber Tree User Rules are part of, and incorporated into, the Master Services Agreement (the “Agreement”).
User Content. You acknowledge that Company exercises no control over the content of the information passing through its Services, and that it is Customer’s sole responsibility to ensure that the information Customer and Users transmit and receive complies with all applicable laws and regulations and the User Rules.
Prohibited Activities. Customer will not, and will not permit any of its Users (including, but not limited to, its web site(s) and transmission capabilities) to do any of the following “Prohibited Activities”:
• send unsolicited commercial messages or communications in any form (“spam”);
• engage in any activities that infringe or misappropriate the intellectual property rights of others, including, but not limited to, using third party copyrighted materials without appropriate permission, using third party trademarks without appropriate permission or attribution, or using or distributing third party information in violation of a duty of confidentiality or such third party’s trade secret rights;
• engage in any activities that violate the personal privacy rights of others, including, but not limited to, collecting and distributing information about Internet users without their permission, except as may be permitted by applicable law;
• send, post, or host harassing, abusive, or obscene materials;
• disrupt our network or interfere with another’s use and enjoyment of the Services;
• intentionally omit, delete, forge or misrepresent transmission information, including headers and return mailing and Internet protocol addresses;
• engage in any activities or actions intended to withhold or cloak your or your Users’ identity or contact information;
• use the Services for any illegal purposes, in violation of any applicable laws or regulations, or in violation of the rules of any other applicable service providers, web sites, chat rooms or the like; or
• allow anyone else to engage in any of the activities described above.
If you become aware of any Prohibited Activities, you will use best efforts to remedy such Prohibited Activities immediately, including, if necessary, limiting or terminating a User’s access to your online facilities. You will be responsible for any loss or damages which we may suffer as a result of any Prohibited Activity or other failure by you to abide by the User Rules.
We may (but are not obligated to) delete any material installed on a Company server that violates the User Rules. In addition, we may limit or terminate access to the Services if we believe in good faith that you have violated any of the User Rules.
1. NOTICES
From time to time we may send messages to you through the Services about the User Rules, the Services, or other matters of importance. These messages will constitute notice to you of such matters.
Last Updated 2024-06-03
eRezLife TOS CAN
Version 2.2
Effective June 3rd 2024
DownloadTable of Contents
TERMS OF SERVICE
These Terms of Service (“Terms”) constitute a legal agreement between the person or organization agreeing to these Terms (“Customer” or “you”) and Permanent Software Group Canada Ltd or such other Affiliated entity signing the Order (the “Company,” “us” or we”). By signing an Order, accepting these Terms, or using the Services, you represent that you have the authority to bind the Customer to the Order, these Terms, and any applicable schedules, exhibits, or appendices incorporated or referenced herein (collectively the “Agreement”). Pre-printed terms on any purchase order or other similar document, or online terms referenced on any such document (as defined below) are deemed not to apply to the Agreement.
1. ACCESS AND USE OF THE SERVICES.
1.1. Our Provision of the Services. We will make our eRezLife software-as-a-service offering (the “Services”) available to you pursuant to the terms of the Agreement and applicable technical documentation (“Documentation”). We will use commercially reasonable efforts to make the Services available 24x7. You acknowledge that your use of the Services requires third-party hardware, software, and internet access (which may involve extra charges), and that your ability to access and use the Services may be affected by your choices and the performance of these products and services.
1.2. Initial Set-Up. Upon execution of this Agreement, we will start the customized software configuration processes and provide the following services:
1.2.1. provide set-up services and Administrator training in the use of the Services in accordance with our standard time and materials price rate;
1.2.2. configure and implement the Services on a Company cloud agreed upon by Company and Customer;
1.2.3. test the Services after they have been implemented by us to ensure that the Services are performing appropriately; and
1.2.4. For purposes of this Agreement, the term “Administrator” is defined as Customer’s primary contact person who coordinates and works with the Company to set up, support, and train the Customer’s system Users on their use of the Services.
1.3. Support. We will, at no additional charge, provide standard customer support for the Services as detailed on our website and/or in our Documentation. Our standard support hours are 9:00am to 5:00pm, Eastern Time, Monday to Friday, excluding statutory holidays in the United States and the Provinces of British Columbia or Ontario, Canada.
1.4. Changes to Services. We reserve the right to enhance, upgrade, improve, modify or discontinue features of our Services as we deem appropriate and in our discretion. We will not materially reduce the core functionality or discontinue any Services unless we provide you with prior written notice. We may offer additional functionality to our standard Services or premium feature improvements for an additional cost.
1.5. Your Registration for the Services. Your Users may be required to provide information about themselves in order to register for and/or use certain Services. You agree that any such information will be accurate. Your Users may also be asked to choose a username and password. You are entirely responsible for maintaining the security of those usernames and passwords and agree not to permit the disclosure of such to any third party.
1.6. Your Use of the Services. You agree to use the Services in accordance with the use levels by which we measure, price and offer our Services as set forth in the Agreement or Documentation (“Use Levels”). We grant you a limited right to use our Services only for your internal business and professional purposes. Your Affiliates may use the Services as Users under your account. If an Affiliate uses your account, you warrant that you have the authority to bind that Affiliate and you will be liable if your Affiliate does not comply with the Agreement. For the purposes of this Agreement, “Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.
1.7. Limitations on Your Use. By using our Services, you agree on behalf of yourself, your Affiliates and Users , not to (i) modify, prepare derivative works of, or reverse engineer, our Services; (ii) use our Services in a way that abuses or disrupts our networks, User accounts, or the Services; (iii) transmit through the Services any harassing, indecent, obscene, or unlawful material; (iv) market, or resell the Services to any third party; (v) use the Services in violation of applicable laws, or regulations; (vi) use the Services to send unauthorized advertising, or spam; (vii) harvest, collect, or gather User data without their consent; (viii) transmit through the Services any material that may infringe the intellectual property, privacy, or other rights of third parties; or (ix) use the Services to commit fraud or impersonate any person or entity.
1.8. Responsibility for Users. You are responsible for the activities of all users who access or use the Services through your account (“Users”) and you agree to ensure that any such Users will comply with the terms of this Agreement. If you become aware of any violation of this Agreement in connection with use of the Services by any person, please notify us immediately.
1.9. Use with your Mobile Device. Use of the Services may be available through a compatible mobile device, internet access, and may require software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees, as well as the terms of your agreement with your mobile device and telecommunications provider. WE MAKE NO WARRANTIES OR REPRESENTATION OF ANY KIND, EXPRESS, STATUORY OR IMPLED AS TO (I) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION, (II) ANY LOSS, DAMAGE OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES, AND (III) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTING CONNECTED WITH THE SERVICES.
1.10. Additional Services. Upon your request, we may provide additional services including consulting services, customization services, and support for items excluded from standard maintenance. Any such services will be documented in a mutually agreed statement of work (“SOW”) or other document specifying the work to be performed and the price to be charged.
2. ORDERS, FEES AND PAYMENT.
2.1. Orders. You may order Services using our then-current ordering processes (“Order”). All Orders are effective on the earlier of (i) the date you submit your Order, or (ii) the date on the signature block of the Order (“Effective Date”). Acceptance of your Order may be subject to our verification and credit approval process. Each Order will be treated as a separate and independent Order.
2.2. Fees and Payment. You agree to pay all undisputed fees for the Services set forth in this Agreement or a SOW within 30 days of the date of our invoice for such Services, unless otherwise specified. Except as otherwise set forth in the Agreement, any payments you make to us for the Services are final and non-refundable. You are responsible for all fees and charges imposed by third parties such as hardware, software, internet, voice and/or data transmission providers related to your access and use of the Services. You are responsible for providing accurate and current billing, contact and payment information to us. You agree that we may charge your payment card or bill you for all amounts due for your use of the Services and may take steps to update your payment card information (where permitted) to ensure payment can be processed. You agree that your credit card information and related Personal Data (as defined below) may be provided to third parties for payment processing and fraud prevention purposes. We may suspend or terminate your Services if at any time we determine that your payment information is inaccurate or not current, and you are responsible for fees and overdraft charges that we may incur when we charge your card for payment. We reserve the right to update the price for Services annually after the Initial Term. We will notify you of any price changes by publishing on our website, emailing, quoting, or invoicing you. All references to currency will be in US dollars ($USD).
2.3. Taxes and Withholdings. You are responsible for all applicable sales, services, value- added, goods and services, withholding, tariffs, or any other similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Services, except those based on our net income, or for which you have provided an exemption certificate. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
2.4. Disputes; Delinquent Accounts. You must notify us of any fee dispute within 15 days of the invoice date, and once resolved, you agree to pay those fees within 15 days. We may, on 10 days’ notice to you, suspend your Services if you do not pay undisputed fees by their due date, and you agree to reimburse us for all reasonable costs and expenses, including collection costs and attorneys’ fees, incurred in collecting delinquent amounts. You further agree that we may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
3. TERM AND TERMINATION.
3.1. Term. Unless otherwise specified in an Order, the initial term commitment for your purchase of Services will be 12 months (“Initial Term”). After the Initial Term, the Services will automatically renew for additional 12-month periods (“Renewal Terms”), unless either party provides notice of non-renewal at least 90 days before the current term expires. Terminating specific Services does not affect the term of any other Services still in effect.
3.2. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice, or (ii) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.
3.3. Effect of Termination. If the Agreement or any Services are terminated, you will immediately discontinue all use of the terminated Services, except that we will provide you with limited access to the Services for a period of at least 30 days solely to enable you to retrieve your Customer Content (defined below) from the Services. Upon your request made before the end of such 30-day period, we will securely destroy your Customer Content. We have no obligation to maintain your Customer Content after such 30-day period. Termination will not affect any claim arising prior to the termination date. If we discontinue Services or materially reduce the core functionality in accordance with Section 1.4 above, and you elect to terminate the applicable Services or this Agreement, we will provide you with a pro rata refund of any prepaid, unused fees.
3.4. Survival. The provisions of Sections 2 (Orders, Fees and Payment), 3.3 (Effect of Termination), 4 (Proprietary Rights), 8 (Indemnification), 9 (Limitation on Liability), 12.4 (Governing Law and Jurisdiction) 12.5 (No Class Actions), and 12.9 (Notices) survive any termination of the Agreement.
4. PROPRIETARY RIGHTS.
4.1. Our Proprietary Rights and Marks. You acknowledge that we or our licensors retain all proprietary right, title and interest in the Services, all Documentation, our name, logo or other marks (together, the “Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Except for the express limited rights set forth in this Agreement, no right, title or interest in our Services, Documentation or Marks is granted to you. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part our Marks or is similar to any of these.
4.2. Your Customer Content. You retain all rights to Customer Content (defined below) and are solely responsible for the Customer Content sent or transmitted by you or displayed or uploaded by you in using the Services and for compliance with all laws pertaining to the Customer Content, including, but not limited to, laws requiring you to obtain the consent of a third party to use the Customer Content and to provide appropriate notices of third-party rights. You hereby grant us a worldwide, royalty-free, non-exclusive license to use, modify, reproduce, and distribute Customer Content in order to provide and operate the Services. You warrant that (i) you have the right to upload or otherwise share Customer Content with us, and (ii) your uploading or processing of Customer Content in the context of our Services does not infringe on any rights of any third party. We will not view, access or process any of the Customer Content, except: (a) as authorized or instructed by you or your Users in this Agreement or in any other agreement between the parties, or (b) as required to comply with our policies, applicable law, or governmental request. “Customer Content” means any files, documents, recordings, chat logs, transcripts, and similar data that we maintain on your or your Users’ behalf, as well as any other information you or your Users may upload to your Service account in connection with the Services.
4.3. Feedback. You agree that we will have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you, our Affiliates and Users (“Feedback”). We also reserve the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by your Feedback.
4.4. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that we may collect and compile data and information related to your use of the Services to be used by us in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between us and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by us. You agree that we may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify you or Customer Content.
5. DATA PRIVACY AND SECURITY.
5.1. Security Safeguards. Each party will maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of your Customer Content and any associated Personal Data (as defined below) that is collected and/or processed through the Services. On our part, those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Content. Before sharing Customer Content with any of our third- party sub-processors, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of your Customer Content and preventing unauthorized access. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Content when in Customer’s or its representatives’ or agents’ possession or control. We are not responsible for what your Users do with Customer Content which is your responsibility.
5.2. Sub-processors. You acknowledge and agree that we may use sub-processors to help provide the Services, who may access Customer Content and any associated personal data, to provide, secure and improve the Services. We will be responsible for the acts and omissions of members of any such sub-processors to the same extent that we would be responsible if we were performing the Services.
5.3. Data Protection Laws. You understand that our Services are provided via equipment and resources located in the United States. To the extent that our provision of the Services involves the processing of Personal Data under applicable data protection laws, the parties agree that you will be deemed to be the Data Controller, and we will be deemed to be the Data Processor, as those terms are generally understood under the applicable data protection law. For the purposes of this Agreement, the term “Personal Data” means any information relating to an identified or identifiable natural person where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
5.4. Privacy Laws. Company acknowledges that Customer Content which includes Personal Data may be protected from disclosure by provincial and or federal law. Company agrees to only retain, use and disclose such data for the purposes of fulfilling its duties under this Agreement and to keep all such data to which it has access in the performance of this Agreement in a secure manner and disclose it only on direction by Customer.
5.5. Publicity. Customer agrees that Company may use Customer’s name and refer to Customer in its promotional or marketing materials and its website, lists and business presentations.
6. CONFIDENTIALITY.
6.1. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Customer Content will be deemed Confidential Information of Customer without any marking or further designation. All Company technology and the terms and conditions of this Agreement will be deemed Confidential Information of Company without any marking or further designation. Confidential Information will not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
6.2. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
6.3. Company acknowledges that certain of Customer’s Confidential Information may be considered “Educational Records” as defined in the Family Educational Rights and Privacy Act (“FERPA”) and therefore protected from disclosure by US federal law, and Company agrees to only use such data for the purpose of fulfilling its duties under this Agreement and to keep all such data to which it has access in the performance of this agreement in a secure manner and to disclose only upon direction by Customer.
7. WARRANTIES.
7.1. We provide our Services using a commercially reasonable level of care and warrant that the Services will materially conform to the Documentation under normal use. Our entire liability and your exclusive remedy under this warranty will be, at our sole option and subject to applicable law, to provide conforming Services, or to terminate the non-conforming Services and provide a pro-rated refund of any prepaid fees from the date you notify us of the non-conformance through the end of the remaining term. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) OUR SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS.
7.2. Use of the Services may be available through a compatible mobile device, internet access, and may require third party software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees, as well as the terms of your agreement with your mobile device and telecommunications provider. WE MAKE NO WARRANTIES OR REPRESENTATION OF ANY KIND, EXPRESS, STATUORY OR IMPLED AS TO (I) THE AVAILABILITY OF INTERNET OR TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION, (II) ANY LOSS, DAMAGE OR OTHER SECURITY INTRUSION OF THE INTERNET OR TELECOMMUNICATION SERVICES, AND (III) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTING CONNECTED WITH THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD IT LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PROVIDERS OF THE THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER.
8. INDEMNIFICATION.
8.1. We will indemnify and defend you against any third-party claim alleging that any of the Services infringes upon any patent or copyright, or violates a trade secret of any such third-party (an “IP Claim”), and we agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. You will promptly notify us of any IP Claim and cooperate with us in defending the claim. We will reimburse you for reasonable expenses incurred in providing any cooperation or assistance. We will have full control and authority over the defense and settlement of any IP Claim, except that: (i) any settlement requiring you to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) you may join in the defense with your own counsel at your own expense.
8.1.1. If (i) Company becomes aware of an actual or potential IP Claim, or (ii) Customer provides Company with notice of an actual or potential IP Claim, Company may (or in the case of an injunction against Customer, will), at Company’s sole option and determination: (a) procure for Customer the right to continue to use the Services; or
(b) replace or modify the Services with equivalent or better functionality so that Customer’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Services and refund to Customer any pre- paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Company.
8.1.2. The obligations in Sections 8.1 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Services with other products, software or services not provided by Company; (ii) any IP Claim related to any Customer Content, or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
8.2. You will indemnify and defend us against any third-party claim resulting from a breach of Section 1.7 or 4.2 or alleging that any of your Customer Content infringes upon any patent or copyright, or violates a trade secret of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. We will promptly notify you of any claim and cooperate with you in defending the claim. You will reimburse us for reasonable expenses incurred in providing any cooperation or assistance. You will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring us to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) we may join in the defense with our own counsel at our own expense.
9. LIMITATION ON LIABILITY.
9.1. LIMITATION ON LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY DAMAGES OR DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, OR (iv) CUSTOMER’S LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. LIMITATION ON AMOUNT OF LIABILITY. EXCEPT FOR BREACH OF SECTIONS 1.7, 4.2, 6, (EXCEPT AS OTHERWISE COVERED BY SECTION 9.3), 8 and 9.3, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT IS LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY (“GENERAL LIABILITY CAP”). THE FOREGOING DOES NOT LIMIT YOUR OBLIGATIONS TO PAY ANY UNDISPUTED FEES AND OTHER AMOUNTS DUE UNDER THIS AGREEMENT.
9.3. IN THE CASE OF “DATA PROTECTION CLAIMS,” EACH PARTY’S AND ITS
AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP. FOR THE PURPOSES OF THIS AGREEMENT, “DATA PROTECTION CLAIMS” MEANS ANY CLAIMS ARISING FROM A PARTY’S BREACH OF SECTION 5 (DATA PRIVACY AND SECURITY), OR BREACH OF APPLICABLE DATA PROTECTION LAWS.
9.4. IN NO EVENT WILL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE DATA PROTECTION CLAIMS CAP.
10. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, data protection and anti-bribery laws and regulations. If necessary and in accordance with applicable law, we will cooperate with local, state, federal and international government authorities with respect to the Services.
11. SUSPENSION OF SERVICES. We reserve the right to suspend the Services or restrict functionalities if (a) we reasonably believe that you, your Affiliates or Users have materially violated this Agreement, or (b) we reasonably determine that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities. Where commercially reasonable, and unless legally prohibited, we will use commercially reasonable efforts to notify you when taking any of the foregoing actions. We will not be liable to you, your Affiliates or Users or any other third party for any such suspension of Services or reduced functionality. Any suspected fraudulent, abusive, or illegal activity by you, your Affiliates or Users may be referred to law enforcement authorities at our sole discretion.
12. ADDITIONAL TERMS.
12.1. Third Party Services. The Services may provide the capability for you to link to or integrate with third party sites or applications separately accessed by you and not purchased from us. We are not responsible for and do not endorse such services. You have sole discretion whether to purchase or connect to any third-party services and your use is governed solely by the terms for those services. Unless otherwise specified, we and our contractors, suppliers, and licensors disclaim all warranties, express or implied, and all liability for any third-party services we have sold to you.
12.2. Beta Services. We may offer you access to beta services that are being provided prior to general release (“Beta Services”). You understand and agree that the Beta Services may contain bugs, errors and other defects, and use of the Beta Services is at your sole risk. You acknowledge that your use of Beta Services is on a voluntary and optional basis, and we have no obligation to provide technical support and may discontinue provision of Beta Services at any time in our sole discretion and without prior notice to you. These Beta Services are offered “AS-IS”, and to the extent permitted by applicable law, we disclaim any liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise. If you are using Beta Services, you agree to receive related correspondence and updates from us and acknowledge that opting out may result in cancellation of your access to the Beta Services. If you provide Feedback about the Beta Service, you agree that we own any Feedback that you share with us. For the Beta Services only, these Terms supersede any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict.
12.3. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it will provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within 30 days after such notice, knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section will not apply to claims subject to indemnification under Section 8 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
12.4. Governing Law and Jurisdiction. This Agreement will be governed by the laws of Province of Ontario, and the exclusive jurisdiction and venue for any claims or actions under this Agreement will be in the provincial and federal courts located in Ottawa, Ontario, Canada.
12.5. High-Risk Use. You understand that the Services are not designed or intended for use during high-risk activities which include, but are not limited to, use in hazardous environments and/or life support systems.
12.6. Assignment. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which will not be unreasonably withheld, except that either party may assign the Agreement to an affiliated entity, or as part of a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of its business or assets to which this Agreement relates. Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.
12.7. Notices. Notices must be sent by personal delivery, overnight courier, registered or certified mail or e-mail. We may also provide notice electronically via postings on our website, in-product notices, or via our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at 16 W. Martin Street, Raleigh, NC 27601, Attn: Contract Admin, email to cate.morrison@erezlife.com, with a copy to the attention of the Legal Department at the same address; email legal@cordance.co. Notices to Customer will be sent to the address and/or e-mail address last designated on your account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting.
12.8. Entire Agreement; Order of Precedence. This Agreement, including the Order(s) and any applicable schedules, exhibits, and appendices, and any mutually signed SOW set forth the entire agreement between Customer and Company relating to the Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between an executed Order, this Agreement, and the Documentation, in each case, as applicable, the conflict will be resolved in that order, but only for the specific Services described in the applicable Order. No modification of or amendment to this Agreement will be effective unless mutually agreed in writing.
12.9. General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third- party beneficiary or have the right to modify the Agreement or to make commitments binding on us. Failure to enforce any right under the Agreement will not waive that right. The Agreement may be agreed to online, or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g. natural disasters; terrorist activities, activities of third party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.
12.10. Changes. We reserve the right to propose changes to this Agreement that are generally applicable to all customers at any time and will, if such changes are material, provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined in our sole discretion. By continuing to access or use our Services after any revisions become effective, you agree to be bound by the revised terms of the Agreement. If you do not agree to the new terms, you are no longer authorized to use the Services. In the event of a material change of terms, you may terminate the Agreement by giving us written notice within 30 days of our notice of the change of terms and we will refund to you any pre-paid fees that are applicable to the period after such termination.
Last Updated: 2024-06-03
eRezLife TOS US
Version 2.2
Effective June 3rd 2024
DownloadTable of Contents
TERMS OF SERVICE
These Terms of Service (“Terms”) constitute a legal agreement between the person or organization agreeing to these Terms (“Customer” or “you”) and Permanent Software Group Canada Ltd or such other Affiliated entity signing the Order (the “Company,” “us” or we”). By signing an Order, accepting these Terms, or using the Services, you represent that you have the authority to bind the Customer to the Order, these Terms, and any applicable schedules, exhibits, or appendices incorporated or referenced herein (collectively the “Agreement”). Pre-printed terms on any purchase order or other similar document, or online terms referenced on any such document (as defined below) are deemed not to apply to the Agreement.
1. ACCESS AND USE OF THE SERVICES.
1.1. Our Provision of the Services. We will make our eRezLife software-as-a-service offering (the “Services”) available to you pursuant to the terms of the Agreement and applicable technical documentation (“Documentation”). We will use commercially reasonable efforts to make the Services available 24x7. You acknowledge that your use of the Services requires third-party hardware, software, and internet access (which may involve extra charges), and that your ability to access and use the Services may be affected by your choices and the performance of these products and services.
1.2. Initial Set-Up. Upon execution of this Agreement, we will start the customized software configuration processes and provide the following services:
1.2.1. provide set-up services and Administrator training in the use of the Services in accordance with our standard time and materials price rate;
1.2.2. configure and implement the Services on a Company cloud agreed upon by Company and Customer;
1.2.3. test the Services after they have been implemented by us to ensure that the Services are performing appropriately; and
1.2.4. For purposes of this Agreement, the term “Administrator” is defined as Customer’s primary contact person who coordinates and works with the Company to set up, support, and train the Customer’s system Users on their use of the Services.
1.3. Support. We will, at no additional charge, provide standard customer support for the Services as detailed on our website and/or in our Documentation. Our standard support hours are 9:00am to 5:00pm, Eastern Time, Monday to Friday, excluding statutory holidays in the United States and the Provinces of British Columbia or Ontario, Canada.
1.4. Changes to Services. We reserve the right to enhance, upgrade, improve, modify or discontinue features of our Services as we deem appropriate and in our discretion. We will not materially reduce the core functionality or discontinue any Services unless we provide you with prior written notice. We may offer additional functionality to our standard Services or premium feature improvements for an additional cost.
1.5. Your Registration for the Services. Your Users may be required to provide information about themselves in order to register for and/or use certain Services. You agree that any such information will be accurate. Your Users may also be asked to choose a username and password. You are entirely responsible for maintaining the security of those usernames and passwords and agree not to permit the disclosure of such to any third party.
1.6. Your Use of the Services. You agree to use the Services in accordance with the use levels by which we measure, price and offer our Services as set forth in the Agreement or Documentation (“Use Levels”). We grant you a limited right to use our Services only for your internal business and professional purposes. Your Affiliates may use the Services as Users under your account. If an Affiliate uses your account, you warrant that you have the authority to bind that Affiliate and you will be liable if your Affiliate does not comply with the Agreement. For the purposes of this Agreement, “Affiliate” means an entity that, directly or indirectly, owns or controls, is owned or is controlled by, or is under common ownership or control with a party. As used herein, “control” means the power to direct the management or affairs of an entity and “ownership” means the beneficial ownership of more than fifty percent (50%) of the voting equity securities or other equivalent voting interests of an entity.
1.7. Limitations on Your Use. By using our Services, you agree on behalf of yourself, your Affiliates and Users , not to (i) modify, prepare derivative works of, or reverse engineer, our Services; (ii) use our Services in a way that abuses or disrupts our networks, User accounts, or the Services; (iii) transmit through the Services any harassing, indecent, obscene, or unlawful material; (iv) market, or resell the Services to any third party; (v) use the Services in violation of applicable laws, or regulations; (vi) use the Services to send unauthorized advertising, or spam; (vii) harvest, collect, or gather User data without their consent; (viii) transmit through the Services any material that may infringe the intellectual property, privacy, or other rights of third parties; or (ix) use the Services to commit fraud or impersonate any person or entity.
1.8. Responsibility for Users. You are responsible for the activities of all users who access or use the Services through your account (“Users”) and you agree to ensure that any such Users will comply with the terms of this Agreement. If you become aware of any violation of this Agreement in connection with use of the Services by any person, please notify us immediately.
1.9. Use with your Mobile Device. Use of the Services may be available through a compatible mobile device, internet access, and may require software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees, as well as the terms of your agreement with your mobile device and telecommunications provider. WE MAKE NO WARRANTIES OR REPRESENTATION OF ANY KIND, EXPRESS, STATUORY OR IMPLED AS TO (I) THE AVAILABILITY OF TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION, (II) ANY LOSS, DAMAGE OR OTHER SECURITY INTRUSION OF THE TELECOMMUNICATION SERVICES, AND (III) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTING CONNECTED WITH THE SERVICES.
1.10. Additional Services. Upon your request, we may provide additional services including consulting services, customization services, and support for items excluded from standard maintenance. Any such services will be documented in a mutually agreed statement of work (“SOW”) or other document specifying the work to be performed and the price to be charged.
2. ORDERS, FEES AND PAYMENT.
2.1. Orders. You may order Services using our then-current ordering processes (“Order”). All Orders are effective on the earlier of (i) the date you submit your Order, or (ii) the date on the signature block of the Order (“Effective Date”). Acceptance of your Order may be subject to our verification and credit approval process. Each Order will be treated as a separate and independent Order.
2.2. Fees and Payment. You agree to pay all undisputed fees for the Services set forth in this Agreement or a SOW within 30 days of the date of our invoice for such Services, unless otherwise specified. Except as otherwise set forth in the Agreement, any payments you make to us for the Services are final and non-refundable. You are responsible for all fees and charges imposed by third parties such as hardware, software, internet, voice and/or data transmission providers related to your access and use of the Services. You are responsible for providing accurate and current billing, contact and payment information to us. You agree that we may charge your payment card or bill you for all amounts due for your use of the Services and may take steps to update your payment card information (where permitted) to ensure payment can be processed. You agree that your credit card information and related Personal Data (as defined below) may be provided to third parties for payment processing and fraud prevention purposes. We may suspend or terminate your Services if at any time we determine that your payment information is inaccurate or not current, and you are responsible for fees and overdraft charges that we may incur when we charge your card for payment. We reserve the right to update the price for Services annually after the Initial Term. We will notify you of any price changes by publishing on our website, emailing, quoting, or invoicing you. All references to currency will be in US dollars ($USD).
2.3. Taxes and Withholdings. You are responsible for all applicable sales, services, value- added, goods and services, withholding, tariffs, or any other similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency based on the Services, except those based on our net income, or for which you have provided an exemption certificate. In all cases, you will pay the amounts due under this Agreement to us in full without any right of set-off or deduction.
2.4. Disputes; Delinquent Accounts. You must notify us of any fee dispute within 15 days of the invoice date, and once resolved, you agree to pay those fees within 15 days. We may, on 10 days’ notice to you, suspend your Services if you do not pay undisputed fees by their due date, and you agree to reimburse us for all reasonable costs and expenses, including collection costs and attorneys’ fees, incurred in collecting delinquent amounts. You further agree that we may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
3. TERM AND TERMINATION.
3.1. Term. Unless otherwise specified in an Order, the initial term commitment for your purchase of Services will be 12 months (“Initial Term”). After the Initial Term, the Services will automatically renew for additional 12-month periods (“Renewal Terms”), unless either party provides notice of non-renewal at least 90 days before the current term expires. Terminating specific Services does not affect the term of any other Services still in effect.
3.2. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice, or (ii) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.
3.3. Effect of Termination. If the Agreement or any Services are terminated, you will immediately discontinue all use of the terminated Services, except that we will provide you with limited access to the Services for a period of at least 30 days solely to enable you to retrieve your Customer Content (defined below) from the Services. Upon your request made before the end of such 30-day period, we will securely destroy your Customer Content. We have no obligation to maintain your Customer Content after such 30-day period. Termination will not affect any claim arising prior to the termination date. If we discontinue Services or materially reduce the core functionality in accordance with Section 1.4 above, and you elect to terminate the applicable Services or this Agreement, we will provide you with a pro rata refund of any prepaid, unused fees.
3.4. Survival. The provisions of Sections 2 (Orders, Fees and Payment), 3.3 (Effect of Termination), 4 (Proprietary Rights), 8 (Indemnification), 9 (Limitation on Liability), 12.4 (Governing Law and Jurisdiction) 12.5 (No Class Actions), and 12.9 (Notices) survive any termination of the Agreement.
4. PROPRIETARY RIGHTS.
4.1. Our Proprietary Rights and Marks. You acknowledge that we or our licensors retain all proprietary right, title and interest in the Services, all Documentation, our name, logo or other marks (together, the “Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Except for the express limited rights set forth in this Agreement, no right, title or interest in our Services, Documentation or Marks is granted to you. You agree that you will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part our Marks or is similar to any of these.
4.2. Your Customer Content. You retain all rights to Customer Content (defined below) and are solely responsible for the Customer Content sent or transmitted by you or displayed or uploaded by you in using the Services and for compliance with all laws pertaining to the Customer Content, including, but not limited to, laws requiring you to obtain the consent of a third party to use the Customer Content and to provide appropriate notices of third-party rights. You hereby grant us a worldwide, royalty-free, non-exclusive license to use, modify, reproduce, and distribute Customer Content in order to provide and operate the Services. You warrant that (i) you have the right to upload or otherwise share Customer Content with us, and (ii) your uploading or processing of Customer Content in the context of our Services does not infringe on any rights of any third party. We will not view, access or process any of the Customer Content, except: (a) as authorized or instructed by you or your Users in this Agreement or in any other agreement between the parties, or (b) as required to comply with our policies, applicable law, or governmental request. “Customer Content” means any files, documents, recordings, chat logs, transcripts, and similar data that we maintain on your or your Users’ behalf, as well as any other information you or your Users may upload to your Service account in connection with the Services.
4.3. Feedback. You agree that we will have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback we receive from you, our Affiliates and Users (“Feedback”). We also reserve the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by your Feedback.
4.4. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, you acknowledge and agree that we may collect and compile data and information related to your use of the Services to be used by us in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services ("Aggregated Statistics"). As between us and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by us. You agree that we may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that such Aggregated Statistics do not identify you or Customer Content.
5. DATA PRIVACY AND SECURITY.
5.1. Security Safeguards. Each party will maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of your Customer Content and any associated Personal Data (as defined below) that is collected and/or processed through the Services. On our part, those safeguards will include measures for preventing unauthorized access, use, modification, deletion and disclosure of Customer Content. Before sharing Customer Content with any of our third- party sub-processors, we will ensure that the third party maintains, at a minimum, reasonable data practices for maintaining the confidentiality and security of your Customer Content and preventing unauthorized access. Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Content when in Customer’s or its representatives’ or agents’ possession or control. We are not responsible for what your Users do with Customer Content which is your responsibility.
5.2. Sub-processors. You acknowledge and agree that we may use sub-processors to help provide the Services, who may access Customer Content and any associated personal data, to provide, secure and improve the Services. We will be responsible for the acts and omissions of members of any such sub-processors to the same extent that we would be responsible if we were performing the Services.
5.3. Data Protection Laws. You understand that our Services are provided via equipment and resources located in the United States. To the extent that our provision of the Services involves the processing of Personal Data under applicable data protection laws, the parties agree that you will be deemed to be the Data Controller, and we will be deemed to be the Data Processor, as those terms are generally understood under the applicable data protection law. For the purposes of this Agreement, the term “Personal Data” means any information relating to an identified or identifiable natural person where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
5.4. State Privacy Laws. To the extent that Customer Content contains “personal information” that is subject to the California Consumer Privacy Act of 2018, its implementing regulations, and any amendments thereto (collectively, the “CCPA”), or any other substantially similar state privacy laws, Company agrees that it will process such personal information as a service provider (as defined under the CCPA) and will not (a) retain, use or disclose personal information for any purpose other than the purposes set out in this Agreement and/or as permitted by the CCPA; or (b) "sell" (as defined and understood within the requirements of the CCPA) personal information.
5.5. Publicity. Customer agrees that Company may use Customer’s name and refer to Customer in its promotional or marketing materials and its website, lists and business presentations.
6. CONFIDENTIALITY.
6.1. “Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. All Customer Content will be deemed Confidential Information of Customer without any marking or further designation. All Company technology and the terms and conditions of this Agreement will be deemed Confidential Information of Company without any marking or further designation. Confidential Information will not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
6.2. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
6.3. Company acknowledges that certain of Customer’s Confidential Information may be considered “Educational Records” as defined in the Family Educational Rights and Privacy Act (“FERPA”) and therefore protected from disclosure by US federal law, and Company agrees to only use such data for the purpose of fulfilling its duties under this Agreement and to keep all such data to which it has access in the performance of this agreement in a secure manner and to disclose only upon direction by Customer.
7. WARRANTIES.
7.1. We provide our Services using a commercially reasonable level of care and warrant that the Services will materially conform to the Documentation under normal use. Our entire liability and your exclusive remedy under this warranty will be, at our sole option and subject to applicable law, to provide conforming Services, or to terminate the non-conforming Services and provide a pro-rated refund of any prepaid fees from the date you notify us of the non-conformance through the end of the remaining term. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. WE DO NOT REPRESENT OR WARRANT THAT (i) THE USE OF OUR SERVICES WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) OUR SERVICES WILL MEET YOUR SPECIFIC REQUIREMENTS.
7.2. Use of the Services may be available through a compatible mobile device, internet access, and may require third party software. You agree that you are solely responsible for these requirements, including any applicable changes, updates and fees, as well as the terms of your agreement with your mobile device and telecommunications provider. WE MAKE NO WARRANTIES OR REPRESENTATION OF ANY KIND, EXPRESS, STATUORY OR IMPLED AS TO (I) THE AVAILABILITY OF INTERNET OR TELECOMMUNICATION SERVICES FROM YOUR PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION, (II) ANY LOSS, DAMAGE OR OTHER SECURITY INTRUSION OF THE INTERNET OR TELECOMMUNICATION SERVICES, AND (III) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTING CONNECTED WITH THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD IT LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PROVIDERS OF THE THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER.
8. INDEMNIFICATION.
8.1. We will indemnify and defend you against any third-party claim alleging that any of the Services infringes upon any patent or copyright, or violates a trade secret of any such third-party (an “IP Claim”), and we agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. You will promptly notify us of any IP Claim and cooperate with us in defending the claim. We will reimburse you for reasonable expenses incurred in providing any cooperation or assistance. We will have full control and authority over the defense and settlement of any IP Claim, except that: (i) any settlement requiring you to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) you may join in the defense with your own counsel at your own expense.
8.1.1. If (i) Company becomes aware of an actual or potential IP Claim, or (ii) Customer provides Company with notice of an actual or potential IP Claim, Company may (or in the case of an injunction against Customer, will), at Company’s sole option and determination: (a) procure for Customer the right to continue to use the Services; or
(b) replace or modify the Services with equivalent or better functionality so that Customer’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Services and refund to Customer any pre- paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Company.
8.1.2. The obligations in Sections 8.1 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Services with other products, software or services not provided by Company; (ii) any IP Claim related to any Customer Content, or (iii) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
8.2. You will indemnify and defend us against any third-party claim resulting from a breach of Section 1.7 or 4.2 or alleging that any of your Customer Content infringes upon any patent or copyright, or violates a trade secret of any party, and you agree to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. We will promptly notify you of any claim and cooperate with you in defending the claim. You will reimburse us for reasonable expenses incurred in providing any cooperation or assistance. You will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring us to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) we may join in the defense with our own counsel at our own expense.
9. LIMITATION ON LIABILITY.
9.1. LIMITATION ON LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY DAMAGES OR DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, OR (iv) CUSTOMER’S LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. LIMITATION ON AMOUNT OF LIABILITY. EXCEPT FOR BREACH OF SECTIONS 1.7, 4.2, 6, (EXCEPT AS OTHERWISE COVERED BY SECTION 9.3), 8 and 9.3, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE LICENSORS AND SUPPLIERS ARISING OUT OF THIS AGREEMENT IS LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY (“GENERAL LIABILITY CAP”). THE FOREGOING DOES NOT LIMIT YOUR OBLIGATIONS TO PAY ANY UNDISPUTED FEES AND OTHER AMOUNTS DUE UNDER THIS AGREEMENT.
9.3. IN THE CASE OF “DATA PROTECTION CLAIMS,” EACH PARTY’S AND ITS
AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY AND ITS AFFILIATES FOR ALL CLAIMS IN THE AGGREGATE (FOR DAMAGES OR LIABILITY OF ANY TYPE) WILL NOT EXCEED TWO TIMES (2X) THE GENERAL LIABILITY CAP. FOR THE PURPOSES OF THIS AGREEMENT, “DATA PROTECTION CLAIMS” MEANS ANY CLAIMS ARISING FROM A PARTY’S BREACH OF SECTION 5 (DATA PRIVACY AND SECURITY), OR BREACH OF APPLICABLE DATA PROTECTION LAWS.
9.4. IN NO EVENT WILL EITHER PARTY (OR ITS RESPECTIVE AFFILIATES) BE LIABLE FOR THE SAME EVENT UNDER BOTH THE GENERAL LIABILITY CAP AND THE DATA PROTECTION CLAIMS CAP.
10. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the Services under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, data protection and anti-bribery laws and regulations. If necessary and in accordance with applicable law, we will cooperate with local, state, federal and international government authorities with respect to the Services.
11. SUSPENSION OF SERVICES. We reserve the right to suspend the Services or restrict functionalities if (a) we reasonably believe that you, your Affiliates or Users have materially violated this Agreement, or (b) we reasonably determine that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities. Where commercially reasonable, and unless legally prohibited, we will use commercially reasonable efforts to notify you when taking any of the foregoing actions. We will not be liable to you, your Affiliates or Users or any other third party for any such suspension of Services or reduced functionality. Any suspected fraudulent, abusive, or illegal activity by you, your Affiliates or Users may be referred to law enforcement authorities at our sole discretion.
12. ADDITIONAL TERMS.
12.1. Third Party Services. The Services may provide the capability for you to link to or integrate with third party sites or applications separately accessed by you and not purchased from us. We are not responsible for and do not endorse such services. You have sole discretion whether to purchase or connect to any third-party services and your use is governed solely by the terms for those services. Unless otherwise specified, we and our contractors, suppliers, and licensors disclaim all warranties, express or implied, and all liability for any third-party services we have sold to you.
12.2. Beta Services. We may offer you access to beta services that are being provided prior to general release (“Beta Services”). You understand and agree that the Beta Services may contain bugs, errors and other defects, and use of the Beta Services is at your sole risk. You acknowledge that your use of Beta Services is on a voluntary and optional basis, and we have no obligation to provide technical support and may discontinue provision of Beta Services at any time in our sole discretion and without prior notice to you. These Beta Services are offered “AS-IS”, and to the extent permitted by applicable law, we disclaim any liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise. If you are using Beta Services, you agree to receive related correspondence and updates from us and acknowledge that opting out may result in cancellation of your access to the Beta Services. If you provide Feedback about the Beta Service, you agree that we own any Feedback that you share with us. For the Beta Services only, these Terms supersede any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict.
12.3. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it will provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within 30 days after such notice, knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section will not apply to claims subject to indemnification under Section 8 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
12.4. Governing Law and Jurisdiction. This Agreement will be governed by the laws of Delaware, and the exclusive jurisdiction and venue for any claims or actions under this Agreement will be in the state and federal courts located in Delaware.
12.5. No Class Actions. You may only resolve disputes with us on an individual basis and you agree not to bring or participate in any class, consolidated, or representative action against us or any of our employees or affiliates.
12.6. High-Risk Use. You understand that the Services are not designed or intended for use during high-risk activities which include, but are not limited to, use in hazardous environments and/or life support systems.
12.7. Assignment. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which will not be unreasonably withheld, except that either party may assign the Agreement to an affiliated entity, or as part of a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of its business or assets to which this Agreement relates. Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.
12.8. Notices. Notices must be sent by personal delivery, overnight courier, registered or certified mail or e-mail. We may also provide notice electronically via postings on our website, in-product notices, or via our self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to us at 16 W. Martin Street, Raleigh, NC 27601, Attn: Contract Admin, email to cate.morrison@erezlife.com, with a copy to the attention of the Legal Department at the same address; email legal@cordance.co. Notices to Customer will be sent to the address and/or e-mail address last designated on your account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting.
12.9. Entire Agreement; Order of Precedence. This Agreement, including the Order(s) and any applicable schedules, exhibits, and appendices, and any mutually signed SOW set forth the entire agreement between Customer and Company relating to the Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between an executed Order, this Agreement, and the Documentation, in each case, as applicable, the conflict will be resolved in that order, but only for the specific Services described in the applicable Order. No modification of or amendment to this Agreement will be effective unless mutually agreed in writing.
12.10. General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third- party beneficiary or have the right to modify the Agreement or to make commitments binding on us. Failure to enforce any right under the Agreement will not waive that right. The Agreement may be agreed to online, or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g. natural disasters; terrorist activities, activities of third party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.
12.11. Changes. We reserve the right to propose changes to this Agreement that are generally applicable to all customers at any time and will, if such changes are material, provide at least 30 days’ notice prior to any new terms taking effect. What constitutes a material change will be determined in our sole discretion. By continuing to access or use our Services after any revisions become effective, you agree to be bound by the revised terms of the Agreement. If you do not agree to the new terms, you are no longer authorized to use the Services. In the event of a material change of terms, you may terminate the Agreement by giving us written notice within 30 days of our notice of the change of terms and we will refund to you any pre-paid fees that are applicable to the period after such termination.
Last Updated: 2024-06-03
epaCUBE TOS
Version 1.1
Aldrich - TOS
Version 1.1
Effective June 25th 2024
DownloadTable of Contents
TERMS OF SERVICES
These Terms of Service (“Terms”) constitute a legal agreement between the person or organization agreeing to these Terms (“Customer”) and Aldrich Web Solutions, a business unit of Cordance Operations LLC, a Delaware limited liability company (the “Company“). By signing an Order, accepting these Terms, or using the Services, you represent that you have the authority to bind the Customer to the Order, these Terms, and any applicable schedules, exhibits, or appendices incorporated or referenced herein (collectively, the “Agreement”). Pre-printed terms of either party’s purchase orders, acknowledgements, or click-through terms do not apply or modify this Agreement, and such other or additional terms or conditions are void and of no effect.
1. DEFINITIONS
1.1. “Agreement” means the terms and conditions set forth in these Terms of Services, the Order(s), and all referenced schedules, exhibits, product-specific exhibits or appendices.
1.2. “Customer Content” means website content, cart data, User information, and other content, including text, multimedia images (e.g., graphics and audio and video files), or other material submitted, uploaded, imported, or otherwise provided to or through the Services by Customer or by a third party on behalf of or for the benefit of Customer, including users of the Services and information such as is available via the admin portal.
1.3. “Documentation” means Company’s then-current generally available documentation, specifications, and user manuals for the Products, as well as any documentation included in or attached to this Agreement or an Order.
1.4. “Order” means a written description of Services, Professional Service or Software and the applicable pricing as mutually agreed to by the parties in an order form, quote, statement of work or similar document.
1.5. “Products” means Company’s Services, Professional Services and Software.
1.6. “Professional Services” means services provided by Company’s staff or subcontractors on behalf of Company pursuant to a mutually agreed Statement of Work (“SOW”).
1.7. “Services” means Company’s proprietary, hosted, integrated software-as-a-service products listed on Customer's Order(s).
1.8. “Software” means the software application(s) provided to Customer by Company, in object code form, to install and run on Customer’s computer(s).
1.9. “User(s)” means an individual website user who is an end user (customer) of the Customer or its Affiliates, or any website visitor that visits the website of the Customer.
1.10. “Website Administrator” means an individual employee of Customer who has been authorized by Customer to manage the website in some capacity including but not limited to managing the site configuration settings, website content, website users, etc. on behalf of Customer.
2. ACCESS AND USE OF THE SERVICES.
2.1. Provision of the Services. Company will make its Services available to Customer pursuant to the terms of the Agreement and the Documentation. Company will use commercially reasonable efforts to make the Services available 24x7. Customer acknowledges that Customer's use of the Services requires access to Customer's ERP solution, third-party hardware, software, internet and/or telecommunications access (which may involve extra charges), and that Customer's ability to access and use the Services may be affected by Customer's ERP, Customer's choices, and the performance of these products and services.
2.2. Implementation. Upon execution of this Agreement, Company will provide the implementation and the training services described in the Statement of Work.
2.3. Changes to Services. Company reserves the right to enhance, upgrade, improve, modify or discontinue features of its Services as Company deems appropriate and in its sole discretion. Company will not materially reduce the core functionality or discontinue any Services unless Company provides Customer with prior written notice. If Company discontinues Services or materially reduce the core functionality, Customer may terminate the affected Services or this Agreement with 60 days prior written notice to Company. Company may offer additional functionality to its standard Services or premium feature improvements for an additional cost.
2.4. Customer’s Registration for the Services. Customer’s Users may be required to provide information about themselves to register for and/or use certain Services. Customer agrees that it is Customer's sole responsibility to verify the accuracy of this information. Customer’s Users may also be asked to choose a username and password. Customer is entirely responsible for maintaining the security of those usernames and passwords.
2.5. Customer’s Use of the Services. Company grants Customer a limited, non-exclusive right to use the Services and Documentation only for Customer's internal business purposes, subject to the terms of this Agreement.
2.6. Limitations on Customer’s Use. By using the Services, Customer agrees on behalf of itself, Customer's Affiliates and Users, not to (i) modify, prepare derivative works of, or reverse engineer the Services; (ii) access or use the Services or Documentation for any purpose competitive with Company; (iii) use the Services in a way that abuses or disrupts Company’s networks, user accounts, or the Services; (iv) transmit through the Services any harassing, indecent, obscene, or unlawful material; (v) market or resell the Services to any third party; (vi) use the Services in violation of applicable laws or regulations; (vii) use the Services to send unauthorized advertising, or spam; (viii) harvest, collect, or gather user data without their consent; (ix) transmit through the Services any material that may infringe the intellectual property, privacy, or other rights of third parties; or (x) use the Services to commit fraud or impersonate any person or entity. Customer understands and acknowledges that Company does not monitor the content passing through its servers, and that it is Customer’s sole responsibility to ensure that the information it and its users transmit and receive complies with all applicable laws and regulations and does not infringe upon the rights of any third party. Customer will be solely responsible for the Customer Content. In no event will Company be responsible for Customer Content or its accuracy or completeness, or for any loss of Customer Content. Company reserves the right to terminate services if Company, at its sole discretion, determines that the Customer has acted or is acting in a manner that has or may negatively reflect on the Company, is opposed to the Company’s business interests, staff, customers, or prospective customers.
2.7. Responsibility for Users. Customer is responsible for the activities of all Website Administrators who access or use the Services through Customer's account, and Customer agrees to ensure that any such Website Administrators will comply with the terms of this Agreement. Customer agrees to provide Company prompt notice if Customer becomes aware of any violation of this Agreement in connection with use of the Services by any person.
2.8. Support Services. Company will provide standard customer support for the Services to two named Website Administrators. Company’s standard support hours are 9:00am to 5:00pm, Central Time, Monday to Friday, excluding national holidays.
3. ORDERS, FEES AND PAYMENT.
3.1. Order(s). Customer’s order for Products is detailed in an executed Order. Customer may order additional Products using Company’s then-current ordering processes. All Orders are effective and the Term of the Order begins: (i) for the initial Order on Exhibit A, the Effective Date of this Agreement, and (ii) for subsequent Orders, the date that the Order is signed by both parties (“Order Effective Date”). Each Order (a) will be treated as separate and independent Order; (b) forms part of the Agreement; and (c) may be subject to verification and credit approval process. Customer may order Professional Services under this Agreement by executing a mutually agreed SOW.
3.2. Fees and Payment. Customer agrees to pay all applicable, undisputed fees for the Products on the terms set forth in the applicable Order, this Agreement, or the invoice. Unless otherwise specified in the Order or invoice, Customer agrees to pay all undisputed fees set forth in an invoice within 30 days of the date thereof. Except as otherwise expressly stated in the Agreement, any payments Customer makes to Company for the Products are final and non-refundable. Customer is responsible for all fees and charges imposed by third parties such as providers of hardware, software, internet, voice and/or data transmission, related to Customer's access and use of the Products. Customer is responsible for providing accurate and current billing, contact and payment information to Company. Customer agrees that Company may charge Customer's payment card or bill Customer for all amounts due for Customer's use of the Products, and Company may take steps to update Customer's payment card information (where permitted) to ensure payment can be processed. Company may suspend or terminate Customer's use of the Products if at any time Company determines that Customer's payment information is inaccurate or not current, and Customer is responsible for fees and overdraft charges that Company may incur when Company charges Customer's card for payment. Company reserves the right to increase the fees annually. Company will give Customer notice of any price increase at least 60 days in advance of such increase. All references to currency will be in US dollars ($USD).
3.3. Taxes and Withholdings. Customer is responsible for all applicable sales, services, value-added, goods and services, withholding, tariffs, or any other similar taxes or fees (collectively, “Taxes and Fees”) imposed by any government entity or collecting agency arising out of Customer's purchase of the Products, except those taxes and fees based on Company's net income, or Taxes and Fees for which Customer has provided an exemption certificate. In all cases, Customer will pay the amounts due under this Agreement to Company in full without any right of set-off or deduction.
3.4. Disputes; Delinquent Accounts. Customer must notify Company of any fee dispute within 15 days of the invoice date, and once resolved, Customer agrees to pay those fees within 15 days of such dispute notice. Company may, upon 10 days’ notice to Customer, suspend the Services if Customer does not pay undisputed fees by their due date, and Customer agrees to reimburse Company for all reasonable costs and expenses, including overdraft charges, collection costs and attorneys’ fees, incurred in collecting delinquent amounts. Customer further agrees that Company may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any amounts not paid when due.
4. TERM AND TERMINATION.
4.1. Term. This Agreement will commence on the Effective Date and continue until the latest expiration date for any Order. The initial term commitment for Customer's purchase of Services will be defined on the Order (“Initial Term”). If the Initial Term for Services is not defined on an Order, the Initial Term of the Order will be 12 months. After the Initial Term, the Term of the Order will automatically renew for additional periods of 12 months each (“Renewal Terms”), unless either party provides notice of non-renewal at least 30 days before the then-current term expires. Terminating use of a specific Service does not affect the term of any other Service still in effect and these terms and conditions will continue to apply to those Services. The term for Customer's commitment to purchase Software or Professional Services will be defined on the applicable Order.
4.2. Termination for Cause. Either party may terminate the Agreement (i) if the other party breaches its material obligations and fails to cure within 30 days of receipt of written notice of such breach by the other party, or (ii) where permitted by applicable law, if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business.
4.3. Effect of Termination. If the Agreement or any Services are terminated, Customer will immediately discontinue all use of the terminated Services, except that Company will provide Customer with limited access to the Services for a period of at least 30 days solely to enable Customer to retrieve its Customer Content from the Services. Unless otherwise agreed in writing, Company has no obligation to maintain the Customer Content after this 30-day period. If Company discontinues Services or materially reduce the core functionality in accordance with Section 2.3 above, and Customer elects to terminate the affected Services or this Agreement, Company will provide Customer with a pro rata refund of any prepaid, unused fees. Termination of the Agreement will not affect any claim arising prior to the termination date.
4.4. Survival. The terms of this Agreement will survive the termination or expiration of this Agreement to the extent reasonably necessary to carry out the intent of the parties as indicated therein.
5. PROPRIETARY RIGHTS.
5.1. Company’s Proprietary Rights and Marks. Customer acknowledges that Company or its licensors retain all proprietary right, title and interest in the Products, all Documentation Company name, logo, or other marks (together, the “Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. Except for the express limited rights set forth in this Agreement, no right, title or interest in Company's Products, Documentation, or Marks is granted to Customer. Customer agrees that Customer will not use or register any trademark, service mark, business name, domain name or social media account name or handle which incorporates in whole or in part Company’s Marks or is similar to any of these.
5.2. Customer Content. Customer retains all rights to its Customer Content and is solely responsible for the Customer Content sent or transmitted by Customer or displayed or uploaded by Customer in using the Services and for compliance with all laws pertaining to the Customer Content, including, but not limited to, laws requiring Customer to obtain the consent of a third party to use the Customer Content and to provide appropriate notices of third-party rights. Customer hereby grants Company a worldwide, royalty-free, non-exclusive license to use, modify, reproduce, and distribute Customer Content in order to provide and operate the Services. Company will not view, access, or process any of Customer Content, except: (x) as authorized or instructed by Customer or Customer's Users in this Agreement or in any other agreement between the parties, or (y) as required to comply with Company policies, applicable law, or governmental request, or (z) as may be necessary for the support and performance of the Services.
5.3. Feedback. Customer hereby grants Company a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, assignable, irrevocable, and perpetual license to implement, use, modify, commercially exploit, incorporate into the Products or otherwise use any suggestions, enhancement requests, recommendations or other feedback Company receives from Customer, Customer's Affiliates and Users (“Feedback”). Company also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or initiated by Customer's Feedback.
5.5. Publicity. Customer agrees that Company may use Customer’s name and logo and refer to Customer in its promotional or marketing materials and its website, lists and business presentations.
6. DATA PRIVACY AND SECURITY.
6.1. Security Safeguards. Each party will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Content and any associated personal data that is collected and/or processed through the Services. On Company’s part, those safeguards will include commercially reasonable measures designed to prevent unauthorized access, use, modification, deletion, and disclosure of Customer Content. Customer (not Company) has sole responsibility for adequate security, protection, and backup of Customer Content when in Customer’s or its representatives’ or agents’ possession or control.
6.2. Sub-processors. Customer acknowledges and agrees that Company may use sub-processors to help provide the Service, who may access Customer Content and any associated personal data, to provide, secure and improve the Services. Before sharing Customer Content with any sub-processors, Company will require that the sub-processor maintains, at a minimum, commercially reasonable data practices for maintaining the confidentiality and security of Customer Content and preventing unauthorized access. Company will be responsible for the acts and omissions of its sub-processors to the same extent that Company would be responsible if Company were performing the Services.
6.3. Data Protection Laws. To the extent that Company’s provision of the Services involves the processing of Personal Data under applicable data protection law, the parties agree that Customer will be deemed to be the Data Controller, and Company will be deemed to be the Data Processor, as those terms are understood under the applicable data protection law. For the purposes of this Agreement, the term “Personal Data” means any information relating to an identified or identifiable natural person where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person.
6.4. State Privacy Laws. To the extent that Customer Content contains “personal information” that is subject to the California Consumer Privacy Act of 2018, its implementing regulations, and any amendments thereto (collectively, the “CCPA”), or any other substantially similar state privacy laws, Company agrees that it will comply with all such laws and process such personal information as a service provider (as defined under the CCPA) and will not (a) retain, use or disclose personal information for any purpose other than the purposes set out in this Agreement and/or as permitted by the CCPA; or (b) “sell” (as defined and understood within the requirements of the CCPA) personal information.
7. CONFIDENTIALITY.
7.1. “Confidential Information” will mean all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Customer Content will be deemed Confidential Information of Customer without any marking or further designation. Company’s Services, Software, Documentation and any related intellectual property rights, and the terms and conditions of this Agreement will be deemed Confidential Information of Company without any marking or further designation. Confidential Information will not include information that the Receiving Party can demonstrate: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
7.2. Each party (as “Receiving Party”) will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the other party (the “Disclosing Party”) for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. If Receiving Party is required by law or court order to disclose Confidential Information, then Receiving Party will, to the extent legally permitted, provide Disclosing Party with advance written notification, and cooperate in any effort to obtain confidential treatment of the Confidential Information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party, the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.
8. WARRANTIES.
8.1. Company provides the Services using a commercially reasonable level of care and warrant that the Services and other Products will materially conform to their Documentation under normal use. Company's entire liability and Customer's exclusive remedy under this warranty will be, at Company's sole option and subject to applicable law: (i) for Services or Professional Services, to provide conforming Services or Professional Services, or to terminate the non-conforming Services or Professional Services, and provide a pro-rated refund of any prepaid fees from the date Customer notifies Company of the non-conformance through the end of the remaining term of the applicable Order; and (b) for Software, to cure the non-conformance, replace the non-conforming Software with conforming Software, or terminate Customer's license to the Software and provide a pro-rated refund of any prepaid fees from the date Customer notifies Company of the non-conformance through the end of the remaining term of the applicable Order, or based on a seven year depreciation basis for perpetual licenses. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY DISCLAIMs ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. COMPANY DOES NOT REPRESENT OR WARRANT THAT (i) THE USE OF ITS PRODUCTS WILL BE TIMELY, UNINTERRUPTED OR ERROR FREE, OR OPERATE IN COMBINATION WITH ANY SPECIFIC HARDWARE, SOFTWARE, SYSTEM OR DATA, OR (ii) ITS PRODUCTS WILL MEET CUSTOMER’S SPECIFIC REQUIREMENTS.
8.2. Use of the Services by Website Administrators and/or Users may be available through a compatible mobile device, internet access, and may require third party software. Customer agrees that Customer is solely responsible for these requirements, including any applicable changes, updates and fees, as well as the terms of Customer's agreement with Customer's mobile device and telecommunications provider. COMPANY MAKES NO WARRANTIES OR REPRESENTATION OF ANY KIND, EXPRESS, STATUORY OR IMPLED AS TO (I) THE AVAILABILITY OF INTERNET OR TELECOMMUNICATION SERVICES FROM CUSTOMER’S PROVIDER AND ACCESS TO THE SERVICES AT ANY TIME OR FROM ANY LOCATION, (II) ANY LOSS, DAMAGE OR OTHER SECURITY INTRUSION OF THE INTERNET OR TELECOMMUNICATION SERVICES, AND (III) ANY DISCLOSURE OF INFORMATION TO THIRD PARTIES OR FAILURE TO TRANSMIT ANY DATA, COMMUNICATIONS OR SETTING CONNECTED WITH THE SERVICES. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
8.3. CUSTOMER ACKNOWLEDGES AND AGREES THAT COMPANY IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD IT LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING PROVIDERS OF THE THIRD-PARTY SERVICES, AND THAT THE RISK OF INJURY FROM SUCH THIRD-PARTY SERVICES RESTS ENTIRELY WITH CUSTOMER.
8.4. No Liability in Connection with Data Accessed Through the Services. Company will not have any liability for damages or issues resulting from the data or other information accessed by Customer or Users through the Services, including any damage to User’s computer systems or loss or corruption of data caused by computer viruses contained in such accessed data or information.
9. INDEMNIFICATION.
9.1. Company Indemnity. Company will indemnify and defend Customer against any third-party claim alleging that any of the Product infringes upon any patent or copyright, or violates a trade secret of any such third-party (“IP Claim”), and Company agrees to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. Customer will promptly notify Company of any claim and cooperate with Company in defending the claim. Company will reimburse Customer for reasonable expenses incurred in providing any cooperation or assistance. Company will have full control and authority over the defense and settlement of any claim, except that any settlement requiring Customer to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) Customer may join in the defense with its own counsel at its own expense.
9.1.1. If (i) Company becomes aware of an actual or potential IP Claim, or (ii) Customer provides Company with notice of an actual or potential IP Claim, Company may (or in the case of an injunction against Customer, will), at Company’s sole option and determination: (a) procure for Customer the right to continue to use the Product; or (b) replace or modify the Product with equivalent or better functionality so that Customer’s use is no longer infringing; or (c) if (a) or (b) are not commercially reasonable, terminate provision of the Product and refund to Customer any pre-paid fees for any periods after the termination of Customer's use of the Product, less any outstanding moneys owed by Customer to Company.
9.1.2. The obligations in Section 9.1 do not extend to (i) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Product with other products, software or services not provided by Company; (ii) any IP Claim related to any Customer Content, or (iii) any IP Claim related to any use or exercise of any other right in respect to the Product outside the scope of the rights granted in this Agreement.
9.2. Customer’s Indemnity. Unless prohibited by applicable law, Customer will indemnify and defend Company against any third-party claim resulting from a breach of Sections 2.6 or 5.2 or alleging that any of the Customer Content infringes upon any patent or copyright, or violates a trade secret of any party, and Customer agrees to pay reasonable attorney’s fees, court costs, damages finally awarded, or reasonable settlement costs with respect to any such claim. Company will promptly notify Customer of any claim and cooperate with Customer in defending the claim. Customer will reimburse Company for reasonable expenses incurred in providing any cooperation or assistance. Customer will have full control and authority over the defense and settlement of any claim, except that: (i) any settlement requiring Company to admit liability requires prior written consent, not to be unreasonably withheld or delayed, and (ii) Company may join in the defense with it own counsel at its own expense.
10. LIMITATION ON LIABILITY.
10.1. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR INCIDENTAL LOSS, OR DAMAGES ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, OR (iv) CUSTOMER’S LOST PROFITS, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY.
10.2. EXCEPT FOR COMPANY’S INDEMNITY OBLIGATIONS FOR AN IP CLAIM, COMPANY 'S ENTIRE LIABILITY TO CUSTOMER, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION OR THEORY OF LIABILITY (INCLUDING CONTRACT, TORT, OR WARRANTY), WILL BE LIMITED TO THE FEES ACTUALLY PAID BY CUSTOMER TO COMPANY DURING THE PRIOR 12 MONTHS UNDER THE APPLICABLE ORDER.
11. COMPLIANCE WITH LAWS. In connection with the performance, access and use of the Products under the Agreement, each party agrees to comply with all applicable laws, rules and regulations including, but not limited to export, privacy, data protection and anti-bribery laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Further, Customer will not permit its users to access or use any Product or Content Product in a U.S. embargoed country or in violation of any U.S. export law or regulation. If necessary and in accordance with applicable law, Company will cooperate with local, state, federal and international government authorities with respect to the Products. If access to or use of the Products or the Documentation are acquired by or on behalf of a unit or agency of the United States government, the government agrees that such Product or Documentation is “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the government’s rights with respect to such Product or Documentation are limited by the terms of this Agreement, pursuant to FAR § 12.212(a) and/or DFARS § 227.7202-1(a), as applicable. Notwithstanding any other provision in these terms, Company may immediately terminate the Agreement for noncompliance with applicable laws.
12. SUSPENSION OF SERVICES. Company reserves the right to suspend the Services or restrict access or functionalities if (a) Company reasonably believes that Customer, Customer's Affiliates or Users have materially violated this Agreement, or (b) Company reasonably determines that the security of our Services or infrastructure may be compromised due to hacking attempts, denial of service attacks, or other malicious activities. Unless legally prohibited, Company will use commercially reasonable efforts to notify Customer when taking any of the foregoing actions. Company will not be liable to Customer, Customer's Affiliates or Users or any other third party for any such suspension of Services or reduced functionality. Any suspected fraudulent, abusive, or illegal activity by Customer, Customer's Affiliates or Users, may be referred to law enforcement authorities at our sole discretion.
13. ADDITIONAL TERMS.
13.1. Dispute Resolution. Each party agrees that before it seeks any form of legal relief (except for a provisional remedy as explicitly set forth below) it will provide written notice to the other party of the specific issue(s) in dispute (and reference the relevant provisions of the contract between the parties which are allegedly being breached). Within 30 days after such notice, knowledgeable executives of the parties will hold at least one meeting (in person or by video- or tele-conference) for the purpose of attempting in good faith, to resolve the dispute. The parties agree to maintain the confidential nature of all disputes and disagreements between them, including, but not limited to, informal negotiations, mediation, or arbitration, except as may be necessary to prepare for or conduct these dispute resolution procedures or unless otherwise required by law or judicial decision. The dispute resolution procedures in this Section will not apply to claims subject to indemnification under Section 9 (Indemnification) or prior to a party seeking a provisional remedy related to claims of misappropriation or ownership of intellectual property, trade secrets or Confidential Information.
13.2. Limitation on Bringing Claims; No Jury. By entering into this Agreement, each party is waiving the right to a jury. Any claim arising out of this Agreement must be brought, if at all, within two years of the claim arising. Customer may only resolve disputes with Company on an individual basis and Customer agrees not to bring or participate in any class, consolidated, or representative action against Company or any of its employees or affiliates.
13.3. Governing Law and Jurisdiction. This Agreement will be governed by the laws of the State of Delaware. Each party agrees to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Delaware.
13.4. No Class Actions. Customer may only resolve disputes with Company on an individual basis and Customer agrees not to bring or participate in any class, consolidated, or representative action against Company or any of its employees or affiliates.
13.5. Assignment. Neither party may assign its rights or delegate its duties under the Agreement either in whole or in part without the other party’s prior written consent, which will not be unreasonably withheld, except that either party may assign the Agreement to an affiliated entity, or as part of a corporate reorganization, consolidation, merger, acquisition, or sale of all or substantially all of its business or assets to which this Agreement relates without prior written consent Any attempted assignment without consent will be void. The Agreement will bind and inure to the benefit of each party’s successors or assigns.
13.6. Notices. Notices must be sent by personal delivery, overnight courier, or registered or certified mail. may also provide notice to the email last designated on Customer's account, electronically via postings on Company’s website, in-product notices, or via its self-service portal or administrative center. Unless specified elsewhere in this Agreement, notices should be sent to Company at 16 W. Martin Street, Raleigh, NC 27601, Attn: Contract Admin, with a copy to the attention of the Revenue Department at the same address; e-mail: revenue@cordance.co, and for notice related to legal matters, to Legal@Cordance.co. Company will send notices to the address last designated on Customer's account. Notice is given (a) upon personal delivery; (b) for overnight courier, on the second business day after notice is sent, (c) for registered or certified mail, on the fifth business day after notice is sent, (d) for email, when the email is sent, or (e) if posted electronically, upon posting.
13.7. Entire Agreement; Order of Precedence. This Agreement, including any applicable Order, schedules, exhibits, and appendices, and any mutually signed SOW set forth the entire agreement between Customer and Company relating to the Services and/or Professional Services and supersedes all prior and contemporaneous oral and written agreements, except as otherwise permitted. If there is a conflict between any of the above referenced documents, the conflict will be resolved in that order. No modification of or amendment to this Agreement will be effective unless mutually agreed in writing.
13.8. General Terms. If any term of this Agreement is not enforceable, this will not affect any other terms. Both parties are independent contractors and nothing in this Agreement creates a partnership, agency, fiduciary or employment relationship between the parties. No person or entity not a party to the Agreement will be a third-party beneficiary or have the right to modify the Agreement or to make commitments binding on Company. Failure to enforce any right under the Agreement will not waive that right. Unless otherwise specified, remedies are cumulative. The Agreement may be agreed to online or executed by electronic signature and in one or more counterparts. No party will be responsible for any delay or failure to perform under the Agreement due to force majeure events (e.g., natural disasters; epidemics, pandemics, terrorist activities, activities of third-party service providers, labor disputes; and acts of government) and acts beyond a party’s reasonable control, but only for so long as those conditions persist.
13.9. Beta Services. Company may offer Customer access to beta services that are being provided prior to general release (“Beta Services”). Customer understands and agrees that the Beta Services may contain bugs, errors and other defects, and use of the Beta Services is at Customer's sole risk. Customer acknowledges that Customer's use of Beta Services is on a voluntary and optional basis, and Company has no obligation to provide technical support and may discontinue provision of Beta Services at any time in its sole discretion and without prior notice to Customer. These Beta Services are offered “AS-IS”, and to the extent permitted by applicable law, Company disclaims any liability, warranties, indemnities, and conditions, whether express, implied, statutory or otherwise. If Customer is using Beta Services, Customer agrees to receive related correspondence and updates from Company and acknowledges that opting out may result in cancellation of Customer's access to the Beta Services. If Customer provides Feedback about the Beta Service, Customer agrees that Company own any Feedback that Customer shares with Company. For the Beta Services only, this Section supersedes any conflicting terms and conditions in the Agreement, but only to the extent necessary to resolve conflict. When, if at all, Company releases a Beta Service for general availability, it is no longer a “Beta Service” and is treated as a part of Services for all purposes under this Agreement (including the payment of applicable additional Fees).
Last Update: 2024-06-25