TrustLayer, Inc., a Delaware limited liability company (the “Company”) grants access to its SAAS products and other services to the “User” as of the date on which the User accepts the terms hereof, whether through digital acceptance on the Company’s website or through one or more Order Forms or Scopes of Work (SOWs).
As used herein, “Agreement” means the Terms and Conditions attached hereto, and any appendices, exhibits, schedules and riders hereto or thereto, the terms and conditions of which are hereby incorporated herein by reference thereto, as the same may be amended from time to time and in effect. This Agreement contains the entire understanding of both parties with respect to the subject matter addressed and supersedes any prior representations or agreements, whether written or oral. Definitions of certain capitalized terms are set forth in Schedule I. Notwithstanding the foregoing, if you or your organization have executed a Master Services Agreement with the Company (a “Master Services Agreement”), then this Agreement will apply only to the extent that the terms and conditions contain herein are not already governed by the Master Services Agreement. If there is a conflict between the Master Services Agreement at this Agreement, the Master Services Agreement shall control.
This Agreement will not be “signed” in the sense of a traditional paper document. By providing digital acceptance of this Agreement, you acknowledge that you have carefully read these this Agreement, understand its contents, and understand that this Agreement includes disclaimers of duties of the Company and limitations on the Company’s liability. User acknowledge that the Company is materially relying on these disclaimers and limitations in allowing User to access and use the Services.
You further acknowledge that you are in fact the individual authorized to enter into this Agreement on behalf of User, and that you are at least 18 years of age.
TERMS AND CONDITIONS
WHEREAS, the Company has developed a certain proprietary software-as-a-service (SaaS) product known as “TrustLayer” (collectively with all intellectual property rights therein, as the same may be supplemented, modified, updated or enhanced from time to time, the “Software Platform”);
WHEREAS, the Company offers certain managed services (the “Managed Services” and, together with the Software Platform, the “Services”); and
WHEREAS, the User desires to subscribe to and use the Software Platform with the option to add the Managed Services as indicated in the Order Form, subject to all of the terms and conditions hereof.
NOW, THEREFORE, in consideration of the mutual covenants and other forms of consideration, the adequacy and receipt of which are hereby acknowledged, the parties hereto agree as follows:
1. SOFTWARE PLATFORM.
1.1. Activation and Use. The Company shall provide remote electronic access to the Software Platform. User shall access the Software Platform by means of a client account accessed via a unique client log-in and password for each User (collectively, the “User Account”), which may be integrated with a User “single sign on” system. The User Account shall be made available to the User via electronic remote access only and, other than such client-side object code as may be necessary for such electronic remote access, shall not be available in executable object code form or in source code form. The Company may also make available to a User certain application programming interfaces (“APIs”) that allow a User to access portions of the Software Platform via such API. Subject to and conditioned on Client User’s (as defined below) payment of all fees and payments due hereunder and a User’s compliance and performance in accordance with all other terms and conditions of this Agreement, the Company hereby authorizes the User to, on a limited, non-exclusive, non-assignable, non-sublicensable and non-transferable basis (only in accordance with all of the terms and conditions set forth in this Agreement) use the Software Platform and the APIs made available to access the Software Platform during the Term through User’s User Account.
1.2. Client Users and Vendor Users. A User may, if the functionality of the Software Platform so provides, solicit vendors or service providers of such User to upload content, including without limitation insurance documents, to the Software Platform. The soliciting User is referred to herein as a “Client User”. The solicited User is referred to herein as a “Vendor User.” Both Client Users and Vendor Users are “Users”, and may not use the Software Platform without digitally accepting the terms contained in this Agreement.
2. SERVICE ACKNOWLEDGEMENTS AND AGREEMENTS.
2.1. User Systems. The User shall be responsible at its own expense for maintaining access to the internet in order to access the Software Platform. The User shall be responsible for ensuring that all User Systems are free from viruses, worms, trojan horses and other malicious code. The User has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the User Systems, and sole responsibility for all access to and use of the Software Platform by any person by or through the User Systems or any other means controlled by User, including any: (i) results obtained from any use of the Software Platform; and (ii) conclusions, decisions or actions based on such use.
2.2. Updates. The Company reserves the right in its sole discretion, but shall not be obligated, to revise, update, upgrade, edit or delete any appearance or functions of, or any documents, information or other content appearing on or part of, the Software Platform or User Account. The Company shall provide Client User with reasonable release notes in connection with material updates or changes to the Software Platform.
2.3. Security. User shall keep all passwords and usernames to its User Account, as well as its operating systems (and passwords and usernames thereto), confidential and secure, and User shall be solely responsible for any damage caused by unauthorized access to the User Account or its operating systems. User shall not share its passwords or usernames with any other persons, or otherwise provide access to the User Account to any other person. The Company is not liable for any User Input Data or other information or data of the User obtained by unauthorized persons due to security breaches, User’s negligence, or breach of this Agreement by User, nor is the Company liable for any damage or loss of User Input Data due to security breaches, virus attacks, User’s negligence, or breach of this Agreement by User. User shall not undermine, damage or cause harm to the Software Platform, the User Account, any other servers of the Company, or any other customer, client or affiliate of the Company.
2.4. User Personnel and Contacts.
2.4.1. If the Client User has purchased a subscription that provides technical support services, the Company shall provide to the Client User (i) telephone number(s) and (ii) email addresses to enable communication with a primary service representative of the Company (and a secondary service representative to serve as backup in the event that the primary service representative is unavailable) who shall assist the Client User in identifying, verifying, and resolving technical problems with the Client User Account. The Company may, in its sole discretion, but is not required to, provide reasonable technical support regarding the Client User Account to the Client User, and any other issues of the Client User regarding the Software Platform, only to the Client User, and only the Client User shall contact the Company for any such support or assistance. The Company shall have no obligation to provide, and shall not be liable for any failure to provide, (i) any technical services with the Client User Account through any individual other than the Client User, (ii) any resolution or dialogue with any individual other than the Client User regarding any aspect of the Software Platform other than technical services regarding the Client User Account, or (iii) any support or assistance during any observed holidays of the Company, or outside of Monday through Friday, 9:00 AM through 5 PM (Pacific Standard Time). The Company shall have the right to change, replace, remove or add any business hours for support or assistance by written notice to Client User (and upon such written notice this Section 2.4.1 shall be deemed to have automatically been amended as provided in such written notice). The Company makes no representations or warranties with respect to the effectiveness of technical service responses.
2.4.2. The Company shall not be responsible for any delays or access issues that are related to any breach of this Agreement by, or any act, omission to act or neglect of, User, or any of its personnel, agents, representatives or contractors.
2.5.1. Neither the Company nor any employees, contractors or personnel of the Company (including those individuals giving any initial or on-going training) is being engaged to make recommendations or furnish any advice based on any User Input Data. Neither the Company nor any employees, contractors or personnel of the Company (including those individuals giving any initial or on-going training) have any liability or obligation to User or any third party based upon any reliance upon, application or use of any information or data or any reports furnished or actions taken as a result of User’s use or access to the Services.
2.5.2. The Company may develop and market new or different products or services, which use part or all of the Software Platform, and which perform all or a part of the functions performed by the Software Platform. Nothing contained in this Agreement shall give the User any rights or access to any such new or different products or services not specified in the then-current Order Form.
2.6. Third Party Services.
2.6.1. The Company may make available to Client User certain third party products or services for use in connection with the Software Platform ("Third Party Services"), including but not limited to Third Party Services that can integrate with the Software Platform via APIs. Client User understands and agrees that Client User’s use of those Third Party Services may be subject to additional terms and conditions and policies that are specific to such Third Party Services, and that Client User shall be bound by such terms and conditions and policies if Client User elects to use such Third Party Services. The Company does not endorse any Third Party Service it makes available, and makes no representations or warranties with respect to any Third Party Services, whether express or implied. Client User is solely responsible for determining the suitability of any Third Party Services that Client User elects to use in connection with the Software Platform. Any and all use of such Third Party Services shall be at Client User’s sole risk.
2.6.2. Client User acknowledges that the Company’s Third Party Services features may be unavailable or may not work properly if the service provider’s API is unavailable or if the service provider modifies its API or services in a way that impacts its use. If there is a dispute between Client User and any third party, including a provider of Third Party Services, Client User understands and agrees that the Company is under no obligation to become involved in such dispute.
2.7. Electronic Signature.
2.7.1 The functionality of the Software Platform may include facilitating and processing the execution of electronic documents between the Client Users and Vendor Users or third party service providers. Nothing in this Agreement may be construed to make the Company a party to any electronic document processed through the Software Platform, and the Company makes no representations or warranties regarding the transactions contemplated by any electronic document processed by the Software Platform.
2.7.2 Certain types of agreements and documents may be excepted from electronic signature laws or may have special regulations that are applicable to them. The Company is not responsible or liable to determine whether any particular electronic document is subject to any additional regulations or laws or any exception to applicable electronic signature laws. User is solely responsible for ensuring its compliance will all such laws and regulations.
2.7.3 The Company is not responsible for determining how long any contracts, documents, and other records are required to be retained or stored under any applicable laws, regulations, or legal or administrative agency processes.
2.8.1 TrustLayer takes steps to help validate the accuracy of data within the platform. By providing information within the TrustLayer platform, User’s consent that this data may be used to verify its accuracy. One example of this validation is that TrustLayer may attempt to validate insurance coverge is active.
2.9 Managed services
2.9.1 Client User may subscribe to certain managed services, described in one (1) or more statements of work (each a “Statement of Work”). managed services may include any implementation, conversion, training, consulting, management, data extraction, or other managed services provided by the Company to Client User in connection with the Software Platform or Client User’s insurance needs, pursuant to this Agreement or any Statement of Work. Except as the parties may expressly agree in writing, the managed services set forth in such Statement of Work shall be governed in all respects by the terms and conditions of this Agreement. All managed services to be provided will be described and documented in a Statement of Work. Company may engage third-party consultants or subcontractors to provide the managed services to Client User. User shall pay any additional fees in connection with the managed services as agreed to between the parties, pursuant to Section 3 below.
2.9.2 Changes in Scope. Subject to any additional requirements described in an applicable Statement of Work hereunder, the Company or the Client User (each a “Party”) may propose changes to the scope of the Statement of Work by delivery of a written notification to the other Party describing the desired changes (“Change Request”). If the Company proposes the Change Request, then the Company shall provide with the Change Request an estimate of the effect on cost and time of delivery associated with the Change Request. If Client User proposes a Change Request, then the Company shall promptly provide Client User an estimate of the effect on the cost and time of delivery associated with the Change Request. Either Party shall have the right to reject or approve, in its sole reasonable discretion, any Change Request proposed by the other Party. No Statement of Work will be modified or changed until the Parties execute a written change order or amendment to the applicable Statement of Work.
2.9.3 Performance Schedule; Delays. Any delay in the performance schedule caused by the Client User may impact the fee payment as described in the applicable Statement of Work or Order Form. If any delays in the Company’s performance occur as a result of a material failure to cooperate or untimely performance by Client User, the Company shall not incur any liability for its non-performance under the applicable Statement of Work as a result of such delay.
2.10. Additional Covenants. User shall:
2.10.1. comply with all of the terms and conditions of this Agreement.
2.10.3. not permit any third person to use or gain access to the Services (including the User Account), except to the extent that such third person digitally accepts the terms of this Agreement and becomes a User thereunder);
2.10.4. not permit any person to reproduce, rebroadcast, copy, distribute, resell or incorporate into any information retrieval system (electronic or mechanical), any information, content, form or document delivered via the Services;
2.10.5. unless otherwise agreed to, only use the Services (including the User Account) for its benefit and internal use and not in the operation of a service bureau or for the benefit of any other person or entity;
2.10.6. not use the Services (including the User Account), in whole or in part, for any illegal, obscene, offensive or immoral purpose;
2.10.7. not use the Services (including the User Account), in whole or in part, in any manner, or in connection with any content, data, hardware, software or other materials provided by or on behalf of the User (collectively, the “User Materials”) that (A) infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, (B) constitutes defamation, libel, invasion of privacy, or violation of any right of publicity or other third party right or is threatening, harassing or malicious, or (C) violates any applicable international, federal, state or local law, rule, legislation, regulation or ordinance;
2.10.8. not remove or export from the United States or allow the export or re-export of the Services, the Software Platform or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement; and
2.10.9. ensure that all User Materials are free from viruses, worms, trojan horses and other malicious code.
3.1. Fees. In consideration of the Company’s provision of the Services hereunder, the Client User shall pay the fees as set forth in, and in accordance with its pricing page or a separate agreement, Order Form, or Statement of Work (the “Fees”) subject to the terms and conditions of this Agreement. Provided, however, that if Client User has purchased the Services through a third-party reseller of the Services, and User has not otherwise entered into any separate agreement, Order Form, or Statement of Work providing for the payment of Fees, no additional Fees shall be payable pursuant to this Agreement. The Fees set forth in each applicable Order Form will remain unchanged for the first year following the “TSO Effective Date” (as specified on the Order Form). Thereafter, the Fees under such Order Form shall automatically increase by 5% on each anniversary of the TSO Effective Date of the applicable Order Form.
3.2. Payment Terms. The Company shall invoice the Client User for all Fees annually in advance. All amounts shown due on any such invoice shall be paid by Client User on or before the 1st day of the billing cycle to which such fees pertain or, if such Fees do not pertain to charges, in advance of the Services or access to which such Fees pertain. If a delinquency occurs, the Company may, at its option (and without relieving Client User from its payment obligations), revoke, suspend or disclaim Client User’s right to utilize any of the Services (including the Client User Account), and all other rights of Client User hereunder, until payment in full is made. Client User shall be liable to the Company for all costs and expenses of collection, including reasonable attorneys’ fees, and court costs with respect to any delinquent payment. In the event that the Client User disputes any amount shown due on any invoice, the Client User shall pay any undisputed portions of such amount and send written notice to the Company detailing any disputed portions of such amount.
4. TERM AND TERMINATION.
4.1. Term. The initial term of this Agreement shall commence on the “TSO Effective Date” as specified on the Order Form and shall continue until terminated unless otherwise specified in the Order Form (the “Term”). Unless otherwise stated in the Order Form, all contracts are annual.
4.2. Termination. Subject to the terms and conditions of this Agreement, as well as any other termination, suspension or revocation rights set forth herein, either User or the Company may immediately terminate this Agreement for any reason upon notice to the other party; provided, however, that: (a) the exercise of such right of termination shall not limit any other rights or remedies of the terminating party at law, in equity or hereunder; and (b) there shall not be an available cure or notice period for any material breach by User, including, without limitation, User’s breach of (i) proprietary and/or confidentiality obligations, or (ii) any of its obligations hereunder with respect to any payment due and owing from User to the Company hereunder, and the Company shall have the right to immediately terminate this Agreement upon written notice to User in the event of any such material breach.
4.3. Actions Upon Termination. Upon any termination of this Agreement:
4.3.1. User shall at its own expense return to the Company any Proprietary Information of the Company in its possession and shall immediately cease using any of the Services or User Account. In connection therewith, upon the termination/expiration date of this Agreement, or at any time thereafter, the Company shall have the right to de-activate the User Account.
4.3.2. Upon the termination date of this Agreement between Company and a Client User, or at any time thereafter, the Company shall issue an invoice to Client User indicating all amounts owing as of such termination date from Client User to the Company for any of the services rendered by the Company to Client User under this Agreement as of such termination date.
4.3.3. All rights and obligations of each party hereunder shall terminate, subject to Section 7.13.
5. PROPRIETARY RIGHTS; CONFIDENTIALITY.
5.1. Intellectual Property Rights. The Company owns and shall remain owning the User Account, the Documentation, if any, the Software Platform (including User’s usage data) and any other software developed by or for the Company (collectively, the “Intellectual Property”), including without limitation all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary or intellectual property rights inherent therein or appurtenant thereto (collectively, the “Intellectual Property Rights”). Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights, whether expressly, by implication, estoppel or otherwise. User shall:
5.1.1. not rent, lease, sublicense, distribute, transfer, copy or modify any Intellectual Property of the Company or the Software Platform, in whole or in part;
5.1.2. only use the Intellectual Property made available to User by the Company for its own benefit and internal use and not for the material benefit of any other person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
5.1.3. not translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code, in whole or in part, from the object code to the Software Platform or User Account made available hereunder;
5.1.4. not adapt any of the Intellectual Property of the Company, in whole or in part, in any way or use it to create a derivative work; and
5.1.5. not remove, obscure, or alter, in whole or in part, the Company’s proprietary notices, trademarks, or other proprietary rights notices affixed or contained in or on any Intellectual Property of the Company, including without limitation any proprietary notices of any third party service suppliers to any of the foregoing;
5.1.6. not bypass or breach any security device or protection used by the Software Platform or access or use the Software Platform other than by the User Account;
5.1.7. not damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Software Platform or the Company’s provision of services to any third party, in whole or in part;
5.1.8. not remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Software Platform, including any copy thereof; and
5.1.9. not access or use the Services for purposes of competitive analysis of the Services, or any part thereof, the development, provision or use of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage.
5.2. Proprietary and Confidential Information. User (the “Receiving Party”) agrees that all Proprietary Information of the Company (the “Disclosing Party”) which has heretofore been disclosed and which will hereafter be disclosed to the Receiving Party, or of which the Receiving Party may otherwise attain knowledge during the Term, in oral, written or other tangible form, shall be deemed to be confidential information and the sole property of the Disclosing Party. This Agreement shall govern all communications between the parties that are made during the Term.
5.2.1. The Receiving Party shall keep all Proprietary Information of the Disclosing Party as well as the financial terms of this Agreement (collectively, the “Confidential Information”) strictly confidential and shall not disclose, distribute or disseminate in any way to any third party any of the Confidential Information. Furthermore, the Receiving Party shall not utilize for the Receiving Party’s own benefit or the benefit of any third party: (i) any Proprietary Information of the Disclosing Party disclosed by the Disclosing Party or by any person associated with the Disclosing Party; (ii) any Proprietary Information of the Disclosing Party of which the Receiving Party attains knowledge in connection with this Agreement; or (iii) any information, processes, inventions, intellectual property or the like generated by the Receiving Party based in whole or in part on the Proprietary Information of the Disclosing Party, including, without limitation, any improvements, analyses, compilations, studies or other documents or records prepared or generated from such Proprietary Information of the Disclosing Party, which foregoing materials shall be deemed part of the Proprietary Information of the Disclosing Party. The Receiving Party shall protect the Proprietary Information of the Disclosing Party as well as the financial terms of this Agreement by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of such Confidential Information as Receiving Party uses to protect its own Proprietary Information of a like nature and as it uses to protect the financial terms of this Agreement. Notwithstanding the foregoing, the Receiving Party shall have the right to disclose any financial terms of this Agreement: (x) to its legal and financial advisors who are under a legal obligation of confidentiality or (y) to its trustees, officers, directors, members, managers, representatives, agents and employees, on a need-to-know basis, provided that each of the foregoing are under a legal obligation of confidentiality.
5.2.2. Notwithstanding anything in this Agreement to the contrary, the Receiving Party may disclose the Proprietary Information of the Disclosing Party as well as the financial terms of this Agreement to the extent that such disclosure is required by an order of a court, administrative agency or governmental authority, or by any law, rule or regulation, or by subpoena, discovery request, summons or other administrative or legal process, or by any formal or informal investigation by any governmental agency or authority; provided, however, that, unless prohibited by law: (i) the Receiving Party shall give prompt written notice of any such request or requirement to the Disclosing Party; (ii) the Receiving Party shall give the Disclosing Party prior written notice of the Confidential Information it believes it is required to disclose; and (iii) the Receiving Party shall use its reasonable efforts to cooperate, to the extent practicable, with the Disclosing Party to avoid or minimize such disclosure or to obtain confidential treatment thereof or other protective order.
5.2.3. The Receiving Party’s obligations under this Section 5.2 shall terminate when, the Receiving Party, upon seeking to avoid the Receiving Party’s obligations hereunder, can prove by clear and convincing documentary evidence that: (i) with respect to disclosure of any financial terms of this Agreement, such financial terms have entered the public domain; or (ii) with respect to any Proprietary Information of the Disclosing Party, such Proprietary Information (A) was in the public domain at the time of disclosure to Receiving Party by Disclosing Party, (B) entered the public domain without violation of this Agreement or any other confidentiality obligation subsequent to the time of disclosure to Receiving Party by Disclosing Party, (C) was communicated to the Receiving Party by a third party, free of any obligation of such third party to maintain the confidentiality of such, or (D) was independently developed by Receiving Party using no amount of the Proprietary Information of the Disclosing Party. Notwithstanding the foregoing, specific information shall not be deemed to be within any of the foregoing exceptions merely because it is in the scope of more general information within any such exceptions, and a combination of features shall not be deemed to be within any such exceptions merely because individual features are within such exceptions.
5.3. Use of Name. The Company may use (a) User ’s name, (b) the name of any employee, student or agent of User, or (c) any trademarks, service marks or trade names owned or controlled by User, in any sales, promotional, advertising or other publication.
5.4. License to User Input Data. One of Company’s core services includes sharing data between Client and Vendor Users. For this functionality to work, User hereby grants to the Company a royalty-free, worldwide, perpetual, non-exclusive, assignable, sublicensable and transferable license to use the User Input Data to provide the Services to Client User and Vendor User (and such other parties as the User may direct the Company through the Software Platform) during the Term.
6. LIMITATION OF LIABILITY
6.1. Disclaimer. THE COMPANY MAKES NO, AND SPECIFICALLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABLITY, FITNESSS FOR A PARTICULAR PURPOSE AND TITLE), THAT THE SERVICES (IN WHOLE AND IN PART), ANY DOCUMENTATION, ANY REPORTS FURNISHED BY THE SERVICES TO USER (IN ORAL OR WRITTEN FORM), THE SOFTWARE PLATFORM (IN WHOLE AND IN PART), THE USER ACCOUNT (IN WHOLE AND IN PART), OR ANY INTELLECTUAL PROPERTY OF THE COMPANY PROVIDED TO USER, OR ANY COMPONENT OF ANY OF THE FOREGOING, WILL MEET USER’S REQUIREMENTS OR THAT USER’S USE OF THE USER ACCOUNT WILL BE UNINTERRUPTED OR ERROR-FREE. USER ACKNOWLEDGES AND AGREES THAT: (I) THE SERVICES MAY REQUIRE JUDGMENTS TO BE MADE THAT ARE BASED UPON LIMITED DATA RATHER THAN UPON SCIENTIFIC CERTAINTIES; AND (II) ULTIMATE OUTCOMES COULD BE INCONSISTENT WITH THE DATA AND TRENDS DEVELOPED BY THE SOFTWARE PLATFORM.
6.2. Sharing of Information.
6.2.1. THE SOFTWARE PLATFORM IS DESIGNED TO ALLOW USER TO SHARE INFORMATION WITH THIRD PARTIES THAT ALSO USE THE SOFTWARE PLATFORM. ANY DECISIONS TO SHARE INFORMATION THROUGH THE SOFTWARE PLATFORM WILL CAUSE THE RECIPIENT OF SUCH INFORMATION TO OBTAIN, USE, COPY AND DISTRIBUTE SUCH INFORMATION WITHOUT ANY LIMITATION OF CONFIDENTIALITY, CARE OR OTHERWISE. USER EXPRESSLY ASSUMES THE RISK AND ANY ATTENDANT CONSEQUENCES OF ANY SUCH SHARING OF INFORMATION THROUGH THE SOFTWARE PLATFORM. THE COMPANY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY OF ANY KIND WITH RESPECT TO USER’S DECISION TO SHARE INFORMATION THROUGH THE SOFTWARE PLATFORM, AND USER EXPRESSLY ACKNOWLEDGES SUCH DISCLAIMER.
6.2.2. Company is not a party to any agreement between User and any third party, regardless of whether such third party is also a User pursuant to a separate Agreement between such third party and Company. THE PARTIES AGREE AND ACKNOWLEDGE THAT NEITHER PARTY HAS RESPONSIBILITY FOR LIABILITIES SUFFERED OR INCURRED BY THE OTHER PARTY, USER, OR ANY THIRD PARTY AS A RESULT OF THE ACTIONS OR OMISSIONS OF COMPANY, USER OR ANY THIRD PARTY, WHETHER WITH RESPECT TO USER’S USE OF THE SERVICES OR OTHERWISE. SPECIFICALLY, NEITHER PARTY NOT RESPONSIBLE FOR ANY LIABILITIES ARISING OUT OF OR RELATED TO THE FAILURE OF ANY USER OR ANY THIRD PARTY WITH WHICH USER HAS A COMMERCIAL OR CONTRACTUAL RELATIONSHIP TO MAINTAIN AND CONVEY REQUIRED INSURANCE, BONDS OR OTHER LIABILITY PROTECTION. IN ADDITION, COMPANY IS NOT RESPONSIBLE FOR ANY LIABILITIES ARISING OUT OF OR RELATED TO FALSE OR FRAUDULENT INFORMATION PROVIDED TO COMPANY BY USER OR ANY THIRD PARTY THAT IS ALSO A USER PURSUANT TO A SEPARATE AGREEMENT BETWEEN SUCH THIRD PARTY AND COMPANY.
6.3. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL (INCLUDING LOST PROFITS) DAMAGES ARISING FROM OR IN ANY WAY CONNECTED WITH ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF THE AFFECTED PARTY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE SET FORTH UNDER THIS AGREEMENT, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES ACTUALLY PAID TO THE COMPANY PURSUANT TO THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. USER AGREES TO ACCEPT THIS LIMITATION ON COMPANY’S LIABILITY AS PART OF A BARGAIN TO LOWER THE COST OF ACCESS TO THE SERVICES PROVIDED HEREIN, AND CLIENT USER UNDERSTANDS THE COST OF SUCH ACCESS WOULD BE SIGNIFICANTLY HIGHER WITHOUT THIS LIMITATION OF LIABILITY.
7.1. User (“Indemnifying Party”) shall indemnify, defend and hold the Company, its affiliates and their respective directors, officers, agents and employees (collectively, “Indemnified Party”) free and harmless from and against all claims, demands, obligations, liabilities, losses, damages, costs and expenses, including attorneys’ fees (collectively, “Liabilities”), resulting from (i) a breach of this Agreement by the Indemnifying Party, or (ii) the intentional or grossly negligent acts or omissions of Indemnifying Party. Indemnifying Party shall undertake full responsibility for the defense of any claim brought by any person or entity for which indemnity is sought which, if true, would constitute a breach of Indemnifying Party’s representations, warranties or covenants under this Agreement. Indemnifying party shall have no obligation to indemnify or defend Indemnified Party from or against any Liabilities resulting from Indemnified Party’s acts or omissions.
7.2. If any claim is asserted or any action or proceeding is brought for which a party to this Agreement may be entitled to indemnification, the Indemnified Party shall promptly notify the Indemnifying Party in writing of such asserted claim or the institution of such action or proceeding; provided, however, that the Indemnified Party’s failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability it might otherwise have on account of this indemnity, except to the extent that the Indemnifying Party has been materially prejudiced by such failure to notify. The Indemnifying Party may contest or settle any such claim on such terms as the Indemnifying Party may choose, provided that the Indemnifying Party will not have the right, without the Indemnified Party’s written consent, to settle any such claim if such settlement (i) arises from or is part of any criminal action, suit, or proceeding, (ii) contains a stipulation to, confession of judgment with respect to, or admission or acknowledgment of any liability or wrongdoing on the part of the Indemnified Party, (iii) relates to any tax matters, or (iv) provides for injunctive relief, or other relief or finding other than money damages, which is binding on the Indemnified Party. Such defense will be conducted at the Indemnifying Party’s sole cost and expense by attorneys retained by the Indemnifying Party and reasonably acceptable to the Indemnified Party, but the Indemnified Party will have the right to participate in such proceedings and to be separately represented by attorneys of its own choosing. The Indemnified Party will be solely responsible for the costs of its separate representation, unless the parties agree that the interests of the Indemnified Party and the Indemnifying Party in the action conflict in such a manner and to such an extent as to require, consistent with applicable standards of professional responsibility, the retention of separate counsel for the Indemnified Party, in which case the Indemnifying Party shall pay for one separate counsel chosen by the Indemnified Party. The Indemnifying Party and the Indemnified Party shall cooperate in determining the validity of any claim brought by a third party for any cost, expense, damage, or loss for which a claim of indemnification may be made under this Agreement. Each party shall also use all reasonable efforts to mitigate its damages, losses, costs and expenses.
8. MISCELLANEOUS TERMS
8.1. Assignment. User shall not assign, transfer, sublicense, or otherwise dispose of this Agreement (or any rights or benefits hereunder), in whole or in part, or delegate is obligations under this Agreement, in whole or in part, to any other person without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed; provided that: (a) any such assignment/delegation with written consent does not release the assigning/delegating party from any of its obligations under this Agreement unless such written consent so states; and (b) the rights of any permitted assignee hereunder shall be subject to any and all set-offs, counterclaims and other comparable rights arising hereunder. Any assignment/delegation of rights/obligations of any of this Agreement contrary to the above shall by null and void and of no force or effect.
8.2. Governing Law; Jurisdiction Venue; Disputes. This Agreement is deemed to have been entered in the State of Delaware, and its interpretation, construction, and the remedies for enforcement or breach are to be applied pursuant to, and in accordance with, the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. Venue and jurisdiction for any action or claim brought under this Agreement shall be in the courts with proper jurisdiction located in the State of Delaware, and the parties expressly submit themselves to the personal jurisdiction of such courts.
8.3. Irreparable Harm. Each party acknowledges that any breach of its obligations with respect to Section 5 may cause the other party irreparable harm or injury for which there are inadequate remedies at law and that such other party may be entitled to equitable relief in addition to all other remedies available to it. Each party agrees that, if a court of competent jurisdiction determines that such party has breached, or attempted or threatened to breach, its obligations pursuant to Section 5, the other party will be entitled to obtain appropriate injunctive relief and other measures restraining further, attempted or threatened breaches of such obligations. Such relief or measures shall be in addition to, and not in lieu of, any other rights and remedies available to such aggrieved party.
8.4. Force Majeure. The Company shall not be liable to the User for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to a Force Majeure Event. A “Force Majeure Event” is any event beyond the control of the Company which occurs after the Effective Date and which was not reasonably foreseeable at that time and whose effects are not capable of being overcome without reasonable expense or loss of time or both, including (without limitation) war, terrorism, civil unrest, blockades, boycotts, strikes, lock-outs and other general labor disputes, acts of government or public authorities, natural disasters, exceptional weather conditions, breakdown or general unavailability of transport facilities, accidents, fire, explosions and general shortages of energy, failures in external networks, defects or inefficiencies in User’s software, defects or inefficiencies in computer equipment or hardware of User , or any delay to the extent caused by the acts or omissions of User .
8.5. Parties in Interest. Except as expressly provided in this Agreement, nothing in this Agreement, whether express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any persons other than the parties to this Agreement and their respective successors and assigns, nor shall any provision of this Agreement give any third persons the right to subrogation or action over or against any party to this Agreement.
8.6. Binding. This Agreement shall be binding on the parties, their affiliates, parents, subsidiaries, successors, and permitted assigns (if any), and each party warrants that the undersigned representative of such party is authorized to execute this Agreement on behalf of such party.
8.7. Complete Understanding. This Agreement constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior proposals, understandings and other agreements (as to all, written and oral) between the parties relating to the subject matter hereof.
8.8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
8.9. Waiver and Amendment. The Company reserves the right to modify the terms and conditions of this Agreement from time to time without advance notice. Your continued usage of the Services constitutes your acceptance of these terms. No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power or remedy.
8.10. Independent Contractors. The Company, and its personnel, contractors and agents, in their performance under this Agreement, are acting as independent contractors and not as employees or agents of the User. Under no circumstance will either party have the right or authority to enter into any contracts or assume any obligations for the other or to give any warranty or make any representation on behalf of the other.
8.11. Notices. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed or sent via electronic mail, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested; or (iii) if by next day delivery service, upon such delivery. All notices shall be addressed to the applicable party at its respective address as may be designated on notice to the other party pursuant these notice provisions.
Attn: John Fohr, CEO
1315 Oakfield Drive #1601
Brandon, Florida 33511
With a copy to:
Silicon Legal Strategy, PC
Attn: Andre Gharakhanian
201 Mission Street, Suite 800
San Francisco, California 94105
8.12. Cumulative Rights and Remedies. The rights and remedies of the Company and User provided for under this Agreement are neither exclusive nor mutually exclusive, and the Company and User shall be entitled to resort to any such rights and remedies, or any other remedy available to the Company and User at law or in equity, or some or all in any combination, at each of their discretion.
8.13. Counterparts; Electronic/Facsimile Signatures. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall constitute a complete and original instrument but all of which together shall constitute one and the same agreement (notwithstanding that all of the parties are not signatories to the original or the same counterpart, or that signature pages from different counterparts are combined), and it shall not be necessary when making proof of this Agreement or any counterpart thereof to account for any other counterpart, and the signature of any party to any counterpart shall be deemed to be a signature to and may be appended to any other counterpart. For purposes of this Agreement, a document (or signature page thereto) signed and transmitted by facsimile machine or other electronic means is to be treated as an original document. The signature of any party on any such document, for purposes hereof, is to be considered as an original signature, and the document transmitted is to be considered to have the same binding effect as an original signature on an original document. At the request of any party, any facsimile or other electronic signature is to be re-executed in original form by the party which executed the facsimile or other electronic signature. No party may raise the use of a facsimile machine or other electronic means, or the fact that any signature was transmitted through the use of a facsimile machine or other electronic means, as a defense to the enforcement of this Agreement.
8.14. Rules of Usage. In this Agreement, unless a clear intention appears otherwise: (a) the singular number includes the plural number and vice versa; (b) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement, and reference to a person in a particular capacity excludes such person in any other capacity or individually; (c) reference to any gender includes each other gender; (d) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof; (e) reference to any law means such law as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder; (f) “hereunder,” “hereof,” “hereto,” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular section or other provision hereof; (g) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term; (h) “or” is used in the inclusive sense of “and/or”; (i) with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding”; (j) references to documents, instruments or agreements shall be deemed to refer as well to all addenda, exhibits, schedules or amendments thereto; (k) references to “person” or “persons” means an individual, corporation, limited liability company, partnership, trust, joint venture or other legal entity; (l) article and section headings herein are for convenience only and shall not affect the construction hereof; and (m) section and article references shall be deemed to refer to all subsections and sections thereof, unless otherwise expressly indicated.
8.15. Survival. In addition to all other provisions which expressly survive termination/expiration of this Agreement, or whose context requires such survival, the following provisions shall specifically survive termination of this Agreement: Sections 2.3, 2.5, 3, 4.3, 5, 6, 7, 8 and Schedule I.
“User Input Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from the User by or through the Software Platform or that incorporates or is derived from the processing of such information, data or content by or through the Software Platform.
“User Systems” means the User ’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by User or through the use of third party services.
“Documentation” means all manuals, guidelines, reports, media and other documentation regarding the Services or any Intellectual Property of the Company which are provided in writing or electronic format by the Company to the User.
“Proprietary Information” means, with respect to Proprietary Information of the Company, confidential or proprietary information, processes and material of the Company relating to or associated with the Services that are conceived, made or possessed by the Company including without limitation: plans, designs, performance specifications, marketing plans, algorithms, Intellectual Property, Intellectual Property Rights, ideas, inventions, formulas, techniques, and know how as well as any of the foregoing relating to the Services and the User Account (and each of their respective source codes) and the Documentation.