These DecisionVision Terms and Conditions (“Terms”) are made by and between DigiFi, Inc. a Delaware corporation having a place of business at 25 Broadway, New York, NY 10004 (“Provider,” “us,” “we,” or “our”), and you (which term, as used herein, includes you personally and the company or organization on whose behalf we grant you access to the Service (as defined below) and, if applicable, whose name is on a DecisionVision Order Form as may be amended by the parties from time to time in accordance with the terms of these Terms (the “Order Form”)). Each Order Form, including any and all schedules attached thereto, in each case, if applicable, and these Terms consist of the entire agreement between the parties with regard to the Service (collectively, the “Agreement”). By accessing, visiting, browsing, using or attempting to interact with any part of the Service, you accept and expressly acknowledge and agree to be bound by the terms and conditions set forth in these Terms. If you do not agree to be bound by these Terms, do not access or use any part of the Service. Capitalized terms used in this Agreement are defined throughout these Terms or in Section 15. Therefore, the parties agree as follows:
Please read these Terms carefully before using our lending automation software currently known as “DecisionVision” (the “Service”). The term “Service” includes all DecisionVision accounts, whether hosted by Provider (“Hosted”) or installed on client-hosted servers (“On-Premise”). These Terms apply to all variations of our Service. Your access to and use of the Service is conditioned on your acceptance of and compliance with this Agreement.
2.1 Eligibility. This is a contract between you and Provider. You may use the Service only if you can form a binding contract with Provider, and only in compliance with this Agreement and all applicable local, state, federal, and international laws, rules and regulations. Any use or access of the Service by anyone under 13 is strictly prohibited and in violation of these Terms. If you are accessing or using the Service on behalf of, or for the benefit of, any entity, company or organization with which you are associated (the “Organization”), then you are agreeing to these Terms on behalf of yourself and such Organization, and you represent and warrant that you have the legal authority to bind such Organization to these Terms.
2.2 Accounts. As part of the registration process, you will identify an administrative username and password on behalf of your Organization to create an initial account in order to use the Service. Once you have registered your initial account, you may enable access to other users within your Organization (together with the initial account, “Permitted Users”). You may never use another Organization’s account and/or another user’s account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Provider immediately of any breach of security or unauthorized use of your account. Provider will not be liable for any losses caused by any unauthorized use of your account. Provider reserves the right in its sole discretion to refuse registration to the Service.
2.3 License. Subject to your payment of the applicable Fees (as defined below) and your compliance with all other terms and conditions of this Agreement, Provider hereby grants to you a non-exclusive, non-transferable, non-sublicensable, revocable, limited, right and license during the term of this Agreement to access the Service, including the Software if applicable, during the term of this Agreement, and to allow Permitted Users to do the same, solely for the internal business purposes of your Organization. The foregoing license may be limited with respect to the number or location of users or the amount of usage of the Service as provided in this Agreement or any Order Form.
2.4 Support and Maintenance. Subject to the terms hereof and any additional terms that may be set forth in an Order Form, Provider will provide you with reasonable technical support services in accordance with Provider’s standard practice (“Support Services”). Provider will use reasonable efforts consistent with prevailing industry standards to maintain the Service in a manner which minimizes errors and interruptions in the Service. Our Hosted version of the Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Provider or by third-party providers, or internet service provider failures or delays, or because of a Force Majeure Event (as defined below), but we will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
2.5 Professional Services. You may request and we may provide you with additional implementation, training and configuration services (other than Support Services) (collectively, “Professional Services”) on a time and materials pricing model whereby the fees will be calculated by multiplying the number of hours Provider will provide the Professional Services by the applicable hourly rates set out in the Order Form.
3.1 License Restrictions. You will not, directly or indirectly: (a) copy (except as expressly provided herein), modify, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or underlying structure, ideas, know-how or algorithms relevant to the Service or the Software, if applicable, in whole or in part, or the Documentation or data related to the Service or the Software, if applicable; (b) translate, or create derivative or other works based on the Service or the Software, if applicable (except to the extent expressly permitted in advance in writing by Provider or authorized within the Service); (c) use the Service or the Software, if applicable, for the benefit of any third party or rent, lease, lend, sell, sublicense, assign, distribute, publish or otherwise make available the Service or Software, if applicable, to any third party; (d) remove, alter, obscure, combine, supplement or otherwise change any proprietary notices or labels relating to the Service or the Software, if applicable, including any Documentation; (e) use the Service, Software, if applicable, or the Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any Applicable Laws; or (f) use the Service or Software, if applicable, for purposes of: (i) benchmarking or competitive analysis of the Service or Software or (ii) developing, using or providing a competing software product or service.
3.2 Export Restrictions. Further, you may not remove or export from the United States or allow the export or re-export of the Services, Software, Documentation 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.
3.3 Compliance with Laws. You represent, covenant, and warrant that you will use the Service, including the Software, if applicable, only in compliance with all Applicable Laws.
3.4 Equipment. You will be responsible for obtaining and maintaining, at your own expense, any and all equipment and ancillary services needed to connect to, access or otherwise use the Services or the Software, if applicable, including, internet connections, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, the “Equipment”). You will also be responsible for maintaining the security of the Equipment, your Permitted User accounts, passwords (including administrative and user passwords) and files, and for all uses of all accounts or the Equipment with or without your knowledge or consent. You understand that communications may traverse an unencrypted public internet connection and that use of the internet provides the opportunity for unauthorized third parties to illegally gain access to your data. Accordingly, Provider does not guarantee the privacy, security or authenticity of any information transmitted over or stored in any system connected to the internet.
3.5 Cooperation. You will, during the applicable term, take all commercially reasonable measures to safeguard the Service, including the Software, if any, and all Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.
If you have executed an Order Form to receive the DecisionVision On-Premise (in your Organization’s preferred environment, including on-site servers, cloud servers or other environments), you will comply the following additional terms in this Section 4.
4.1 Scope of Licensed Access and Use. You may install, use, and run the total number of copies of the Software set forth under the applicable Order Form (“Permitted Instances”). You may make one additional copy of the Software solely for testing, disaster recovery, or archival purposes. Any copy of the Software made by you: (a) will remain the exclusive property of Provider and its third party licensors; (b) will be subject to the terms and conditions of the Agreement; and (c) must include all copyright or other Intellectual Property Rights notices contained in the original.
4.2 Delivery. We will make the Software and any applicable documentation available to you by such date as the parties may agree in to in the Order Form. You acknowledge and agree that any such date is only an estimate and Provider will not be liable for any delay.
4.3 Maintenance Releases. During the applicable term, we will provide you with all Maintenance Releases that we may, in our sole discretion, make generally available to our clients at no additional charge. All Maintenance Releases provided by Provider to you are deemed Software. You will install all Maintenance Releases as soon as practicable after receipt and confirmation that any such Material Release in each material respect has at least equal functionality, compatibility and usability as the prior version.
4.4 New Products. You do not have any right hereunder to receive any New Products that we may, in our sole discretion, release from time to time. You may license any New Product at our then-current list price and subject to a separate agreement, provided that you are in compliance with the terms and conditions of these Terms and all other applicable Order Forms.
5.1 Confidential Information. Each party (the “Receiving Party”) will and will ensure that its directors, officers, employees, consultants, and agents (collectively, “Representatives”) regard and preserve as confidential and proprietary information of the other party (the “Disclosing Party”) any and all trade secrets and other confidential and/or proprietary information relating to the Disclosing Party, any of its affiliates or any of its or their business, assets, finances, accounts, data, activities, plans, pricing policies, market activity, strategies, customers (including, customer lists), technology, systems, analytics, output or software (including all programs, object code, source code, outlines, routines, subroutines, revisions, supplements, modules, and upgrades, in each case, in any language, format or medium), which have been or may be disclosed to the Receiving Party; which trade secrets and/or other confidential and/or proprietary information described above (collectively, "Confidential Information") may be obtained or learned by or disclosed to the Receiving Party or any of its Representatives in the course of performing its obligations under this Agreement, and during the term of this Agreement. For the avoidance of doubt, (a) “Confidential Information” of you includes Client Data, and (b) “Confidential Information” of Provider includes the Service, the Software and all Documentation.
5.2 Confidentiality Obligations. The Receiving Party will not use any Confidential Information disclosed to it by the Disclosing Party for its own use or for any purpose other than in performance (or use) of the Service and/or the Software. The Receiving Party will not disclose or permit disclosure of any Confidential Information of the Disclosing Party to any third parties, other than Representatives of the Receiving Party who are required to have the information in order for the Receiving Party to fulfill its obligations under this Agreement. The Receiving Party will and will ensure that its Representatives safeguard the confidentiality of the Confidential Information of the Disclosing Party using at least the same degree of care that it uses in protecting its own confidential and proprietary information, but no less than a reasonable degree of care.
5.3 Confidentiality Exceptions. Notwithstanding anything set forth in this Agreement, the confidentiality provisions of this Agreement, other than the obligations related to Personal Information set forth herein, will not apply to: (a) information which (i) is already in the possession of the Receiving Party, (ii) is or becomes generally available to the public other than as a result of an improper disclosure by the Receiving Party or Representatives, (iii) is independently developed by the Receiving Party, or (iv) becomes available to the Receiving Party on a non-confidential basis from a source which, to the best of such party’s knowledge, is not prohibited from disclosing such information to the Receiving Party by a legal, contractual or fiduciary obligation to the Disclosing Party; (b) disclosures to legal counsel or auditors of the Receiving Party; or (c) disclosures required by Applicable Laws, provided that, to the extent practical and permitted by such requirement, the Receiving Party will promptly notify the Disclosing Party so as to provide the Disclosing Party an opportunity to seek a protective order or other confidential treatment.
5.4 Client Data. Notwithstanding any of the foregoing, you hereby grant to Provider a non-exclusive, royalty-free, paid-up, license to use, copy, reproduce, display and distribute the Client Data: (a) during the term of the Service, solely as necessary to provide the Service, including the Software, if applicable, to you; (b) in perpetuity, solely if and to the extent Client Data is aggregated with the similar content of other clients of Provider and does not in any way, directly or indirectly, identify or enable the identification of you, your Permitted Users that are using the Service or the Software or any of your customers (the “Aggregated Data”); and (c) in perpetuity, solely internally for the purposes of analyzing the provision, use and performance of various aspects of the Service rendered to you, the Software and all related systems and technologies in order to use such information and data to improve and enhance the Service and the Software and for other development, diagnostic and corrective purposes in connection with the Service and the Software and other Provider offerings.
5.5 Destruction. Following expiration or termination and at the written request of the Disclosing Party, the Receiving Party will immediately destroy or return to the Disclosing Party all copies of all written Confidential Information of the Disclosing Party which has been provided to it or its Representatives including, but not limited to, written summaries of any oral Confidential Information of the Disclosing Party provided by the Disclosing Party. Notwithstanding any of the foregoing, (a) the Receiving Party may retain copies of any Confidential Information of the Disclosing Party in accordance with its record retention policies or pursuant to Applicable Laws, rule or regulation; (b) the Receiving Party’s counsel may retain any Confidential Information of the Disclosing Party, subject to the terms of this Agreement; and (c) the Receiving Party will not be obligated to delete any Confidential Information of the Disclosing Party maintained in its normal back up media, including but not limited to such Confidential Information that is contained in an archived computer system backup that was made in accordance with its security and/or disaster recovery procedures. Each Receiving Party’s obligations under this Agreement will survive any return or destruction of the Confidential Information of the Disclosing Party.
commitments of each party will survive any termination of the Agreement, and will continue for a period terminating five (5) years from the date on which Confidential Information of the Disclosing Party is last disclosed under this Agreement; provided that, with respect to any trade secrets incorporated in or embodying such Confidential Information, such obligations will remain in effect with respect to such trade secrets until they are no longer protected as such under Applicable Laws.
6.1 Requirements. We will maintain, monitor and enforce a comprehensive written data security program and only Process Personal Information in compliance with this Agreement and Applicable Processing Laws, which program includes administrative, technical and physical safeguards and written policies and procedures reasonably designed to (a) insure the security and confidentiality of such Personal Information; (b) protect against any anticipated threats or hazards to the security or integrity of such Personal Information; and (c) protect against unauthorized access to or use of such Personal Information. We will restrict access to Personal Information to our Representatives who have a need to know information contained therein for the purpose of providing the Service to and for you.
6.2 Safeguards and Security Incidents. We will use our data security program to maintain, monitor and enforce reasonable organizational, administrative, technical and physical safeguards to protect the security, integrity, confidentiality and availability of Personal Information, including to protect against: (a) any and all anticipated threats or hazards; and (b) any and all accidental, unauthorized or unlawful Processing, loss, or other compromise of Personal Information (each, a “Security Incident”). We will as promptly as reasonably practicable remediate any and all Security Incidents.
6.3 Data Transfers. We will encrypt Personal Information in compliance with Applicable Processing Laws and in the following circumstances: (a) the Processing of Personal Information on any mobile device or mobile storage or removable media, including laptop computers, smart phones, USB devices (“thumb drives”) and tapes/DVDs; and (b) electronic transfers of Personal Information by us outside of our network.
6.4 Disposal of Personal Information. In connection with the disposal (including discarding, selling, donating, transferring, abandoning or other forms of disposal) by or for us or any of our Representatives of any computers, hard disks, optical disks, tapes and other storage media (collectively, “Electronic Media”) or paper or other non-electronic media documents or records (collectively, “Non-Electronic Media”) that contain any Personal Information, we will take or, to the extent that disposal is being carried out by a third party, cause such third party to take reasonable measures to prevent unauthorized access to or use of any Personal Information. For Electronic Media, such measures will include the destruction of the Electronic Media and/or erasure of all the Personal Information so that no Personal Information can practicably be read or reconstructed. For Non-Electronic Media, such measures will include pulverizing, burning, shredding or otherwise destroying the Non-Electronic Media so that no Personal Information can practicably be read or reconstructed.
7.1 Your Ownership. Except for the licenses granted by you to Provider herein, you are and will remain the sole owner of all rights, title and interests in and to your Confidential Information, including the Client Data, and all Intellectual Property Rights related to any of the foregoing; and nothing in this Agreement grants to us or any third party any Intellectual Property Rights or other right, title, or interest in or to such Confidential Information.
7.2 Provider Ownership. Provider will own and retain all right, title and interest in and to (a) the Service, including the Software, all New Products, and all Documentation, (b) the Aggregated Data, and (c) all Intellectual Property Rights related to any of the foregoing. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants to you or any third party any Intellectual Property Rights or other right, title, or interest in or to the Service, any of the Software, any New Products, Documentation or Confidential Information of Provider or its third party licensors.
7.3 Third Party Components. The Service, including the Software, may contain or otherwise make use of software, code or related materials from third parties, including, without limitation, “open source” or “freeware” software (“Third Party Components”). Third Party Components may be licensed under additional or other license terms that accompany such Third Party Components, and you acknowledge and agree that these accompanying license terms govern their use. Nothing in the Agreement limits your rights under, or grants you rights that supersede, the license terms that accompany any Third Party Components. For your convenience, we may provide you with a list of the Third Party Components that may be contained in the Service upon your written request. If required by any license for a particular Third Party Component, Provider makes the source code of such Third Party Component, and any of Provider’s modifications to such Third Party Component as required, available by written request to Provider at the following address: firstname.lastname@example.org.
The provision of source code, if included with the Service, including the Software, does not constitute transfer of any legal rights to such code, and resale or distribution of all or any portion of all source code and/or intellectual property is strictly prohibited hereunder. The Service, including the Software and other files remain Provider’s exclusive property. If source code or modifiable files are provided, regardless of any modifications that you make, you may not redistribute any such source code or modifiable files unless Provider has expressly designated these as re-distributable in writing.
7.4 Work Product. Any and all work product produced by Provider in the course of providing the Professional Services (the “Work Product”) shall be owned solely by Provider. Provider hereby grants to you a worldwide, revocable, non-exclusive, non-transferable, royalty-free license to use such Work Product solely for its internal business purposes and in connection with its use of the Service.
7.5 Publicity Usage. Vendor may issue press releases, display advertising content, and make other public announcements containing general information with respect to this Agreement, such as your company name, logo, industry group and the general nature of the Service. Vendor may not disclose the specific terms and financial arrangements contemplated by this Agreement, without your prior written consent.
8.1. Pricing. Pricing and fees are specified in an Order Form . The prices are in United States dollars, except when expressed otherwise. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties in its jurisdiction.
8.2 Fees. You will pay Provider the then applicable fees described in your Order Form, if any, for the Service described in any such Order Form and in accordance with the terms therein (the “Fees”). If your use of the Service exceeds the usage terms set forth in any applicable Order Form and requires the payment of additional fees (per the terms of this Agreement), you will be billed for such usage fees and you agree to pay such fees in the manner provided herein. Provider reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon thirty (30) days prior notice to you (which may be sent by email). Fees shall be increased on an annual basis, effective on each anniversary date of this Agreement, without prior notice to you, in an amount equal to an annual percentage increase of four percent (4%). If you believe that we have billed you incorrectly, you must contact us no later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared. Upon receipt of such notice, we will review the circumstances and upon confirmation, will issue an adjustment or credit, as the circumstances warrant. We will have no obligation to issue any such adjustments or credits for notices received later than thirty (30) days after the closing date on the first billing statement in which the error or problem appeared, and all invoices will then be deemed accurate and accepted. Inquiries should be directed to Provider’s support department at email@example.com.
8.3. Billing and Taxes. Unless otherwise specified in an Order Form: (i) all amounts due must be paid for in full using ACH, bank wire or check; (ii) Payment is due the first day of each month; and (iii) In the case of failure to pay, Provider reserves the right to terminate or restrict access to your account at our sole discretion. Amounts already paid are neither fully or partially refundable.
Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. You will be responsible for all taxes associated with Service other than U.S. taxes based on Provider’s net income.
9.1 Term and Termination: Unless otherwise specified in an Order Form: (i) this Agreement is effective upon the date your first monthly payment is received and continues until terminated by you or Provider; (ii) You may terminate this Agreement for any reason by contacting Provider at firstname.lastname@example.org; provided however that if You have a separate agreement with Provider which has conflicting terms regarding termination, those terms shall take precedence; (iii) If you use the Service again, you are consenting to this Agreement; and (iv) We may terminate this Agreement or close your account at any time for any reason; provided however that if You have a separate agreement with Provider which has conflicting terms regarding termination, those terms shall take precedence.
9.2 Effect of Termination: In the event of expiration or termination of this Agreement, (a) you will remain responsible for payment for the Service provided prior to the date of termination, (b) you will cease all use of the Service, including the Software, if any, and in the case of any such Software, return or destroy any copies thereof in your possession. Notwithstanding the foregoing or anything else in this Agreement, the terms of this Agreement that by their terms are perpetual or are otherwise intended to survive this Agreement will survive the termination or expiration of this Agreement.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE, THE WORK PRODUCT (IF ANY), THE SOFTWARE, ALL THIRD PARTY COMPONENTS, AND THE DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS, WITH NO OTHER WARRANTIES OF ANY KIND, AND PROVIDER AND ITS THIRD PARTY LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NOR DOES PROVIDER OR ITS LICENSORS WARRANT THE ACCURACY, SATISFACTORY QUALITY, COMPLETENESS, NON-INFRINGEMENT OR OTHER WARRANTY ARISING OUT OF THE COURSE OF ORDINARY PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE REGARDING OR RELATING TO MATTERS COVERED UNDER THIS AGREEMENT, INCLUDING WITH RESPECT TO THE SERVICE AND ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE SOFTWARE AND THE SERVICE. WITHOUT LIMITING THE FOREGOING, NEITHER PROVIDER, ITS AFFILIATES, NOR ITS LICENSORS WARRANT THAT THE CONTENT YOU RECEIVE THROUGH THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE OR THE WORK PRODUCT (IF ANY), WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE OR THE WORK PRODUCT (IF ANY) WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE OR THE WORK PRODUCT (IF ANY) IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE OR THE WORK PRODUCT (IF ANY) IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
PROVIDER WILL NOT BE RESPONSIBLE FOR FAILURE TO PROVIDE THE SERVICE OR THE WORK PRODUCT (IF ANY) TO THE EXTENT THAT SUCH FAILURE IS THE RESULT OF THE ACT OR OMISSION OF YOU OR YOUR PERMITTED USERS, INCLUDING:
YOU ACKNOWLEDGE THAT NEITHER THE SERVICE, THE WORK PRODUCT (IF ANY), NOR ANY INFORMATION CONTAINED THEREIN IS INTENDED AS TAX, REGULATORY, ACCOUNTING OR LEGAL ADVICE OF ANY NATURE. ALTHOUGH THE SERVICE PROVIDES ACCESS TO VARIOUS INFORMATION AND RECOMMENDATIONS ON DECISION TECHNIQUES, NONE OF THESE RECOMMENDATIONS ARE DEVELOPED OR ENDORSED BY PROVIDER. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR DETERMINING THE NATURE, POTENTIAL VALUE AND SUITABILITY, FOR YOURSELF AND YOUR CUSTOMERS, OF ANY DECISION ADVICE OFFERED THROUGH THE SERVICE OR THE WORK PRODUCT (IF ANY). UNDER NO CIRCUMSTANCES SHOULD THE CONTENT OF THE SERVICE BE CONSTRUED AS PROVIDING LEGAL, TAX, INVESTMENT OR ANY ADVICE OF ANY KIND TO ANY ORGANIZATION, PERSON OR ENTITY. THIS PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
PROVIDER WARRANTS THAT IT WILL PROVIDE THE PROFESSIONAL SERVICES IN A PROFESSIONAL AND WORKMANLIKE MANNER AND IN ACCORDANCE WITH GENERALLY ACCEPTED INDUSTRY STANDARDS. YOUR SOLE REMEDY FOR BREACH OF THE FOREGOING WARRANTY SHALL BE THE PROMPT RE-PERFORMANCE OF THE DEFICIENT PROFESSIONAL SERVICES AS DESCRIBED AND WARRANTED. SHOULD PROVIDER BE UNABLE TO SO RE-PERFORM, IT WILL REFUND YOU ALL PREPAID FEES FOR THE DEFICIENT PROFESSIONAL SERVICES.
11.1 Provider’s Indemnification Obligations. Provider will indemnify and defend you, your affiliates, and your and their Representatives (collectively, the “Client Parties”) from and against any and all losses, liabilities, damages, demands, claims (including taxes), costs, payments and expenses (including any and all reasonable attorneys’ fees, reasonable costs of investigation, discovery, litigation and settlement, interest and any judgments, fines and penalties) (collectively, “Losses”) as incurred, arising out of or in connection with any third-party claims arising from or relating to your or your Permitted Users’ use of the Service consistent with this Agreement infringing or misappropriating any Intellectual Property Rights of any third party. The foregoing obligations do not apply with respect to portions or components of the Service (a) not supplied by Provider, (b) made in whole or in part in accordance with your specifications, (c) that are modified after delivery by Provider, (d) combined with other products, processes or materials where the alleged infringement relates to such combination, (e) where you or your Permitted Users continue allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (f) where your or your Permitted Users’ use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Service is held by a court of competent jurisdiction to be or is believed by Provider to be infringing, Provider may, at its option and expense (i) replace or modify the Service to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality, (ii) obtain a license for you to continue using the Service, or (iii) if neither of the foregoing is commercially practicable, terminate this Agreement and your rights hereunder and provide you a refund of any prepaid, unused Fees for the Service.
11.2 Your Indemnification Obligations. You will indemnify and defend Provider, its affiliates and its and their Representatives, contractors, suppliers and licensors (collectively, the “Provider Parties”) from and against any and all Losses as incurred, arising out of or in connection with any third-party claims arising from or relating to (a) an alleged violation of any of any Applicable Laws; or (b) your use of the Service and/or the Software in breach of this Agreement.
11.3 Indemnification Procedure. The party to be indemnified (“Indemnified Party”) will give the indemnifying party (“Indemnifying Party”) prompt notice of any claim described in Sections 11.1 or 11.2 (as applicable) (but the failure to give such notice will not relieve the Indemnifying Party of any of its obligations under Sections 11.1 or 11.2 (as applicable) except to the extent the Indemnifying Party is materially prejudiced thereby), will allow the Indemnifying Party control of the defense of any such claim made against it (so long as any settlement (a) does not, without the Indemnified Party’s prior written approval, (i) involve the admission of any wrongdoing by any of the Indemnified Parties, (ii) restrict any Indemnified Parties’ future actions, or (iii) require any Indemnified Party to take any action, including the payment of money, and (b) includes a full release of all of the Indemnified Parties), and will give the Indemnifying Party reasonable assistance, at the Indemnifying Party’s expense, requested by the Indemnifying Party in writing in connection therewith. Each applicable Indemnified Party will have the right to participate in the defense of any such claim at its own expense, and such participation by such Indemnified Party will not relieve the Indemnifying Party of its indemnification obligations under Sections 11.1 or 11.2 (as applicable).
NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT, NO LIMITATION OR WAIVER OF LIABILITY, REMEDY OR EXCULPATION OF EITHER PARTY WILL APPLY TO: (A) ANY LIABILITY, LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH ACTS OR OMISSIONS THAT CONSTITUTE WILLFUL MISCONDUCT, GROSS NEGLIGENCE, OR FRAUD; (B) ANY LIABILITY, LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH A BREACH BY EITHER PARTY OF SECTIONS 5 OF THESE TERMS; OR (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN THESE TERMS (AND/OR BREACHES THEREOF). MOREOVER, SUBJECT TO THE FOREGOING SENTENCE, ANY LIMITATION OF LIABILITY OF EITHER PARTY WILL NOT EXCEED THE GREATER OF $1,000.00 OR THE AGGREGATE OF ALL FEES PAID BY YOU TO PROVIDER FOR THE SERVICE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Neither party will have liability under this Agreement if it (as applicable) is prevented from, or delayed in, performing its obligations under this Agreement, or from carrying on its business, by a Force Majeure Event. The party whose performance is prevented, hindered or delayed by a Force Majeure Event will promptly notify the other party of such an event describing in reasonable detail the nature of the Force Majeure Event and its expected duration. As used herein, a “Force Majeure Event” means an act of God, act of governmental body or military authority, fire, explosion, flood, epidemic, riot or civil disturbance, war, sabotage, insurrections, blockades, embargoes, terrorism, viruses, cyber attacks, floods, fire, storms, delays by suppliers or material shortages or other similar events that are beyond the reasonable control of the affected party.
14.1 Assignment. This Agreement will inure to the benefit of the parties and their successors and permitted assigns. This Agreement is not assignable, transferable or sublicensable by either party except with the other party’s prior written consent, provided, however, that either party may assign this Agreement, in whole or in part, without the other party’s prior written consent, to (a) any of its affiliates or (b) any entity that acquires all or substantially all of its business or assets, whether by merger, reorganization, acquisition, sale or otherwise. Any and all assignments not made in accordance with this Section will be void. Without limiting any of the foregoing and in addition thereto, Provider may from time to time, in its discretion subcontract certain obligations under this Agreement to third parties, and, in such event, will remain responsible for the performance of such third parties under this Agreement.
14.2 Governing Law. This Agreement will be governed by and construed in accordance with the copyright laws of the United States and the internal law of the State of New York, without regard to the conflicts of law principles thereof, and any action brought in relation to this Agreement will be brought in a Federal or State court in New York County, New York State. Each party waives any right to trial by jury with respect to any dispute, suit, action or proceeding arising out of or relating to this Agreement or otherwise relating to the relationship of the parties, whether in contract, tort or otherwise. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.
14.3 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 5 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
14.4 Construction and Interpretation. “Affiliates” means a party’s affiliates existing from time to time. The captions, titles and headings are included in these Terms for convenience and reference only and do not affect the construction or interpretation of these Terms. The words “including, “includes,” or “include” or “e.g.” are to be read as listing non-exclusive examples of the matters referred to, whether or not words such as “without limitation” or “but not limited to” are used in each instance.
14.5 Waiver. No failure or delay by either party in exercising any right, power or remedy under this Agreement will operate as a waiver of any such right, power or remedy. No waiver of any provision of this Agreement will be effective unless in writing and signed by both parties. Any waiver by any party of any provision of this Agreement will not be construed as a waiver of any other provision of this Agreement, nor will such waiver operate or be construed as a waiver of such provision respecting any future event or circumstance.
14.6 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
14.7 Notices. Notices will be in writing and delivered as follows. Notices to Provider will be sent by electronic mail to email@example.com. Notices to you will be sent by electronic mail to the address you provide when registering for your account. Either party may change its address upon written notice to the other (may be via email).
14.8 Independent Contractors. The parties are independent contractors, and nothing contained in this Agreement will be construed to constitute the parties as, partners, joint ventures, co-owners, employer/employee, or otherwise as participants in an agency or joint or common undertaking.
14.9 Modifications. We reserve the right to change the terms and conditions of this Agreement at any time (including by amending any of its provisions, adding new provisions, or deleting or modifying existing provisions). Your continued use of the Service, including the Software will be deemed to be your acceptance of this Agreement, as modified.
14.10 Conflict. In case of conflict between the terms of these Terms and any Order Form, the terms of the applicable Order Form will prevail with respect to the subject matter thereof.
14.11 Entire Agreement. This Agreement constitutes the complete agreement and understanding between the parties and supersedes all prior and/or contemporaneous agreements and understandings between the parties with respect to the subject matter hereof.
15.1 “Applicable Laws” means: (a) any and all laws, rules, statutes, regulations, ordinances, or subordinate legislation in force from time to time to which a party or its affiliates is subject, including, without limitation the rules and regulations promulgated under Title V of the Gramm-Leach-Bliley Act of 1999, 15 U.S.C. 6801 to 6809 or any successor thereto; (b) the common law as applicable to the parties from time to time; (c) any and all court orders, judgments, or decrees that are binding on a party or its affiliates; and (d) any and all directives, policies, rules, or orders that are binding on a party or its affiliates and that is made or given by a regulator, or other government or government agency, of, in the case of items (a) through (d) above, any country, or other national, federal, commonwealth, state, provincial, or local jurisdiction.
15.2 “Applicable Processing Law” means all Applicable Laws pertaining to privacy, data Processing, data protection, data security, encryption, and confidentiality.
15.3 “Client Data” means, collectively, any and all information and/or data entered into the Service, the Software or any Work Product by or you, your Permitted Users or your systems and any and all information and/or data received by you, your Permitted Users or your systems from the Service or Software corresponding to or in response to such entered information or data.
15.4 “Documentation” means Provider’s user manuals, handbooks, and installation guides relating to the Service and/or Software that Provider provides or makes available to you which describe the functionality, components, features or requirements of the Service and/or Software, including any aspect of the installation, configuration, integration, operation, or use of the Software.
15.5 "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
15.6 “Maintenance Release” means updates, upgrades, releases or other adaptation or modification of the Software, including any updated documentation, that we may provide to you, as licensee of the Software, from time to time during the applicable term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software, but does not include any New Product.
15.7 “New Product” means any new product or new version of the Software that Licensor may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Licensor's designation of a new version number), and which Licensor may make available to Licensee at an additional cost under a separate written agreement.
15.8 “Personal Information” means any and all personal or personally identifiable information and/or records of or regarding your or your affiliates' officers, directors, employees, investors, customers and prospective customers.
15.9 “Process” means to obtain, have access to, organize, copy, alter, use, disclose, store, erase, destroy or any other form of processing.
15.10 “Software” means the executable, object code version of the On-Premise DecisionVision in the version and release number set forth in the applicable Order Form, and any and all Maintenance Releases provided to you pursuant to the Agreement.