terms of service.
This Enterprise Terms of Service and the Purchase Order (collectively “Agreement”) is between Chattr, Inc. a Delaware Corporation (“Provider”) and the customer executing the Purchase Order (“Customer”), and controls and governs Customer’s access and use of the Services identified in the Purchase Order (“Services”).
1. Access and Use of the Services.
- 1.1. License. Subject to and conditioned on Customer’s payment of the Fees identified in the Purchase Order, and compliance with this Agreement, Provider grants Customer a non-exclusive, non-transferable right to access and use the Services and the Documentation (consisting of Provider’s user manuals, handbooks and guides relating to the Services furnished by Provider to Customer either electronically on in hard copy) during the Term identified in the Purchase Order, solely for use by Customer’s Authorized Users (meaning Customer’s employees), in accordance with the terms if this Agreement. Such use is limited to Customer’s and its Authorized User’s internal use only. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services (“Credentials”). Customer and Authorized Users shall keep the Credentials confidential and not disclose them to any third-party. The total number of Authorized Users will not exceed the number set forth in the Purchase Order, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder.
- 1.2. Use Restrictions. Customer and Authorized Users shall not use the Services for any purposes beyond the scope of the access and use granted in this Agreement. Customer and Authorized Users shall not: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) use the Credentials of another Authorized User to access or use the Services; (vi) input , upload, transmit or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit or activate any virus, worm, malware or other malicious or harmful computer code; (vii) use the Services in any way that interferes with other subscribers use of the Services; (viii) download or copy any databases provided through the Services; or (viii) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or violates any applicable law.
- 1.3. Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
- 1.4. Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) Provider reasonably determines that (a) there is a threat or attack on any of the Provider IP or the Services; (b) Customer’s or any Authorized User’s use of the Provider IP or the Services disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (c) Customer, or any Authorized User, is using the Provider IP or Services for fraudulent or illegal activities; (d) Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services due to Customer’s or Authorized User’s impermissible use of the third-party services; or (iii) in accordance with Section 5.1(iii) (any such suspension described in subclause (i), (ii), or (iii), is a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
- 1.5. Aggregated Statistics and Data. Notwithstanding anything to the contrary in this Agreement, Provider may monitor Customer’s use of the Services and collect and compile Aggregated Statistics and Data (meaning data and information provided by Customer or related to Customer’s use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services and the output or results of Customer’s use of the Services). Aggregated Statistics and Data provided by Provider’s current and former customers may be used to enhance the predictive capabilities of the software offered through the Services. As between Provider and Customer, all right, title, and interest in Aggregated Statistics and Data, including all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data (meaning information, data and other content this is initially submitted, uploaded or otherwise transmitted by or on behalf of Customer or an Authorized User to Provider, but excludes Aggregated Statistics and Data) inputted, uploaded, or processed through the Services. Customer agrees that Aggregated Statistics & Data is not Customer’s confidential information.
2. Customer Responsibilities.
- Customer is responsible for all acts and omissions of Authorized Users that would constitute a breach of this Agreement. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions. If Customer becomes aware of any actual or threatened activity prohibited by this Agreement, you will immediately notify Provider and take all reasonable and lawful measures within your control to stop the activity or threatened activity and to mitigate its effects.
- You grant us the right to add your name and company logo to our customer list and website.
- Provider may from time to time make Third-Party Products (meaning software and databases that are not proprietary to Provider) available to Customer. For purposes of this Agreement, such Third-Party Products may be subject to their own terms and conditions as identified in the Purchase Order, and Customer shall be bound by such terms and conditions. To the extent that the Third-Party Products identified in Purchase Order do not identify any terms or conditions, then the terms and conditions of Section 1 of this Agreement shall control the scope and use of such Third-Party Products. Since Provider is not the owner or developer of the Third-Party Products, Provider disclaims all warranties that may be associated with such products, including all implied warranties.
4. Service Levels and Support
- 4.1. Service Levels. Subject to the terms and conditions of this Agreement, Provider shall use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week with a 99.8% uptime per month (“Uptime”), excluding schedule maintenance. Scheduled maintenance shall occur between 9 p.m.-6 a.m. Eastern Time Monday through Friday, or anytime on Saturday, Sunday, or a U.S. federally recognized holiday. Provider shall not be responsible for any decrease in performance or connectivity issues attributable to Customer’s or Authorized User’s Internet connectivity or hardware which shall not qualify as a decrease in Uptime.
- 4.2. Customer Service. The access rights granted hereunder entitles Customer to Provider’s standard customer service consisting of answering Customer’s questions and providing guidance or other technical assistance in accordance with the services levels outlined in the Purchase Order. Enhanced support via telephone regarding the operation of the Service (“Customer Service”) is provided Monday through Friday 9 a.m. to 5 p.m. Eastern Time excluding US federal recognized holidays (“Service Hours”). Provider does not promise or guarantee any specific response time to Customer Service inquiries, however Provider will use its reasonable efforts to respond to Customer’s Customer Service calls within 24 hours of receipt of the call during the Service Hours. Provider may change the Service Hours in its sole discretion. Provider may offer additional Customer Service (“Enhanced Customer Service”) for an additional fee at Provider’s then-current rates.
5. Fees and Payment.
- 5.1. Fees. Customer shall pay Provider the fees (“Fees”) as set forth in the Purchase Order without offset or deduction prior to services being rendered. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Purchase Order. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 1.5% per month, calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, Provider may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full. Provider may permit Customer to pay Fees through automatic electronic withdraw or credit card which may be subject to additional terms agreed to by the parties.
- 5.2. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
6. Confidential Information.
- 6.1. Confidentiality. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party; or (ii) to attach a copy of this Agreement to a legal claim to establish a Party’s rights under this Agreement. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection. . Aggregated Statistics & Data is not Customer’s confidential information.
- 6.2. No Sensitive Information. Customer shall not to use the Services to collect, manage or process credit or debit card numbers; personal financial account information; social security numbers; passport numbers; driver’s license numbers or similar identifiers; racial or ethnic origin; physical or mental health condition or information; or other employment, financial or health information, including any information subject to regulations, laws or industry standards designed to protect data privacy and security, such as the health insurance portability and accountability act and the payment card industry data security standards. We will not have any liability that may result from your use of the Services to collect or manage sensitive information.
- 6.3. Return of Customer Confidential Information. Excluding Aggregate Statistics and Data, Provider will destroy all document and tangible materials containing Customer’s Confidential Information within sixty (60) days of the termination or expiration of this Agreement.
- 6.4. Data Back-Up. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. Provider has no obligation or liability for any loss, alteration, destruction, damage, corruption or recovery of Customer Data.
7. Intellectual Property Ownership.
- 7.1. Provider IP. Excluding Third-Party Products, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Services, Documentation, Aggregated Statistics and Data and any inventions, devices, software, mask works, and technologies related thereto, including all derivatives, modifications, and revisions thereof regardless of when the same was first conceived (“Provider IP”).
- 7.2. Customer Data. Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Customer.
- 7.3. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP or the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in the Feedback, and Provider is free to use the Feedback for any purpose whatsoever, without any attribution or compensation to any party.
8. Limited Warranty and Warranty Disclaimer.
- 8.1. Provider warrants that the Services will conform in all material respects to the Purchase Order and Documentation when accessed and used in accordance with the Documentation and this Agreement and that the Services and Documentation do not infringe any third-party intellectual property rights when used pursuant to the terms of this Agreement. Provider does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified otherwise in this Agreement. THE FOREGOING WARRANTY DOES NOT APPLY, AND PROVIDER STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
- 8.2. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8.1, THE SERVICES ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8.1. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
- 9.1. Provider Indemnification. Provider shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services or Documentation, or any use of the Services or Documentation in accordance with this Agreement, infringes or misappropriates a third party’s US intellectual property rights, provided that Customer promptly notifies Provider in writing of the claim, cooperates with Provider in the investigation and defense of such claim, and grants Provider the sole authority to control the defense and settlement of such claim, but if the settlement of such claim requires any admissions that would adversely affect Customer, then Provider shall seek Customer’s prior consent, which shall not be unreasonably withheld, prior to agreeing to a settlement. If a claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (a) modify or replace the Services, or component or part thereof, to make it non-infringing, or (b) obtain the right for Customer to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section will not apply to the extent that the alleged infringement arises from: (i) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider; (ii) modifications to the Services not made by Provider; (iii) Customer Data; or (iv) Third-Party Products.
- 9.2. Customer Indemnification. With respect to any Proceeding brought by someone other than Customer against a Provider Indemnitee that arises out of the Customer’s purchase or use of Provider’s services (a “Nonparty Claim”), Customer shall indemnify the Provider Indemnitees against all indemnifiable Losses arising out of that Proceeding, except to the extent that the Provider Indemnitee negligently or intentionally caused those Indemnifiable Losses. To be entitled to indemnification under this paragraph, a Provider Indemnitee subject to any Nonparty Claim must promptly (and in any event no later than ten days after the Provider Indemnitee first knew of that Nonparty Claim) notify Customer of that Nonparty Claim and deliver to Customer a copy of all legal pleadings with respect to the Nonparty Claim. If the Provider Indemnitee fails to timely notify Customer of a Nonparty Claim, Customer will be relieved of its indemnification obligations with respect to that Nonparty Claim to the extent that Customer was prejudiced by that failure and Customer will not be required to reimburse the Provider Indemnitee for any Litigation Expenses the Provider Indemnitee incurred during the period in which the Provider Indemnitee failed to notify Customer. To assume the defense of a Nonparty Claim, Customer must notify the Provider Indemnitee that it is doing so. Promptly thereafter, Customer shall retain to represent it in the Nonparty Claim independent legal counsel that is reasonably acceptable to the Provider Indemnitee.
- 9.2.1. Right to Participate in Nonparty Claim. A Provider Indemnitee is entitled to participate in the defense of a Nonparty Claim. A Provider Indemnitee may defend a Nonparty Claim with counsel of its own choosing and without Customer participating if (1) Customer notifies the Provider Indemnitee that it does not wish to defend the Nonparty Claim, (2) by midnight at the end of the tenth day after the Provider Indemnitee notifies Customer of the Nonparty Claim Customer fails to notify the Provider Indemnitee that it wishes to defend the Nonparty Claim, or (3) representation of Customer and the Provider Indemnitee by the same counsel would, in the opinion of that counsel, constitute a conflict of interest.
- 9.2.2. Litigation Expenses. Customer shall pay any Litigation Expenses that a Provider Indemnitee incurs in connection with defense of the Nonparty Claim before Customer assumes the defense of that Nonparty Claim, except with respect to any period during which the Provider Indemnitee fails to timely notify Customer of that Nonparty Claim. Customer will not be liable for any Litigation Expenses that a Provider Indemnitee incurs in connection with defense of a Nonparty Claim after Customer assumes the defense of that Nonparty Claim, other than Litigation Expenses that the Provider Indemnitee incurs in employing counsel in accordance with Section 9.2.1, which Litigation Expenses Customer shall pay promptly as they are incurred. After Customer assumes the defense of a Nonparty Claim, Customer may contest, pay, or settle the Nonparty Claim without the consent of the Provider Indemnitee only if that settlement (1) does not entail any admission on the part of the Provider Indemnitee that it violated any law or infringed the rights of any Person, (2) has no effect on any other claim against the Provider Indemnitee, (3) provides as the claimant’s sole relief monetary damages that are paid in full by Customer, and (4) requires that the claimant release the Provider Indemnitee from all liability alleged in the Nonparty Claim.
- 9.2.3. Definitions. In this paragraph, the following definitions apply:
“Provider Indemnitee” means Chattr, Inc. any Affiliate of Chattr, Inc. each Representative of any of the foregoing, and each of the heirs, executors, successors, and assignees of any of the foregoing.
“Indemnifiable Loss” means the aggregate of Losses and Litigation Expenses.
“Litigation Expense” means any [reasonable] out-of-pocket expense incurred in defending a Proceeding or in any related investigation or negotiation, including court filing fees, court costs, arbitration fees, witness fees, and attorneys’ and other professionals’ fees and disbursements.
“Loss” means any amount awarded in, or paid in settlement of, any Proceeding, including any interest but excluding any Litigation Expenses.
“Proceeding” means any judicial, administrative, or arbitration action, suit, claim, investigation, or proceeding.
“Representative” means, with respect to an entity, any of that entity’s directors, officers, employees, agents, consultants, advisors, and other representatives.
- 9.3. Sole Remedy. THIS SECTION SETS FORTH THE PARTIES’ SOLE REMEDIES AND LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Limitations of Liability.
- EXCLUDING EITHER PARTY’S WILLFUL BREACH OF SECTION 6.1, AND CUSTOMER’S WILLFUL BREACH OF SECTION 1.2 OR FAILURE TO PAY ANY FEES DUE TO PROVIDER PURSUANT TO THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCLUDING EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9 OR WILLFUL BREACH OF SECTION 6.1, AND CUSTOMER’S BREACH OF SECTION 1, WILLFUL BREACH OF SECTION 1.2 OR FAILURE TO PAY ANY FEES DUE TO PROVIDER PURSUANT TO THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Term and Termination.
- 11.1. Term. The Initial Term of this Agreement begins on the Effective Date and will continue in effect for the number of years from such date as identified on the Purchase Order (the “Initial Term”). This Agreement may automatically renew for additional periods if identified in the Purchase Order (“Renewal Term” and together with Initial Term, the “Term”) unless earlier terminated pursuant to this Agreement or either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term.
- 11.2. Termination.
- 11.2.1. Termination for Cause. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured for thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
- 11.2.2. Immediate Termination. Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (a) fails to pay any amount when due hereunder, and such failure continues for more than fifteen (15) days after Provider’s delivery of written notice thereof; or (b) breaches any of its obligations under Section 1.2. Customer may terminate this Agreement, effective on written notice to Provider if Provider breaches its obligation of confidentiality under Section 6.1. Either Party may immediately terminate this Agreement effective upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
- 11.3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Services. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund of such Fee. If Provider terminates this Agreement under Sections 11.2.1 or 11.2.2, then all Fees are accelerated and payable immediately, including Fees for each month remaining in the Term.
- 11.4. Survival. This Section and Sections 1.5, 5, 6.1, 6.3, 7.1, 10, 11.3 and 12 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
12. Data Retention
- 12.1. Data Retention. Provider shall retain data submitted by applicants for a period of eighteen to twenty-four months after the applicant submits the data. After that period elapses, the data will be destroyed. If Customer wishes to retain applicant data for a longer period, Customer must provide written notice to Provider specifying the desired period of retention, the types of data it wishes for Provider to retain, and the proposed arrangements for the disposition of that data at the end of the desired retention period. Provider may require Customer to either pay a service fee for the additional retention period or arrange to take custody of that data from Provider after a specified number of months have elapsed.
- 13.1. Accommodating Applicants. At all times, Customer shall retain responsibility for providing any necessary accommodations to applicants under the Americans with Disabilities Act or any other applicable federal, state, county, or municipal laws or ordinances. To the extent that Customer requires reasonable assistance from Provider to provide such accommodation, Customer shall notify Provider as soon as reasonably practical and shall provide any information needed by Provider to assist in providing the desired accommodation. Provider shall not be under any obligation to make changes in its software or operating procedures that create an undue burden on Provider.
- 14.1. Entire Agreement. This Agreement, the Purchase Order constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral. In the event of any inconsistency between the statements made in the body of this Agreement, and the Purchase Order the following order of precedence governs: (i) first, this Agreement, and (ii) second, the Purchase Order.
- 14.2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the Purchase Order (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
- 14.3. Force Majeure. In no event shall Provider be liable to Customer or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
- 14.4. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
- 14.5. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- 14.6. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal or state courts located in Hillsborough County, Florida, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury for any claims arising from or relating to this Agreement.
- 14.7. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. Provider may assign this Agreement to an affiliate or in connection with any sale of assets, sale of business, change of control, merger, consolidation or reorganization. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
- 14.8. Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Customer shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US
- 14.9. Contract for Services. This Agreement is a contract for the provision of services and not a contract for the sale of goods. The provisions of the Uniform Commercial Code (UCC), the Uniform Computer Information Transaction Act (UCITA), or any substantially similar legislation as may be enacted, shall not apply to this Agreement. If the Customer is located outside of the territory of the United States, the Parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not govern this Agreement or the rights and obligations of the parties under this Agreement.
- 14.10. US Government Rights. The Services and Documentation are a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
- 14.11. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6.1 or, in the case of Customer, Section 1.2, 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.
- 14.12. Customer Trademarks. Upon receipt of Customer’s prior consent, Customer grants Provider the non-exclusive limited right and license to use Customer’s name and trademarks to identify Customer as Provider’s current or previous customer.
- 14.13. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
- 14.14. Execution of Purchase Order. This Agreement is incorporated into the Purchase Order and by signing the Purchase Order you acknowledge that you have reviewed the terms of this Agreement and agree to be bound by the same.