- Definitions. Except as otherwise defined in the Agreement the capitalized words or phrases below will have the following meanings:
“Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Site, Services, or Provider Materials.
“Affiliate” means the parent, subsidiary, or other entity that is under the common control of a third-party, of a corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Authorized User” means you or the person designated by you who is authorized to use the Services and has agreed to the Terms.
“Confidential Information” means information as defined in Section 10.
“Customer” means you and/or the entity that you represent.
“Customer Data” means, other than Resultant Data, information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Customer or an Authorized User by or through the Services, or that incorporates or is derived from the Processing of such information, data or content by or through the Services.
“Customer Systems” mean the Customer’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services.
“Disclosing Party” means the Provider or Customer as defined in Section 10.
“Documentation” means any manuals, instructions or other documents or materials that the Provider provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Services or Provider Materials, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby, or (b) prevent Customer or any Authorized User from accessing or using the Services or Provider Systems as intended by this Agreement. Harmful Code does not include any Provider Disabling Device.
“Intellectual Property Rights” mean 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.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
“Losses” mean any and all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Permitted Use” means any use of the Services by an Authorized User for the benefit of Customer solely in or for Customer’s internal, lawful, business operations.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Personal Information” means any information that, whether individually or in combination with other similar information, does or can identify a specific individual, or by or from which a specific individual may be identified, contacted or located. Personal Information includes all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act, and “Personal Information” as defined under the Children’s Online Privacy Protection Act of 1998, and all other rules and regulations of similar effect in the jurisdiction where you reside.
“Process” (or “Processing” or “Processed”) means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose or otherwise provide or make available, or block, erase or destroy.
“Provider Disabling Device” means any software, hardware or other technology, device or means used by Provider or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Provider or its designee.
“Provider Materials” mean the Service Software, Specifications, Documentation and Provider Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any technical or functional descriptions, requirements, plans or reports, that are provided or used by Provider or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Provider Systems. For the avoidance of doubt, Provider Materials includes Reports and Resultant Data but does not include Customer Data.
“Provider Personnel” means all individuals involved in the performance of Services as employees, agents or independent contractors of Provider or any Subcontractor.
“Provider Systems” mean the information technology infrastructure used by or on behalf of Provider in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Provider or through the use of third-party services.
“Receiving Party” means either the Provider or Customer as defined in Section 10.
“Reports” mean the information deliverables provided to Customer pursuant to the Services, including but not limited any business valuation information requested by Customer.
“Representatives” mean, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, employees, consultants, legal advisors, and agents.
“Resultant Data” means information, data, know-how, and other content that is derived by or through the Services from Processing Customer Data and is sufficiently different and/or anonymized during collection or Processing from Customer Data that such Customer Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
“Services” mean offerings from the Provider as defined in Section 2.
“Service Software” means the Provider software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements and modifications of the foregoing, that Provider provides remote access to and use of as part of the Services.
“Term” means the period defined in Section 11.
“Territory” means the United States.
“Third-Party Materials” mean materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Services that are not proprietary to Provider.
- Services. Subject to and conditioned on Customer’s and its Authorized Users’ compliance with the Terms and conditions of this Agreement, during the Term, Provider shall use commercially reasonable efforts to provide the Services, including providing Reports and access to our information databases, according to the terms and conditions of the Agreement, including to operate and maintain the Service Software for remote electronic access and use by Customer and its Authorized Users continuously, except for: (a) Scheduled downtime; (b) Service downtime or degradation due to a Force Majeure Event; (c) any other circumstances beyond Provider’s reasonable control, including Customer’s or any Authorized Users’ use of Third-Party Materials, misuse of the Services, or use of the Services other than in compliance with the express Terms of the Agreement; and (d) any suspension or termination of Customer’s or any Authorized Users’ access to or use of the Services.
- Service and Systems. Except as otherwise expressly provided in the Agreement:
- Provider has, and will retain, sole control over the operation, provision, maintenance and management of the Site, Services and Provider Materials, including the: (i) Provider Systems; (ii) selection, deployment, modification and replacement of the Service Software; and (iii) performance of service maintenance, upgrades, corrections and repairs; and
- Customer has and will retain sole control over the operation, maintenance and management of, and all access to and use of, Customer Systems, and sole responsibility for all access to and use of the Services and Provider Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions or materials provided by any of them to the Services or Provider; (ii) results obtained from any use of the Services or Provider Materials; and (iii) conclusions, decisions or actions based on such use.
Except as otherwise indicated by notice, all Services, including all Processing of Customer Data by or on behalf of Provider shall be provided solely from within, and on computers, systems, networks and other infrastructure located in the United States.
- Changes. Provider reserves the right, in its sole discretion, to make any changes to the Site, Services and Provider Materials that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of Provider’s services to its customers, (ii) the competitive strength of or market for Provider’s services or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law.
- Suspension or Termination of Services. Provider may, directly or indirectly, and by use of a Provider Disabling Device or any other lawful means, suspend, terminate or otherwise deny access to a Customer, an Authorized User, or any other Person to use all or part of the Site, Services or Provider Materials, without incurring any resulting obligation or liability, if: (a) Provider receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Provider to do so; or (b) Provider believes, in its sole, reasonable discretion, that: (i) the Customer, Authorized User, or Person has failed to comply with, any material terms of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement; (ii) the Customer, Authorized User, or Person is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement is terminated. Nothing in this section shall limit any of Provider’s other rights or remedies, whether at law, in equity or under the Agreement.
- Affiliates. The rights, duties and/or obligations of Reliant Business Valuation under this Agreement may be exercised and/or performed by Reliant Business Valuation and/or any of Reliant Business Valuation’s Affiliates, or any of their subcontractors and/or agents. Reliant Business Valuation acknowledges and agrees that it shall be solely responsible for the acts or omissions of Reliant Business Valuation’s Affiliates, and any subcontractor or agent of Reliant Business Valuation or any of Reliant Business Valuation’s Affiliates, related to the subject matter hereof. You agree that any claim or action arising out of or related to any act or omission of any of Reliant Business Valuation or Reliant Business Valuation’s Affiliates, or any of their respective subcontractors or agents, related to the subject matter hereof, shall only be brought against Reliant Business Valuation, and not against any of Reliant Business Valuation’s Affiliates, or any subcontractor or agent of Reliant Business Valuation or any of Reliant Business Valuation’s Affiliates.
- Authorization and Customer Restrictions.
- Authorization. Subject to and conditioned on Customer’s payment of applicable Fees (defined below), and compliance and performance in accordance with all other Terms and conditions of the Agreement, Provider hereby authorizes Customer to access and use the Site, Services, and such Provider Materials as Provider may supply or make available to Customer solely for the Permitted Use by and through Authorized Users solely in the Territory in accordance with the Terms. This authorization is non-exclusive and non-transferable.
- Registered Account Information. In order to access or use certain features of the Site, Services, or Provider Materials, you may be required to register to create an account as a registered user.
To complete the registration process, you must provide us with a valid email address and submit Access Credentials, and certain items of Personal Information on a case-by-case basis.
You must be at least 18 years of age to be a registered user of our Site or Services. If you are not at least 18 years old, your account will be void. By completing the registration process to create an account, you represent and warrant that you are at least 18 years old, and that any required registration information you provide is true, accurate, complete, and current.
We reserve the right to suspend or terminate your account for any reason within our sole discretion, including but not limited to, providing us with false, inaccurate, incomplete, or outdated registration information. You are responsible for updating your account’s registration information to keep it true, accurate, complete, and current.
- Reservation of Rights. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Site, Services, Provider Materials or Third-Party Materials, whether expressly, by implication, estoppel or otherwise, except as permitted under Section 9 (“Intellectual Property Rights”). All right, title and interest in and to the Site, Services, the Provider Materials and the Third-Party Materials are and will remain with Provider and the respective rights holders in the Third-Party Materials.
- Limitations and Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Site, Services or Provider Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, any applicable third-party license agreement.
Except as otherwise permitted under the Terms, Customer agrees that Customer shall not:
- copy, modify or create derivative works or improvements of the Site, Services or Provider Materials;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Site, Services or Provider Materials to any 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;
- reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Site, Services or Provider Materials, in whole or in part;
- bypass or breach, or attempt to bypass or breach, any security device or protection used by the Site, Services or Provider Materials, or access or use the Site, Services or Provider Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
- input, upload, transmit or otherwise provide to or through the Site, Services or Provider Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
- damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Site, Services, Provider Systems or Provider’s provision of services to any third-party, in whole or in part;
- 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 any part of the Site, Services or Provider Materials, including any copy thereof;
- access or use the Site, Services or Provider Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third-party (including by any unauthorized access to, misappropriation, use, alteration, destruction or disclosure of the data of any other Provider customer), or that violates any applicable Law;
- access or use the Site, Services or Provider Materials for purposes of competitive analysis of the Services or Provider Materials, the development, provision or use of a competing software service or product or any other purpose that is to the Provider’s detriment or commercial disadvantage; or
- otherwise access or use the Site, Services or Provider Materials beyond the scope of our authorization.
- Customer Obligations
- Customer Systems and Cooperation; Accounts. Customer shall be responsible for the set-up, maintenance and operation in good repair of all Customer Systems on or through which the Services are accessed or used.
Customer shall be solely responsible for the protection and security of Customer’s Access Credentials. Customer may not disclose any Access Credentials to third-parties.
Each Person who is an Authorized User of Customer may be required to create a separate account and Access Credentials for that account, and shall be responsible for maintaining the protection and security of that account’s Access Credentials.
Customer is solely responsible for Customer’s account(s) and all activity or actions that take place in connection with Customer’s account(s), regardless of whether Customer has authorized them.
If Customer knows or suspects any unauthorized use of a registered account, Customer must immediately report the incident to Provider via e-mail at: [email protected].
- Effect of Customer Failure or Delay. Provider is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (“Customer Failure”).
- Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.3, Customer agrees that it shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Site, Services and Provider Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Provider of any such actual or threatened activity.
- Non-Solicitation. Customer acknowledges that developing and maintaining a stable workforce is essential to Provider’s business. For that reason, for so long as Customer uses Provider’s Services, and for one (1) year thereafter, Customer shall not, and shall not assist any other Person to, directly or indirectly recruit or solicit, other than by general advertisement any Person, any employee or contractor of Provider with whom Customer had contact with in connection with the Services provided, to terminate his/her relationship with Provider or provide Services which form the basis of his/her relationship with Provider.
- Service Levels and Credits.
- Service Levels; Credits. Availability of the Site, Services, or Provider Materials, pursuant to service levels, and any and all credits available to Customer for any service level failure, will be subject to further terms and conditions which Customer must agree to at the time any Services or Provider Materials are engaged or requested by Customer. Except as otherwise agreed to in writing at such time, Provider offers no service levels or Customer credits in connection with Provider’s performance.
- Scheduled Downtime. Provider will use commercially reasonable efforts to schedule downtime for routine maintenance of the Site or Services during non-regular business hours and provide Customer with reasonable prior notice of all scheduled unavailability of the Site, Services, or Provider Materials (”Scheduled Downtime”).
- Data Backup. 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.
- Customer Control and Responsibility. Customer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Customer or through the use of third-party services (“Customer Systems”); (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Provider Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
- Access and Security. Customer shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and (b) control the content and use of Customer Data, including the uploading of Customer Data for Processing by the Services.
- Fees & Payment Terms.
- Fees. Registration for the Services, and/or access to certain sections of the Site is free. However, Provider may charge fees, commissions, and/or require Customer to agree to a subscription or recurring fee arrangement (“Fees”) for use or access to certain sections of the Site, Services, or Provider Materials, such as to view or receive Reports. Customer will be presented with the terms and conditions of any required Fees, and must agree to accept and pay for such Fees, before Provider will provide access to such sections of the Site, Services, or Provider Materials, or deliver any Reports to Customer.
- No Deductions or Setoffs. All amounts payable to Provider under the Terms shall be paid by Customer to Provider in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason.
- Intellectual Property Rights.
- Services and Provider Materials. All right, title and interest in and to the Site, Services and Provider Materials, including all Intellectual Property Rights therein, are and will remain with Provider and the respective rights holders in the Third-Party Materials. Except as expressly provided for under the Terms, Customer has no right, license or authorization with respect to any of the Site, Services or Provider Materials (including Third-Party Materials). All other rights in and to the Sites, Services and Provider Materials (including Third-Party Materials) are expressly reserved by Provider and the respective third-party licensors
- Reports. Notwithstanding the foregoing, upon delivery of any Reports to Customer, Provider grants a non-exclusive, non-transferable, non-sublicensable, right and license to access, copy, exploit or otherwise use the information and/or data in such Reports for Customer’s personal, internal business purposes. The foregoing right and license shall only be restricted or revocable to the extent that Customer’s use of such Reports or other conduct violates the provisions of the Terms, including but not limited to the restrictions described in Section 3.3.
- Customer Data. Customer is and will remain the sole and exclusive owner of all right, title and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted to Provider under this Agreement.
By requesting access or use to the Sites, Services, or Provider Materials, Customer thereby irrevocably grants all such rights and permissions in or relating to Customer Data: (a) to Provider, its Subcontractors and the Provider Personnel as are necessary or useful to perform any Services or deliver any Provider Material; and (b) to Provider as are necessary or useful to enforce the Agreement and exercise its rights and perform its obligations hereunder.
Further, Customer hereby unconditionally and irrevocably grants to Provider an assignment of all right, title and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
- Confidential Information. In connection with this Agreement, each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 10.2 below, “Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, pricing, and information (or that of the Disclosing Party’s customers) with respect to which the Disclosing Party has contractual or other confidentiality obligations, regardless of whether or not marked, designated or otherwise identified as “confidential”.
- Exclusions. Confidential Information does not include information that[ the Receiving Party can demonstrate by written or other documentary records]: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with the Terms; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
For the avoidance of doubt, Resultant Data received by Provider will not be considered Customer’s Confidential Information.
- Permitted Use & Obligations. The Receiving Party shall: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) only disclose or permit access to Confidential Information to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s performance under the Agreement; (ii) have been informed of the confidential nature of the Confidential Information; and (iii) are bound by confidentiality and restricted use obligations at least as protective of those in the terms; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its own Confidential Information, but in any event no less than a reasonable degree of care; and (d) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this section.
Upon termination of the parties’ relationship for any reason, the Receiving Party shall, at the Disclosing Party’s election, either return or destroy any Confidential Information then in its possession, and if requested by either party, provide written confirmation certifying the return or destruction.
- Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights to confidentiality; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, to protect the confidentiality of such information. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this section, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
- Term and Termination.
- Effective Date. The Term of the Agreement will take effect as soon as you access or use the Site, Services, or Provider Materials, and will remain effective until terminated by Provider or Customer.
- Termination. In addition to any other express termination right set forth elsewhere in the Terms, you may terminate your account at any time upon written notice to us. We reserve the right to terminate your account in the event you breach the Terms, including but not limited to breaches relating to timely payment of Fees, the limitations and restrictions of use in Section 3.3, or Sections 9-10 relating to intellectual property or confidentiality.
Except as expressly provided in the Terms, termination of your account will automatically terminate any and all rights, licenses, consents and authorizations granted by either party to the other hereunder.
- Surviving Terms. The parties agree that any provisions of the Terms, that by their nature should survive beyond their Term, shall remain in force after any termination or expiration of the Agreement, including but not limited to the following Sections: 3.2, 3.3, 4.1, 4.4, 6, 7.3, 8-10, 11.3, 11.4, and 12-17.
- Representations and Warranties.
- Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under this Agreement; (c) the acceptance of this Agreement by its representative has been duly authorized by all necessary corporate or organizational action of such party; and (d) once accepted, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
- Customer Representations and Warranties. Customer represents and warrants to Provider that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by Provider and Processed in accordance with this Agreement, that doing so does not, and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third-party or violate any applicable Law. Specifically, Customer represents and warrants at all times that it is and will remain in compliance with the provisions of the Gramm-Leach-Bliley Act regarding any Customer Data or any other Personal Information that is collected or held by Customer and is, or may be, used in connection with the Site, Services, or Provider Materials.
- Provider Representations and Warranties. Provider represents and warrants to Customer that Provider is capable of, and will perform all Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under the Agreement.
- Disclaimer & Acknowledgment. Notwithstanding anything else in the Agreement, Customer acknowledges that the information provided through the Site, Services, or Provider Materials (including Reports) relies on Customer Data, publicly available information, and generally accepted industry rules, standards, and practices which may be incomplete or inaccurate, and over which Provider has no reasonable control and cannot therefore guarantee or warranty.
Customer further acknowledges and agrees that any information provided on or obtained through the Site, Services, or any Provider Materials are estimates and data to be used for reference use purposes only, and does not constitute financial, legal, or other professional advice or recommendation. Using the Site, Services, or any Provider Materials is not a substitute for professional advice, and should not be used as a replacement for complete and comprehensive professional services concerning the subject matter of the Site, Services, or Provider Materials.
Except as otherwise agreed to in writing, Provider does not represent or endorse the accuracy, completeness, or reliability of any information provided through the Site, Services, or Provider Materials, and Customer acknowledges that Provider may not audit or screen any such information for accuracy, completeness or reliability.
- LIMITED WARRANTY. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THE TERMS, THE SITE, SERVICES AND PROVIDER MATERIALS ARE PROVIDED “AS-IS” AND PROVIDER HEREBY DISCLAIMS, TO THE FULLEST EXTENT OF THE LAW, ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE 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 AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT OR AGREED TO IN WRITING, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SITE, SERVICES OR PROVIDER MATERIALS WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY CUSTOMER SYSTEMS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ARE SUBJECT TO THIRD-PARTY REPRESENTATIONS OR WARRANTIES OVER THE SAME.
- Provider Indemnification.
- Provider shall indemnify Customer from and against damages, judgments, settlements, interest, penalties, and fines incurred by Customer arising out of or relating to any claim, suit, action or proceeding (each, an “Action”) by a third-party (other than Customer’s Affiliates) alleging that Customer’s or an Authorized User’s use of the Site, Services, or Provider Materials (excluding Customer Data and Third-Party Materials) in compliance with the Terms infringes a U.S. Intellectual Property Right.
Provider will have no indemnification obligation to Customer for any claim, suit, action or proceeding for any damages, judgements, settlements, interest, penalties and fines arising out of or relating to any: (a) access to or use of the Site, Services or Provider Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Provider; (b) modification of the Site, Services or Provider Materials other than: (i) by or on behalf of Provider; or (ii) with Provider’s written approval; (c) failure to timely implement any modifications, upgrades, replacements or enhancements made available to Customer by or on behalf of Provider; (d) Customer Data, including any Processing of Customer Data as requested by Customer; (e) breach (or alleged breach) by Customer of any terms and conditions of this Agreement; or (f) any acts or omissions of willful or knowing misconduct, recklessness, or gross negligence by Customer.
- If the Site, Services or Provider Materials are, or in Provider’s opinion are likely to be, claimed to infringe, misappropriate or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Site, Services or Provider Materials is enjoined or threatened to be enjoined, Provider reserves the right to, at its option and sole cost and expense: (a) obtain the right for Customer to continue to use the Site, Services and Provider Materials according to the Terms; (b) modify or replace the Site, Services or Provider Materials, in whole or in part, to make the Site, Services or Provider Materials non-infringing, while providing equivalent features and functionality; or (c) by written notice to Customer, terminate Customer’s account and require Customer to immediately cease any use of the Site, Services and Provider Materials, subject to Customer’s right to a refund of all Fees paid in the preceding six (6) month period prior to the effective date of termination.
- Threshold and Ceiling for Indemnity Claims. No indemnification payment obligation will arise unless and until the aggregate amount of damages, judgments, settlements, interest, penalties, and fines claimed by the indemnitee exceeds one-hundred thousand dollars ($100,000) (the “Claim Threshold”), however once the Claim Threshold is met, all damages, judgments, settlements, interest, penalties, and fines including the first one-hundred thousand dollars ($100,000) up to a maximum of five hundred thousand dollars ($500,000) (the “Claim Ceiling”) is subject to indemnification. Indemnitor has not indemnity obligation to indemnitee exceeding the Claim Ceiling.
- THIS SECTION 13.1 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED OR ALLEGED ACTIONS OR CLAIMS THAT THE SITE, SERVICES, OR PROVIDER MATERIALS INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.
- Customer Indemnification. Customer shall indemnify, defend and hold harmless Provider and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and assigns (each, a “Provider Indemnitee”) from and against any and all Losses incurred by such Provider Indemnitee in connection with any Action by a third-party (other than an Affiliate of a Provider Indemnitee) that arises out of or relates to: (a) Customer Data, including any Processing of Customer Data by or on behalf of Provider in accordance with this Agreement; (b) any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of Customer or any Authorized User, including Provider’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider; (c) Customer’s use or misuse of the Sites, Services, or Provider Materials; or (d) Customer’s breach or alleged breach of the Terms or other agreement with Provider.
Customer will have no indemnification obligation to the Provider/Indemnitee for any Action or Losses arising out of or relating to any acts or omissions of willful or knowing misconduct, recklessness, or gross negligence.
- Indemnification Procedure. Each party seeking indemnity (an “Indemnitee”) under this section shall provide prompt written notice of any Action, and shall cooperate and provide all reasonable materials, documents, and other information the indemnifying party (the “Indemnitor”) may request, at Indemnitor’s sole cost and expense.
The Indemnitor shall have sole control of the defense and investigation of such Action, including choice of counsel, and the right to settle or compromise the Action, provided that no such settlement or compromise may admit liability on behalf of, or otherwise bind the Indemnitee without Indemnitee’s prior written consent (such consent not to be unreasonably withheld or delayed).
The Indemnitee’s failure to fulfill any of the foregoing conditions shall only relieve the Indemnitor of its obligations under this section to the extent that the defense to an Action is materially prejudiced by such failure.
- Limitations of Liability.
- EXCLUSIONS. IN NO EVENT WILL PROVIDER OR ANY OF ITS LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE SITE, SERVICES OR PROVIDER MATERIALS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SITE, SERVICES, OR PROVIDER MATERIALS; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND REGARDLESS IF ANY REMEDY UNDER THE TERMS FAILS OF ITS ESSENTIAL PURPOSE.
- LIMIT. EXCEPT IN REGARDS TO INDEMNIFICATION LOSSES PAYABLE TO THIRD-PARTIES OR ACTS OF WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT WILL PROVIDER’S (AND ITS LICENSORS’, SERVICE PROVIDERS’ AND SUPPLIERS’) AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THE SUBJECT MATTER OF THE TERMS, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AMOUNTS PAID BY CUSTOMER TO PROVIDER FOR THE ACTS OR OMISSIONS GIVING RISE TO AN ACTION. THE FOREGOING LIMITATION APPLIES REGARDLESS IF ANY REMEDY UNDER THE TERMS FAILS OF ITS ESSENTIAL PURPOSE.
- NO USE. PROVIDER SHALL NOT BE LIABLE TO CUSTOMER FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH CUSTOMER’S INABILITY TO USE THE SITE, SERVICES, OR PROVIDER MATERIAL AS A RESULT OF SUSPENSION OR TERMINATION OF CUSTOMER’S ACCOUNT, OR FOR ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME, UNAVAILABILITY OR INOPERABILITY OF THE SERVICES FOR ANY FORCE MAJEURE EVENT OR FROM ANY CAUSE BEYOND OUR REASONABLE CONTROL.
- Force Majeure.In no event will Provider be liable or responsible to Customer, or be deemed to have defaulted under or breached its agreement with Customer, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control (each, a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
- Informal Resolution. Provider and Customer agree to first attempt to resolve any dispute, claim, or controversy arising out of, or relating to the Terms, including its breach, interpretation, or validity, or use of the Site, Services, or Provider Materials (each, a “Dispute”) by informal resolution.
- Binding Arbitration. If Provider and Customer are not able to resolve any Dispute informally, the parties agree that the Dispute will be settled by binding arbitration, except that each party reserves the right to seek injunctive or other equitable relief in any court of competent jurisdiction, without having to post bond therefor, in order to prevent the actual or threatened (a) disclosure of Confidential Information; or (b) infringement, misappropriation or violation of a party’s Intellectual Property Rights.
Customer further acknowledges and agrees that Customer and Provider waive the right to a trial by jury, or to participate as a plaintiff or class member in any purported class action or representative proceeding.
Further, unless both Provider and Customer otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Arbitration” section will be void. Except as provided in the preceding sentence, this “Arbitration” section will survive any termination of the Terms.
- Rules & Procedure. Arbitration shall be administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”), before a sole arbitrator mutually agreeable to the parties, in the State of New Jersey.
The arbitrator shall have the power to award all reasonable costs, attorneys’ fees, and other expenses incurred in the Dispute to the prevailing party, in addition to any other relief granted. All decisions and awards from arbitration shall be final and binding upon the parties, and may be entered into any court having jurisdiction over the parties.
All negotiations and communications made in the process of resolving or arbitrating a Dispute between the parties, including the results thereof, will be considered each party’s Confidential Information.
- General Terms.
- 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.
- Notices. Any notice to Customer related to the Terms may be provided by Provider to the email address provided when registering Customer’s account. Provider may also provide notice via notifications to the Site.
You may provide notice to Provider by emailing us at [email protected] from your registered Customer account email address, or by personal delivery, a nationally-recognized carrier (signature required), or certified or registered mail (return receipt requested) to:
1246 South River Rd, Ste 101
Cranbury, NJ 08512
Provider Email: [email protected]
All notices will be deemed effective upon actual receipt.
- Choice of Law & Jurisdiction. The Terms and any action arising out of, or related to the Terms will be governed by the laws of the State of New Jersey without regard to its conflict of laws provisions. Customer agrees to accept the jurisdiction and venue of the state and federal courts located in the New Jersey, and each party waives any objection to jurisdiction and venue in such courts. However, if either party seeks injunctive relief to prevent the actual or threatened disclosure of Confidential Information or infringement, misappropriation or violation of its Intellectual Property Rights, such relief may be sought in any court having jurisdiction over the parties.
- Complete Agreement. The headings in this Agreement are for reference only and do not affect the interpretation of the Terms.
The Terms constitute the entire and exclusive understanding and agreement between Provider and Customer regarding its subject matter, and supersedes and replaces any and all prior oral or written understandings or agreements between Provider and Customer regarding its subject matter.
- Binding Effect & Assignment. The Terms are binding upon and inure to the benefit of the parties, their respective successors and permitted assigns. The rights granted to Customer under the Terms are personal, and Customer may not assign or transfer the Terms or its rights or obligations under the Terms, whether by operation of law or otherwise, without Provider’s prior written consent. Any purported assignment or delegation in violation of this section will be null and void. Provider may assign or transfer the Terms or any of its rights, obligations, or licenses under the Terms at any time in Provider’s sole discretion, without restriction and without prior notice to Customer.
- Waivers. Any failure by Provider to enforce any right or any provision of the Terms will not constitute a waiver of future enforcement of that right or provision. Any Provider waiver must be made in writing and signed by a duly authorized Provider Representative.
- Severability. Except as otherwise stated in the Terms, if a court of competent jurisdiction or arbitrator to any Dispute finds that any of the Terms of the Agreement, or compliance by any of the parties with any of its Terms, is unlawful or unenforceable, it will be modified to the extent required to make it lawful and enforceable and effect the intent of the parties. If such modification is not possible, the unlawful or unenforceable Terms will be severed and the remaining Terms of the Agreement will remain in full force and effect to the maximum extent consistent with applicable Law.
- Questions, Comments & Support. If you have any questions or comments about the Terms, the Sites, Services, or any Provider Materials, or our pricing and Fees, please email us at [email protected].