This Master Subscription Agreement (this “Agreement”) shall govern Client’s (as defined below) access and use of the Services (as defined below) provided by RevoTRAC (“Company”). BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING ACCEPTANCE, BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY OTHERWISE ACCESSING AND USING THE SERVICES, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT. AS A RESULT, PLEASE READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY.
IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THE INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERMS “ACCOUNT” OR “CLIENT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH HEREIN, THE INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
(a) Software as a Service. Company Service shall be provided as a cloud service. Company grants Client a non-exclusive and non-transferableright to access and use the Service for the Term of the Agreement.
(a) Ordering. For the Company Services purchased, Company shall grant Client Account Users access or use of the Service(s) and Professional Service(s) during their associated Term, including access and use of all the Content contained in or made available through the Service(s), Client agrees that its purchase is not contingent on the delivery of any future functionality or features, or dependent upon any oral or written public comments regarding future functionality or features. Client agrees that it shall use the Service(s) solely for internal business purposes, and access and use of the Service(s) shall be limited to Account Users. Affiliates of either party may conduct business under this Agreement by executing an Order Form or other document that references this Agreement’s terms.
(b) Account Setup. To subscribe to the Service, Client must establish its Account, which may only be accessed and used by its Account Users. To setup an Account User, Client agrees to provide true and accurate information for such Account Users. Each Account User must establish and maintain personal, non-transferable Access Credentials, which shall not be shared with, or used by, any other individual. Client must not create Account User(s) in a manner that intends to or has the effect of avoiding Fees, circumvents thresholds with the Account, or intends to violate the Agreement.
(c) Client Responsibilities. Client will (a) be responsible for Client Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of client data and the means by which client acquired data, (c) be responsible for all information or data of any kind, whether text, software, code, music or sound, photographs or graphics, video or other materials (“content”), made available publicly or privately, will be under the sole responsibility of the person providing the said content, or of the person whose user account is used. (d) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify the Company promptly of any such unauthorized access or use, (e) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (f) comply with terms of service of any Non-RevoTRAC Applications with which you use Services or Content.
(d) Client will not (a) make any Service or Content available to, or use any Service or Content for the benefit of, anyone other than the Client, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-RevoTRAC Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third- party privacy rights, (d) use a Service or Non-RevoTRAC Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or use any of Our Services to access or use any of Our intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) copy a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on your own intranets or otherwise for your own internal business purposes or as permitted in the Documentation, (k) access any Service or Content in order to build a competitive product or service or to benchmark with a Non-RevoTRAC product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law).
(e) Notwithstanding the foregoing restrictions, in the event Client has purchased a Subscription for Commercial Use (as such term is defined below), Client shall be permitted to use the Service to provide Third-Party services in cases where such Third Parties access the Client provided applications or services, but where such Third Parties do not have the ability to install, configure, manage or have direct access to the Services. Company hereby agrees, subject to payment of the applicable fees, to permit such use and the terms of this Agreement, including references to “internal use” and/or “internal business operations” shall be deemed to include and permit such use (hereafter referred to as “Commercial Use“).
(f) Client will not (a) provide any content or conduct yourself in any way that may be construed as: unlawful; illegal; threatening; harmful; abusive; harassing; stalking; tortious; defamatory; libelous; vulgar; obscene; offensive; objectionable; pornographic; designed to interfere with or disrupt the operation of service provided; infected with a virus or other destructive or deleterious programming routine; giving rise to civil or criminal liability; or in violation of an applicable local, national or international law, (b) impersonate or misrepresent your association with any person or entity, (c) forge or otherwise seek to conceal or misrepresent the origin of any content provided by you, (d) provide any content that may give rise to the Company being held civilly or criminally liable, or that may be considered a violation of any local, national or international law, including — but not limited to — laws relating to copyrights, trademarks, patents, or trade secrets.
(g) Any use of the Services in breach of this Agreement, Documentation or Order Forms, by the Client or Client Users that in the Company’s judgment threatens the security, integrity or availability of Company services, may result in immediate suspension of the Services, however the Company will use commercially reasonable efforts under the circumstances to provide the client with notice and an opportunity to remedy such violation or threat prior to such suspension.
(h) Additional Guidelines. Company reserves the right to establish or modify its Service offerings, general practices and limits concerning use of the Service, and if applicable provide alternative Service offerings and practices, with approximately thirty (30) days’ prior notice. Company also reserves the right to block IP addresses originating a Denial of Service (DoS) attack. Company shall notify Client should this condition exist and inform Client of its action. Once blocked, an IP address shall not be able to access the Service and the block may be removed once Company is satisfied corrective action has taken place to resolve the issue.
(i) Links to Third-Party Websites. To the extent that the Service links to any Third-Party website, application or service, the terms and conditions thereof shall govern Client’s rights with respect to such website, application or service, unless otherwise expressly provided Company. Company shall have no obligations or liability arising from Client’s access and use of such linked Third-Party websites, applications and services.
(j) Beta Service. From time to time, Company may make Beta Service available to Clients at a reduced or no charge. Client may choose to try such Beta Service or not in its sole discretion. Use of Beta Service is at Client’s sole risk and may contain bugs or errors. Client may discontinue use of the Beta Service at any time, in its sole discretion. Further, Company may discontinue any and all Beta Service availability at any time in its sole discretion without notice. NOTWITHSTANDING THE REPRESENTATIONS, WARRANTIES AND DISCLAIMERS IN SECTION 6, BETA SERVICE AND DOCUMENTATION, ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND. COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY SHALL HAVE NO INDEMNIFICATIONBLE OBLIGATIONS AND NO LIABILITY OF ANY TYPE WITH RESPECT TO THE BETA SERVICE UNLESS SUCH EXCLUSION IS UNENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE COMPANY’S LIABILITY WITH RESPECT TO THE BETA SERVICE PROVIDED SHALL NOT EXCEED $500.00.
(a) Client acknowledges and agrees that Company retains all ownership right, title, and interest in and to the Service, the Documentation and the Content, including without limitation all corrections, enhancements, improvements to, or derivative works thereof (collectively, “Derivative Works”), and in all Intellectual Property Rights therein or thereto. To the extent any Derivative Work is developed by Company based upon ideas or suggestions submitted by Client to Company, Client hereby irrevocably assigns all rights to use and incorporate Client’s feedback, including but not limited to suggestions, enhancement requests, recommendations, and corrections (the “Feedback”) relating to the Service, together with all Intellectual Property Rights related to such Derivative Works. Nothing contained in this Agreement shall be construed to convey to Client (or to any party claiming through Client) any Intellectual Property Rights in or to the Service, the Documentation, and the Content, other than the rights expressly set forth in this Agreement
(b) Company acknowledges and agrees that Client retains all ownership right, title, and interest in and to the Client Data, including all Intellectual Property Rights therein or thereto. Notwithstanding the foregoing, Client hereby grants Company and its Affiliates a non- exclusive, royalty-free license to: (i) access, display, copy, distribute, transmit, publish, disclose, and otherwise use all or any portion of the Client Data to fulfill its obligations under this Agreement. In addition, Client hereby grants Company a non-exclusive, royalty-free right to use aggregated and de-identified data generated and/or derived by Company from the Client Data (the “De-Identified Data”) in order to improve the Service and Company’s performance hereunder, including without limitation, submitting and sublicensing such De-Identified Data to Third Parties for analytical purposes, provided that Company shall take commercially reasonable efforts to conduct such de identification in a manner that ensures that such De-Identification cannot be traced back to Client or natural persons.
(c) Client acknowledges the Services may utilize, embed, or incorporate Third-Party software and/or tools (each, a “Third-Party Tool”) under a license granted to Company by one or more applicable Third Parties (each, a “Third-Party Licensor”), which licenses Company the right to sublicense the use of the Third-Party Tool solely as part of the Services. Each such sublicense is nonexclusive and solely for Client’s internal use and Client shall not further resell, re-license, or grant any other rights to use such sublicense to any Third-Party. Client further acknowledges that each Third-Party Licensor retains all right, title, and interest to its applicable Third-Party Tool and all documentation related to such Third-Party Tool. All confidential or proprietary information of each Third-Party Licensor is Confidential Information of Company under the terms of this Agreement and shall be protected in accordance with the terms of Section 7.
To the extent Professional Services are included in the applicable Order Form and/or described in one or more statements of work, Client agrees to abide by Company’s Professional Services Addendum. Each statement of work shall be effective, incorporated into and form a part of this Agreement when duly executed by an authorized representative of each of the parties. Each statement of work shall (i) describe the fees and payment terms with respect to the Professional Services being provided pursuant to such statement of work, (ii) identify any work product that will be developed pursuant to such statement of work, and (iii) if applicable, sets forth each party’s respective ownership and proprietary rights with respect to any work product developed pursuant to such statement of work.
(a) Company shall use commercially reasonable efforts to make the Service available 99.9% of the time for each full calendar month during the Term, determined on a twenty-four (24) hours a day, seven (7) days a week basis (the “Service Standard”). Service availability for access and use by Client(s) excludes unavailability when due to: (a) any access to or use of the Service by Client or any Account User that does not strictly comply with the terms of the Agreement or the Documentation; (b) any failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under the Agreement; (c) Client’s or its Account User’s Internet connectivity; (d) any Force Majeure Event; (e) any failure, interruption, outage, or other problem with Internet service or Non-Company Service; (f) Scheduled Downtime; or (g) any disabling, suspension, or termination of the Service by Company pursuant to the terms of the Agreement. “Scheduled Downtime” means, with respect to any applicable Service, the total amount of time (measured in minutes) during an applicable calendar month when such Service is unavailable for the majority of Clients’ Account Users due to planned Service maintenance. To the extent reasonably practicable, Company shall use reasonable efforts to provide eight (8) hours prior electronic notice of Service maintenance events and schedule such Service maintenance events outside the applicable business hours.
Company shall maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, unauthorized access or disclosure of Client Data. All data and information provided by Client through its use of the Service is subject to Company’s Privacy Policy, which can be viewed by clicking the “Privacy Policy” hypertext link located at https://www.revotrac.com. By using the Service, Client accepts and agrees to be bound and abide by such Privacy Policy. At all times during the Subscription term and upon written request of Client within thirty (30) days after the effective date of termination or expiration of this Agreement, Client data shall be available for Client’s export and download. Following the thirty (30) days after termination or expiration, Company shall not be obligated to maintain Client Data and may delete or destroy what remains in its possession or control unless prohibited by law. (a) If applicable in the United States, if Client is a “Covered Entity” under the Health Insurance Portability and Accountability Act of 1996 (as amended from time to time, “HIPAA”), and if Client must reasonably provide protected health information as defined by HIPAA in order to use the Services, Company shall be Client’s “Business Associate” under HIPAA, and Company and Client shall enter into a Business Associate Agreement (the form of which shall be reasonably satisfactory to Company).
In connection with Client’s use of the Service, at Client’s discretion, Client may: (i) participate in Third-Party promotions through the Service; (ii) purchase Third-Party goods and/or services, including implementation, customization, content, forms, schedules, integration and other services; (iii) exchange data, integrate, or interact between Client’s Account, the Service, its application programming interface (“API”) and a Third-Party provider; (iv) receive additional functionality within the user interface of the Service through use of the API; and/or (v) receive content, knowledge, subject matter expertise in the creation of forms, content and schedules. Any such activity, and any terms, conditions, warranties or representations associated with such Third-Party activity, shall be solely between Client and the applicable Third- Party. Company shall have no liability, obligation or responsibility for any such Third-Party correspondence, purchase, promotion, data exchange, integration or interaction. Company does not warrant any Third-Party providers or any of their products or services, whether or not such products or services are designated by Company as “certified,” “validated,” “premier” and/or any other designation. Company does not endorse any sites on the Internet that are linked through the Service.
Client is the owner of all Third-Party content and data loaded into the Client Account. As the owner, it is Client’s responsibility to make sure it meets its needs. Company shall not comment, edit or advise Client with respect to such Third-Party content and data in any manner.
If Client chooses to use a Third-Party provider with a Service, Client grants Company permission to allow the Third-Party Application and its provider to access Client Data as required for the interoperation of the Third-Party Application with the Service. Company is not responsible for any disclosure, modification or deletion of Client Data resulting from access by Third-Party Application or its provider.
The Services contain features designed to interoperate with Third-Party Applications. To use such features, Client may be required to obtain access to such Third-Party Applications from their providers, and may be required to grant the Company access to Client’s account(s) on such Third-Party Applications. The Company cannot guarantee the continued availability of such Service features, and may cease providing them without entitling the Client to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Application ceases to make the Third-Party Application available for interoperation with the corresponding Service features in a manner acceptable to the Company.
Client shall pay to Company all fees specified in Order Forms. Except as otherwise stated on the Order Form: (i) Subscription Fees are based on Services and subscriptions purchased, (ii) all Subscription Fee payment obligations are non-refundable and non-cancelable, and (iii) quantities purchased cannot be decreased during the relevant Services Term. The Subscription Fee for such Service subscription shall be invoiced upon commencement of the Services Term. Unless Client provides written notice of termination in accordance with Section 5.1, Client agrees to pay all fees no later than thirty (30) days after the receipt of Company’s applicable invoice. Client is responsible for providing complete and accurate billing and contact information to Company and notifying Company promptly of any changes to such information.
If Client is paying by credit card or Automated Clearing House (“ACH”), Client shall establish and maintain valid and updated credit card information or a valid ACH auto debit account (in each case, the “Automatic Payment Method”). Upon establishment of such Automatic Payment Method, Company is hereby authorized to charge any applicable Subscription Fee using such Automatic Payment Method.
If any invoiced amount is not received by Company by the due date, without limiting Company’s rights or remedies, those overdue charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum amount permitted by law, whichever is lower. Company reserves the right to condition an overdue Account’s future subscription renewals and Order Forms on shorter payment terms than those stated herein.
Company’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Client is responsible for paying all Taxes associated with its purchases hereunder. If Company has the legal obligation to pay or collect Taxes for which Client is responsible under this Section 4.5, Company shall invoice Client and Client shall pay that amount unless Client provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. Client agrees to indemnify and hold Company harmless from any encumbrance, fine, penalty or other expense which Company may incur as a result of Client’s failure to pay any Taxes required hereunder. For clarity, Company is solely responsible for taxes assessable against Company based on its income, property and employees.
This Agreement will commence on the Effective Date set forth on the Order Form and continues until all Service subscriptions hereunder have expired or have been terminated (the “Services Term”). Thereafter, except as stated on an applicable Order Form, the Services Term shall automatically renew for additional periods equal to the expiring subscription term or one year, whichever is longer, unless either party has provided written notice of its intent to terminate the Service subscription not less than thirty (30) days prior to the expiration of the then-current Services Term applicable to the Service subscription.
Either party may terminate this Agreement (in whole or with respect to an Order Form) by notice to the other party if (i) the other party commits a material breach of this Agreement and fails to cure such breach within thirty (30) days (except in the case of a breach of Section 7 in which case no cure period will apply) or (ii) the other party becomes the subject of a petition in bankruptcy or other similar proceeding. Company may, at its option, and without limiting its other remedies, suspend (rather than terminate) any Services if Client breaches the Agreement (including with respect to payment of Fees) until the breach is remedied.
Termination or suspension of an individual Order Form purchase, will not terminate or suspend any other Order Form or the remainder of the Agreement unless specified in the notice of termination or suspension. If the Agreement is terminated in whole, all outstanding Order Form(s) will terminate. If this Agreement or any Order Form is terminated, Client agrees to pay all Fees owed up to the effective date of termination.
The following portions of this Agreement shall survive termination of this Agreement and continue in full force and effect: Sections 1, 2.3, 5.3, 6, 7 and 8.
Each party represents that: (i) it has full right, title and authority to enter into this Agreement; and (ii) this Agreement constitutes a legal, valid and binding obligation of Client, enforceable against it in accordance with its terms.
(a) Company represents and warrants that during the applicable Subscription Term that Service will perform materially in accordance with the applicable Documentation. For any breach of this warranty in Section 6.2(a), Client’s exclusive remedy and Company’s entire liability shall be as described in Section 5.2.
(b) Company represents and warrants that all such Professional Services shall be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of this warranty in Section 6.2(b), Client’s exclusive remedy and Company’s entire liability shall be the re-performance of the applicable Professional Services.
(c) SERVICE, CONTENT, DOCUMENTATION, STORED DATA AND BETA SERVICE ARE PROVIDED “AS-IS” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY. EXCEPT AS EXPRESSLY STATED HEREIN, THE PARTIES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT, DOCUMENTATION, STORED DATA OR BETA SERVICES. PARTIES SPECIFICALLY DISCLAIM ALL REPRESENTATIONS OR WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(d) Company’s Services have not been tested in all situations under which they may be used. Client is solely responsible for determining the appropriate uses for the Services and the results of such use; Company will not be liable for the results obtained through Client’s use of the Services. Company’s Services are not specifically designed or intended for use in (i) storage of sensitive, personal information, (ii) direct life support systems, (iii) nuclear facility operations, or (iv) any other similar hazardous environment.
(a) Indemnity by Company. Company shall defend and indemnify Client from any loss, damage or expense (including reasonable attorneys’ fees) awarded by a court of competent jurisdiction, or paid in accordance with a settlement agreement signed by Client, in connection with any Third-Party claim (each, a “Claim”) alleging that Client’s use of the Service as expressly permitted hereunder infringes upon any intellectual property rights, patent, copyright or trademark of such Third-Party, or misappropriates the trade secret of such Third-Party; provided that Client (x) promptly gives Company written notice of the Claim; (y) gives Company sole control of the defense and settlement of the Claim; and (z) provides to Company all reasonable assistance, at Company’s expense. If Company receives information about an infringement or misappropriation claim related to the Service, Company may in its sole discretion and at no cost to Client: (i) modify the Service so that it no longer infringes or misappropriates, (ii) obtain a license for Client’s continued use of the Service, or (iii) terminate this Agreement (including Client’s Service subscriptions and Account) upon prior written notice and refund to Client any prepaid Subscription Fee covering the remainder of the Term of the terminated Service subscriptions. Notwithstanding the foregoing, Company shall have no liability or obligation with respect to any Claim that is based upon or arises out of (A) use of the Service in combination with any software or hardware not expressly authorized by Company, (B) any modifications or configurations made to the Service by Client without the prior written consent of Company, and/or (C) any action taken by Client relating to use of the Service that is not permitted under the terms of this Agreement. This Section 6.3(a) states Client’s exclusive remedy against Company for any Claim of infringement or misappropriation of a Third-Party’s Intellectual Property Rights related to or arising from Client’s use of the Service.
(b) To the extent permitted by law, Client shall defend and indemnify Company from any loss, damage or expense (including reasonable attorneys’ fees) awarded by a court of competent jurisdiction, or paid in accordance with a settlement agreement signed by Company, in connection with any Claim alleging that the Client Data, or Client’s use of the Service in breach of this Agreement, infringes upon any patent, copyright or trademark of such Third-Party, or misappropriates the trade secret of such Third-Party; unless applicable laws prohibit public entities from such indemnification and provided that Company (x) promptly gives Client written notice of the Claim; (y) gives Client sole control of the defense and settlement of the Claim; and (z) provides to Client all reasonable assistance, at Client’s expense. This Section 6.3(b) states Company’s exclusive remedy against Client for any Claim of infringement of misappropriation of a Third-Party’s Intellectual Property Rights related to or arising from the Client Data or Client’s use of the Service.
IN NO EVENT SHALL COMPANY, IN THE AGGREGATE, BE LIABLE FOR DAMAGES TO CLIENT IN EXCESS OF THE AMOUNT OF SUBSCRIPTION FEES PAID BY CLIENT TO COMPANY PURSUANT TO THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE FIRST ACT OR OMISSION GIVING RISE TO THE LIABILITY. UNDER NO CIRCUMSTANCES SHALL COMPANY HAVE ANY LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS, OR CONSEQUENTIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR PRODUCTS LIABILITY. NOTHING IN THIS SECTION SHALL LIMIT CLIENT’S PAYMENT OBLIGATIONS UNDER SECTION 4.
“Confidential Information” means any non-public information and/or materials maintained in confidence and disclosed in any form or medium by a party under this Agreement (the “Disclosing Party”) to the other party (the “Receiving Party”), that is identified as confidential, proprietary or that a reasonable person should have known, was the Confidential Information of the other party given the nature of the circumstances or disclosure, or as otherwise defined as Confidential Information, trade secrets, and proprietary business information as provided under applicable state law and exempted from disclosure by the applicable statute. Confidential Information may include without limitation: information about clients, services, products, Order Forms, pricing, software, data, technologies, formulas, processes, know- how, plans, operations, research, personnel, suppliers, finances, pricing, marketing, strategies, opportunities and all other aspects of business operations and any copies or derivatives thereof. Confidential Information includes information belonging to a Third-Party that may be disclosed only under obligations of confidentiality. Notwithstanding the foregoing, Confidential Information shall not include information that Receiving Party can demonstrate: (a) is or becomes generally known to the public without breach of any obligation by Receiving Party; (b) is received from a Third- Party without breach of any obligation owed to Disclosing Party; or (c) is or has been independently developed by Receiving Party without the benefit of Confidential Information.
The Receiving Party agrees that it shall: (i) use the Confidential Information solely for a purpose permitted by this Agreement, (ii) use the same degree of care as Receiving Party uses with its own Confidential Information, but no less than reasonable care, to protect Confidential Information and to prevent any unauthorized access, reproduction, disclosure, or use of any of Confidential Information; and (iii) restrict access to the Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who are prohibited from disclosing the information by a contractual, legal or fiduciary obligation no less restrictive than this Agreement. Receiving Party shall not use, reproduce, or directly or indirectly allow access to the Confidential Information except as herein provided or export Confidential Information to any country prohibited from obtaining such information under any applicable laws or regulations.
If Receiving Party is required to disclose any Confidential Information to comply with law, to the extent legally permitted, Receiving Party shall: (a) give the Disclosing Party reasonable prior written notice to permit Disclosing Party to challenge or limit any such legally required disclosure; (b) disclose only that portion of the Confidential Information as legally required to disclose; and (c) reasonably cooperate with Disclosing Party, at Disclosing Party’s request and expense, to prevent or limit such disclosure.
To the extent permitted by law, Client shall treat as exempt from treatment as a public record, and shall not unlawfully disclose in response to a request made pursuant to any applicable public records law, any of Company’s Confidential Information. Upon receiving a request to produce records under any applicable public records or similar law, Client shall immediately notify Company and provide such reasonable cooperation as requested by Company and permitted by law to oppose production or release of such Company Confidential Information.
Receiving Party shall promptly notify Disclosing Party if it becomes aware of any unauthorized use or disclosure of Disclosing Party’s Confidential Information and agrees to reasonably cooperate with Disclosing Party in its efforts to mitigate any resulting harm. Receiving Party acknowledges that Disclosing Party would have no adequate remedy at law should Receiving Party breach its obligations relating to Confidential Information and agrees that Disclosing Party shall be entitled to enforce its rights by obtaining appropriate equitable relief, including without limitation a temporary restraining order and an injunction.
Each party will comply with all laws and applicable government rules and regulations insofar as they apply to such party in its performance of this Agreement’s rights and obligations.
Company is permitted to: (i) include Client’s name and logo in accordance with Client’s trademark guidelines; and (ii) list the Services selected by Client, in public statements and client lists. Client agrees to participate in press releases, case studies and other collateral using quotes or requiring active participation, the specific details of which shall be subject to mutual consent.
Company is performing pursuant to this Agreement only as an independent contractor. Company has the sole obligation to supervise, manage, contract, direct, procure, perform or cause to be performed its obligations set forth in this Agreement, except as otherwise agreed upon by the parties. Nothing set forth in this Agreement shall be construed to create the relationship of principal and agent between Company and Client. Company shall not act or attempt to act or represent itself, directly or by implication, as an agent of Client or its affiliates or in any manner assume or create, or attempt to assume or create, any obligation on behalf of, or in the name of, Client or its affiliates.
No failure or delay by either party in enforcing any of its rights under this Agreement shall be construed as a waiver of the right to subsequently enforce any of its rights, whether relating to the same or a subsequent matter.
Client shall have no right to transfer, assign or sublicense this Agreement or any of its rights, interests or obligations under this Agreement to any Third-Party and any attempt to do so shall be null and void. Company shall have the full ability to transfer, assign or sublicense this Agreement or any of its rights, interests or obligations under this Agreement.
Subject to the limitations set forth below and except for fees due for Service rendered, neither party shall be held responsible for any delay or default, including any damages arising therefrom, due to any act of God, act of governmental entity or military authority, explosion, epidemic casualty, flood, riot or civil disturbance, war, sabotage, unavailability of or interruption or delay in telecommunications or Third-Party services, failure of Third-Party software, insurrections, any general slowdown or inoperability of the Internet (whether from a virus or other cause), or any other similar event that is beyond the reasonable control of such party (each, a “Force Majeure Event”). The occurrence of a Force Majeure Event shall not excuse the performance by a party unless that party promptly notifies the other party of the Force Majeure Event and promptly uses its best efforts to provide substitute performance or otherwise mitigate the force majeure condition.
All notices, instructions, requests, authorizations, consents, demands and other communications hereunder shall be in writing and shall be delivered by one of the following means, with notice deemed given as indicated in parentheses: (a) by personal delivery (when actually delivered); (b) by overnight courier (upon written verification of receipt); (c) by business mail (upon written verification of receipt); or (d) except for notice of indemnification claims, via electronic mail to Client at the e-mail address maintained on Client’s Account and to Company at admin@revotrac.com. The Company entity entering into this Agreement, the address to which notices shall be directed under this Agreement and the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement shall depend upon where Client is domiciled:
(a) In the United States and all other domiciles not otherwise mentioned, the Company entity is RevoTRAC LLC, a Texas LLC, notices shall be addressed to 5900 Balcones Drive, Suite 100 Austin, TEXAS UNITED STATES 78731, governing law shall be Texas and the courts with exclusive jurisdiction shall be Texas without regard to the principles of conflicts of laws, unless Client is a public entity in which case this Agreement shall be governed by the state law where it is domiciled.
The Section headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the parties, and shall not affect in any way the meaning or interpretation of this Agreement. Any reference to any federal, state, local or foreign statute or law shall be deemed to refer to all rules and regulations promulgated thereunder, unless the context requires otherwise.
No person or entity not a party to the Agreement shall be deemed to be a Third-Party beneficiary of this Agreement or any provision hereof.
The invalidity of any portion of this Agreement shall not invalidate any other portion of this Agreement and, except for such invalid portion, this Agreement shall remain in full force and effect.
This Agreement, including any applicable Order Form, is the entire agreement between Client and Company regarding Client’s use of the Service and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in any purchase order or in any other order documentation is void. In the event of any conflict or inconsistency between the documents, the order of precedence shall be (1) the applicable Order Form, (2) any schedule or addendum to this Agreement, and (3) the content of this Agreement.
The Service, Professional Service, Content or other technology Company may make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Client shall not permit any Account User to access or use any Service, Content or other Company technology in a U.S.-embargoed country or region or in violation of any U.S. export law or regulation.
Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Client learns of any violation of the above restriction, Client shall immediately notify Company.
With Client’s approval, the market research conducted by Client during its selection process for the Services may be extended for use by other jurisdictions, municipalities, and government agencies of Client’s state. Any such usage by other entities must be in accordance with ordinance, charter, and/or procurement rules and regulations of the respective political entity.
Company may revise the terms of this Agreement from time-to-time and shall post the most current version of this Agreement on its website. If a revision meaningfully reduces Client’s rights, Company shall notify Client.
Company confirms that it has not been excluded, debarred or suspended from participation in any governmental program, including but not limited to Medicare, Medicaid, or Medi-Cal payor programs, and is not the subject of any investigation regarding participation in such programs, and has not been convicted of any crime relating to any governmental program. Company agrees to notify Client immediately if Company becomes aware of any adverse action related to Company’s eligibility to participate in a governmental program.
The Service and its Documentation and Content are “Commercial Items,” “Commercial computer software” and “Computer software documentation” as defined in the Federal Acquisition Regulations (“FAR”) and Defense Federal Acquisition Regulations Supplement (“DFARS”). Pursuant to FAR 12.211, FAR 12.212, DFARS 227.7202, as revised, the U.S. Government acquires the Service and its Documentation and Content subject to the terms of this Agreement.
As used in this Agreement, the following terms shall have the meanings set forth below:
9.1 “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 Service.
9.2 “Account” means Client’s specific account where Client subscribes to access and use Service(s).
9.3 “Account User” means each employee, consultant and contractor of Client that has been granted Access Credentials.
9.4 “Affiliate” means, with respect to any legal entity, any other legal entity that (i) controls, (ii) is controlled by or (iii) is under common control of such legal entity. A legal entity shall be deemed to “control” another legal entity if it has the power to direct or cause the direction of the management or policies of such legal entity, whether through the ownership of voting securities, by contract, or otherwise.
9.5 “Beta Service” means Company Service or functionality that may be made available to Client to try at its option at no additional charge that is clearly designated as beta, pilot, limited release, early adoption, non-production, sandbox, evaluation or a similar description.
9.6 “Content” means all of the Company audio and visual information, documents, content, materials, products and/or software contained in, or made available through, the Service.
9.7 “Documentation” means the user documentation relating to the Service provided to Client by Company, including but not limited to descriptions of the functional, operational and design characteristics of the Service.
9.8 “RevoTRAC” or “Company” means RevoTRAC, LLC, together with their affiliates, successors and assigns.
9.9 “Company Data” means all data, information, Documentation and other Content provided by or on behalf of Company to any of the Company Services.
9.10 “Intellectual Property Rights” means all ideas, concepts, designs, drawings, packages, works of authorship, processes, methodologies, information, developments, materials, inventions, improvements, software, and all intellectual property rights worldwide arising under statutory or common law, including without limitation, all (i) patents and patent applications owned or licensable by a party hereto; (ii) rights associated with works of authorship, including copyrights, copyright applications, copyright registrations, mask work rights, mask work applications and mask work registrations; (iii) rights related to protection of trade secrets and Confidential Information; (iv) trademarks, trade names, service marks and logos; (v) any right analogous to those set forth in clauses (i) through (iv); and (vi) divisions, continuations, renewals, reissues and extensions of the foregoing (as and to the extent applicable) now existing, hereafter filed, issued or acquired.
9.11 “Order Form” means Company’s ordering document or online purchasing form used to order Company Services. By entering into an Order Form, Affiliate(s) agree to be bound by the terms of this Agreement as if an original party. Company
9.12 “Professional Service” means the professional, technical, consulting and/or other services, excluding support services, to be performed by Company that are ordered by Client on an Order Form or provided without charge (if applicable).
9.13 “Service” or “Services” means Company’s branded offerings of Software-as-a-Service (SaaS) applications, products and services made available by Company, as updated, enhanced or otherwise modified from time-to-time.
9.14 “Client” means the legal entity identified on the Account, on behalf of itself and its Affiliates, employees and subcontractors.
9.15 “Client Data” means all data, information and other content provided by or on behalf of Client to the Service, including that which the Account Users input or upload to the Service.
9.16 “Client-Hosted Software” means Company’s suite of Software-as-a-Service (SaaS) software applications, as updated, enhanced or otherwise modified from time-to-time that are: (i) ordered by Client on an Order Form or provided without charge (if applicable) and made available by Company, including mobile components, and (ii) granted a non-exclusive and non-transferable license (with no right to sublicense) to install and use software for the Term.
9.17 “Subscription Fee” means the fee invoiced to Client by Company prior to the Services Term, which is required to be paid in order for Client to be permitted to access and use the Service.
9.18 “Third-Party” means a party other than Client or Company.