Welcome to the Terms and Conditions (the “Agreement”) for Discern Inc. (the “Company”). This Agreement contains the terms and conditions which govern use of our software and compliance services and all related content, tools, features and functionality offered on or through the solution (collectively, the “Services”) and is a contract between the Company and the customer who ordered the Services (“Customer”).
By clicking “Let’s Go” or similar language, or otherwise using or accessing the Services, Customer agrees to this Agreement. The individual who is accepting this Agreement represents and warrants that he or she is an authorized representative of Customer with the authority to bind the Customer to this Agreement and the individual agrees to this Agreement on Customer’s behalf.
1. USE OF THE SERVICES
1.1 Use. Subject to the terms and conditions of this Agreement, the Company grants Customer a limited, non-transferable, non-exclusive, non-sublicensable right during the Term to: (a) access and use the Services solely for Customer’s internal business purposes; and (b) reproduce and use any documentation regarding the Services that is made available by the Company for Customer (“Documentation”). Customer is responsible for ensuring that any use of the Services by its employees and contractors is in compliance with the terms of the Agreement.
1.2 Right to Make Filings. Customer acknowledges and agrees that the Services assist the Customer with its requisite federal, state and local registration and filing requirements. Customer grants the Company the right to make such registrations and filings on Customer’s behalf through the Services.
1.3 Restrictions. Customer may not, and may not permit its users to:
(a) provide access to, sell, resell, license, sublicense, rent, lease, lend or transfer the Services to any third party or use the Services to provide any paid or unpaid services on an outsourced basis or otherwise to any third party, including as an application service provider;
(b) except as may be expressly permitted by applicable law, cause or permit the reverse engineering, translation, disassembly or decompilation of the Services or any software used to provide the Services, or otherwise attempt to derive source code or the underlying ideas, algorithms, structure or organization from the Services or any software used to provide the Services or a part thereof;
(c) hide, remove, tamper, amend, alter, obscure or in any manner interfere with any proprietary rights notices contained on or within the Services or Documentation;
(d) use the Services, or introduce code or other items to the Services, in a manner that adversely affects the operation of the Company’s services;
(e) use any robot, spider, crawlers, scraper, or other automatic device, process, software or queries that intercepts, “mines,” scrapes, extracts, or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
(f) introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into the Company’s systems;
(g) violate any applicable law or regulation in connection with Customer’s access to or use of the Services;
(h) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services; or
(i) otherwise use the Services in violation of this Agreement.
1.4 Ownership of the Services. The Services and the Documentation are licensed, not sold, to Customer. Customer acknowledges and agrees that as between the parties, all intellectual property and proprietary rights in and to the Services (including all software and technology used to provide the Services) and the Documentation shall solely vest and remain vested in Company and its third party licensors. Company shall also remain the sole and exclusive owner of any modifications, improvements, enhancements, customizations and derivative works of the Services and any other intellectual property and deliverables, and any proprietary or intellectual property rights in and to the foregoing, that the Company may create as a result of the Services (“Modifications”). To the extent any rights in such Modifications vest in Customer, Customer hereby assigns all right, title and interest in and to such Modifications to Company.
1.5 Ownership of Trademarks. The Company’s name, trademarks, logos and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
1.6 Suggestions. Customer hereby grants the Company a royalty-free, worldwide, irrevocable, perpetual, sublicensable, transferable license to use and incorporate into the Services and any other services provided by the Company, any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or its employees or contractors relating to the operation or provision of the Services.
1.7 Reservation of Rights. The Company reserves all rights not expressly granted in this Section 1.
1.8 Suspension. The Company may immediately suspend provision of the Services or Customer’s access to the Services at any time should the Company in its reasonable judgment determine that (a) Customer has violated any laws rules, or regulations, including any applicable data privacy laws or any data security or authorization requirements imposed by the Company to access the Services, or has otherwise breached this Agreement; or (b) such suspension is necessary to avoid damage to the Services. In addition, the Company may immediately suspend provision of the Services or Customer’s access to the Services at any time that the Company is required to do so by a government authority or by court order. If a third party ceases to provide an application or data that is included in the Services, the Company may also suspend provision of the corresponding functionality. The Company agrees to use commercially reasonable efforts to notify Customer of any suspension if the Company is permitted to do so. Suspension for any of the foregoing reasons shall not be deemed a breach of the Agreement by the Company.
1.9 Third Party Services and Materials. The Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Services, Customer acknowledges and agrees that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. The Company does not warrant or endorse and does not assume and will not have any liability or responsibility to Customer or any other person for any third-party services, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to Customer.
2. CUSTOMER DATA
2.3 Representations and Warranties. Customer represents and warrants that (a) it has the right to provide Company the right to access and use the Customer Data as set forth in this Section; and (b) in relation to any Customer Data that qualifies as “personal information” under applicable data privacy laws shared with the Company pursuant to this Agreement, it shall provide all notices, obtain all consents and take all other steps required by applicable laws in relation to Customer’s collection, processing, sharing with the Company of such personal information and the Company’s use of such personal information as envisaged by this Agreement.
3. FEES & PAYMENT
3.1 Fees. Customer shall pay the fees for the Services as specified. Payment can be made by credit card, debit card, or other means that the Company may make available. If the Company does not receive a payment in full when due, the Company may charge interest on the amount of the late payment at the lesser of 1.5% per month or the maximum amount permitted under applicable law. If Customer’s account is fifteen (15) days or more overdue, the Company may suspend the Services until such amounts are paid. Except as expressly set forth in this Agreement, fees are non-refundable.
3.2 Taxes. The Company’s fees do not include any local, state, federal or foreign taxes, levies or duties of any nature (“Taxes”). Customer is responsible for paying all Taxes, excluding only taxes based on the Company’s income. If the Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides the Company with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.1 Definition of Confidential Information. The term “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement. The Services and the technology and technical information used to power the Services as well as the Documentation is the Confidential Information of the Company. Confidential Information shall not include any information that: (a) is or becomes publicly available without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (d) is received from a third party without breach of any obligation owed to the Disclosing Party. Confidential Information also shall not include Customer Data.
4.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party except to perform its obligations or exercise its rights under this Agreement, except with the Disclosing Party’s prior written permission. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind, but in no event with less than reasonable care. If the Receiving Party is compelled by law or a government authority to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent practicable and legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
4.3 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of this Section 4, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that such unauthorized disclosure or use may cause irreparable harm to the Disclosing Party for which any other available remedies are inadequate.
5. WARRANTIES; DISCLAIMERS
5.1 Warranties. Each party represents and warrants that it has the legal power and authority to enter into this Agreement. The Company represents and warrants that it will provide the Services in a professional and workmanlike manner consistent with general industry standards applicable to services similar to the Services.
5.2 Disclaimer. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES MAY CHANGE OVER TIME. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.1 ABOVE, THE COMPANY MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. THE COMPANY HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE COMPANY DISCLAIMS ALL RESPONSIBILITY AND SHALL HAVE NO LIABILITY TO CUSTOMER WITH RESPECT TO (I) ANY FEES OR CHARGES RECEIVED BY CUSTOMER FROM ANY GOVERNMENTAL ENTITIES WITH RESPECT TO ANY FILINGS OR REGISTRATIONS MADE ON OR THROUGH THE SERVICES, (II) THE OUTCOME OF ANY FILINGS OR REGISTRATIONS MADE ON OUR THROUGH THE SERVICES AND (III) ANY ISSUES CAUSED BY ANY CUSTOMER DATA. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE COMPANY OR THROUGH THE SERVICES, WILL CREATE ANY WARRANTY OR REPRESENTATION NOT EXPRESSLY MADE HEREIN.
6.1 Indemnification by Customer. Customer shall at its expense defend the Company and its officers, directors and employees (“Company Indemnified Parties”) against any third party claims made or brought against any Company Indemnified Party arising out of or in connection with (a) Customer’s use or misuse of the Services, (b) Customer’s gross negligence or willful misconduct, (c) Customer’s violation or breach of any term of this Agreement or any applicable law or regulation; (d) Customer’s violation of any rights of any third party, including any intellectual property rights; or (e) the Company’s use of any Customer Data in accordance with this Agreement (each, a “Company Claim”) and shall pay any damages finally awarded by a court or agreed to by Customer in a settlement with respect to such Company Claim. Customer agrees that the Company (or, at its discretion the Company Indemnified Party) will have the right, in its sole discretion, to control any action or proceeding and to determine whether the Company wishes to settle, and if so, on what terms, and Customer agrees to fully cooperate with Company in the defense or settlement of such claim.
7. LIMITATION OF LIABILITY
7.1 Waiver. EXCEPT FOR DAMAGES ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 6, IN NO EVENT SHALL THE COMPANY HAVE ANY LIABILITY TO THE CUSTOMER FOR ANY LOST PROFITS, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, MULTIPLE, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
7.2 Limitation of Liability. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER TO THE COMPANY HEREUNDER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE INITIAL CLAIM GIVING RISE TO LIABILITY HEREUNDER.
8. TERM; TERMINATION
8.1 Term of Agreement. This Agreement commences on the Effective Date and remains in effect for [one (1) year], unless otherwise terminated in accordance with this Agreement. Thereafter, the term will automatically renew for successive one (1) year periods, unless either party provides written notice of its intent not to renew at least thirty (30) days prior to the end of the then-current term (the “Term”).
8.2 Termination for Cause. Either party may terminate this Agreement for cause (a) upon written notice to the other party of a material breach by the other party if such breach remains uncured after thirty (30) days from the date of receipt of such notice; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
8.3 Effects of Termination. Upon termination of this Agreement, all licenses granted to Customer hereunder shall automatically terminate and Customer shall cease all use of the Services. Except as otherwise expressly set forth in this Agreement, in the event of termination of this Agreement for any reason, all fees paid in advance are non-refundable, and Customer will not be entitled to a pro rata refund of any portion of such fees.
8.4 Survival. The following provisions shall survive termination or expiration of this Agreement: Sections 1.3-1.7, 2.2-2.4, 4-7, 8.3, 8.4 and 9.
9. GENERAL PROVISIONS.
9.1 Beta Service. From time to time, the Company may, in its sole discretion, include certain test or beta features or products in the Services (“Beta Offerings”) as the Company may designate from time to time. Customer’s use of any Beta Offering is completely voluntary. The Beta Offerings are provided on an “as is” basis and may contain errors, defects, bugs, or inaccuracies that could cause failures, corruption or loss of data and information from any connected device. Customer acknowledges and agrees that all use of any Beta Offering is at Customer’s sole risk. Customer agrees that once Customer uses a Beta Offering, Customer’s content or data may be affected such that Customer may be unable to revert back to a prior non-beta version of the same or similar feature. Additionally, if such reversion is possible, Customer may not be able to return or restore data created within the Beta Offering back to the prior non-beta version. If the Company provides Customer any Beta Offerings on a closed beta or confidential basis, the Company will notify Customer of such as part of Customer’s use of the Beta Offerings. For any such confidential Beta Offerings, Customer agrees to not disclose, divulge, display, or otherwise make available any of the Beta Offerings without the Company’s prior written consent.
9.2 Updating This Agreement. The Company may modify this Agreement from time to time in which case it will update the “Last Revised” date at the top of this Agreement. If the Company make changes that are material, it will use reasonable efforts to attempt to notify the Customer. However, it is Customer’s sole responsibility to review this Agreement from time to time to view any such changes. The updated Agreement will be effective as of the time of posting, or such later date as may be specified in the updated Agreement. Customer’s continued access or use of the Services after the modifications have become effective will be deemed Customer’s acceptance of the modified Agreement.
9.3 Injunctive Relief. Customer agrees that a breach of this Agreement will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and the Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
9.4 Export Laws. Customer agrees that it will not export or re-export, directly or indirectly, the Services and/or other information or materials provided by the Company hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, Customer represents and warrants that Customer is not located in any such country or on any such list. Customer is responsible for and hereby agrees to comply at Customer’s sole expense with all applicable United States export laws and regulations.
9.5 Force Majeure. The Company will not be liable or responsible to Customer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any of Company’s obligations under this Agreement or in providing the Services, when and to the extent such failure or delay is caused by or results from any events beyond the Company’s ability to control, including acts of God; flood, fire, earthquake, epidemics, pandemics, tsunami, explosion, war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, government order, law, or action, embargoes or blockades, strikes, labor stoppages or slowdowns or other industrial disturbances, shortage of adequate or suitable Internet connectivity, telecommunication breakdown or shortage of adequate power or electricity, and other similar events beyond the Company’s control.
9.6 Independent Contractor. Company’s relationship with Customer will be that of an independent contractor. It is agreed and understood that neither party is the agent, representative, nor partner of the other and neither party has any authority or power to bind or contract in the name of or to create any liability against the other in any way or for any purpose pursuant to this Agreement. Nothing contained in this Agreement shall be construed to give either party the power to direct and control the day-to-day activities of the other, constitute the parties as partners, joint venturers, principal and agent, employer and employee, co-owners, or otherwise as participants in a joint undertaking, or allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
9.7 Governing Law. This Agreement shall be governed by the laws of New York, without regard to conflict of laws rules, and the state and federal courts located in New York, New York shall have exclusive jurisdiction to adjudicate any dispute arising out of or related to this Agreement. Customer consents to the exclusive jurisdiction of such courts provided that nothing in this Section prohibits either party from seeking or obtaining in any jurisdiction injunctive or similar relief in connection with enforcement of this Agreement.
9.8 Waiver. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
9.9 Assignment. Customer may not assign, sell or otherwise transfer this Agreement or any of its rights, interests or obligations hereunder, without the prior written approval of the Company. Company may freely assign this Agreement or any of its rights, interest or obligations hereunder.
9.10 Severability. If any provision of this Agreement shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions.
9.11 Entire Agreement. This Agreement, including any order forms or similar documents that may be entered into between the parties, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.
9.12 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day after mailing; or (c) after sending by email and confirmation of receipt. Notices to Company shall be addressed to: 511 Ave of the Americas, Unit #966, New York, NY, 10011 or by e-mail at email@example.com. Notices to Customer are to be addressed to the e-mail and/or address used to sign up for this Agreement.