Enterprise Subscription Agreement
THIS ENTERPRISE SUBSCRIPTION AGREEMENT ("Agreement") GOVERNS THE USE OF CONTRACTPAL (the "Service") BY ENTERPRISE CUSTOMERS, which are referred to herein as "Customers" or "You" and its derivatives. The Service provides for and supports the development, deployment, execution and management of electronic transactions, including electronic contracts. BY CREATING AN ENTERPRISE PROFILE ON THE SERVICE, YOU ARE SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
THE MOST RECENT VERSION OF THIS AGREEMENT WAS ISSUED ON THE DATE SPECIFIED IN THE FOOTER. WE RESERVE THE RIGHT TO MAKE REASONABLE CHANGES TO THIS AGREEMENT AT ANY TIME. TO ISSUE A CHANGE, WE WILL SEND AN EMAIL TO THE BUSINESS CONTACT OF EACH ENTERPRISE ACTIVELY USING THE SERVICE. THE NEW VERSION WILL GO INTO EFFECT 30 DAYS AFTER IT IS ISSUED. IF YOU DO NOT AGREE WITH A NEWLY ISSUED VERSION OF THIS AGREEMENT, YOU MAY TERMINATE YOUR ACCOUNT BY EXECUTING THE CONTRACTPAL TERMINATION AGREEMENT. THE TERMINATION AGREEMENT PROVIDES FOR THE RETURN OF YOUR TRANSACTION DATA AND THE REMOVAL OF YOUR ENTERPRISE FROM THE SERVICE.
1. Contacts.
In using the Service, You will be required
or encouraged to provide us with certain contacts associated with Your enterprise
("Contacts").
You agree to allow us to contact Your Contacts to obtain feedback on the Service or
to otherwise provide You with support in using the Service; provided, however, any
such contact shall be during regular business hours and in compliance with all
applicable laws, and in no event shall our contact with any of Your Contacts involve
discussion of any matter not specifically and directly related to use of the Service.
2. License Grant & Restrictions.
ContractPal hereby
grants You a non-exclusive, non-transferable, right to use the Service, solely for Your
own internal business purposes, subject to the terms and conditions of this Agreement.
All rights not expressly granted to You are reserved by ContractPal and its licensors.
You may not access the Service if You are a direct competitor of ContractPal, except
with ContractPal's prior written consent. In addition, You may not access the Service
for purposes of monitoring its availability, performance or functionality, or for any
other benchmarking or competitive purposes. You agree not to (i) license, sublicense,
sell, resell, transfer, assign, distribute or otherwise commercially exploit or make
available to any third party the Service or the content in any way; (ii) modify or make
derivative works based upon the Service or the content; (iii) except as explicitly provided
in Section 6 below, create Internet
"links" to the Service or "frame" or "mirror" any Content
on any other server or wireless or Internet-based device; or (iv) reverse engineer or
access the Service in order to (a) build a competitive product or service, (b) build a
product using similar ideas, features, functions or graphics of the Service, or (c)
copy any ideas, features, functions or graphics of the Service. You may use the Service
only for Your business purposes and agree not to (x) use the Service to: (i) send spam or otherwise
duplicative or unsolicited messages in violation of applicable laws; (ii) send or store
infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material,
including material harmful to children or violative of third party privacy rights;
(iii) send or store material containing software viruses, worms, Trojan horses or other
harmful computer code, files, scripts, agents or programs; or (y) (iv) interfere with or disrupt
the integrity or performance of the Service or the data maintained by the Service; (v)
attempt to gain unauthorized access to the Service or its related systems or networks;
(vi) use the Service for any unlawful purpose; or (vii) use the Service to promote,
exploit or delivery pornography or any sexually explicit business.
3. Privacy & Information Security.
3.1 Privacy Policy.
ContractPal's privacy policy may be viewed at legal.contractpal.com/privacy.html.
ContractPal reserves the right to modify its privacy policy in its reasonable
discretion from time to time. Because the Service is a hosted, online application,
occasionally ContractPal may need to notify all users of the Service of important
announcements regarding operation of the Service. In addition, You agree that
ContractPal may disclose the fact that You are a Customer of the Service.
3.2 Information Security.
ContractPal's security policy may be viewed at legal.contractpal.com/security.html.
Without limiting ContractPal's obligation of confidentiality as described in the
security policy, ContractPal shall maintain an information security program that is
designed to: (i) ensure the security and confidentiality of Customer Data (see Section
7 below); (ii) protect the Customer Data against any anticipated threats or hazards
to the security or integrity of the Customer Data from entities other than You and
Your personnel; (iii) protect against unauthorized access to or use of the Customer
Data except by You or Your personnel; (iv) ensure the proper disposal of Customer Data;
and, (v) ensure that all employees and subcontractors of ContractPal comply with
the foregoing.
4. ContractPal's Service Level Commitment.
4.1 Service Commitment.
During the Term of this Agreement, the Service will be operational and
available to You and your customers at least 99.9% of the time in any calendar
month (the "Service Commitment"). If ContractPal does not meet the Service
Commitment in any given month, and if You meet your obligations under this
Agreement, You will be eligible to receive the Service Credits described below.
This Section 4 states Your sole and exclusive remedy for any failure by
ContractPal to provide the Service.
4.2 Definitions.
The following definitions shall apply to ContractPal's Service Commitment and
this Section 4.
- "Downtime" means a) failure of the Service to respond to standard web and web service requests within an average of 5 seconds and b) errors generated when accessing the Service, both as monitored using our current uptime monitoring vendor. We reserve the right to change uptime monitoring vendors at any time and without notice. "Downtime" does not include failures of the Service to respond within the allotted 5 seconds when such failure is caused by the Service making calls to services not under the control of ContractPal, such as web service requests to check credit, validate postal addresses, etc.
- "Downtime Period" means a period of ten (10) consecutive minutes of Downtime. Intermittent Downtime for a period of less than ten (10) minutes will not be counted towards any Downtime Period.
- "Monthly Uptime Percentage" means total number of minutes in a calendar month minus the number of minutes of Downtime suffered from all Downtime Periods in a calendar month, divided by the total number of minutes in a calendar month.
- "Scheduled Downtime" means those times when ContractPal notifies You of periods of Downtime at least two (2) days prior to the commencement of such Downtime. There will be no more than four (4) hours of Scheduled Downtime per calendar month. Scheduled Downtime is not considered Downtime for purposes of this Section 5 and will not be counted towards any Downtime Periods.
- "Service Credits" are calculated as a percentage of the total charges paid by You for the Service for the billing cycle in which the error occurred in accordance with the schedule below.
| Monthly Uptime Percentage | Service Credit Percentage |
|---|---|
| Equal to or greater than 99% but less than 99.9% | 5% |
| Less than 99% | 10% |
4.3 Credit Request, Application & Payment Procedures.
We will apply a Service Credit only against future payments for the Service
otherwise due from you. A Service Credit will be applicable and issued only
if the credit amount for the applicable monthly billing cycle is greater than
one dollar ($1 USD). Service Credits may not be transferred or applied to any
other account. To receive a Service Credit, you must submit a request by sending
an email message to finance@contractpal.com. To be eligible, the credit request
must (i) include your enterprise name on the ContractPal system and the name and
email address of the business contact provided in the enterprise profile for
Your enterprise on the ContractPal system; (ii) include, in the body of the email,
the dates and times of Downtime that you claim to have experienced;
and (iii) be received by us within ten (10) business days after the end of the
billing cycle in which the Downtime occurred. If the Monthly Uptime Percentage
applicable to the month of such request is confirmed by us and is less than
99.9%, then we will issue the Service Credit to you within one billing cycle
following the month in which the error occurred. Your failure to provide the
request and other information as required above will disqualify you from receiving
a Service Credit.
4.4 Service Commitment Exclusions.
The Service Commitment does not apply to any applications or Pals that are in
violation of this Agreement (as stated below) or any performance issues: (i)
caused by factors outside of ContractPal's reasonable control; or (ii) that
result from Your equipment, the equipment of your customers, or third party equipment,
or any of the foregoing not within the primary control of ContractPal.
5. Intellectual Property Ownership.
ContractPal alone
(together with its licensors, where applicable) owns all right, title and interest, including all
related Intellectual property rights, in and to ContractPal's technology, content and
the Service and any suggestions, ideas, enhancement requests, feedback, recommendations
or other information provided by You, Your Contacts or any other party relating to the
Service. Your use
of the Service does not constitute a sale of the Service or any of the technology or software
used by the Service, and does not convey to You any rights of ownership in or related
to the Service, ContractPal's technology or the Intellectual property rights owned by
ContractPal. The ContractPal name, the ContractPal logo and logotype and the product
names associated with the Service are trademarks or service marks of ContractPal or its
third party licensors, and no right or license is granted to use them.
6. Development of Pals.
This Agreement authorizes
You to develop web applications that are run by the Service ("Pals"), and
to engage others to develop Pals for You. You may also engage our services, or the services
of anyone else to develop Pals for You. Any contractors you may hire to build Pals for
you will be required to agree to the terms and conditions of the
Enterprise Profile Agreement.
6.1 Ownership of Pals.
Except as provided below or as may be provided by another agreement between us,
or between You and a third party from which you obtain Pals, You
shall own all right, title and interest in and to the documents, email templates, images,
pages, requirements, style sheets, wizards and workflow added to a Pal. We retain all
right, title and interest in and to the Pal structure, including the wizard structure,
and the workflow structure, and the software and system objects provided as part of the
Service that facilitate development and deployment of Pals. If we build a Pal for you,
we also retain rights to any preexisting works that are incorporated into the Pal,
provided however, we hereby grant to You a fully paid up license to use such preexisting
works in the Pal, and to make derivative works of the Pal for use with the Service.
6.2 Deprecation of APIs & Other Programming Features.
We reserve the right to deprecate application programming interfaces ("APIs") and other
programming features provided by the Service ("Features"). We agree to publish all deprecations
in the API documentation provided with the platform development tools. Deprecated Features will be
identified as such and will include information on substitutes, if any. The functionality of
deprecated Features will be available through other Features, except where we can demonstrate
that a particular Feature has not been used by any Pals at the time of deprecation.
Through the development tools, the Service will provide warnings for all deprecated Features for a period of 3 months
after the release in which the Features are deprecated. Thereafter, the deployment of
test or development Pals will not be permitted with deprecated Features. Deployed
Pals with a deprecated Feature will continue to run for six (6) months from the
release in with the Feature was deprecated.
6.3 Abuse of Pal Development Privileges.
You agree not to develop
Pals with the intent to interfere with our operation of the Service, the performance of
the Service, or the use of other users and enterprises of the Service. If in the exercise
of our sole and absolute discretion, we determine that a Pal being tested or deployed by
You violates the foregoing, we reserve the right to suspend operation of the Pal or to
suspend Your account without prior notice. Should we suspend operation of a Pal or Your
account, we will endeavor to contact you to explain our actions and to work with you to
resolve the suspension.
7. Account Information & Data.
As of the Effective Date, the Service supports two types of accounts, two types of profiles
and three types of high level data objects. Accounts on the Service consist of individual
accounts and enterprise accounts. Individual accounts are used by individuals to interact
with the Service and to sign and view contracts in individual capacities. Enterprise
accounts allow enterprises to deploy Pals, manage transactions, and manage their use
of the Service and the individuals who represent them in their use of the Service.
Profiles consist of personal profiles and enterprise profiles. Each user has a personal
profile associated with his/her personal account. In addition, users can have personal
profiles associated with various enterprises. Enterprise profiles are associated with
enterprise accounts. Profiles contain information about the individuals or enterprises
to which they pertain. Data objects include Pal objects and transaction objects. Pals
are web applications maintained in coherent XML data structures. Like templates, Pals
represent potential transactions but are not transactions themselves. Transaction objects
derive from Pals and represent specific transactions, including data that may be added
for the transactions. Transactions have data that pertain to the enterprises that deploy
Pals and data that pertain to the other parties that engage in the transactions. Transactions
are also maintained in coherent XML data structures.
7.1 Individual Accounts & Profiles.
Independent of enterprises using the Service, individual account holders are required
to provide certain information, including first name, last name and email address, to
the Service so that their use of the Service may be authenticated ("Required User
Data"). Individual account holders may also provide additional information about
themselves as part of their individual profile to help them use of the Service
("Discretionary User Data").
7.2 Enterprise Accounts & Profile.
Enterprise accounts allow enterprises to build, test and deploy Pals, manage transactions,
and manage use of the Service by individuals who represent them in their use of the
Service. Enterprises are encouraged, and in some cases are required to provide the names and email
addresses of certain business, administrative and technical contacts to the Service, and
to provide other data, such as billing information so that they may be invoiced by
ContractPal or the Service, the foregoing being entered into enterprise profiles
("Required Enterprise Data"). In addition, individuals using the Service on
behalf of enterprises may provide additional information about themselves as part of
their enterprise profiles to help them in use of the Service on behalf of enterprises
("Discretionary Enterprise User Data").
7.3 Pal Data & Transaction Data.
Enterprises that develop, test, and/or deploy Pals on the Service may incorporate certain
web pages, documents, processes, email templates, roles and graphics into Pals. Pals
can then be used to create specific transactions with individuals and/or other enterprises
("Pal Data"). As described above, transactions are created from Pals using Pal
Data, resulting in transaction data. Generally, transaction data includes data that is
provided by the enterprise that has deployed the underlying Pal ("Enterprise Transaction
Data") and data provided by other parties to the transactions or required by the
other parties to understand the context of, and interact with, the transactions
("Party Transaction Data"). Collectively, Enterprise Transaction Data and
Party Transaction Data are considered "Transaction Data."
7.4 Ownership & Use of Account Information & Data.
You own all Required Enterprise Data, Discretionary Enterprise Data and Transaction
Data (hereinafter "Customer Data"), and ContractPal shall not use any
such Customer Data except as expressly provided in this Agreement. Moreover, You,
not ContractPal, shall have sole responsibility for the accuracy, quality, integrity,
legality, reliability, appropriateness, and intellectual property ownership or right
to use of all Customer Data, and ContractPal shall not be responsible or liable for
the deletion, correction, destruction, damage, loss or failure to store any Customer
Data unless caused by or resulting from a breach of this Agreement by ContractPal
or ContractPal's negligence, recklessness or willful misconduct. All Transaction Data
shall be made available to You for immediate
delivery to You in the formats supported by the Service and shall be and remain
Your property. Further, unless you elect to have ContractPal retain Transaction Data
for You, we may remove the Transaction Data from the Service, provided however,
ContractPal shall be permitted to retain a copy of Transaction Data in order
to facilitate access to Party Transaction Data by the parties involved in the
associated transactions. In addition, You agree that ContractPal may also retain
a single authoritative, unique, identifiable, and unalterable copy of each deployed
Pal and each transaction in order to substantiate the authenticity of the parties
and elements of each transaction. In no event shall ContractPal claim any ownership
or other right in or to any such Customer Data.
7.5 Backup & Recovery of Data.
As a part of the Service, ContractPal maintains a clustered database and
storage facility that provides contemporaneous backup of all Customer Data. Additionally,
ContractPal stores a backup of Customer Data in Class A Data Vault no less than daily,
maintaining the security of Customer Data in accordance with the provisions of
this Agreement.
8. Technical Support.
This section describes the technical support services we provide and offer for users of the
Service. This support is in addition to any support contracts that Customer may have
acquird from us.
8.1 Access Support.
Without charge, we provide technical support for users accessing the Service
("Access Support"). Access Support is limited to helping users with lost passwords,
multiple profile disorders, security lock outs and other issues that prevent accessing
the Service. Access Support is provided primarily by email. From time
to time, at our discretion, we may provide Access Support by telephonic means.
8.2 Enterprise Management & Pal Configuration Support.
We provide technical support to help customers in managing their enterprises on
ContractPal and, as part thereof, in configuring the web applications that they
are running on ContractPal, and in using a ContractPal sponsored web application,
at the price of $60 per hour, with a 1/2 hour minimum, billable in 15 minute
increments. This support, known as "Enterprise Support" is limited to helping
using the Service and does not extend to developing web applications or Pals
that run on the Service. For development support, see
Development Support.
Enterprise Support is available from 8:30 a.m. to 5:30 p.m. Mountain Time, Monday through
Friday, excluding national holidays. To engage us for Enterprise Support, send an
email to support@contractpal.com.
Alternatively, you mall call us as 801-494-1861, option 3, Technical Support.
Upon learning that you want/need Enterprise Support we will apprise you of such.
Upon providing Enterprise Support, we will add any billable amounts to your ContractPal
Statement on the Service and all amounts accrued during the current billing cycle
will be collected in accordance with payment policies of the Service.
8.3 Enterprise Access. In order to provide you Enterprise Support, we may
require access to Your enterprise on the Service. If you fail or refuse to give us
access to your enterprise, we may be unable to provide Enterprise Support to You.
If we cannot provide Enterprise Support to you because of your failure or refusal, we
reserve the right to terminate Enterprise Support for you. You will be required to
pay us for the time that we have incurred up through termination of the Enterprise
Support.
9. Payment & Billing.
ContractPal charges and collects in arrears for use of the Service. You agree to pay
ContractPal for all fees incurred when using the Service. All fees for use
of the Service are based upon Activation Keys, which you will be required to authorize
before becoming active.
9.1 Definitions. For purposes of this Section 8, the following
definitions will apply. Terms defined in the singular included the plural and
terms defined in the plural include the singular.
9.1.1 Access Fee. "Access Fee" means the amount of consideration
payable to ContractPal for each ContractPal transaction during the Access
Period for that transaction and is specified in the Activation Key governing
the transaction.
9.1.2 Access Period. "Access Period" means the period
(date and time) that begins immediately at the end of the Execution Period
of a ContractPal transaction and ends the number of months after the beginning
of the Access Period specified in the Activation Key governing the transaction.
During the Access Period, ContractPal application work flow is permitted to
run.
9.1.3 Activation Key. "Activation Key" means the software object
used by the Service to govern applications that are run by the Service. Activation
Keys govern applications that run on and transactions generated by the Service.
Activation keys govern size, available resources and pricing for such applications
and transactions. Activation Keys generally include Execution Fees, Access Fees
and Archive Fees. Activation Keys may include other pricing terms that
related to developing, testing and running applications on ContractPal. Activation Keys
are generated by the system and can govern one or more applications and their
associated transactions.
9.1.4 Archive Fee. "Archive Fee" means the amount of consideration
payable to ContractPal for each ContractPal transaction during the Archive
Period for that transaction and is specified in the Activation Key governing
the transaction.
9.1.5 Archive Period. "Archive Period" means the period
(date and time) that begins immediately at the end of the Access Period
of a ContractPal transaction and ends the number of months after the beginning
of the Archive Period specified in the Activation Key governing the transaction.
During the Archive Period, documents in a transaction can be viewed but
application work flow is disabled.
9.1.6 Execution Fee. "Execution Fee" means the amount of consideration
payable to ContractPal for each ContractPal transaction during the Execution
Period for that transaction and is specified in the Activation Key governing
the transaction.
9.1.7 Execution Period. "Execution Period" means the period
(date and time) that begins with the creation of a ContractPal transaction and
ends the number of months after the creation date specified in the Activation
Key governing the transaction. The standard execution period is one month.
9.2 Activation Key Management.
The person or persons You authorize through the Enterprise Administration interface of
the Service will be responsible for managing Your use of the Service and the Activation
Keys associated with Pals and transactions.
9.3 Confidentiality of Pricing Terms.
All pricing terms are confidential, and neither You or ContractPal shall have any right to
disclose Your pricing terms to any third party.
9.4 Automatic Payments.
Generally, all payments to ContractPal are automated by the Service. The payment date
and applicable fees are fully described in applicable Activation Keys. The Service will
automatically collect fees owed by You on the date elected by your administrator when
Your enterprise account was created. ContractPal reserves the right to defer collection
of small fees (usually less than $5.00) to subsequent billing periods.
9.5 Legacy Payments.
At ContractPal's sole discretion, ContractPal may consent to
invoice You directly instead of using the automated system of the Service, the actual
amount of each Payment due under the applicable Activation Keys will
be the aggregate amount determined by the Activation Keys You
associate with Your Pals. If ContractPal so elects, You agree to pay an additional $100 charge for each monthly invoice
if ContractPal is required to invoice You outside of the Service.
9.6 Payments.
You agree to pay all valid
invoices, except for any amounts reasonably disputed by You, within thirty (30) days
after Your receipt thereof.
9.7 Taxes & Statements.
Service
fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and
You shall be responsible for payment of all such taxes, levies, or duties, excluding
only taxes based on ContractPal's income. ContractPal shall provide statements to You monthly.
All statements shall be itemized and shall substantiate all charges therein
set forth. All statements and underlying detail records shall be made available to You
in the Administrative Management Console. All such statements and detail shall be retained
for a period of one (1) year from the date of the invoice. All payments will be billed and collected in U.S. dollars.
9.8 Billing Information.
You agree to provide ContractPal with complete and accurate billing and contact information.
This information includes Your legal company name, street address, e-mail address, name
and telephone number of an authorized billing contact and billing credentials. You agree
to update this information within 30 days of any change to it. If the contact information
You have provided is false or fraudulent, ContractPal reserves the right to terminate
Your access to the Service in addition to any other legal remedies.
9.9 Refunds & Delinquent Payments.
Unless otherwise agreed by ContractPal, all payments are final and non-refundable.
In addition to any other rights granted to ContractPal herein, ContractPal reserves the right
to suspend or terminate this Agreement and Your access to the Service if Your account becomes
delinquent; provided, that You have not corrected such delinquency within ten (10) days of
notice thereof (which may be provided automatically by the Service) or You do not dispute in
good faith the charges claiming to be due. Delinquent payments not disputed in good faith
are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted
by law, whichever is less, plus all expenses of collection. If ContractPal terminates this
Agreement as a result of Your breach or You terminate this Agreement (other than as a
result of ContractPal's breach), You will be obligated to pay the balance due on Your account
within ten (10) days of the effective date of the termination.
10. Termination.
10.1
This Agreement commences on the date
Your enterprise account was created. The term of this Agreement is indefinite, subject to termination as described
below.
10.2
You may terminate this Agreement at any time, with or without cause, by executing the
ContractPal Termination Agreement.
As part of, and subject to, the Termination
Agreement, ContractPal will deliver to You all data resulting from
execution of Pals owned and/or deployed by you on the Service ("Customer Data") within
thirty (30) days of termination if You so request at the time of termination. You agree
and acknowledge that ContractPal shall have no obligation to retain Customer Data
more than thirty (30) days after termination.
10.3
ContractPal may terminate this Agreement for cause in the event that You commit a material
breach of this Agreement and do not cure the breach within thirty (30) days of
Your receipt of ContractPal's written notice of such breach. ContractPal reserves the right to
provide notice of breach by sending an email to the business contact identified by You
on the Service. ContractPal's right to terminate this Agreement hereunder is in addition to all
other remedies available in law and at law, including the rights to suspend Your
enterprise account as provided in this Agreement.
10.4
Termination of this Agreement shall terminate
each and every other Agreement between You and ContractPal and shall give ContractPal the
right to revoke all Activation Keys associated with Your enterprise account.
ContractPal, in its sole discretion,
may disable Your account or use of the Service if You breach or otherwise fail to comply
with this Agreement. You agree and acknowledge that ContractPal has no obligation to retain
Customer Data after termination if You have materially breached this
Agreement and such breach
has not been cured within thirty (30) days of notice of such breach.
10.5
The provisions of Sections 3 (Privacy & Information Security), 5 (Intellectual
Property Ownership), 6.1 (Ownership of Pals), 7.4 (Ownership & Use of Account
Information & Data), 7.4 (Ownership & Use of Account Information & Data),
9.3 (Confidentiality of Pricing Terms), 9.6 (Payments), 9 (Termination), 11
(Indemnification), 13 (Confidentiality), 18 (Limitation of Liability),
19 (Integration), 21 (Assignment), 22 (Interpretation), and 23 (General) shall
survive the expiration or termination of this Agreement.
11. Representations, Warranties & Insurance.
11.1
Each party represents and warrants that it has the legal power and authority to enter into
this Agreement. ContractPal represents and warrants that it will provide the Service
in a manner consistent with general industry standards reasonably applicable to the
provision thereof and that the Service will perform substantially in accordance
with the online ContractPal help documentation under normal use and circumstances.
You represent and warrant that You have not falsely identified Yourself nor provided
any false information to gain access to the Service.
11.2
ContractPal warrants and represents that the Service provides the tools, architecture,
audit trails, security methods and means of operation necessary to build and deploy
web applications or Pals that comply with the Electronic Signatures in Global and
National Commerce Act (15 U.S.C. § 7001 et seq.), the Uniform Electronic Transactions
Act as drafted by the National Conference of Commissioners on Uniform State Laws UETA,
the privacy provisions of the Gramm-Leach-Bliley Financial Services Modernization Act
(15 U.S.C. § 6801 through § 6809), the privacy provisions of the Health Insurance
Portability and Accountability Act of 1996, and Sections 302 and 404 of the Sarbanes-Oxley
Act of 2002. For the avoidance of doubt, ContractPal hereby represents and warrants that
the electronic signature process provided in and through the Service is sufficient to
create a legally binding contract under applicable laws. At Your expense, ContractPal agrees
to provide You or Your attorneys support in prosecuting or defending any transaction executed on the
Service.
11.3
ContractPal warrants that the Service and all Pals developed for You by ContractPal,
excluding of any materials provided by You to ContractPal (collectively, "Work Product")
shall function in the manner for which they were designed, be of original development, and all
Work Product and property licensed or owned by ContractPal shall not infringe or violate any
U.S. patent, copyright, trade secret, trademark, or other U.S. third party intellectual
property right.
11.4
You warrant and represent to ContractPal that You are responsible for Your use
of the Service and all activity of Your enterprise in using the Service, and further
warrant and represent that You will assure compliance by Your enterprise and its users
with all applicable local, state, national and foreign laws, treaties and regulations
in connection with Your use of the Service, including those related to data privacy,
international communications and the transmission of technical or personal data.
11.5
ContractPal agrees to maintain at its own expense the types and levels of insurance coverage
and policy limits customary for
service providers substantially similar to ContractPal, including the following:
- Workers' Compensation as required by the laws of the state of Utah, and Employer's Liability Insurance;
- Commercial General Liability (Occurrence Form) including coverage for Bodily Injury, Property Damage, Products Liability, Completed Operations, Contractual Liability, and Personal Injury;
- Professional Liability/Errors and Omissions Insurance; and
- Network/Cyber Liability Insurance.
11.6
EXCEPT AS PROVIDED IN SECTION 4 AND THIS SECTION 10, CONTRACTPAL AND ITS LICENSORS MAKE NO REPRESENTATION,
WARRANTY, OR GUARANTY AS TO THE
RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS
OF THE SERVICE OR ANY CONTENT. UNDER THIS AGREEMENT, CONTRACTPAL AND ITS LICENSORS DO NOT
REPRESENT OR WARRANT THAT
(A) USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE
IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET
YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D)
THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED
BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR
DEFECTS WILL BE CORRECTED, F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE
ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR G) ANY THIRD PARTY SERVICES ARE ACCESSIBLE
USING THE SERVICE. UNDER THIS AGREEMENT, THE SERVICE AND ALL CONTENT IS PROVIDED TO
YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES,
WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD
PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY
CONTRACTPAL AND ITS LICENSORS. CONTRACTPAL'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS,
AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
CONTRACTPAL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING
FROM SUCH PROBLEMS.
12. Indemnification.
12.1
You shall indemnify and hold ContractPal, its licensors and each such party's parent
organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and
agents harmless from and against any and all claims, costs, damages, losses, liabilities
and expenses (including attorneys' fees and costs) asserted by a third party that arise
out of or in connection with:
(i) a breach of any representation and warranty of Yours set forth herein; or (ii) Your
breach of this Agreement: provided in any such case that ContractPal (a) gives written
notice of the claim promptly to You; (b) gives You sole control of the defense and
settlement of the claim (provided that You may not settle any claim without ContractPal's
written consent which shall not be unreasonably withheld); and (c) provides to You all
available information and assistance.
12.2
ContractPal shall indemnify and hold You and Your
parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys
and agents harmless from and against any and all claims, costs, damages, losses, liabilities
and expenses (including attorneys' fees and costs) asserted by a third party that
arise out of or in connection with:
(i) a claim alleging that the Service or Work Product or any material supplied by
ContractPal infringes a copyright, patent, or a trademark or other intellectual property
right of a third party; (ii) a material, uncured breach of any covenant, representation, or warranty of
ContractPal set forth herein; (iii) any failure of the Work Product to comply with
specifications or function as intended; or (iv) a breach of this Agreement by
ContractPal: provided that You (a) promptly give written notice of the claim to
ContractPal; (b) give ContractPal sole control of the defense and settlement of the claim (
provided that ContractPal may not settle any claim without Your written consent which
shall not be unreasonably withheld); and (c) provide to ContractPal all available information
and assistance.
12.3
ContractPal shall have no indemnification obligation for claims arising solely from the
combination of the Service with any of Your products, service, hardware or business process(s).
12.4
The indemnifications set forth above shall include, without limitation thereto,
reasonable attorneys' fees and other costs of defense incurred by the indemnified
Party. Indemnified Party shall promptly provide the other with notice upon its receipt
or acknowledgement of such claim. Each party, at its sole expense, shall defend all such
claims and actions against the Indemnified Parties, whether brought informally or
through court or administrative procedures.
13. Local Laws and Export Control.
The Service uses
software and technology that may be subject to United States export controls administered
by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign
Assets Control, and other U.S. agencies and the export control regulations of Switzerland
and the European Union. You acknowledge and agree
that the Service shall not be used, and none of the underlying information, software, or
technology may be transferred or otherwise exported or re-exported to countries to which
the United States, Switzerland and/or the European Union maintains an embargo (collectively,
"Embargoed Countries"), or to or by a national or resident thereof, or any person
or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the
U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated
Nationals"). The lists of Embargoed Countries and Designated Nationals are subject
to change without notice. By using the Service, You represent and warrant that You are
not located in, under the control of, or a national or resident of an Embargoed Country
or Designated National. You agree to comply strictly with all U.S., Swiss and European
Union export laws and assume sole responsibility for obtaining licenses to export or
re-export as may be required. This Service may use encryption technology that is subject
to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R.
Parts 730-774 and Council Regulation (EC) No. 1334/2000 ContractPal and its licensors make
no representation that the Service is appropriate or available for use in other locations.
If You use the Service from outside the United States of America, Switzerland and/or the
European Union, You are solely responsible for compliance with all applicable laws,
including without limitation export and import regulations of other countries. Any diversion
of the Content contrary to United States, Swiss or European Union (including European Union
Member States) law is prohibited. None of the content, nor any information acquired through
the use of the Service, is or will be used for nuclear activities, chemical or biological
weapons, or missile projects, unless specifically authorized by the United States government
or appropriate European body for such purposes.
14. Confidentiality. The content and methods of operation of the
Service are Confidential Information and provided to You solely based upon Your agreement
to maintain them confidential. You agree not disclose the content and methods of
operation of the Service to any third party without the prior written authorization
of ContractPal. You also agree not to use the content or methods of operation for
any purpose other than to interact with and support the Service. You also agree not
to attempt to reverse engineer any portion of the content or methods of operation of
the Service. You agree to maintain the confidentiality of the content and methods of
operation of the Service with at
least the same degree of care that You use to protect Your own confidential and
proprietary information, but not less than a reasonable degree of care under the
circumstances. You will not be liable for the disclosure of any Confidential
Information that is: (a) in the public domain other than by a breach of this Agreement
on Your part; or (b) rightfully received from a third party without any obligation
of confidentiality; or (c) rightfully known to You without any limitation on use or
disclosure prior to its receipt from ContractPal; or (d) independently developed by
Your employees; or (e) generally made available to third parties by ContractPal without
restriction on disclosure.
15. Credit Card & ACH Data.
The PCI Security Standards Council, which includes American Express, Discover Financial Services,
JCB International, MasterCard Worldwide and Visa Inc. Inc. International, has promulgated the
PCI Data Security Standard (PCI DSS) standard, which is a set of comprehensive requirements for
enhancing payment account data security to help facilitate the broad adoption of consistent data
security measures on a global basis. ContractPal has incorporated into the Service
The Service currently provides support for complying with PCI DSS. In addition, in
the next release the Service (expected on September 30, 2008) an application programming
interface (API) will be added to the Service to allow Pals to securely
gather and manage card member data and electronic check or ACH data. The support provided
by the Service and the API are designed to comply with applicable PCI DSS
requirements. YOU AGREE THAT YOU
WILL NOT DEVELOP, OR AUTHORIZE OR DIRECT ANY ONE ELSE TO DEVELOP, OR MODIFY ANY PAL TO GATHER OR
MANAGE CARD MEMBER DATA OR ACH DATA WITHOUT USING THE API OR CONSIDERING AND ACCEPTING
RESPONSIBILITY FOR PCI DSS COMPLIANCE WITHIN THE PALS THAT YOU DEVELOP, TEST AND DEPLOY
USING THE SERVICE. IF YOU BREACH THIS SECTION 14
YOU AGREE TO INDEMNIFY AND DEFEND CONTRACTPAL, ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES
AND AGENTS FROM AND AGAINST ANY AND ALL LIABILITY BASED UPON A CLAIM OF YOUR BREACH OF
THIS SECTION 14.
16. Transfer of Ownership.
This provision applies if You use the facilities of ContractPal to transfer ownership
of an enterprise on ContractPal, or if You accept the transfer of an enterprise on
ContractPal. If you are transferring an enterprise, You are referred to in this Section
15 as the "Current Owner." If You are receiving the transfer of an enterprise, You are
referred to in this Section 15 as the "New Owner." The enterprise being transferred is
referred to as the "Enterprise" in this Section 15. A transfer effected under this Section 15
is referred to in this Section 15 as a "Transfer."
16.1 Authority to Transfer. Only the authoritative owner of
the Enterprise may transfer the Enterprise to the New Owner. Current Owner hereby warrants
and represents that Current Owner has full and complete authority to initiate the
Transfer and to transfer the Enterprise to New Owner. Upon effecting the Transfer
using the tools provided by the Service, the Transfer will become effective.
16.2 Assignment of All Rights.
Upon effectiveness of the Transfer as specified in Section 16.1 above, and subject to the terms
and conditions of this Agreement, Current Owner hereby assigns all right, title and
interest in and to the Enterprise to New Owner. In connection herewith, Current Owner hereby
assigns, conveys and transfers to New Owner, and its successors and assigns all
intellectual property rights owned by Current Owner in and to all applications or Pals
associated with the Enterprise, and all other information as it pertains to the
operation of the Enterprise.
16.3 Assumption of Duties, Responsibilities & Liabilities
Upon effectiveness of the Transfer as specified in Section 16.1 above, and subject to the terms
and conditions of this Agreement, New Owner agrees to assume and hereby assumes all duties,
responsibilities and liabilities associated with the Enterprise, including all duties, obligations
and liabilities associated with this Agreement.
16.4 Indemnification of ContractPal
Current Owner and New Owner hereby agree
to indemnify and hold and hereby indemnify and hold ContractPal, its licensors and
it's parents, subsidiaries, affiliates, officers, directors, employees, attorneys and
agents harmless from and against any and all claims, costs, damages, losses, liabilities
and expenses (including attorneys' fees and costs) arising out of or in connection with
any Transfer.
17. Domain Registration.
This Section 16 relates to and governs the registration of domains on and for use in
connection with Service.
17.1 Warranties & Representations.
You on behalf of yourself and the entity or enterprise You represent (the "Registrant"),
warrant and represent that the Registrant owns, or is exclusively authorized by
the owner of, each and every domain registered on the Service.
17.2 Indemnification.
You and Registrant here by agree to indemnify and hold ContractPal, its
licensors and each such party's parent organizations, subsidiaries,
affiliates, officers, directors, employees, attorneys, agents, shareholders
and customers harmless from and against any and all claims, costs, damages,
losses, liabilities and expenses (including attorneys' fees and costs) arising
out of or in connection with: (i) a claim alleging that use of a domain registered
on the Service infringes the rights of, or has caused harm to, a third party;
or (ii) a claim, which if true, would constitute a violation by You and Registrant
of its warranties and representations hereunder.
17.3 Right To Revoke Registration.
In its sole and complete discretion, ContractPal reserves the
right to suspend or revoke Your right to use a domain registered on the Service
if it suspects a breach of Section 17.1.
18. Logo Registration.
This Section 18 relates to and governs the registration of logos on and for use in
connection with the Service.
18.1 Warranties & Representations.
You on behalf of yourself and the entity or enterprise You represent (the "Registrant"),
warrant and represent that the Registrant owns, or is exclusively authorized by
the owner of, each and every logo registered on the Service.
18.2 Indemnification.
You and Registrant hereby agree to indemnify and hold ContractPal, its
licensors and each such party's parent organizations, subsidiaries,
affiliates, officers, directors, employees, attorneys, agents, shareholders
and customers harmless from and against any and all claims, costs, damages,
losses, liabilities and expenses (including attorneys' fees and costs) arising
out of or in connection with: (i) a claim alleging that use of a logo registered
on the Service infringes the rights of, or has caused harm to, a third party;
or (ii) a claim, which if true, would constitute a violation by You and Registrant
of its warranties and representations hereunder.
18.3 Right To Revoke Registration.
In its sole and complete discretion, ContractPal reserves the
right to suspend or revoke Your right to use a logo registered on the Service
if it suspects a breach of Section 17.1.
19. LIMITATION OF LIABILITY.
EXCEPT FOR A PARTY'S BREACH OF THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY
EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. EXCEPT FOR EACH PARTY'S
INDEMNIFICATION OBLIGATIONS AND BREACHES OF SECTION 12 (CONFIDENTIALITY) AND SECTION 14
(CARD MEMBER DATA), IN NO EVENT
SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE,
SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND
(INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT
OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR
INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE,
ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT,
EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN
PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW
THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS
OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
20. Integration.
This Agreement constitutes the entire agreement between the contracting parties concerning
the subject matter hereof. All prior agreements, discussions, representations, warranties,
and covenants are merged herein. There are no warranties, representations, covenants,
or agreements, express or implied, between the parties except those expressly set forth in this
Agreement.
21. Modification.
ContractPal reserves the right to
replace or modify the terms and conditions of this Agreement or its policies relating to the
Service at any time. To propose any such replacement or modification, ContractPal will
send an email that contains a link to an agreement proposing to replace or modify this
Agreement to the business contact and administrator for Your enterprise. ContractPal reserves
the right to suspend Your account if You fail or
refuse to accept and sign such agreement within thirty (30) days of ContractPal's sending such
email.
22. Assignment.
Either party may assign this Agreement to an entity acquiring substantially all of its assets or
greater than fifty percent (50%) of its equity, provided such equity is entitled to vote on such
acquisition, without the prior written consent of the other party. Notwithstanding, You may not
assign this Agreement to any party deemed in ContractPal's reasonable estimation to be a
competitor of ContractPal. Any assignment of this Agreement in violation of this Section 18
shall be deemed null and void.
23. Interpretation.
Headings and subheadings are provided solely for convenience and shall not be interpreted
as part of this Agreement. If any provision of this Agreement is or becomes illegal, invalid
or unenforceable in any jurisdiction, that shall not affect the validity or enforceability
in that jurisdiction of any other provision of this Agreement; or the validity or
enforceability in other jurisdictions of that or any other provision of this Agreement.
24. General.
24.1. Governing Law.
This Agreement shall be governed by Utah
law and controlling United States federal law, without regard to the choice or conflicts
of law provisions of any jurisdiction.
24.2. Relationship.
You acknowledge that ContractPal provides the Service to you as an independent contractor
and shall not exercise any authority to represent You or in any way to bind or to
commit You to any agreement of any kind with any third party or to assume any
liabilities of any nature in the name of or on behalf of You. Under no circumstances
shall ContractPal, or any of its staff hold itself out as or be considered an agent
employee, joint venture, or partner of You.
24.3. Waiver.
The failure of either party at any time to require performance by the other party of
any provision of this Agreement shall in no way affect that party's right to enforce
such provisions, nor shall the waiver by either party of any breach of any provision
of this Agreement be taken or held to be a waiver of any further breach of the same
provision.
24.4. Compliance With Laws.
Both parties agree to comply with all applicable federal, state, and local laws,
executive orders and regulations issued, where applicable.
24.5. Severability.
If any provision of this Agreement or its application to any person or circumstance
is held invalid, the invalidity shall not affect other provisions or applications of
this Agreement that can be given effect without the invalid provision or application,
and to this end the provisions of this Agreement are declared to be severable. In lieu of
any provision held invalid, there shall be added a provision as similar in terms to
such illegal, invalid and unenforceable provision as may be possible and be legal,
valid and enforceable.