TERMS OF SERVICE
Last Revision: July 2020
This SOFTWARE SERVICE AGREEMENT (this “Agreement”) made between the individual or entity named on the agreement Agreement (“Customer”) and 3DIQ, LLC, a Tennessee limited liability company (“Company”) (collectively “Parties”, each “Party”) is made effective as of the date marked on the first page of this Agreement (the “Effective Date”) and constitutes a legal and binding agreement between Parties. The Parties agree as follows:
In witness whereof, the Parties have caused this Agreement to be executed as of the Effective Date by their duly authorized representatives named on, and evidenced by their signatures present on, the first page of this Agreement.
2. SERVICES AND SUPPORT
Company will use commercially reasonable efforts to provide to Customer the Services described in the attached Software Services Schedule, in accordance with the terms of Company’s standard practice or those otherwise described in the Support Services.
3. RESTRICTIONS AND RESPONSIBILITIES
(a) Customer will not, directly or indirectly: reverse engineer,decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-howor algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify,translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company orauthorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices, marks or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
(b) Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items”and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section227.7202 and FAR section 12.212, any use modification,reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
(c) As part of the registration process, Customer will identify one single administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords, login credentials, and or any accounts it deems inappropriate or otherwise pursuant to Company’s policy.
(d) Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses, including without limitation costs and attorneys’ fees, in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services, including but not limited to, uploading or introducing data that may be corrupt, infected, and or malware software. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be, or alleged to be, in violation of any terms in this Agreement, or the Company User Terms pursuant to Section 1(a)3(h).
(e) In addition to the above and within applicable laws, if Customer uploads and or submits any data containing sensitive personal information,including but not limited to, social security numbers, bank records,employment records, paystubs, or any other information that may be reasonably understood, inferred, or suspected to be sensitive information,onto Company’s Software and or Services, Customer hereby agrees to indemnify and hold harmless Company against any damages, losses,liabilities, settlements and expenses, including without limitation costs and attorneys’ fees, in connection with any claim or action that arises from an alleged violation of the foregoing, or from any violation of any applicable privacy laws including (without limitation) GDPR, CCPA, the UK Data Protection Act of 2018, and similar laws as may be adopted and amended.Customer represents and warrants to Company that: (a) it will comply with all privacy laws including, without limitation, HIPAA, CCPA, the UK Data Protection Act of 2018 and GDPR and similar laws to the extent applicable; (b) it will not sell personal information and will only retain personal information; (c) it will implement and maintain reasonable security procedures and practices, appropriate to the nature of the information it collects, in order to protect any and all personal information from unauthorized access, destruction, use, modification, or disclosure;(d)it will comply with any Data Processing Addendum entered into by the Parties, and (e) it will forward any third party requests that it receives regarding data it collects to Company, will reasonably cooperate with Company in fulfilling such requests, and will confirm deletion of any data that Company directs Customer to delete.
(f) Company does not warrant nor covenant the level of security, data protection, or anything thereof surrounding cyber security of its Software or Services, and as such encourages Customer, and Customer agrees hereby, to conduct its own security analysis, and or discuss such requirement with Company, prior to the start of any commencement of Services herein so that an independent security analysis and or audit may be conducted, all solely at the Customer’s time and expense, again before the commencement of any Services herein.
(g) If applicable or necessary, Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems,networking, web servers and the like (“Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords, including but not limited to administrative and userpasswords, and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
4.CONFIDENTIAL INFORMATION; PROPRIETARY RIGHTS
(a) Each party (the “Receiving Party”) understands that the other party(the “Disclosing Party”) has disclosed or may disclose business,technical or financial information relating to the Disclosing Party’s business (the “Proprietary Information” of the Disclosing Party).Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non- public data provided by Customer to Company to enable the provision of the Services and excludes any data obtained by patrons or persons outside of Customer (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof orany information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
(b) Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements,enhancements or modifications thereto, (b) any software,applications, inventions or other technology developed in connection with Implementation Services or Support Services, (c) all data derived from Customer Data, such as any analytics or insights otherwise determined by Company, (d) any de-identified form of Customer data, and (e) all intellectual property rights related to any of the foregoing.
(c) Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
(d) If the Receiving Party becomes legally compelled to disclose any Confidential Information, it must notify the Disclosing Party in sufficient time for the Disclosing Party, at its sole option, to seek a protective order or other appropriate remedy or waive compliance with the applicable provisions of this Agreement. If the Disclosing Party elects to seek a protective order or other appropriate remedy,the Receiving Party must cooperate with, and not object to, the Disclosing Party’s reasonable actions. If a protective order or other remedy is not obtained or the Disclosing Party waives compliance with the applicable provisions of this Agreement, the Receiving Party is permitted to furnish only that portion of the Disclosing Party’s Confidential Information that the Receiving Party reasonably believes is legally required to be disclosed.
(e) The Receiving Party understands and acknowledges that a breach of this Agreement by the Receiving Party would cause irreparable injury to the Disclosing Party not compensable in money damages alone. Accordingly, in the event of the unauthorized disclosure or use of the Confidential Information or a threat thereof by the Receiving Party, the Disclosing Party is entitled to seek injunctive relief, a restraining order, or other appropriate equitable remedies from a court of competent jurisdiction, so as to specifically enforce the terms of this Agreement without the necessity of showing actual damages or furnishing a bond or other security. This right is in addition to any other remedy available to the Disclosing Party pursuant to this Agreement or in law or equity.
5.PAYMENT OF FEES
(a)Customer will pay Company the then applicable fees described in Software Services Schedule for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity appropriate for the selected Services set forth in Software Services Schedule or otherwise requires the payment of additional fees, per the terms of this Agreement,Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein and may be automatically upgraded by Company into the appropriate plan of Services.
(b) Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer, which may be sent by email. If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
(c) Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
(a) Subject to earlier termination as provided below, this Agreement is for the initial Service Term specified in Software Services Schedule, and shall automatically renew for additional periods of the same duration as the Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
(b) In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice, if the other party materially breaches any of the terms or conditions of this Agreement.Nonpayment by Customer for Services is viewed as a material breachunder this Section.
(c)In any case of termination of this Agreement, Customer will pay in full for the Services up to and including the last day of which the Servicesare provided.
7. IMPLEMENTATION SERVICES
If Implementation Services are applicable to Customer, Company will use commercially reasonable efforts to provide Implementation Services to Customer, and Customer shall pay Company the Implementation Fees specified in the Software Services Schedule. These are generally upfront and one-time in nature, unless otherwise specified by the Software Services Schedule.
If Documentation is applicable to Customer, Company will use commercially reasonable efforts to provide Documentation and Customer shall pay Company the Documentation Fees, specified in the Software Services Schedule.
9. CUSTOMER TRAINING SERVICES
If Customer Training Services are applicable to Customer, Company will use commercially reasonable efforts to provide Customer Training Services to Customer, and Customer shall pay Company the Customer Training Fee specified in the Software Services Schedule.
10. CUSTOM DEVELOPMENT SERVICES
If Custom Development Services are applicable to Customer, Company will use commercially reasonable efforts to provide Custom Development Services to Customer, and Customer shall pay Company the Custom Development Fee specified in the Software Services Schedule.
11. ADDITIONAL SUPPORT SERVICES
If Additional Support Services are applicable to Customer, Company will use commercially reasonable efforts to provide Additional Support Services to Customer, and Customer shall pay Company the Additional Support Fees specified in the Support Services Schedule.
12. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workman like manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON- INFRINGEMENT.
13. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14. GENERAL PROVISIONS
(a) This Agreement is to be interpreted, construed and governed according to the laws of the State of Tennessee, without regard to its principles regarding conflicts of law.
(b) Each of the Parties hereby 2. submits to the jurisdiction of any state court of competent jurisdiction in and for Knox County, Tennessee, or in the United States District Court for the Eastern District of Tennessee sitting at Knoxville in any action or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court; (i) agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court; (ii)waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety, or other security that might be required of any other party with respect thereto;and (iii) agrees that a final judgment in any action or proceeding so brought is conclusive and may be enforced by suit on the judgment or in any other manner provided by law or in equity.
(c)This Agreement contains the entire agreement between the Parties on the matters that are the subject of this Agreement, and is binding on the Parties and their heirs, successors, and assigns, except as otherwise provided in this Agreement. This Agreement supersedes all prior contracts, agreements, and understandings between the Parties.
(d)All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers,indemnification, and limitations of liability.
(e) This Agreement may not be assigned by either Party without the express written consent of the other Party; but a successor in interest by merger,by operation of law, assignment, purchase or otherwise of the entire business of either Party will acquire all rights and obligations of the acquired Party under this Agreement.
(f) No amendments, modifications, or extensions of this Agreement will be binding or effective unless embodied in a writing signed by the Party against whom the enforcement of any waiver, change, extension,modification or discharge is sought.
(g) No failure on the part of either Party to exercise and no unreasonable delay by either Party in exercising any right under this Agreement operates as a waiver of the right; nor does any single or partial exercise of any right by either Party exclude any other or future exercise of the right or the exercise of any other right of the exercising Party under this Agreement.
(h) The Parties are independent contractors and separate legal entities. The relationship between the Parties is reflected in this Agreement, and neither Party, nor any Representative of either, is to be considered an employee, servant, agent, or representative of the other Party. None ofthe provisions of this Agreement is intended to create or to be construed as creating any agency, partnership, joint venture, or employer-employee relationship between or among the Parties or any employee,servant, agent, or representative of either.
(i) If one or more provisions of this Agreement are held to be unenforceable under applicable law, the Parties agree to renegotiate the affected provision in good faith. If the Parties cannot reach a mutually agreeableand enforceable replacement for that provision, then (i) the provision will be excluded from this Agreement, (ii) the balance of the Agreement will be interpreted as if the affected provision were so excluded, and (iii) thebalance of the Agreement will be enforceable in accordance with its terms, to the maximum extent permitted by applicable law.
(j) This Agreement may be executed in two or more counterparts inthe English language; each counterpart is an original of this Agreement, and all counterparts constitute a single instrument.Facsimile or PDF copies of signatures will be treated as original signatures for all purposes.
15. INCLUDLED SUPPORT SERVICES:
(a) Company will provide technical support (“Support Services”) to Customer via email, and additionally any other method of communication of Company’s choosing, on weekdays during the hours of 9:00 am through 5:00 pm EST, excluding Federal Holidays(“Support Hours”).
(b) Company will use commercially reasonable efforts to respond to allinquiries by Customer within three (3) business days.