Service Terms & Conditions
These Service Terms and Conditions (as amended or supplemented, the “Service Terms”) govern the use of the software services set forth in a Sales Order (as amended or supplemented, the “Sales Order”) between Edmunds GovTech, Inc. or one of our subsidiaries or affiliates (collectively, “EGT”, “us”, “we” or “our”) and our customer (“Customer”, “you” or “your”). These Service Terms are incorporated into and made a part of each Sales Order (together, this “Agreement”) and are acknowledged and agreed by your execution thereof.
These Service Terms apply to the following, as applicable, as specified in the Sales Order: (a) your Use (as defined under ACCESS AND USE) of EGT owned or licensed software (the “Software”) in connection with the Software Services (as defined under ACCESS AND USE); and (b) your purchase of (i) implementation, data conversion, training and other professional services related to the initiation of the Software Services (the “Professional Services”); (ii) maintenance and support services related to the Software Services (the “Support Services”); and (iii) hosting services related to the Software Services (the “Hosting Services” and, collectively with the Software Services, Professional Services and Support Services, the “Services”), in each case as applicable as specified in the Sales Order.
Subject to all terms and conditions of this Agreement, including compliance with these Service Terms and payment of all applicable Fees (as defined under FEES), we grant you a limited, non-exclusive, non-sublicensable, non-transferable right during the Software Services Term (as defined under TERM AND TERMINATION) to access and use (collectively “Use”) the Software and its accompanying documentation as made available by us (the “Software Services”) in accordance with (a) these Service Terms and (b) any additional Use restrictions (including any limitations on the number of authorized users identified by your administrator and approved by us as set forth in the Sales Order (“Authorized Users”), downloads, copies or installations or on the scope of authorized Use).
Unless otherwise set forth in the Sales Order, the Software Services are purchased as time-based subscriptions, and each Authorized User must have a valid subscription that cannot be shared with other users (but may be reassigned to new named Authorized Users from Authorized Users who cease using the Software Services). We will use commercially reasonable efforts to maintain availability of the Software Services for authorized Use by you and your Authorized Users except for (a) scheduled downtime (of which we shall give advance electronic notice); (b) service downtime or degradation due to a Force Majeure Event (as defined under FORCE MAJEURE); (c) any other circumstances beyond our reasonable control, including your use of Third Party Materials (as defined under CLIENT DATA AND OWNERSHIP); or (d) Use of the Software Services other than in accordance with these Service Terms. In the case of any Software Services provided by us through the installation of the object code version of the Software, the term “Use” shall include the right to install and run the Software.
Except as set forth in the Sales Order: (a) we will issue administrative login and password information to an administrator designated by you and set forth in the Sales Order; (b) through your administrator, you will be responsible for providing additional logins to your Authorized Users and for assigning access levels through the administrative modules of the Software Services; (c) after the initial login, the administrator will be able to revise Authorized User access levels and passwords (logins may not be able to be revised by the administrator), and Authorized Users will be able to revise their own passwords; and (d) you may change administrators by contacting our Customer Support (see SUPPORT). You will be responsible for maintaining the security of logins and passwords in your and your Authorized Users’ possession in accordance with industry standards and applicable law. Any breach of the terms and conditions of this Agreement by any Authorized User (including any Authorized User that gains unauthorized access) shall constitute your breach. You shall notify us immediately if you learn of any unauthorized disclosure, access or use of any login or password assigned to you or your Authorized Users.
During the Software Services Term, we may elect to make additional features or products (“Beta Services”) available to you at no charge, to which the following special terms and conditions apply: (a) you may use or decline to use any Beta Services; (b) Beta Services may not be supported and may be changed or terminated at any time without notice; (c) Beta Services may not be as reliable or available as the Services; (d) Beta Services are not considered Services under this Agreement; however, all Customer restrictions, obligations and limitations that apply to Services shall also apply to Beta Services; (e) any Beta Services trial period will expire one year from the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation; and (f) Beta Services are provided “as-is” and no warranty under WARRANTIES or obligations will apply, nor will we have any liability for any harm or damage arising out of or in connection with a Beta Service. You agree that your Use of the Services is not contingent on the delivery or availability of any future functionality or features, including any comments made by us regarding future functionality or features.
You grant us (a) a worldwide, perpetual (but revocable hereunder) royalty-free license to host, copy, transmit and display Customer Materials (as defined under CLIENT DATA AND OWNERSHIP), and any Third Party Materials created by or for you using the Services or for use by you with the Services, each as is reasonably necessary for your Use as contemplated by this Agreement; and (b) a worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free license to use, copy, modify, prepare derivative works of and incorporate into the Services (and any modifications or derivatives thereof, any of our other products and services and any documentation or other materials related to the foregoing) any suggestion, enhancement request, recommendation, correction or other feedback provided by you relating to the operation, functionality or performance of the Services. Subject to the limited licenses granted in this Agreement, we do not acquire any right, title or interest from you or your licensors under this Agreement in or to any Customer Materials or Third Party Materials.
We shall have the right to collect and analyze data and other information relating to the provision, Use and performance of the Services and related systems and technologies (including information concerning Customer Materials and data derived therefrom) (collectively, “Usage Data”) and may perpetually use such Usage Data for our legitimate business purposes, including to improve and enhance the Services and for other development and innovation, diagnostic and corrective purposes in connection with such Services and our other offerings; provided that, except as necessary to (a) provide the Services, (b) to assist with the administration of Third-Party Materials or (c) as required by law, unless you consent otherwise or initiate the sharing of such data yourself, (i) any external disclosure or use of Usage Data by us will be in an aggregated form that does not identify or otherwise readily permit the identification of you, any Users or other individual and (ii) any Personal Data (as defined under DATA PROCESSING AND TRANSFER) shall only be used to provide the Services or as otherwise required to meet our obligations under these Service Terms.
Our Support Services and your related responsibilities are set forth at the following URL and incorporated herein: go.edmundsgovtech.com/support. Additional terms or conditions with respect to Support Services specific to certain Software, equipment or hardware provided by us will be set forth in the applicable Sales Order.
As a condition of your receipt of the Services hereunder, you shall pay to us the fees and other amounts set forth in the Sales Order (“Fees”) in the manner specified in the Sales Order. Any annual increase in Fees during the Software Services Term or, as applicable, the Support Services Term or Hosting Services Term, are set forth in the Sales Order. Except as set forth under TERM AND TERMINATION, all Fees are non-cancellable and all amounts paid are non-refundable. Unless otherwise specified in the Sales Order, we reserve the right to change the Fees and to institute new charges and Fees at the end of the initial Software Services Term or, as applicable, the initial Support Services Term or Hosting Services Term, or then-current renewal term, as applicable, upon thirty (30) days prior written notice to you (which may be sent by email). If you believe that we have billed you incorrectly, you must contact us 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 made in accordance with the notice provisions under GENERAL.
All payments shall be received by us within thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of one and one-half percent (1.5%) per month on any outstanding balance, or the maximum rate permitted by law, whichever is lower, plus all costs and expenses incurred in connection with collection of unpaid amounts. You are responsible for providing complete and accurate billing and contact information to us and promptly notifying us of any changes to such information.
You are responsible for the payment of all applicable sales, value-added, use, ad valorem, excise, importation/exportation or other taxes, duties, fees, tariffs, levies or other governmental charges payable in connection with the Services other than taxes based on our net income. Subject to the application of a valid tax exemption (based on satisfactory evidence provided upon our request), we will not bill you for taxes to which the exemption applies.
The term of the Software Services shall be as set forth in the applicable Sales Order and shall continue while any subscriptions are in effect, subject to earlier termination in accordance with this section (as extended by any renewal, the “Software Services Term”). Support Services are included in subscription-based Software Services. The term for which we will provide Support Services for any non-subscription based Software Services shall be as specified in the Sales Order, subject to earlier termination in accordance with this section (as extended by any renewal, the “Support Services Term”). The term for which we will provide Hosting Services shall be as specified in the Sales Order, unless terminated sooner in accordance with this section (as extended by any renewal, “Hosting Services Term”).
Either party may terminate this Agreement (a) upon thirty (30) days’ (or, with respect to your failure to pay any Fees, five (5) days') prior written notice if the other party materially breaches any of the terms or conditions of this Agreement and such breach remains uncured at the expiration of such period; or (b) immediately if the other party (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law (which proceeding, if involuntary, is not dismissed within thirty (30) days); (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take change of or sell any material portion of its property or business. Upon your written request made within thirty (30) days after the effective date of termination or expiration of this Agreement, we will make your data available for export or download in the commercially reasonable manner specified by us; provided, however, that after such thirty (30) day period, we will have no obligation to maintain or provide any of your data, and we will thereafter, except as otherwise expressly set forth in the applicable Sales Order, delete or destroy all copies of your data in our systems or otherwise in our possession or control, except for data (w) contained in an archived computer system back-up in accordance with security and/or disaster recovery procedures and applicable law; (x) to the fullest extent permitted under applicable law, contained in latent data, including deleted files and other non-logical data types such as memory dumps, swap files, temporary files, printer spool files and metadata that are not generally retrievable or accessible without the use of specialized tools and techniques; (y) to the fullest extent permitted under applicable law, included in materials prepared for regulatory compliance, archival or record retention purposes; or (z) for which destruction is legally prohibited. For the avoidance of doubt, nothing in this Agreement shall be read to imply any obligation of us to maintain data in compliance with your recordkeeping obligations under applicable law.
In the event of any expiration or termination of the Software Services Term or the Support Services Term (for any non-subscription Software Services), effective as of such expiration or termination: (a) you shall immediately cease Use of any EGT Materials and return or destroy (and certify such destruction of) all EGT Confidential Information and any installed Software, if applicable, including removal of such installed Software from all computerized data storage devices or components (including any hard-drive or database); (b) all Authorized User access to the Software Services, including any portal, reporting or other functionality, will be disabled; and (c) our obligations set forth under SUPPORT SERVICES shall immediately cease to apply and you shall no longer be able to make, receive or access releases, additions or updates to any non-subscription Software Services. In the event of any expiration or termination of the Hosting Services Term, as applicable, effective as of such expiration or termination, (a) our license to host shall terminate and our obligations with respect to Hosting Services shall immediately cease and (b) we shall make a single object code version of any installed Software, as applicable, available to you at all times during the Software Services Term (with releases, additions or updates provided at all times during the Support Services Term). All sections of these Service Terms which by their nature should survive termination will survive termination, including provisions regarding accrued rights to payment, appropriation of funds for Fees, ownership, confidentiality obligations, warranty disclaimers, and limitations of liability.
All Fees are non-cancellable and all amounts paid are non-refundable; provided, however, that if this Agreement is terminated by you in accordance with the second paragraph of TERM AND TERMINATION, we will refund to you any prepaid Fees under the Sales Order on a pro-rated basis covering the remainder of the Sales Order after the effective date of termination. If this Agreement is terminated by us in accordance with the second paragraph of TERM AND TERMINATION, you will pay to us any unpaid Fees covering the remainder of all Sales Orders. In the event of any expiration or termination of the Support Services Term (other than by you in accordance with the second paragraph of TERM AND TERMINATION) or you otherwise allow the Support Services Term to lapse, we may require you to make payments for all lapsed periods as a condition of resuming Support Services. In no event will termination or expiration relieve you of your obligation to pay any Fees payable to us for periods prior to the effective date of termination or expiration. Any services provided by or on behalf of us in connection with the expiration or termination of this Agreement that are not included in the Software Services or Support Services or Hosting Services, as applicable, including the export or download of your data (or any services provided in connection therewith), shall be pursuant to a Sales Order at then-current rates for such Services.
Information exchanged under this Agreement that is of the nature and type that it should reasonably be regarded as confidential or proprietary shall be treated as such by each of us (“Confidential Information”). A recipient shall (a) hold in strict confidence all Confidential Information, using the same degree of care that it uses to protect the confidentiality of its own confidential information of similar type, and in any event no less than a reasonable degree of care; and (b) not disclose, sell, rent or otherwise provide or transfer, directly or indirectly, any Confidential Information to any individual or entity (“Person”) without the prior written consent of the disclosing party. A recipient may disclose Confidential Information to its or its affiliates’ employees, agents, contractors, legal counsel and accountants who need to know such information, only to the extent reasonably necessary, consistent with the obligations of the parties under this Agreement and who are bound by confidentiality obligations no less stringent than those set forth in this Agreement. A recipient shall use the Confidential Information only in connection with the intent of this Agreement and not for any other purpose whatsoever and shall require any of its representatives who obtain Confidential Information to comply with this Agreement and be responsible for any breach of this Agreement by such representatives. A recipient shall be permitted to disclose Confidential Information pursuant to a court order, government order or any other legal requirement of disclosure, in each case if no suitable protective order or equivalent remedy is available; provided that, to the extent permitted, the recipient gives the disclosing party written notice of such court order, government order or legal requirement requiring disclosure immediately upon knowledge thereof and allows the disclosing party a reasonable opportunity to seek to obtain a protective order or other appropriate remedy prior to such disclosure to the extent permitted by law.
You acknowledge that the Software and all specifications, documentation, systems, information, data, documents, materials, designs, plans, works, content, devices, methods, processes, equipment, hardware, software (including application program interfaces (“APIs”)) and other technologies that are provided or made available in connection with, or that otherwise comprise or relate to, the Software or Services, and all improvements, enhancements or modifications thereto or derivative works thereof (collectively, the “EGT Materials”), are the sole property of EGT or our licensors. As between us and you, ownership and title to (a) the EGT Materials; (b) any software, applications, inventions or other technology or materials developed or delivered in connection with the Services; and (c) all intellectual property rights related to any of the foregoing (as well as all intellectual property rights in the Services) shall remain with us. The Software is made available for authorized Use, not sold, to you, and you have no intellectual property rights in the Software, other than the limited rights expressly granted hereunder. As between us and you, ownership and title to your data and any proprietary content submitted by you (i.e. other than Third Party Materials), together with related trademarks, trade names or trade dress owned by you (collectively, the "Customer Materials"), shall remain with you. If you request certain customization to the Software, either to facilitate integration with your owned or licensed software or to provide customized functionality (“Custom Software”) and we agree to provide such Custom Software, then, as a condition to any development work commencing: (a) we and you shall enter into a Sales Order specifying the terms and conditions of development, licensing, subscription, sale, support, Use and related fees with respect to any such Custom Software; and (b) unless explicitly stated in such Sales Order, such Custom Software shall constitute EGT Materials and ownership thereof shall remain with us. You acknowledge and agree that the EGT Materials contain valuable proprietary information and trade secrets of EGT, and are protected intellectual property rights of EGT.
The Services may enable Authorized Users to link to, transmit data to or otherwise access applications, websites, specifications, documentation and systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, equipment, hardware, software (including APIs) and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided by you or a third party (and are non-proprietary to us) and that interoperate with the Services (“Third Party Materials”). Except to the extent otherwise expressly set forth in the applicable Sales Order, we do not control and are not responsible for Third Party Materials. You acknowledge that (a) the nature, type, quality and availability of Third Party Materials may change at any time and (b) features of the Services that interoperate with Third Party Materials depend on the continuing availability of APIs for use with the Services. We may update, change or modify the Services as a result of a change in, or unavailability of, Third Party Materials, including APIs. If any third party ceases to make its Third Party Materials, including APIs, available on reasonable terms for the Services, as determined by us in our sole discretion, we may cease providing access to the affected Third Party Materials without any liability to you. Any changes to Third Party Materials, including APIs (including their availability or unavailability), does not affect your obligations under this Agreement, and you will not be entitled to any refund, credit or other compensation due to any such changes (except as otherwise expressly agreed by the parties in writing). In addition, any Third Party Materials not embedded in the Software may be subject to separate license agreements or terms directly between you and the third party licensor. You shall agree to, and take all actions necessary or required by such third party licensor in connection with, any such third party agreements or terms. Except as expressly stated otherwise in this Agreement, (a) we are not responsible for providing any Third Party Materials to you and (b) licenses, warranties and support for Third Party Materials, if any, will be given by the relevant third party licensors in their license agreements, and not by us. For Third Party Materials embedded in the Software, if any, we grant you a limited, non-exclusive, revocable, non-transferable, non-sublicensable sublicense to use such Third Party Materials, solely as embedded in the Software, solely to the extent necessary and for the purpose to properly Use the Services in accordance with this Agreement, subject to any incremental sublicense terms provided by us in connection with the Sales Order.
We warrant that the Services will be performed in a professional and competent manner by appropriately qualified personnel and in substantial accordance with our applicable specifications and documentation at all times during the applicable term. We provide no direct warranty as to any equipment or hardware provided by us, but will reasonably facilitate any communications between you and the third party manufacturer during the period of any warranty offered by such third party manufacturer. To the fullest extent permitted under applicable law, any warranty under this Agreement shall be void, and we shall have no responsibility or liability under this Agreement, in the event that performance of the Services has been affected by (a) accident, abuse, misuse or neglect; (b) a delay of more than sixty (60) days in properly reporting to us, in writing, any relevant non-conformance; (c) operation in or connection to any unsuitable, unauthorized, unsupported, incompatible or third party software, hardware, network, configuration, system or physical, electrical, or operating environment (including Third Party Materials); (d) installation, implementation, repair, or modification of the Services by any Person other than us or our authorized subcontractors; (e) your network or connectivity problems, including failure to maintain sufficient broadband capacity and supported browsers; or (f) the performance of (or failure to perform by) third parties, and is expressly conditioned on your compliance with any applicable specifications, as made available to you, as they may be updated by us from time to time, including any hardware, operating system, network, configuration, security, installation or other requirements.
WE DO NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE EGT MATERIALS AND SERVICES ARE PROVIDED “AS IS” AND WE DISCLAIM ALL REPRESENTATIONS, CONDITIONS, GUARANTEES OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, AVAILABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. ALL THIRD PARTY MATERIALS MADE ACCESSIBLE THROUGH THE SOFTWARE SERVICES ARE PROVIDED "AS IS" AND ANY REPRESENTATION, CONDITION, GUARANTEE OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN YOU AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.
We shall defend and indemnify you and your officers, directors, employees and representatives from any liability to third parties to the extent resulting from infringement by the Software of any U.S. patent or any U.S. copyright issued as of the commencement date of the Software Services Term or misappropriation of any trade secret; provided that we are promptly notified of (in no event more than five (5) business days after) any and all related threats, claims and proceedings and we are given reasonable assistance and the opportunity to assume sole control over defense and settlement. We will not be responsible for any settlement that we do not approve in writing. The foregoing obligations do not apply (a) with respect to portions or components of the Software Services (1) not supplied by us or our authorized subcontractors, (2) made in whole or in part in accordance with specifications provided by you, (3) that are modified without our approval after the Software are delivered or made available by us, or (4) combined with other hardware, software, products, systems, environments, services, processes or other materials not specifically approved by us where the alleged infringement relates to such combination; (b) where you continue the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (c) where the liability arises or results from your business methods, your breach of this Agreement or your use of the Software is not strictly in accordance with its specifications. If, due to a claim of infringement, the Software is held by a court of competent jurisdiction to be or are believed by us to be infringing, we may, at our option and expense, (i) replace or modify the Software to be non-infringing; provided that such modification or replacement contains substantially similar features and functionality; (ii) obtain for you the right to continue using the Software; or (iii) if neither of the foregoing is commercially practicable in our reasonable discretion, terminate in whole or in part this Agreement or the applicable Sales Order and provide you a refund of any prepaid, unused Fees for the affected Software. This section states our entire liability and your exclusive remedy with respect to any infringement or misappropriation related to the Software of any intellectual property rights. You shall defend and indemnify us and our officers, directors, employees and representatives from any liability to third parties to the extent resulting from your breach of these Service Terms; provided that you are promptly notified of (in no event more than five (5) business days after) any and all related threats, claims and proceedings and you are given reasonable assistance and the opportunity to assume sole control over defense and settlement. You will not be responsible for any settlement that you do not approve in writing.
You shall not, nor permit any other Person to, do any of the following in connection with the Services, except as this Agreement or our applicable documentation expressly authorizes: (a) except to the extent specifically mandated by applicable law, copy, download, modify or create derivative works or improvements of the Services or EGT Materials; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services or EGT Materials (or any authorized user logins, passwords or other access credentials) to any Person, including on or in connection with the internet or any time-sharing, service bureau, software/platform-as-a-service, cloud or other technology or service; (c) except to the extent specifically mandated by applicable law, reverse engineer, disassemble, decompile, decode, or adapt the Services or EGT Materials or otherwise attempt (i) to derive or gain access to the source code thereof, (ii) to re-identify methodologies or processes used therein, or (iii) to extract any ideas, algorithms or procedures therefrom, in each case in whole or in part; (d) bypass or breach any security device or protection used by or in connection with the Services or use the Services or EGT Materials other than by an authorized user through the proper use of his/her own then-valid access credentials via expressly authorized connections; (e) input, upload, transmit or otherwise provide to or through the EGT Materials or the Services (or any related systems, software, hardware, data, materials or services (collectively, “Related Applications”)) any information or materials that are unlawful or injurious or any virus, worm, malware or other malicious computer code designed to disrupt, disable or harm the EGT Materials or the Services (or any Related Applications); (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the EGT Materials or the Services (or any Related Applications) or our provision of any products or services to any third party, in whole or in part; (g) remove, delete, alter or obscure any trademarks, specifications, documentation, end user license agreement, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices in connection with the EGT Materials; (h) Use the EGT Materials or the Services (or any Related Applications) in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law or that is obscene, defamatory, harassing, high-risk (i.e. where failure could lead to death or serious bodily injury or physical or environmental damage), unsolicited, misleading, harmful or otherwise inappropriate or unauthorized; (i) use, modify, integrate or distribute the EGT Materials or the Services (or any Related Applications) in any manner that does or is reasonably likely to subject the foregoing to any open source license terms; or (j) use the EGT Materials or the Services (or any Related Applications) for purposes of competitive or benchmarking analysis of the EGT Materials or the Services, the development, provision or use of a competing software service or product, or for any other purpose or in any other manner that is to our detriment or commercial disadvantage or that is not expressly authorized under this Agreement.
You shall (a) Use the Software Services (together with any associated content) in compliance with your published policies then in effect and all applicable laws and regulations; (b) provide and maintain, at your expense, a physical, electrical, operational and communications environment that complies with any applicable specifications needed to connect to, access or otherwise Use the Software Services (including hardware, modems, servers, software, operating systems, networking, broadband capacity, supported web browsers, web servers and similar equipment, site, storage, electrical, operational, configuration, security and installation requirements compliant with our specifications made available to you); (c) provide and maintain, at your expense, the security of any equipment, accounts, passwords (including administrative and Authorized User passwords), credentials and files and for all access and Use of the Software Services; (d) maintain an agreement for Support Services continuously in force in the event of any non- subscription Software Services; (e) with respect to Customer Materials (including Personal Data (as defined under DATA PROCESSING AND TRANSFER)), be responsible for (i) the accuracy, quality and legality of Customer Materials, (ii) the means by which you collect, acquire, record, store, use, process, transfer or otherwise provide it (including obtaining any necessary consents under Data Protection Laws (as defined under DATA PROCESSING AND TRANSFER) and the regular monitoring and verification of the accuracy of Customer Materials' input and output and the accuracy and completeness (and reporting) of Customer Materials (including tax data) entered into the Software Services and the conformance of such data with appropriate file formats as reasonably required by us), and make commercially reasonable efforts to prevent unauthorized Use of Customer Materials or the Software Services and (iii) if applicable, maintaining back-up systems for all Software and Customer Materials processed through such Software Services; (f) make commercially reasonable efforts to identify and resolve identified problems prior to calling our support personnel; (g) make commercially reasonable efforts to make the appropriate personnel available to attend initial implementation and training sessions and provide trained personnel familiar with the Software Services to assist our support personnel during support calls; (h) adhere to the support schedule specified under SUPPORT SERVICES; (i) promptly coordinate scheduled dates with us, as applicable, for installation of installed Software upgrades, as applicable; (j) obtain and maintain any licenses, registrations and authorizations that may be required for the import, installation, maintenance or other Use of the Software Services under the laws and regulations applicable in the jurisdiction where the installed Software is located, as applicable; (k) designate a qualified individual responsible for coordination and facilitation of Software Services’ configurations, updates, changes and maintenance; (l) assume sole responsibility for responding to and determining the validity of all requests for the release of any records (including the records of any of your citizens) in our control or possession (subject to these Service Terms, we will not release any such records without your prior written consent); and (m) assume sole responsibility for providing all support services to your citizens and you shall not refer any citizen to us directly for support requests, but may communicate such requests to us together with contact information for the requesting citizen and additional fees for such citizen support may be applied in our discretion at our then-current rates. You further agree that we may, and authorize us to, interact remotely with our Software in order to configure, test, troubleshoot, update, analyze, use, or modify the Software or the environment in which it operates or to provide Support Services.
Our online payment Software Services allow your citizens to make payments and perform certain other functions through a website, telephone or webpage hosted and maintained by us and/or a third party vendor approved by us (a “Payment Processor”) that is accessible through your website. In the event a Sales Order includes these Services, you (a) agree to use only Payment Processors that are expressly approved by us in writing; (b) agree to enter into a written agreement with such Payment Processor prior to us providing online payment Software Services and (c) acknowledge that (i) certain Payment Processor integrations may requires additional integration Fees, (b) you are solely responsible for all payments owed to Payment Processor thereunder and (c) we are not responsible or liable for any Payment Processor acts or omissions.
As between us and you, you shall be solely and exclusively responsible for ensuring that all transactions processed through the Software Services comply fully with the Payment Card Industry (“PCI”) Data Security Association Requirements and with the “red flag” requirements of the Fair and Accurate Credit Transactions Act (“FACTA”). You assume liability for, and shall defend, indemnify, and hold harmless us and our employees, directors, shareholders and agents from and against, any claims, liabilities, losses, costs or expenses arising out of (a) your failure or alleged failure to comply with PCI or FACTA requirements or (b) any claims or charges by any bank or credit card company for charge-backs related to any payment by your citizen through the Software Services and any claims or charges by any bank or credit card company for online payment processing fees related to online payments to you.
To the fullest extent permitted under applicable law, regardless of the form of action, whether in contract, extra-contractual or in tort, including negligence and strict liability, (a) our aggregate liability under this Agreement, regardless of the number of occurrences or claims, shall be limited to the Fees you have paid to us during the preceding twelve (12) months for the specific Services out of which the claim arises; and (b) none of us nor any other Person who has contributed to the design, development, production, distribution, installation, implementation, support, or maintenance of the Services shall be liable for any (i) incidental, consequential, indirect or special damages; (ii) lost business or anticipated savings, lost profits, lost goodwill or diminution in value; or (iii) lost, damaged, corrupted or inaccurate data, whether foreseeable or not, arising out of or in connection with the Services or this Agreement, even if such party has been advised, knew or should have known of the possibility of such damages.
You acknowledge and agree that except as set forth in the Sales Order, the storage of Customer Materials in connection with our Software Services and Hosting Services is provided through Amazon Web Services (as the identify of such provider may be modified by us from time to time, the “Hosting Provider”) and is therefore governed by and subject to your compliance as an end user with Hosting Provider’s applicable terms and policies (collectively, the “Hosting Provider Terms”), the current versions of which are available at the following URL: http://aws.amazon.com/legal/. In addition, compliance certifications of Hosting Provider in connection with its environment are available at the following URL: https://aws.amazon.com/compliance/programs. In the event that the storage of Customer Materials is transitioned to a replacement Hosting Provider during the Software Services Term or Hosting Services Term, we shall provide at least sixty (60) days’ prior written notice to you of such transition and use our commercially reasonable efforts to avoid or mitigate any material interruption to the Hosting Services while transitioning to such replacement Hosting Provider.
You acknowledge that we may be interrupted, delayed, or prevented from completing performance of any or all of our obligations under this Agreement due to an occurrence outside of our reasonable control, including fire, flood, explosion, natural disaster or act of God, war, riot, terrorist act, action or inaction of government, strike, labor dispute, materials shortage, shortage of adequate power, internet or telecommunications or conduct of third parties (“Force Majeure Event”). We will use reasonable efforts to mitigate the effects of a Force Majeure Event, but shall not be liable or responsible to you, or be deemed to have defaulted under or breached this Agreement, as a result of a Force Majeure Event.
Each of us shall comply with any law or regulation applicable, in the case of us, to the delivery or provision of the Services with respect to our business operations and, in the case of you, to the receipt and Use of the Services (including with respect to applicable taxation and privacy laws); provided, however, that with respect to the Software Services, nothing in this sentence shall be read to expand or affect the warranties and limitations set forth under WARRANTIES above. Any legal or regulatory compliance obligations shall remain your sole responsibility, and nothing in this Agreement is intended to shift such burden from you to us. For the avoidance of doubt, the Software Services are not intended to serve as a substitute for, or method of, compliance with, and is not designed to comply with, any legal or compliance obligations to which you may be subject (including with respect to accessibility or employee recordkeeping), and under no circumstances shall we have any liability to you arising from your non-compliance with such obligations.
Unless otherwise specified in the Sales Order, this Agreement shall be governed by and construed in accordance with the laws of your state of domicile without giving effect to the principles of conflicts of law, the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. EACH PARTY WAIVES THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BETWEEN THEM BASED DIRECTLY OR INDIRECTLY ON THIS AGREEMENT. If any provision of this Agreement is held to be unenforceable, the enforceability of the remaining provisions shall in no way be affected or impaired. You may not assign or transfer your rights, interests or obligations under this Agreement or the Services. We may assign or transfer our rights, interests or obligations under this Agreement or the Services, in whole or in part, in our sole discretion. Nothing in this Agreement shall be deemed to create a joint venture, agency, partnership, or similar relationship between us. When used, the words "include," "includes" and "including" are deemed to be followed by the words "without limitation". In the event of your breach, in additional to other available remedies, we shall be entitled, without posting bond, to seek specific performance. From time to time, in our sole discretion, we may amend these Service Terms. Such changes will become effective upon notice to you but will not apply retroactively. By continuing to Use our Services, you agree to be bound by such amended Service Terms. Any changes to the scope, specifications or other requirements associated with any Services, and any corresponding adjustments to Fees, schedules or other terms, will be set forth in an amended or subsequent Sales Order. We shall not be responsible for any such change unless and until such change is expressly set forth in a Sales Order and mutually agreed in writing. A failure by any party to exercise or delay in exercising a right or power conferred upon it in this Agreement shall not operate as a waiver of any such right or power. All notices required under this Agreement shall be given and made in writing and shall be delivered to the respective addresses identified in the Sales Order and deemed received (a) when received, if hand delivered or (b) the day after it is sent, if delivered by an internationally-recognized common carrier's overnight delivery service providing proof of delivery. Any notice to us shall include a confirmatory email to "firstname.lastname@example.org".
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