Last Modified: 08/29/18
This Services Agreement ("Agreement”) is entered into by and between you (“you” “your” or “Customer”) and Accrete LLC (“Company”, “we” “our” or “us”). The following terms and conditions (the “Terms and Conditions”), together with any documents they expressly incorporate by reference, govern your access to and use of the Accrete software platform (the Accrete software platform including any specific functionalities you selected on our account creation and/or purchase page, or on a separate Purchase Order executed by the parties (the “Purchase Page”) as well as any data, source code, templates, tools, processes, methodologies, trade secrets, or other information contained therein, including any improvements or enhancements made thereto (collectively, the “Services”).
1. SAAS SERVICES AND SUPPORT
1.2 Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the Company’s standard practice.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 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-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Company or authorized within the Services); use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels contained within the Services.
2.2 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 section 227.7202 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.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement, Company’s standard published policies then in effect, and all applicable laws and regulations. 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 the foregoing.
2.4 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 (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
2.5 To the extent you have selected a trial license on the Purchase Page (a “Trial License”), your Trial License is limited to a single limited production tenant of Customer.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 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 (hereinafter referred to as “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 (“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 or any 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.
3.2 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 and (b) all intellectual property rights related to any of the foregoing.
3.3 Company shall own all right, title and interest in and to the Services. Other than with respect to the limited license set forth herein, Customer shall have no rights to the Services.
3.4 Notwithstanding anything to the contrary, Company shall have the right 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.
4. PAYMENT OF FEES
4.1 Customer will pay Company the applicable fees for the Services as set forth on the Purchase Page (the “Fees”). Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon thirty (30) days prior notice to Customer (which notice may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 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. All prepaid Fees shall be non-refundable.
4.2 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. In addition to any of Company’s other rights or remedies hereunder, Company shall have the right to suspend Customer’s account and access to the Services in the event any invoice remains unpaid for longer than thirty (30) days.
4.3 To the extent you elect to pay any Fees electronically, you authorize us, or our third party payment processor, to charge your debit or credit card or process other means of payment for those Fees. When you make a purchase, you agree not to use an invalid or unauthorized payment method. If your payment method fails, we reserve the right to suspend your account and your access to the Services until we receive the payment in full.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement shall last for the term set forth on the Purchase Page, subject to any renewal terms set forth therein (the “Term”).
5.2 Unless otherwise set forth on the Purchase Page, Each Party shall have the right to terminate this Agreement without cause upon at least forty-five (45) days’ notice. In addition to any other remedies it may have, either party may also terminate this Agreement upon ten (10) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure such breach within such ten (10) day period. Notwithstanding anything to the contrary, Company may terminate this Agreement or suspend Customer’s access to the Services immediately in the event Company determines that Customer is using the Services in violation of any applicable law. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. 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, and limitations of liability.
5.3 Notwithstanding the foregoing, Company reserves the right to terminate or suspend a Trial License, and any Services provided therewith, with or without cause, at any time, without notice.
5.4 Sections 2, 3, 4, 6, 7, 8, 9, 10 and 11 shall survive termination of this Agreement.
6. DISCLAIMER OF WARRANTIES
COMPANY WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT CUSTOMER’S COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO CUSTOMER’S USE OF THE SERVICES.
CUSTOMER’S USE OF THE SERVICES IS AT ITS OWN RISK. ANY SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER COMPANY NOR ANY PERSON ASSOCIATED WITH COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER COMPANY NOR ANYONE ASSOCIATED WITH COMPANY REPRESENTS OR WARRANTS THAT THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES WILL OTHERWISE MEET CUSTOMER’S NEEDS OR EXPECTATIONS.
COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.
IF THE SERVICES CONTAIN LINKS TO OTHER SITES AND RESOURCES PROVIDED BY THIRD PARTIES, THESE LINKS ARE PROVIDED FOR YOUR CONVENIENCE ONLY. COMPANY HAS NO CONTROL OVER THE CONTENTS OF THOSE SITES OR RESOURCES, AND ACCEPTS NO RESPONSIBILITY FOR THEM OR FOR ANY LOSS OR DAMAGE THAT MAY ARISE FROM YOUR USE OF THEM. IF CUSTOMER DECIDES TO ACCESS ANY OF THE THIRD-PARTY WEBSITES LINKED TO BY THE SERVICES, YOU DO SO ENTIRELY AT YOUR OWN RISK AND SUBJECT TO THE TERMS AND CONDITIONS OF USE FOR SUCH WEBSITES.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
7.1 Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused Fees for the Service.
7.2 Customer agrees to defend, indemnify, and hold harmless Company, its affiliates, licensors, and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) arising out of or relating to Customer’s violation of this Agreement or use of the Services, including, but not limited to, any use of any information obtained from the Services.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL COMPANY, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH CUSTOMER’S USE, OR INABILITY TO USE THE SERVICES INCLUDING ANYINDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE, OR OTHERWISE. UNDER NO CIRCUMSTANCES SHALL COMPANY’S DAMAGES HEREUNDER, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO COMPANY PURSUANT TO THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR CUSTOMER’S USE OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
9. RELIANCE ON INFORMATION POSTED
9.1 The information presented on or through the Services is made available solely for general information purposes. Company does not warrant the accuracy, completeness or usefulness of this information. Any reliance Customer places on such information is strictly at its own risk. Company disclaims all liability and responsibility arising from any reliance placed on such materials by Customer or by anyone who may be informed of any of its contents.
9.2 Nothing provided on or through the Services shall constitute or be construed as an offering of financial instruments or as investment advice or investment recommendations (i.e., recommendations as to whether or not to “buy”, “sell”, “hold”, or to enter or not to enter into any other transaction). Data and other information available on or through the Services should not be considered as information sufficient upon which to base an investment decision. All information provided on or through the Services is impersonal and not tailored to the need of any person, entity or group of persons. Company does not express an opinion on the future or expected value of any currency, security or other interests and does not explicitly or implicitly recommend or suggest an investment strategy of any kind. The Services may not be used as the basis of any product (financial or otherwise) without the express prior written consent of Company.
9.3 The Services include content provided by third parties, including materials provided by other users, landlords, bloggers and third-party licensors, syndicators, aggregators and/or reporting services. All statements and/or opinions expressed in these materials, all responses to questions and other content, other than the content provided by Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Company. We are not responsible, or liable to Customer or any third party, for the content or accuracy of any materials provided by any third parties.
Customer will provide feedback to Company concerning the functionality, performance and reliability of the Services as reasonably requested by Company from time to time, including identifying potential errors and suggestions for improvements (“Feedback”). Customer hereby assigns to Company all right, title, and interest in and to the Feedback and, to the extent not assignable, hereby grants to Company a perpetual, irrevocable, transferable, royalty-free and fully paid-up license, with the right to sublicense, to use and exploit such Feedback and related information in any manner and for any purpose whatsoever.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of New York without regard to its conflict of laws provisions. Each party agrees that any dispute shall be brought exclusively in the state or federal courts sitting within the judiciary district of the United States District Court in the Eastern District of New York, and that it will submit to the jurisdiction of the state or federal courts therein, and to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.