End User License Agreement
This Cloud Services Agreement (“Agreement”) is a binding legal contract between you, (“Customer”) and Digital Revolver, LLC (“Provider”). By accessing or using the Services, as defined below, Customer will be bound by the terms of this Agreement. If Customer does not agree to the terms of this Agreement, Provider is not willing to license any right to use or access the Services. If this agreement is being agreed to by a company or other legal entity, then the person agreeing to this agreement on behalf of that company or entity represents and warrants that he or she is authorized and lawfully able to bind that company or entity to this agreement. Customer should print and retain a copy of this agreement for its records.
This Agreement will become effective on the first date Customer accesses the Services, as defined below (the “Effective Date”). The initial term (“Initial Term”) of this Agreement will begin on the Effective Date and will continue in accordance with the length of the subscription period Customer purchases. Thereafter, the Agreement will automatically renew for successive terms equal to the length of the initial term (each a “Renewal Term”), unless either party gives notice to the other of its intent not to renew at least thirty (30) days prior to the expiration of the then-current term. The Initial Term and any Renewal Terms are referred to, collectively, as the “Term.”
Subject to the terms and conditions of this Agreement and Customer’s payment of all relevant fees, Provider grants Customer and its End Users (as defined below) a non-exclusive, non-transferable license to access and use the training videos contained in this package or streaming subscription access to Digital Revolver content (the “Services”) solely for Customer’s internal business purposes or personal use. This license grant consists of a single license for each End User associated with Customer’s account. To the extent any Provider software is provided to Customer for installation on its systems for use in connection with the Services, the Provider software will be included in the definition of Services and subject to the foregoing license. All software may only be used in support of Customer’s use of the Services and for no other purpose. For purposes of this Agreement, “End Users” means a single individual as identified by a unique user name and email address that is associated with Customer’s account.
Customer and its End Users may only use the Services as described in this Agreement and in the then current documentation made generally available by Provider to its customers regarding the Services (the “Documentation”). Customer is responsible for ensuring its End Users comply with all relevant terms of this Agreement and any failure to comply will constitute a breach by Customer. Except as expressly authorized by this Agreement, Customer will not, and will not allow any End User or other third party to, (i) permit any third party to access or use the Services other than an End User; (ii) decompile, disassemble, reverse engineer, or otherwise attempt to derive the trade secrets or source code embodied in the Services, except to the extent expressly permitted by applicable law; (iii) use the Services or any Provider Confidential Information to develop a competing product or service or rent, disclose, publish, sell, assign, lease, sublicense, market, distribute, or transfer the Services; (iv) use any Service, or allow the transfer, transmission, export, or re-export of any Service or portion thereof, in violation of any export control laws or regulations administered by the U.S. Commerce Department or any other government agency; (v) use the Services in any manner not expressly authorized by this Agreement without the express consent of Provider; or, (v) remove any copyright, trademark, proprietary rights, disclaimer, or warning notice included on or embedded in any part of the Documentation and Service, including any screen displays, etc., or any other products or materials provided by Provider hereunder. Under no circumstances will Provider be liable or responsible for any use, or any results obtained by the use, of the Services in conjunction with any services, software, or hardware that are not provided by Provider. All such use will be at Customer’s sole risk and liability.
The hosted elements of the Services will be available for remote access 99.5% of the time each calendar month of the Term, excluding Excused Outages (as defined below) (“Availability”). Downtime as a result of any causes beyond the control of Provider or that are not reasonably foreseeable by Provider, including, without limitation by any of the events noted below are excluded from the Availability calculations (collectively, “Excused Outages”):
a. Customer environment issues affecting connectivity or interfering with the Services, including without limitation, Customer’s telecommunications connection or any other Customer software or equipment, Customer’s firewall software, hardware or security settings, Customer’s configuration of anti-virus software or anti-spyware or malware software, or operator error of Customer;
b. any third party software, hardware, or telecommunication failures, including Internet slow-downs or failures;
c. force majeure events, including fire, flood, earthquake, elements of nature or acts of God, third party labor disruptions, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, quarantines, embargoes and other similar governmental action, or any other similar cause beyond the reasonable control of Provider;
d. issues related to third party domain name system (DNS) errors or failures;
e. scheduled maintenance of the Services, conducted on a regular basis, of which Provider will give Customer a minimum of twenty-four (24) hours advanced notice by email or other pre-approved notification; and
f. emergency maintenance of the Services, not to exceed four (4) hours in any month, for which Customer may not receive advanced notice.
In the event Provider fails to achieve the Availability requirement, Provider will use commercially reasonable efforts to correct the interruption as promptly as practicable. In the event Provider fails to achieve the Availability requirement in two consecutive months during the term of this Agreement, Customer may terminate this Agreement within thirty (30) days of the end of the second consecutive month, without further obligation and receive a prorated refund of any pre-paid, unused recurring fees. The refund will constitute Customer’s sole and exclusive remedy and Provider’s sole and exclusive liability for failure to achieve the Availability requirement.
5. Information Security
Consistent with any law or regulation applicable to the Services and Provider’s then current practices and procedures, Provider will maintain and enforce administrative, technical, and physical safeguards to reasonably protect the confidentiality, availability, and integrity of Customer’s Confidential Information and the Customer Data. Provider will promptly report to Customer any compromise of security that it becomes aware of with regard to Customer Data.
Customer and End Users are solely responsible for all telecommunication or Internet connections required to access the Services, as well as all hardware and software at Customer’s site. In addition to other third party costs that may apply, Customer agrees to pay for all telecommunications costs, fees, and services required for and dedicated to Customer’s access to the Services.
7. Proprietary Rights
Customer acknowledges and agrees that: (i) all Services are protected by intellectual property rights, as applicable, of Provider and its vendors/licensors and that Customer has no right to transfer or reproduce any Services or any software provided with the Services or prepare any derivative works with respect to, or disclose Confidential Information (as defined in Section 14 (Confidentiality)) pertaining to, any Services or any part of them, and (ii) Provider owns all right, title, and interest in and to the Services, including any changes or modifications made to the Services performed in connection with this Agreement, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and “know-how” embodying the Services. Under no circumstances will Customer be deemed to receive title to any portion of the Services, which at all times will vest exclusively in Provider. The Services are copyrighted and may not be copied, distributed or reproduced in any form, in whole or in part even if modified or merged with other materials. The use of third-party applications to capture or record data streams is recognized as a method of reproduction prohibited by this Agreement. This is not a “work made for hire” agreement, as that term is defined in Section 101 of Title 17 of the United States Code. Customer will preserve all Services from any liens, encumbrances, and claims of any individual or entity. Customer will not use any Confidential Information disclosed by Provider to Customer in connection with this Agreement to contest the validity of any intellectual property rights of Provider or its licensors. Any such use of Provider’s Confidential Information will constitute a material, non-curable breach of this Agreement.
8. Customer Data
Customer grants Provider a non-exclusive, worldwide, royalty-free license to use the documents, information, graphics, data, content, and other materials input by Customer into the Services (the “Customer Data”) for purposes of performing this Agreement. Customer will be responsible for obtaining all rights, permissions, and authorizations to provide the Customer Data to Provider for use as contemplated under this Agreement. Except for the license granted in this Section, nothing contained in this Agreement will be construed as granting Provider any right, title, or interest in the Customer Data. Customer grants Provider a non-exclusive, perpetual, irrevocable, fully-paid-up, royalty free license to use, copy, distribute, and otherwise exploit statistical and other aggregated data derived from Customer’s use of Services (the “Aggregated Data”) for Provider’s business purposes, including the provision of products and services to Provider’s customers; provided the Aggregated Data is combined with similar data from Provider’s other customers and does not include (directly or by inference) any information identifying Customer or any identifiable individual. The Aggregated Data will not be considered Customer’s Confidential Information.
Customer may provide suggestions, comments, or other feedback (collectively, “Feedback”) to Provider with respect to its products and services, including the Services. Feedback is voluntary. Provider may use Feedback for any purpose without obligation of any kind. To the extent a license is required under Customer’s intellectual property rights to make use of the Feedback, Customer grants Provider an irrevocable, non-exclusive, perpetual, fully-paid-up, royalty-free license to use the Feedback in connection with Provider’s business, including the enhancement of the Services.
10. Support and Maintenance
During the Term, Provider will provide Customer with reasonable web based support from Monday through Friday from 9:00 am to 6:00 pm, U.S. Eastern Time. Provider will provide Customer Service updates and bug fixes that Provider in its sole discretion makes generally available to its other similarly situated licensees at no charge. However, Customer shall not be entitled to receive updates or new releases that include new or different functionality for which Provider imposes an additional charge to its customers. Such new or different functionality may be purchased by Customer, in its discretion, at Provider’s then current pricing. Provider will use commercially reasonable efforts to correct reproducible failures of the Service to perform in substantial accordance with their then current Documentation.
Customer will pay Provider the fees associated with the Services. Except as provided in Sections 12.2, and 16, all fees are non-refundable except as set forth herein. Provider or a third party partner will charge your Customer’s credit card either monthly, semi-annually or annually dependent upon Customer’s subscription as Customer’s subscription charges become due. All payments shall be made in United States dollars (“USD”), and any charges to your credit card shall be in USD currency. Payments not made within that period will be subject to late charges equal to the lesser of (a) one and one-half percent (1.5%) per month of the overdue amount or (b) the maximum amount permitted under applicable law. In the event of non-payment, Provider may, in its discretion, suspend the Services until the invoice is paid in full. Upon expiration of any then-current term, or on sixty (60) days prior notice to Customer, Provider may, at its discretion, adjust any or all fees due hereunder. Customer may terminate this Agreement on written notice to Provider within thirty (30) days of its receipt of notice from Provider to adjust the fees; provided, however, that if Customer fails to object to such adjustment in writing within the foregoing thirty (30) days then Customer will be deemed to have agreed to the adjustment. In addition to any other payments due under this Agreement, Customer agrees to pay, indemnify, and hold Provider harmless from any sales, use, transfer, privilege, tariffs, excise, and all other taxes and all duties, whether international, national, state, or local, however designated, which are levied or imposed by reason of the performance of the Services under this Agreement (excluding income taxes on profits which may be levied against Provider).
12.1. Customer Warranty. Customer represents and warrants that: (a) it has full power, capacity, and authority to enter into this Agreement and to grant the license set forth in Section 8 (Customer Data); (b) any Customer Data provided by Customer to Provider for use in connection with the Services does not and will not infringe the intellectual property, publicity, or privacy rights of any person and is not defamatory, obscene, or in violation of applicable foreign, federal, state, and local laws, rules and regulations (including but not limited to applicable policies and laws related to spamming, privacy, and consumer protection) (collectively, “Applicable Law”); and, (c) its use of the Services will be in compliance with all Applicable Law.
12.2. Provider Warranty. During the Term, Provider represents and warrants: (i) the Services will substantially comply with the Documentation; (ii) it shall use commercially reasonable efforts to screen the Services for viruses, Trojan horses, worms, and other similar intentionally harmful or destructive code; and, (iii) it shall comply with Applicable Law in performing this Agreement. In the event of a breach of the warranty in Section 12.2(i), Provider’s sole and exclusive liability and Customer’s sole and exclusive remedy will be to perform the defective Service again. In the event Provider is unable through reasonable efforts to correct the defective Service within thirty (30) days from receipt of notice from Customer of the breach, Customer may elect to terminate this Agreement. If the breach of the warranties set forth herein occurs within the first thirty (30) calendar days of the date of purchase, Digital Revolver may, at its sole discretion, issue a pro-rated refund of any prepaid, unused fees.
12.3. Disclaimer of Warranties. EXCEPT AS PROVIDED IN SECTION 12.2 (PROVIDER WARRANTY), THE SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND. PROVIDER AND ITS VENDORS AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT, QUALITY OF INFORMATION, AND TITLE/NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROVIDER OR ITS AUTHORIZED REPRESENTATIVES WILL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF PROVIDER’S OBLIGATIONS HEREUNDER. THE SERVICES MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. CUSTOMER ACKNOWLEDGES AND AGREES THAT PROVIDER AND ITS VENDORS AND LICENSORS DO NOT OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE CUSTOMER’S DATA, WEBSITES, COMPUTERS, OR NETWORKS. PROVIDER WILL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. CUSTOMER IS RESPONSIBLE FOR PRESERVING AND MAKING ADEQUATE BACKUPS OF ITS DATA.
13. Customer Indemnity
Customer will defend and indemnify Provider and hold it harmless from any and all claims, losses, deficiencies, damages, liabilities, costs, and expenses (including but not limited to reasonable attorneys’ fees) incurred by Provider as a result of any claim by a third party arising from (i) Customer’s use of the Services in breach of this Agreement or (ii) the Excluded Claims. The foregoing indemnification obligation of Customer is contingent upon Provider promptly notifying Customer in writing of such claim, permitting Customer sole authority to control the defense or settlement of such claim, and providing Customer reasonable assistance (at Customer’s sole expense) in connection therewith.
Each party may disclose to the other certain non-public information or materials relating to a party’s products, intellectual property, business, marketing programs and efforts, personally identifiable information of the party’s personnel and customers, and other confidential information and trade secrets (“Confidential Information”). Confidential Information does not include information that: (a) is or becomes publicly available through no breach by the receiving party of this Agreement; (b) was previously known to the receiving party prior to the date of disclosure, as evidenced by contemporaneous written records; (c) was acquired from a third party without any breach of any obligation of confidentiality; (d) was independently developed by a party hereto without reference to Confidential Information of the other party; or, (e) is required to be disclosed pursuant to a subpoena or other similar order of any court or government agency, provided, however, that the party receiving such subpoena or order shall promptly inform the other party in writing and provide a copy thereof, and shall only disclose that Confidential Information necessary to comply with such subpoena or order. Except as expressly provided herein, the receiving party will not use or disclose any Confidential Information of the disclosing party without the disclosing party’s prior written consent, except disclosure to and subsequent uses by the receiving party’s employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the receiving party’s obligations under this Section. The receiving party agrees to use at least the same care and precaution in protecting such Confidential Information as the receiving party uses to protect the receiving party’s own Confidential Information, and in no event less than reasonable care. Each party acknowledges that due to the unique nature of the other party’s Confidential Information, the disclosing party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
15. Limitation of Liability and Damages
NEITHER PROVIDER NOR ITS VENDORS AND LICENSORS WILL HAVE ANY LIABILITY TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, SALES, TRADING LOSSES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, INCLUDING USE OF OR INABILITY TO USE THE SERVICES. THE TOTAL LIABILITY OF PROVIDER AND ITS VENDORS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT OR USE OF THE SERVICES IN CONNECTION WITH ANY CLAIM OR TYPE OF DAMAGE (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE) WILL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CUSTOMER DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY WILL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
16.1. Termination. This Agreement will terminate (a) on the thirtieth (30th) calendar day after either party gives the other written notice of a breach by the other of any material term or condition of this Agreement, unless the breach is cured before that day; or (b) upon written notice by either party, immediately, if (i) a receiver is appointed for the other party or its property; (ii) the other party becomes insolvent or unable to pay its debts as they mature in the ordinary course of business or makes a general assignment for the benefit of its creditors; or (iii) any proceedings (whether voluntary or involuntary) are commenced against the other party under any bankruptcy or similar law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof. The following provisions will survive termination or expiration of this Agreement: 7 (Proprietary Rights), 12.3 (Disclaimer of Warranties), 13 (Customer Indemnity) (for claims accruing prior to termination), 14 (Confidentiality), 15 (Limitation of Liability and Damages), 16 (Termination), and 17 (General Provisions).
16.2. Suspension of Services. Notwithstanding any other provision of this Agreement, Provider may, in its sole discretion, suspend Customer’s access to the Services for any of the following reasons (a) to prevent damages or risk to, or degradation of, the Services; (b) to comply with any law, regulation, court order, or other governmental request; (c) to otherwise protect Provider from potential legal liability; or (d) in the event an invoice remains unpaid for more than forty-five (45) or more days from the invoice date. Provider will use reasonable efforts to provide Customer with notice prior to or promptly following any suspension of the Services. Provider will promptly restore access to the Services as soon as the event giving rise to suspension has been resolved. This Section will not be construed as imposing any obligation or duty on Provider to monitor use of the Services.
17. General Provisions
This Agreement will be construed, interpreted, and performed exclusively according to the laws of the State of Delaware, United States of America, without giving effect to any principles of conflicts of law. Any action at law or in equity arising out of or directly or indirectly relating to this Agreement may be instituted only in the Federal or state courts located in Wilmington, Delaware. The parties consent and submit to the personal jurisdiction of those courts for the purposes of any action related to this Agreement, and to extra-territorial service of process. Regardless of any statute or law to the contrary, any claim or cause of action that Customer may have arising out of or related to this Agreement must be filed within one (1) year after the claim or cause of action arose. This Agreement constitutes the entire understanding and agreement between the parties with respect to the transactions contemplated in this Agreement and supersedes all prior or contemporaneous oral or written communications with respect to the subject matter of this Agreement, all of which are merged in this Agreement. This Agreement may not be modified, amended, or in any way altered except by an instrument in writing signed by authorized representatives of both parties. In the event any provision of this Agreement is found invalid or unenforceable pursuant to judicial decree, the remainder of this Agreement will remain valid and enforceable according to its terms. Any failure by Provider to strictly enforce any provision of this Agreement will not operate as a waiver of that provision or any subsequent breach of that provision. This Agreement may be accepted in electronic form (e.g., by an electronic or other means of demonstrating assent) and Customer’s acceptance will be deemed binding between the parties. Neither party will contest the validity or enforceability of this Agreement, including under any applicable statute of frauds, because it was accepted or signed in electronic form. Electronically maintained records when produced in hard copy form shall constitute business records and shall have the same validity as any other generally recognized business records. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES WILL REMAIN IN EFFECT.