OTUVYâ„ TERMS OF SERVICE
(End User License Agreement)
(Last Modified August 9th, 2023)
THIS OTUVY’S TERMS OF SERVICE (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU, WHETHER AN INDIVIDUAL, COMPANY, BUSINESS, OR ENTITY (“YOU”, “YOUR” OR “YOURSELF”), AND OTUVY, INC., A UTAH CORPORATION (“COMPANY”). YOU MUST BE OVER EIGHTEEN YEARS OF AGE TO ENTER INTO THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE INDICATING YOUR ACCEPTANCE. BY CLICKING ON THE ACCEPTANCE BUTTON WHICH MAY READ, “ACCEPT”, OR BY INSTALLING OR USING THE PROGRAMS OR PROGRAM UPGRADES (AS DEFINED BELOW), YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS LISTED BELOW AND IN OTUVY’S PRIVACY POLICY, AS AMENDED. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS LISTED BELOW OR IN OTUVY’S PRIVACY POLICY, DECLINE BY CLICKING ON THE DECLINE BUTTON WHICH MAY READ, “DO NOT ACCEPT”, OR DO NOT INSTALL OR USE THE PROGRAMS OR PROGRAM UPGRADES. IF YOU DECLINE, YOU WILL NOT BE GRANTED ANY RIGHTS UNDER THIS AGREEMENT OR IN OTUVY’S PRIVACY POLICY AND YOU MAY NOT ACCESS OR USE COMPANY’S SYSTEM AND SERVICES (AS DEFINED BELOW) OR RELATED RIGHTS.
1. DEFINITIONS. In addition to the terms defined elsewhere in this Agreement, the capitalized terms listed in this section shall have the meanings set forth below for purposes of this Agreement:
1.1 “Business Use” means Your use of the System and Services solely for the legitimate business purpose(s) of the individual, company, business or entity obligated to pay the Fees and Taxes as restricted by this Agreement.
1.2 “Company Personnel” means all officers and employees of Company.
1.3 “Company Programs” means the computer programming code in solely Object Code form that is owned by Company, and including all program output in the form of screen displays, printer output, plotter output, text, drawings, diagrams and sounds that are part thereof, that Company may elect to provide at the Site for Your Business Use from time to time pursuant to this Agreement, as modified, expanded, restricted or terminated by Company in its sole discretion from time to time, but excluding Other Programs.
1.4 “Confidential Information” means (a) the Programs, Program Upgrades and Documentation; (b) the Source Code, Object Code and executable code for the Programs and Program Upgrades; (c) all ideas, information, data, procedures, technology, research, documents, inventions, items, materials, input and output relating to the foregoing; (d) information and data regarding Company, its owners, management, employees, licensees, customers, customer lists, suppliers, developing products and services, marketing plans, business plans, objectives, finances, financial status, sales, agreements and business; and (e) any other information, data, documents, items or materials that, if disclosed by Company in tangible form, are marked in writing as “Confidential,” or if disclosed by Company orally or visually, are designated orally at the time of disclosure as “Confidential.” Notwithstanding the foregoing, “Confidential Information” does not include information that (a) is generally known in the industry in which Company competes; (b) is readily ascertainable by proper means by competitors of Company, through sources independent of You and Company, through no act or fault by You; (c) is already known by You prior to the date of this Agreement as evidenced by reasonable supporting documentation; or (d) is independently developed by You without use of any information derived from Company.
1.5 “Customer Data” means those photographs, pictures, information, data, text, content, charts, graphs, documents, items or materials owned by You and submitted, provided, input or posted by You within the Programs or Program Upgrades for viewing by You or those others that are authorized by You or others during the period in which You have rights to do so under this Agreement. Notwithstanding the foregoing, “Customer Data” does not include information that (a) is generally known in the industry in which You are engaged; (b) is readily ascertainable by proper means by others, through sources independent of Company, Company Personnel, and You, through no act or fault of Company or Company Personnel; (c) is already known by Company prior to the date of this Agreement as evidenced by reasonable supporting documentation; (d) is independently developed by Company without use of any information derived from You; or (e) that is Confidential Information of Company.
1.6 “Documentation” means all documents, notes, memoranda, correspondence, disks, diskettes, items, devices and materials that contain information about the Programs or Program Upgrades, including, but not limited to, manuals, specifications, instructions, drawings, flow charts, training materials, educational materials or printed materials, if any, that Company may elect to provide for Your Business from time to time, on the Site or otherwise, in connection with Your use of the Programs and Program Upgrades pursuant to this Agreement, as modified, expanded, restricted or terminated by Company in its sole discretion from time to time.
1.7 “Fees” means the fees and all other amounts payable by You or others to Company for Your Business Use of the System and Services.
1.8 “Intellectual Property” means the Site, Programs and Program Upgrades, including those in Object Code and/or Source Code form, Documentation, System, Marks, and Confidential Information, now existing or used, or to be developed or used in the future, and all intellectual property and other rights therein, including, but not limited to, all copyrights, patents, patent rights, shop rights, trademarks, service marks, trade names, goodwill, registrations, registration rights, pending applications, rights provided by law, statute or international convention, and other rights, throughout the world.
1.9 “Marks” means the Company name and mark, with and without accompanying designs, logos, slogans and words, and all other names, marks, designs, logos, slogans and words used by Company and not licensed to it by others.
1.10 “Object Code” means software written in machine readable form generated by compilation of the Source Code and contained in a medium that permits it to be loaded in and operated on a computer or mobile device.
1.11 “Other Programs” means the computer programming code in solely Object Code form owned by third parties other than Company, whether open source or otherwise, for which Company has been granted a license to sublicense use thereof to others, and including all program output in the form of screen displays, printer output, plotter output, text, drawings, diagrams and sounds that are part thereof, that Company may elect to provide at the Site for Your Business Use from time to time in connection with Your use of the Programs and Program Upgrades pursuant to this Agreement, as modified, expanded, restricted or terminated by Company in its sole discretion from time to time.
1.12 “Parties” means Company and You collectively.
1.13 “Privacy Policy” means the latest version of Company’s privacy policy as displayed on the Site as revised and amended from time to time by Company.
1.14 “Programs” means the Company Programs and Other Programs.
1.15 “Program Upgrades” means new versions or releases of the Programs incorporating modifications, additions, substitutions, corrections, updates or enhancements to the Programs, in solely Object Code form, that Company, in its sole discretion, may elect to provide at the Site for Your Business Use from time to time in connection with Your use of the Programs and Program Upgrades pursuant to this Agreement, as modified, expanded, restricted or terminated by Company in its sole discretion from time to time, and subject to such terms and limitations as Company may impose from time to time.
1.16 “Services” means solely those services expressly mentioned in subsections 2.1, 3.1, 4.1 and elsewhere in this Agreement which are to be provided by Company to You in connection with Your use of the Company Programs and Program Upgrades, as modified, expanded, restricted or terminated by Company in its sole discretion from time to time, for which You have timely and properly exercised Your right, if any, to receive and to continue to receive the same, pursuant to the terms and conditions of this Agreement.
1.17 “Site” means a specific website(s) and/or a specific mobile application(s) designated by Company.
1.18 “Source Code” means software written in programming language in a form intelligible to trained programmers and capable of being translated into Object Code readable and usable by machines.
1.19 “System” means the Site, and the Programs, Program Upgrades and Documentation furnished by Company at the Site, for Your Business Use pursuant to the terms of this Agreement, as modified, expanded, restricted or terminated by Company in its sole discretion from time to time.
1.20 “Tax” or “Taxes” means any applicable sales and use taxes, transaction privilege tax, excise tax, tangible or intangible personal property taxes, or value added taxes on the sale or measured by the sales price.
1.21 “Third Party Products” means hardware, equipment, telephone lines, communications interfaces, components, software, programs, documents, items, materials and products that You acquire from third parties, other than Company, excluding the System.
1.22 “User(s)” means those individuals who are authorized by You to use the System and Services for the legitimate business purpose(s) of the individual, company, business or entity obligated to pay the Fees and Taxes, as restricted by this Agreement.
2. LICENSED SYSTEM AND SERVICES.
2.1 Use of System and Services. Subject to the terms and conditions of this Agreement, including, without limitation, payment of all applicable Fees, Company grants to You, and You receive, a nonexclusive, nonassignable, limited license authorizing You, to (a) access, view and use the Site, (b) execute and run the Programs and Program Upgrades on the Site in Object Code form only on Company’s server(s) or server(s) designated by Company, (c) access, view and use the Documentation, and (d) if permission is granted, authorize Users to access the Site for the sole purpose of fulfilling the legitimate business purpose(s) of the individual, company, business or entity obligated to pay the Fees and Taxes for their legitimate business use to the extent, in the manner and subject to the limitations imposed by Company from time to time, with all of the foregoing rights as referred to in (a) through (d) above being granted solely for Your Business Use in connection with Your use of the Programs and Program Upgrades, subject to modification, expansion or termination by Company in its sole discretion, in whole or in part, and pursuant to the terms and conditions of this Agreement. The System and Services shall be used by You consistent with the guidelines provided by Company to You from time to time and with all legal requirements and laws. You may cease using the System and/or Services at any time. Company retains all rights not granted to You by this license, including, without limitation, an unrestricted right to promote, market, offer, license, sublicense, exploit and use the System and Services and other services and/or products provided by Company or its designees, directly or indirectly.
2.2 Prohibited Use. All use of the System and Services by You must be within the scope of the licensed rights as set forth in this Agreement and in the Privacy Policy, and consistent with all third party licenses relating to the same, with all other use by You, directly and indirectly, in any form, format, medium or means, being prohibited by this Agreement. Under no circumstances shall You use the System or Services or any portion thereof except as authorized in this Agreement. You may use the System and Services or any portion thereof solely to the extent authorized in writing by Company from time to time, and solely for, on behalf of and for the benefit of Yourself and/or the individual, company, business or entity obligated to pay the Fees and Taxes. You may not export the System or Services or any elements thereof. Except as expressly stated otherwise in this Agreement, this Agreement does not give You the right to exercise or grant any sublicenses, rental rights, lease rights, sale rights, distribution rights, use rights or other rights in the System or Services, in whole or in part. Except as expressly stated otherwise in this Agreement, You shall not copy, attempt to copy, mimic the expression of, reproduce, print, publish, republish, upload, transmit, use, post, distribute, perform, display (except as viewed on the Site), interfere with, modify, prepare derivative works of, de-compile, disassemble, re-configure, reverse-compile, reverse-assemble, reverse-engineer, remove copyright or trademark notices with respect to, distribute, offer, sell, license, sublicense, assign, contest Company’s rights in, or violate any third party rights or agreements or laws relating to, the Site, System, Services or Intellectual Property, or anything substantially similar thereto, in whole or in part, in any manner, without the prior written consent of Company. You agree that You are not obtaining the above license or entering into this Agreement to research, use, or discover Confidential Information, the System, the Services or other services and/or products provided by Company or its designees, directly or indirectly, to use to compete against Company, directly or indirectly, or share information to others that may compete against Company in any way.
2.3 Customer Data. During the period in which Your rights under this Agreement continue, You may submit, provide, input or post Customer Data within the Programs or Program Upgrades at the Site that may be viewable, edited and/or deleted by You and others authorized by You or the individual, company, business or entity obligated to pay the Fees and Taxes. You retain ownership of any intellectual property rights You may hold in the Customer Data if any. You agree that all Customer Data shall be submitted, provided, input or posted at the location on the Site and pursuant to the instructions and requirements, including without limitation, requirements relating to content, font, size, length, presentation, objectionable materials and other aspects, provided by Company on the Site or through other means from time to time, and that Company retains the right to modify said instructions and requirements at any time in its sole discretion.
2.4 Conditions Precedent. The obligations of Company under this Agreement are subject to and conditioned upon the timely performance of Your obligations under this Agreement.
3. HOSTING SERVICES.
3.1 Hosting. Company shall provide initial setup services sufficient to provide You with access to the Programs, Program Upgrades and Documentation through hosting. Company may host the Programs, Program Upgrades and Documentation on its own server(s) and hardware or the server(s) and hardware of one or more third party hosting service companies, directly or through agreements with said third party hosting service companies (“Hosting Agreements”), which Hosting Agreements may change from time to time, and may also include provisions, restrictions and limitations with respect to up-time or other aspects, with said Hosting Agreements adopted herein by reference and modifying the provisions of this Agreement where there may be inconsistencies or ambiguities as determined by Company from time to time, and with You agreeing to abide by all of the terms and provisions thereof.
3.2 Related Obligations. Except as expressly stated otherwise in this Agreement, You, directly or through the individual, company, business or entity obligated to pay the Fees and Taxes, shall be solely responsible for providing, maintaining, and paying for Your own hardware, other software not provided pursuant to this Agreement, local and other connections to the internet and world wide web, network and internet problems, electronic communications, e-mail, files and other functions and aspects. You, directly or through the individual, company, business or entity obligated to pay the Fees and Taxes, shall also be responsible for utilizing login, password, backup, recovery, firewall and other security controls and measures sufficient to protect Your Customer Data, communications and business, with the foregoing being consistent with any requirements imposed by Company relating to the same. You acknowledge and agree that Company does not provide any guarantees or assurances that Your Customer Data, Your communications or business, or the System or Services, are protected against third party interference, interception, or other actions. You shall comply with all laws and legal requirements pertaining to the internet, world wide web, electronic communications, e-mails, spam, viruses, files, data, privacy, confidentiality, and business activities, and shall not engage in any false, deceptive, fraudulent or other illegal conduct.
4. SUPPORT SERVICES.
4.1 E-Mail and Phone Support. During the period during which You, or the individual, company, business or entity obligated to pay the Fees and Taxes, are current with respect to all Fees, Taxes and other amounts owed to Company as set forth in this Agreement, Company shall provide e-mail and phone support to You, at one or more e-mail addresses and phone numbers designated by Company from time to time, wherein You may report problems and request assistance regarding the use and operation of the System. E-mail and phone support shall be provided to You Monday through Friday, but solely during Company’s normal business days, as determined by Company, from the hours of 8:00 a.m. to 5:00 p.m. Mountain Time, subject to modification from time to time by Company. In the event Company is unable to respond at that time, You may leave an e-mail or phone message, in which event Company shall make a reasonable effort to reply as soon as possible thereafter.
4.2 Liability Limitation. Notwithstanding anything in this Agreement to the contrary, in no event does Company warrant or guarantee the Services or any other support services, or that through the Services or any other support services any or all errors in the System can or will be corrected or resolved. Your sole remedy with respect to alleged inadequate support services, including the Services, shall be to request reperformance of the same by Company, with Company being obligated to reperform the same solely to the extent reasonable as determined by Company in its sole discretion.
5. FINANCIAL OBLIGATIONS.
5.1 Payments for System, Services and Other Rights. You, or the individual, company, business or entity obligated to pay the Fees and Taxes, shall pay all Fees and other payments for the System, Services, renewal and other rights in the amounts, rates and on the dates, and subject to the terms and conditions set forth in the agreement in connection with the System and Services license purchase, as amended from time to time by Company in its sole discretion, or as otherwise specified upon notice by Company to You or the individual, company, business or entity obligated to pay the Fees and Taxes.
6. WARRANTY AND LIABILITY LIMITATIONS.
6.1 Disclaimer of Warranties. TO THE EXTENT PERMITTED BY LAW, COMPANY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT, WITH RESPECT TO THE PROGRAMS, PROGRAM UPGRADES, DOCUMENTATION, SYSTEM, SERVICES, CUSTOMER DATA, COMPLIANCE AND RIGHTS GRANTED UNDER THIS AGREEMENT. NO ADVICE OR INFORMATION GIVEN BY COMPANY OR COMPANY PERSONNEL SHALL CREATE A WARRANTY. COMPANY PROVIDES NO WARRANTY THAT THE SYSTEM OR SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE, THAT DEFECTS WILL BE CORRECTED, THAT ANY INFORMATION, CUSTOMER DATA, PROGRAMS, PROGRAM UPGRADES, DOCUMENTATION OR OTHER MATERIAL ACCESSIBLE THROUGH THE SYSTEM OR SERVICES ARE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SYSTEM OR SERVICES ARE AVAILABLE IN ALL LOCATIONS.
6.2 Acknowledgements of Risk. You acknowledge and agree that You accept the System and Services on an “as is” basis, and that Company offers no representations or warranties regarding the same, or any rights referred to in this Agreement. You shall bear all risk of loss with respect to the rights licensed to You or otherwise provided under this Agreement. Company shall not be responsible for any Third Party Products, whether or not Company recommended them or assisted in their evaluation, selection or supervision. The failure of Third Party Products or third party services to perform or meet Your requirements or needs shall not affect Your obligations to Company under this Agreement, including payment obligations. Company shall not be required to offer uniform licensed rights to You and other customers of Company. You acknowledge that the information and data provided by Company or others on the Site, provided with the System or Services, and that which is otherwise made available by Company or others, is not intended as business advice, and should not be relied on in lieu of or otherwise substitute for consultation with or the services of trained qualified consultants and advisors who are familiar with Your business and related needs, abilities and circumstances. You should consult a trained and qualified consultant and advisor in all matters relating to Your business. Company makes no specific recommendations nor any representations or warranties regarding the System or Services, or any counsel or advice relating thereto.
6.3 Limitation of Liability. You agree that in no event will Company, its members, owners, officers, managers, employees, agents, vendors, licensors or suppliers be liable for any claims, causes of action, suits or proceedings, or any losses, or direct, indirect, special, incidental, consequential or other damages, including but not limited to, lost profits, loss of use, business interruption, or loss of data, arising out of or relating to, the following: (1) the Site, Programs, Program Upgrades, Documentation, System, Services, Customer Data, or any links to or from the same; (2) the access, use, operation, advice, counsel, instructions, comments, information, data, content, documents, items or materials relating to any of the foregoing; (3) the quality, nature, accuracy, correctness, truth, completeness, currency, content, data, data storage, data integrity, operation, functions, functionality, performance, usefulness, ability to meet needs, likely results, reliability, availability, infringing nature, compatibility, obsolescence, defects, timeliness, misdelivery, deletion, failure to store, or use of any of the foregoing or any part thereof, or of Third Party Products used with respect thereto; (4) the actions, omissions, negligence, errors, delays, or infringing nature of any of the foregoing; and/or (5) the modification or termination of any of the foregoing. The foregoing shall apply even if Company is expressly advised of the possibility of damages relating to the same.
6.4 Limitation of Recovery. COMPANY’S SOLE AND EXCLUSIVE LIABILITY TO YOU OR ANY OTHER PERSON OR BUSINESS FOR ANY LOSS RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING FROM OR RELATING TO THE SYSTEM OR CUSTOMER DATA SHALL NOT EXCEED THE AMOUNTS PAID BY YOU TO COMPANY FOR THE USE OF THE SYSTEM FOR THE PRECEDING TWELVE-MONTH PERIOD. COMPANY’S SOLE AND EXCLUSIVE LIABILITY TO YOU OR ANY OTHER PERSON OR BUSINESS FOR ANY LOSS RESULTING FROM ANY CLAIMS, DEMANDS OR ACTIONS ARISING FROM OR RELATING TO THE SERVICES OR THIS AGREEMENT (OTHER THAN THE SYSTEM OR CUSTOMER DATA AS NOTED ABOVE) SHALL BE TO DISCONTINUE USING THE SERVICES. IN NO EVENT SHALL COMPANY BE LIABLE TO YOU OR OTHERS FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOST PROFITS, WHETHER RELATING TO THE SYSTEM, SERVICES, CUSTOMER DATA, THIS AGREEMENT OR OTHERWISE, OR ANY FAILURE OF PERFORMANCE WITH RESPECT THERETO, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. PROTECTION OF INTELLECTUAL PROPERTY.
7.1 Ownership. You acknowledge and agree that all Intellectual Property (excluding the Other Programs licensed to Company) is the exclusive property of Company, that it is derived in whole or in part from Company and its sources, and that it is protected by United States and international law, with all rights reserved to Company. The foregoing shall be so regardless of whether You may have contributed to the conception or development of the same, or may have paid Company for the development or use of the same. Nothing in this Agreement shall be construed as an assignment, transfer or grant to You of, nor shall You otherwise acquire pursuant to this Agreement, any ownership rights in, the Intellectual Property. You shall not in any manner represent that You have any ownership rights in the Intellectual Property. All use of the Programs, Program Upgrades, Documentation, System, Services, Customer Data, Marks and Confidential Information by You shall be solely as provided in this Agreement. Any unauthorized use by You of the System, Services, Marks and/or Confidential Information is in violation of copyrights, trademarks, service marks, trade names, trade secrets, confidentiality and other applicable laws and rights, for which civil and criminal remedies and penalties apply. You acknowledge that use of the System and Services and the goodwill generated thereby shall inure solely to the benefit of Company. You further acknowledge the value of and Company’s exclusive rights in the goodwill in the foregoing. You agree that You will not, during the term of this Agreement or thereafter, attack or otherwise challenge Company’s exclusive ownership rights in the Company Programs, Program Upgrades, Marks, Documentation and System or the validity of this Agreement, or do anything that would jeopardize or diminish Company’s rights in the Intellectual Property.
7.2 Proprietary Notices. You shall not remove any copyright, trademark, service mark, patent or other proprietary or restrictive notice or legend contained in or included on any Programs, Program Upgrades, Documentation or the System. You shall modify existing notices and apply such additional notices as Company may request from time to time.
7.3 Protective Action for Company. You shall immediately notify Company of any infringement of or challenge to Your licensed use of the Programs, Program Upgrades, Documentation or System, or Company’s rights in the Intellectual Property, or of any claim by any person, business or entity to any rights in the Intellectual Property, whenever it first comes to Your attention. Company shall have sole discretion to take such action as it deems appropriate, and the right to exclusively control any litigation, action or proceeding, whether before a court, administrative agency or otherwise, arising out of any such infringement, challenge or claim, or otherwise relating to the Intellectual Property, and You agree to execute any and all instruments and documents, render such assistance and do such acts or things as may, in the opinion of Company or its counsel, be reasonably necessary to protect or maintain the interests of Company in any such litigation, action or proceeding, or to otherwise protect and maintain the interests of Company in the Intellectual Property.
7.4 Protective Action for You. Company responds to notices of alleged copyright infringement and terminates accounts of repeat infringers as set forth in this Agreement and as required by the U.S. Digital Millennium Copyright Act. Company provides information required by law to assist You and others in managing their intellectual property. If You believe someone is violating Your copyrights with respect to the Site, You may provide notice to Company consistent with legal requirements and Company may respond as it deems appropriate consistent with legal requirements.
7.5 Links. The Site may contain links to other websites on the internet that are owned and operated by someone other than Company. Company provides these links solely for convenience of reference. Company is not responsible for and does not assume any responsibility or liability for any information, data, content, documents, items or materials available at or through such linked websites. The appearance of a link does not imply Company’s endorsement, nor is Company responsible for the content of any linked website. You access linked websites and use any related information, data, content, documents, items and materials at Your own risk.
7.6 Exclusion of Liability. Company shall have no liability to You for any claim, action, proceeding or litigation by third parties for infringement relating to or arising from the Intellectual Property or any links to other websites.
8. PROTECTION OF CONFIDENTIAL INFORMATION.
8.1 Ownership. You acknowledge and agree that the Confidential Information is proprietary and confidential, that it is not generally known or available in the industry, that it constitutes trade secrets of and is of great value to Company, and that all rights to the same are and shall remain the sole property of Company.
8.2 Use, Disclosure or Copying. You acknowledge and agree that at all times, both during the term of this Agreement and thereafter, You shall not use, disclose, copy or remove, nor permit others to use, disclose, copy or remove, any Confidential Information, except to the extent such use, disclosure, copying or removal is specifically authorized by this Agreement. In the event You obtain copies of any Confidential Information not intended by Company for Your use, You agree to immediately return the same to Company.
8.3 Limited Access. You shall require that all copies of Confidential Information shall be kept in secure locations so as to preclude unauthorized access. You shall limit access to Confidential Information to such Users with a legitimate need to access the same consistent with the intent of this Agreement. You shall provide the names of those Users with access to Confidential Information upon request from Company. Upon request by Company, Users with access to Confidential Information shall sign written agreements approved as to form by Company wherein said Users are obligated to abide by the restrictions in this section 8 of the Agreement and all other sections and provisions of this Agreement relating to protection of the System and/or Confidential Information. You shall take all actions necessary to assure that all Users comply with the provisions of this Agreement. Company and/or its designated representative may inspect Your places of business, books, records, memoranda and documents as may be necessary to determine whether You are complying with the provisions of this Agreement.
8.4 Remedies. You recognize and acknowledge that any use, disclosure or copying of Confidential Information, or infringement of Intellectual Property, by You, in a manner inconsistent with the provisions of this Agreement, will cause Company irreparable harm for which other remedies may be inadequate. Consequently, You agree that in the event of any actual or threatened unauthorized use, disclosure or copying of any Confidential Information, or actual or threatened infringement of Intellectual Property, by You (a) Company shall be entitled to both an immediate injunction to prevent continuation of the same, and money damages insofar as they can be determined, and You shall not oppose the same on grounds that an adequate remedy is available at law, and (b) upon request by Company, Company shall be released from the requirement of posting any bond in connection with temporary or interlocutory injunctive relief, to the extent permitted by law. Nothing in this Agreement shall be construed to prohibit Company from also pursuing any other right or remedy, the Parties having agreed that all remedies shall be cumulative.
9. PROTECTION OF CUSTOMER DATA.
9.1 Ownership. Company acknowledges and agrees that the Customer Data may be proprietary and confidential to You to the extent provided by law, that it may not be generally known or available in the industry, that it may constitute trade secrets of and may be of possible value to You, and that the rights to the same are the property of You to the extent provided by law, except as stated otherwise in this Agreement.
9.2 Archiving. Company may, in its discretion, provide backup and archiving services to You relating to the Customer Data, of the type, at such times, upon such payments, and subject to the terms, conditions and limitations, determined by Company from time to time.
9.3 Disclosure or Copying. Company acknowledges and agrees that during the term of this Agreement Company shall not disclose or copy any Customer Data, except as necessary to provide, modify or improve the System and/or Services or to analyze or assess the same, except as stated in the Privacy Policy, or except to the extent such disclosure or copying is specifically authorized by this Agreement, by law or by a court or government agency. Notwithstanding anything to the contrary in this Agreement, You hereby grants to Company a non-exclusive, assignable, limited license giving Company the right to store Customer Data and the right to access, view, edit, copy, share and use Customer Data as set forth in this Agreement and for those purposes and situations set forth in Company’s Privacy Policy and/or Company’s privacy notice and security information, all as amended from time to time by Company and posted on the Site, including after termination of this Agreement or Your rights hereunder (see Company’s Privacy Policy for more information on how personal data is handled). Company and Company Personnel shall have the right to access, view, edit, copy, share and use Customer Data for the purpose of setting up the System and Services, providing any training or services to You, fulfilling Company’s obligations in this Agreement, resolving technical support and other questions from You, testing functionality, resolving problems or errors in the System or Services, improving the System or Services, sending limited and necessary information to third parties who provide support services for Company, contacting You, sending You information, suspected violation of this Agreement, as required by law as determined by Company in its sole discretion, to determine amounts to charge You or the individual, company, business or entity obligated to pay the Fees and Taxes for the use of the System and Services, and collecting and storing information about Your visit(s) to use the Programs and Program Upgrades for internal purposes. You hereby also grant to Company a non-exclusive, assignable, limited license giving Company the right to use Your business name and logo, if any, in Company’s advertisement and in Company’s marketing efforts, in all types of medium, and including in sales conversations, explaining that You use the System, Services and/or Otuvy, but not to include other Customer Data.
9.4 Limited Use. Notwithstanding anything in this Agreement to the contrary, the Parties agree that Company shall have access to all Customer Data as set forth in this Agreement and that is downloaded and/or stored on the System, and that Company shall be authorized to select, aggregate, disclose, copy and use anonymized Customer Data for purposes of research, analysis, statistical study and validation, during and after the term of this Agreement.
10. TERM, SUSPENSION AND TERMINATION.
10.1 Term. Unless specified otherwise by Company upon notice to You, the term of this Agreement shall begin as of the date of acceptance of this Agreement by You and shall continue for thirty (30) days, with automatic renewal for successive periods of thirty (30) days thereafter, unless earlier terminated in accordance with the provisions of this Agreement.
10.2 Suspension. In the event of nonpayment or late payment by You, or the individual, company, business or entity obligated to pay the Fees and Taxes, of any Fees or other amounts owed to Company under this Agreement, or in the event of any other breach of this Agreement by You, or the individual, company, business or entity obligated to pay the Fees and Taxes, Company may elect in its sole discretion, in lieu of or in addition to termination of the Agreement, to restrict, reduce, suspend, discontinue or otherwise terminate any or all elements of the System or Services as provided to You, in whole or in part, without limitation.
10.3 Termination. This Agreement shall terminate upon the earlier of the following events:
(a) upon completion of the existing initial term or any existing renewal term after delivery of written notice of termination by You to Company, or by Company to You, at any time, with or without cause;
(b) immediately in the discretion of Company upon a determination by Company that You, or the individual, company, business or entity obligated to pay the Fees and Taxes, have failed to timely make any payment of Fees or other amounts owed to Company, that You have breached any of the terms or conditions of this Agreement, that You have been abusive, disruptive, offensive, infringing or has acted contrary to Company policies or law, or that a continuance of the System or Services relating to You is no longer advisable whether with or without cause, with no notice required to be sent by Company for any of the foregoing;
(c) immediately upon delivery of written notice of termination by Company to You in the event of any unauthorized assignment of rights under the Agreement by You, any assignment of assets or the business by You for the benefit of creditors, upon appointment of a trustee or receiver to conduct Your business or affairs or to take possession of its assets, upon insolvency by You, upon You being adjudged in any legal proceeding to be either voluntarily or involuntarily bankrupt, upon the winding-up, sale, consolidation, merger or any sequestration of You by governmental authority or otherwise, or upon any criminal misconduct or material violation of law by You in part or otherwise; or
(d) upon termination of the agreement to purchase the license for the System and Services by the individual, company, business or entity obligated to pay the Fees and Taxes.
10.4 Effect of Termination. Upon termination of this Agreement, the following shall occur:
(a) All rights and licenses granted to You under this Agreement shall terminate.
(b) All money owed by either party to the other party shall be immediately due and payable.
(c) You shall immediately cease using the Site, all Programs, Program Upgrades, Documentation, the System and Services, and all Confidential Information, and all copies of the same, in any and all forms and mediums.
(d) You shall immediately deliver to Company all Programs, Program Upgrades, Documentation, the System, and all Confidential Information, and all copies of the same, in any and all forms and mediums, and shall certify to Company that You have not retained any copies of the same.
(e) Company shall return to You, or the individual, company, business or entity obligated to pay the Fees and Taxes, or otherwise make available for You, or the individual, company, business or entity obligated to pay the Fees and Taxes, to download or obtain, certain of the Customer Data including that which contains contact information pertaining to You and Your customers, to the extent, in the manner, to whom and within the time period determined by Company in its sole discretion.
(f) All of Your obligations and all rights of Company as set forth in sections 1, 2.2, 2.3, 4.2, 5, 6, 7, 8, 9.4, 10.4 and 11 of this Agreement, and all of Your other obligations and all other Company rights in this Agreement which expressly or by their nature survive or are intended to survive termination of this Agreement, shall continue in full force and effect subsequent to and notwithstanding termination of this Agreement.
(g) Company shall have all other rights and remedies permitted by this Agreement, law and equity, including, but not limited to, the right to injunctions, restraining orders, damages, profits and other relief.
11. MISCELLANEOUS.
11.1 Compliance with Laws. Access and use of the System and Services are subject to applicable laws. You shall comply with all applicable foreign, federal, state and local laws, statutes, rules, ordinances and regulations, and shall maintain any and all permits, certificates and licenses required by law. Accessing the System or Services from territories where they are illegal is prohibited. You must be 18 years or older to use the System and Services.
11.2 Relationship of Parties. The relationship of the Parties shall be solely that of independent contractors. No partnership, joint venture, franchise, business opportunity, employment, agency or other relationship is formed, intended or to be inferred under this Agreement. Neither party to this Agreement shall attempt to bind the other, incur liabilities on behalf of the other, act as agent of the other, or make or authorize any representation contrary to the foregoing.
11.3 Notices. Except as stated otherwise in this Agreement, notices required or permitted to be given or made under this Agreement shall be in writing and shall be given by personal delivery, by confirmed air courier, by certified mail return receipt requested, by first class mail postage-prepaid, by facsimile, or by e-mail. Notices sent to Company shall be addressed to Company at 460 N. University Ave., Suite 203, Provo, Utah 84601, or at its facsimile number or e-mail address as most recently set forth on the Site, except that in the event Company provides written notice of a change of address, facsimile number or e-mail address, then such notices shall be addressed to Company at the new address, facsimile number or e-mail address as applicable in each instance. Notices sent to You shall be addressed to You at the most recent address, facsimile number or e-mail address in Company’s files or databases, except that in the event You provide written notice to Company of a change of address, facsimile number or e-mail address, then such notices shall be addressed to You at the new address, facsimile number or e-mail address as applicable in each instance. If sent by confirmed air courier or by certified mail, return receipt requested, a notice shall be deemed delivered upon the earlier of the date upon which it is actually received by the addressee or the day upon which delivery is made at such address, as confirmed by the air courier or said mail service. If mailed by first class mail, postage prepaid, a notice shall be deemed delivered upon the earlier of the date upon which it is actually received by the addressee or the fourth business day following the date upon which it is deposited in the United States mail utilizing such address. If sent by facsimile or e-mail, a notice shall be deemed delivered upon the date of transmittal to such facsimile number or e-mail address.
11.4 Modifications. This Agreement may not be altered, modified, amended or changed, in whole or in part, except as authorized by Company. Company reserves the right at any time to modify, alter, update, remove or terminate all or part of this Agreement, the Privacy Policy, the Site, and the System and Services, without notice to You or others. Your continued use of the Site, System or Services signifies Your acceptance of any and all such changes. Modifications to this Agreement and/or the Privacy Policy shall be effective immediately upon Company or its designee posting the same on the Site, unless specified otherwise by Company. Modifications to this Agreement by You are permitted only pursuant to a written agreement signed by Company. If You are dissatisfied with this Agreement or the Privacy Policy, Your sole and exclusive remedy is to discontinue Your use of the Site, System and Services. In the event of a conflict between these terms and any modified or additional terms, the modified or additional terms shall control with respect to the conflict.
11.5 Purchase Orders and Other Forms. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that You may use in connection with Your use of the System or Services shall have any effect on the rights, duties or obligations of the Parties hereunder, or otherwise modify this Agreement, regardless of any failure of Company to object to such terms, provisions or conditions.
11.6 Assignment. This Agreement is fully assignable by Company. This Agreement is personal to You and neither the Agreement, nor the rights or duties hereunder, may be voluntarily or involuntarily, directly or indirectly, assigned or otherwise transferred or encumbered by You (including without limitation by will, declaration of or transfer in trust, the laws of intestate succession, or by operation of law) without the prior written approval of Company. Any unauthorized assignment, transfer or encumbrance shall constitute a breach hereof and shall be voidable by Company.
11.7 Waiver. The failure of either party to take any action under this Agreement, or the waiver of a breach of this Agreement, shall not affect that party’s rights to require performance hereunder or constitute a waiver of any subsequent breach. Any waiver of any term or condition of this Agreement is invalid unless set forth in a writing signed by the party waiving the same.
11.8 Force Majeure. Should either party be delayed in performance or completion of their duties under this Agreement due to any cause or event not within the reasonable control of such party and without such party’s fault or negligence, including, but not limited to, acts of nature, explosions, strikes, lockouts, riots, fire, shortages of materials, shortages of transportation, war, or government regulations, the affected party shall, upon providing written notice to the other party, be entitled to an extension of time not exceeding the period of delay due to the cause or event in question, and shall not be liable for the delay. In the event of such delay, all dates of performance for both Parties shall be extended for a corresponding period. Should the period of delay continue for more than one (1) year, either party may rescind this Agreement upon written notice to the other party. Neither party shall be liable for any delay or failure in performance of its obligations under this Agreement that directly results from any delay or failure of performance by the other party.
11.9 Third Party Beneficiaries. Except as provided otherwise in this Agreement, nothing in this Agreement shall be deemed to confer, or is otherwise intended to confer, any right or remedies upon any person, entity or business that is not a party to this Agreement.
11.10 Dispute Resolution. Notwithstanding anything to the contrary in this Agreement, except as otherwise provided in subsection (3) below, the Parties to this Agreement agree that it is in their best interest to resolve disputes between them in an orderly fashion and in a consistent manner, and that the provisions of this section 11.10 shall survive termination of this Agreement. The Parties agree as follows:
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The Parties shall use their best efforts to resolve and settle by direct, private negotiation of any disputes, controversies or claims between them, their affiliates, owners, shareholders, members, officers, directors, managers, employees and agents arising out of, relating to or pertaining to this Agreement, the provisions of this Agreement, any breach of this Agreement or the provisions therein, enforcement of this Agreement or the provisions therein, or the relationship of the Parties created by this Agreement (hereinafter “Dispute”). Both Parties may seek the advice and assistance of legal counsel in connection with any such negotiation.
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If the Parties cannot resolve and settle a Dispute by private negotiations as referred to in subsection (1) above within sixty (60) days after one party gives the other written notice that a Dispute exists, the Parties mutually agree to submit the Dispute to arbitration administered by the American Arbitration Association in Salt Lake City, Utah in the United States under its Commercial Arbitration Rules on demand of either or both Parties. The Dispute shall be referred to a single arbitrator, if the Parties agree upon one, or otherwise to three (3) arbitrators, one to be appointed by each party and a third arbitrator to be appointed by the first named arbitrators for each. The award or determination of the matter shall be made by the arbitrator(s) and shall be conclusive, final and binding upon the Parties. Each party waives any right to contest the validity or enforceability of such award. The Parties agree to be bound by the provisions of any limitation on the period of time by which claims must be brought. The Parties agree that, in connection with any such arbitration proceeding, each will submit or file any claims which would constitute a compulsory counterclaim (as defined by Rule 13 of the Federal Rules of Civil Procedure, as amended or any successor provisions thereto) within the same proceedings as the claim to which it relates. The arbitrator or arbitrators shall apply Utah law and applicable federal law without regard to Utah conflicts of law provisions and shall make their award in accordance with and based upon the provisions of this Agreement and applicable law. The Parties further agree that arbitration shall be conducted on an individual, and not a class-wide, basis. The arbitrator shall have the right to award or include in the award any relief which the arbitrator deems appropriate pursuant to this Agreement and applicable law in the circumstances, including, without limitation, money damages, specific performance, injunctive relief, and attorneys’ fees and costs, except that the arbitrator shall not award punitive or exemplary damages. The Parties understand that they are waiving their right to a jury trial with respect to the arbitration. Judgment on the award rendered by the arbitrator(s) shall be in writing and may be entered in any court having jurisdiction thereof.
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In the event of a Dispute relating to Sections 2.1 (relating to the license or use of the System or Services or use of the Documentation), 8.2 or 8.3 (relating to confidentiality), or 7.1, 7.2 or 7.3 (relating to Intellectual Property and confidentiality rights) of this Agreement, the provisions of subsections (1) and (2) above shall have no application to Company and Company may pursue actions in court or elsewhere as permitted by law, subject to the jurisdiction, venue, governing law, remedy and other provisions of this Agreement relating to the same.
11.11 Enforcement. Should Company or You incur attorneys’ fees or costs in order to enforce the terms and conditions of this Agreement, whether or not a legal action is instituted, the party not in default shall be entitled to reimbursement of such attorneys’ fees and costs, in addition to all other rights and remedies either party may have at law or in equity.
11.12 Indemnification. Company assumes no liability to You or third parties with respect to the performance characteristics of the goods sold by or services rendered by You, and You shall indemnify and hold Company and Company’s officers, employees and agents harmless against all losses, damages, costs, expenses, and attorneys’ fees, paid or incurred due to claims of third parties against Company and/or Company’s officers, employees and agents involving the goods, services, actions, failures to act, misuse of the System or Services, or breach of this Agreement, by You.
11.13 Language. Both You and Company agree that the language of this Agreement, the System and Services shall be in the English language. Notwithstanding the foregoing, Company may offer parts of the System and/or Services in different languages from time to time in the exercise of its sole discretion. You hereby waive any and all claims against Company and Company’s officers, employees and agents, and shall indemnify and defend Company and Company’s officers, employees and agents, from claims made against You, Company or Company Personnel, arising out of Your use of the System and/or Services for any translation errors in the System or Services.
11.14 Interpretation. By accessing and using the Site, and by accepting this Agreement, You agree that this Agreement shall be governed by the laws of the state of Utah, excluding application of Utah conflicts of law rules. The headings herein are for reference only and shall not define or limit the provisions hereof. This Agreement shall be construed fairly as to all Parties, and it shall not be construed for or against any party on the basis that such party participated in drafting it.
11.15 Jurisdiction. Any action at law or in equity arising out of or relating to the System or Services, this Agreement, the Privacy Policy, and/or the goods or services described in any of the foregoing, shall be filed exclusively in the state or federal courts of Utah in the United States, and You hereby consent and submit to the exclusive jurisdiction and venue of such courts.
11.16 Severability. If any provision of this Agreement is found to be invalid, illegal or unenforceable by a court, tribunal or administrative agency, whether due to particular time limits or unreasonableness or otherwise, it is agreed that the provision in question shall be reduced or otherwise modified by such court, tribunal or agency, but only to the extent necessary to permit its enforcement and only in such court, tribunal or agency’s jurisdiction. If the particular provision cannot be reduced or modified to make it enforceable, that provision shall then be severed from this Agreement and the remaining provisions of this Agreement shall remain in full force and effect giving maximum validity and enforceability to this Agreement.
11.17 Entire Agreement. The recitals hereto are a part of this Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter addressed herein, and there are no terms or conditions, express or implied, other than as set forth or referred to herein. This Agreement supersedes all prior and contemporaneous agreements between the Parties hereto, whether written or oral, relating to all or part of the subject matter herein. No party has made any representations, oral or written, modifying or contradicting the terms of this Agreement.
11.18 Authority. Each party represents that it has full power and authority to enter into this Agreement, that the execution of this Agreement and the matters contemplated in this Agreement have been fully authorized by all necessary legal action, and that this Agreement is binding upon the Parties. Each party further represents that it has not entered into, nor will it enter into, any agreements that would conflict with its obligations under this Agreement or would render it incapable of satisfactorily performing hereunder.
11.19 Counterparts. This Agreement may be simultaneously executed in two (2) or more counterparts, each of which shall be deemed a fully enforceable original.
11.20 Successors. This Agreement shall be binding upon the Parties and their successors, assigns, estates, transferees, grantees and legal representatives.
11.21 Acceptance. This Agreement shall be effective when You indicate acceptance by clicking on the acceptance button which may read, “Accept”, or by installing or using the Programs or Program Upgrades. You acknowledge that You have carefully read, understand, and agree to all of the provisions of this Agreement, and that the person signing or accepting below as You or on Your behalf is duly authorized and empowered to do so. You should print a copy of this Agreement for Your records.
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