These Terms of Service constitute an agreement (this “Agreement”) by and between DataVoke, Inc., an Indiana corporation, whose principal place of business is Indianapolis, Indiana (“Vendor”) and the corporation, LLC, partnership, individual or sole proprietorship, or other business entity executing this Agreement (“Customer”). This Agreement is effective as of the date Customer clicks “Accepted and Agreed To” (the “Effective Date”). Customer’s use of and Vendor’s provision of Vendor’s System (as defined below in Article 1) are governed by this Agreement as are Customer’s authorizations to grant its own customers use of the System.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING BY ACCEPTING THIS AGREEMENT ON CUSTOMER’S BEHALF REPRESENTS THAT CUSTOMER’S AGREEMENT TO THESE TERMS AND CONDITIONS IS DULY AUTHORIZED AND BINDING.
The following capitalized terms shall have the following meanings whenever used in this Agreement.
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “AUP” means Vendor’s acceptable use policy currently posted at http://www.datavoke.com/aup/.
1.3 “Client ToS” means such terms of service as Vendor may require for use of the System by or through Customer’s Clients.
1.4 “Customer’s Clients” means any of Customer’s clients or customers or other third parties Customer gives access to the System, including without limitation such companies’ agents and employees.
1.5 “Customer Data” means data in electronic form transmitted, uploaded or collected through the System by, through or from Customer, including without limitation data from Customer’s Clients, other Users, and by Customer’s Clients’ own customers.
1.6 “Documentation” means Vendor’s standard manual related to use of the System as such manual may be updated by Vendor from time to time.
1.7 “Order” means an ordering document or online order specifying the period of System subscription, User limitations, and like matters to be provided hereunder that is entered into between Vendor and Customer, including any addenda and supplements thereto.
1.9 “Specifications” means Vendor’s standard specifications set forth in the then-current Documentation.
1.10 “System” means Vendor’s DataVoke data management system, intended to enable authorized Customer users to design and build custom enterprise-level information management applications and Customer’s duly authorized clients to utilize solutions developed by Customer, subject to the terms, conditions and limitations of this Agreement and the Documentation.
1.11 “SLA” means Vendor’s standard service level agreement, currently posted at http://www.datavoke.com/sla/.
1.12 “Term” is defined in Section 13.1 below.
1.13 “Upgrade” means new versions, updates, or upgrades of the System that Vendor may make available.
1.14 “User” means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not, including without limitation, Customer’s Clients and employees or agents of Customer’s Clients.
2. The System
2.1 Use of the System. During the Term, Customer may access and use the System pursuant to: (a) the terms of this Agreement and any outstanding Order, and (b) the Documentation and Vendor’s policies posted on its Website at http://www.datavoke.com/customer-support/, as such policies may be updated from time to time.
2.2 Service Levels. Vendor shall provide the remedies listed in the SLA for any failure of the System listed in the SLA. Such remedies are Customer’s sole remedy for any failure of the System, and Customer recognizes and agrees that if the SLA does not list a remedy for a given failure, it has no remedy. Credits issued pursuant to the SLA apply to outstanding or future invoices only and are forfeit upon termination of this Agreement. Vendor is not required to issue refunds or to make payments against such credits under any circumstances, including without limitation after termination of this Agreement.
2.3 Documentation. Customer may reproduce and use the Documentation solely as necessary to support Users’ duly authorized use of the System.
2.4 System Revisions. Vendor may revise System features and functions or the SLA at any time, including without limitation by removing such features and functions or reducing service levels. Vendor shall exercise reasonable efforts not to permit any System revision to materially impair the functionality of the System in accordance with the Specifications during the Term.
2.5 Customer’s Clients. Subject to this Section 2.5, Customer may authorize Customer’s Clients to access and use the System in such numbers and according to such restrictions as are set forth in the applicable Order, solely in a manner consistent with the Client ToS, the AUP and only for the regular conduct of the business of Customer’s Client. Customer shall: (a) provide complete name and contact information for each proposed Customer’s Client upon or before providing such access, and update such information as soon as it becomes aware of a change; and (b) require that each Customer’s Client execute or otherwise accept and agree to be bound by the then-standard Client ToS prescribed by Vendor (which may be affected by “click through” acceptance before admission to the System). Customer shall make no representations or warranties regarding the System or any other matter, to Customer’s Clients or Users or any other third party, from or on behalf of Vendor, and Customer shall not create or purport to create any obligations or liabilities for Vendor. Vendor may reject any proposed Customer’s Client for any reason that does not violate applicable law, in its sole discretion. Customer shall be jointly and severally liable to Vendor for Customer’s Client’s compliance with the Client ToS. Vendor shall have no obligation to provide support or other services, SLA remedies, or other remedies to Customer’s Clients.
3.1 System Fees. Customer shall pay Vendor the usage and subscription fees, support fees, royalties and commissions based on usage by Customer or Customer’s Clients as set forth in each Order (the “Subscription Fee”) for each Term. Vendor will not be required to refund any fees under any circumstances. Except as otherwise specified herein or in an Order (i) fees are based on System subscriptions purchased, not actual usage, and are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.
3.2 Free Use for Customer’s Developer Personnel. Vendor may make access to the DataVoke framework for developer employees of the Customer available at no charge as provided in an Order. In that event, Customer will cause its developer personnel to whom such subscriptions are assigned to regularly utilize the System to develop one or more applications and Customer is expected to subsequently and regularly submit one or more Orders for production environment subscriptions for other Customer personnel or Customer’s Clients. Free use of the System’s development environment is restricted to bona fide developer personnel of Customer utilizing the System in accordance with the AUP. Free access is not available to others. If applicable to a subscription, the Term of each free use subscription for each of Customer’s developer personnel shall be deemed to run from month to month and may be suspended or terminated by Vendor in its sole discretion at any time.
4. Support and Maintenance
4.1 Technical Support. To the extent and for the period provided in an Order, Vendor shall use reasonable efforts to provide reasonable and timely technical support in response to support queries submitted by Customer. Such support may be provided by telephone or e-mail or both as provided in the applicable Order.
4.2 Provision of Maintenance. During each Maintenance Term, Vendor shall exercise commercially reasonable efforts promptly to correct any material failure of the System to perform according to its Specifications (“Maintenance”). “Maintenance Term” refers to the 90-day period following Customer’s first use of the System. The Maintenance Term shall renew automatically for a period of the same duration. After the third (3rd) renewal of the Maintenance Term, Vendor may refuse further renewal by written notice to Customer before the next renewal date.
4.3 Upgrades. During each Maintenance Term, Vendor shall incorporate into the System available to Customer all Upgrades, without additional charge, promptly after release to Vendor’s similarly situated customers generally. Upon incorporation of an upgrade into the System, each Upgrade will constitute an element of the System and will thereafter be subject to this Agreement’s terms regarding the System, including without limitation warranty and indemnity terms.
5.1 During the Term of this Agreement and at any time during the 12 months thereafter, Vendor may audit Customer’s use of the System on 10 days’ advance written notice. Customer shall cooperate with the audit, including by providing access to any books, computers, records, or other information that relate or may relate to use of the System. Such audit shall not unreasonably interfere with Customer’s business activities. If Vendor discovers unauthorized use, distribution, or other exploitation of the System, without limiting other remedies available to Vendor, Customer shall reimburse Vendor for the reasonable cost of the audit, or of the next audit in case of discovery without an audit, in addition to such other rights and remedies as Vendor may have. Vendor may not conduct an audit more than once per year. Customer’s books and records disclosed pursuant to an audit shall be considered Customer Data pursuant to Article 6 unless Customer informs Vendor to the contrary in writing.
6. Customer Data & Privacy
6.1 Use of Customer Data. Unless it receives Customer’s prior written consent, Vendor: (a) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the operation of the System; and (b) shall not intentionally grant any third party access to Customer Data, including without limitation Vendor’s other customers, except subcontractors (including cloud hosting providers) that are subject to a reasonable nondisclosure agreement. Notwithstanding the foregoing, Vendor may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Vendor shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense.
6.3 Risk of Exposure. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the System, Customer assumes such risks. Vendor offers no representation, warranty, or guarantee that Customer Data will not be exposed or disclosed through errors or the actions of third parties.
6.4 Data Accuracy. Vendor shall have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.
6.5 Customer Data Portability and Deletion. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement for any reason or under any circumstances, Vendor will make Customer Data on the System available to Customer for export or download as provided in the Documentation. After such 30-day period, Vendor will have no obligation to maintain, retain or provide any Customer Data to Customer, Customer’s Clients, any User or any third party. Thereafter Vendor will delete or destroy all copies of Customer Data in Vendor’s systems or otherwise in Vendor’s possession or control, unless legally prohibited, and the Customer Data shall be permanently lost.
6.6 Restricted Data. “Restricted Data” means any personal data that could be legally considered sensitive in any applicable jurisdiction, including, without limitation, government issued identification, individual medical or health information (including protected health information under HIPPA), individual financial information, credit or debit card numbers, birth dates, security codes, passwords, and special categories of personal data as defined in Article 8 of the EU Directive 95/46/EC (or successor). Before uploading or transmitting any Restricted Data to the System, Customer must test its configurations on the System to ensure that all such Restricted Data will be protected in accordance with applicable law. CUSTOMER RECOGNIZES AND AGREES THAT: (a) VENDOR HAS NO LIABILITY FOR ANY FAILURE TO PROVIDE PROTECTIONS SET FORTH IN THE LAWS REGULATING RESTRICTED DATA OR OTHERWISE TO PROTECT RESTRICTED DATA; AND (b) VENDOR’S SYSTEMS MAY NOT PROVIDE ADEQUATE OR LEGALLY REQUIRED SECURITY FOR RESTRICTED DATA; AND (c) CUSTOMER IS SOLELY RESPONSIBLE FOR ITS RESTRICTED DATA AND SHALL INDEMNIFY VENDOR AND HOLD IT HARMLESS IN RESPECT OF ANY LOSS, LIABILITY OR EXPENSE INCURRED BY VIRTUE OF FAILURE OF THE SYSTEM TO PROVIDE LEGALLY REQUIRED PROTECTION TO CUSTOMER’S OR CUSTOMER’S CLIENTS’ RESTRICTED DATA, REGARDLESS OF THE CAUSE FOR SUCH FAILURE.
6.7 Aggregate & Anonymized Data. Notwithstanding the provisions above of this Article 6, Vendor may use, reproduce, sell, publicize, or otherwise exploit Aggregate Data in any way, in its sole discretion. “Aggregate Data” refers to Customer Data with the following removed: personally identifiable information and the names and addresses of Customer and any of its Users or customers and any information that would directly associate the data with a particular Customer Client or a particular Customer Client’s employee, agent, project, plant, research project or process.
7. Customer’s Responsibilities & Restrictions
7.1 Acceptable Use and Prohibited Use. Customer shall comply with the AUP. Customer shall not (and shall be responsible to ensure that Customer’s Clients, their respective employees and Users do not): (a) sell, resell, license, sublicense, distribute, make available, rent or lease the System or use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System, except Customer’s Clients as specifically authorized by this Agreement; (b) provide System passwords or other log-in information to any third party, except Customer’s Clients as specifically authorized by this Agreement; (c) share non-public System features or content with any third party; (d) access the System in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the System, or to copy any ideas, features, functions or graphics of the System; (e) interfere with or disrupt the integrity or performance of the System or third-party data contained therein; (f) use the System to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy or intellectual property rights or to store or transmit Malicious Code, or (g) reverse engineer any aspect of the System (to the extent such restriction is permitted by law). “Malicious Code” means code, files, scripts, agents, or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
In the event that it suspects any breach of the requirements of this Section 7.1 including without limitation by Users, Vendor may suspend Customer’s and Customer’s Clients’ access to the System without advanced notice, in addition to such other remedies as Vendor may have. Neither this Agreement nor the AUP requires that Vendor take any action against Customer or any User or other third party for violating the AUP, this Section 7.1 or this Agreement, but Vendor is free to take any such action it sees fit.
7.2 Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify Vendor immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.
7.3 Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
7.4 Customer’s Clients & Other Users; System Access. Customer is responsible and liable for: (a) Customer’s Clients’ and other Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.
8. IP & Feedback
8.1 IP Rights to the System. Vendor retains all right, title, and interest in and to the System, including without limitation all software used to provide the System and all graphics, user interfaces, inventions, trade secrets, works, know-how, logos, and trademarks associated with or reproduced through the System and any improvements or modifications thereto and all intellectual property rights therein (collectively the “IP”), which the parties agree are, and will be, owned by Vendor. To the extent any new IP arises pursuant to this Agreement and/or use of the System, Customer agrees to assign and does now assign all of its rights, including any patent rights or copyrights, if any, therein to Vendor. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components. Customer recognizes that the System and its components are protected by copyright and other laws.
8.2 Feedback and Suggestions. Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer, Customer’s Clients or other Users may provide to Vendor, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the Customer’s Client or other User in question. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Vendor’s products or services.) Vendor and its Affiliates shall have (and is hereby granted) a royalty-free, worldwide, irrevocable, perpetual license to use or incorporate into the System and other online services any suggestions, enhancement requests, recommendations or other Feedback provided by Customer, Customer’s Clients, their respective employees or agents, including Users, relating to the operation of the System or improvement or expansion of the functionality of the System or Vendor’s services.
8.3 License to Host Customer Data on the System. Customer hereby grants (and shall cause Users to grant) to Vendor and its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Customer Data, uploaded, created by or for Customer or Users using the System or for use by Customer or Users, as reasonably necessary for Vendor to provide the System services in accordance with this Agreement. Subject to the limited licenses granted herein, Vendor acquires no right, title or interest from Customer or Users under this Agreement in or to any of Customer Data.
9. Confidential Information
9.1 Confidential Information. “Confidential Information” refers to the following items Vendor discloses to Customer: (a) any document Vendor marks “Confidential”; (b) the Documentation, whether or not marked or designated confidential; and (c) any other nonpublic, sensitive information disclosed by Vendor, whether or not marked or designated “Confidential.” Notwithstanding the foregoing, Confidential Information does not include information that: (i) is already in Customer’s possession without breach of a confidentiality obligation at the time of initial disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Vendor. Customer is on notice that the Confidential Information may include Vendor’s valuable trade secrets.
9.2 Nondisclosure. Customer shall not use Confidential Information for any purpose other than its regular use of the System consistent with the AUP (the “Purpose”). Customer: (a) shall not disclose Confidential Information to any employee, contractor or client of Customer unless such person needs access in order to facilitate the Purpose and executes a nondisclosure agreement with Customer with terms no less restrictive than those of this Article 9 (or, in the case of Customer’s Clients, the Client ToS); and (b) shall not disclose Confidential Information to any other third party without Vendor’s prior written consent. Without limiting the generality of the foregoing, Customer shall protect Confidential Information with the same degree of care it uses to protect its own confidential information of similar nature and importance, but with no less than reasonable care. Customer shall promptly notify Vendor of any misuse or misappropriation of Confidential Information that comes to Customer’s attention. Notwithstanding the foregoing, Customer may disclose Confidential Information as required by applicable law or by proper legal or governmental authority. Customer shall give Vendor prompt notice of any such legal or governmental demand and reasonably cooperate with Vendor in any effort to seek a protective order or otherwise to contest such required disclosure, at Vendor’s expense.
9.3 Injunction. Customer agrees that breach of this Article 9 would cause Vendor irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Vendor will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.
9.4 Termination & Return. With respect to each item of Confidential Information, the obligations of Section 9.2 above (Nondisclosure) will terminate two years after termination of this Agreement; provided that such obligations related to Confidential Information constituting Vendor’s trade secrets shall continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of this Agreement, Customer shall return all copies of Confidential Information to Vendor or certify, in writing, the destruction thereof.
9.5 Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto. Vendor will retain all right, title, and interest in and to all Confidential Information.
10. Representations & Warranties
10.1 From Vendor. Vendor represents and warrants that to its knowledge it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights granted in this Agreement without the further consent of any third party. Vendor’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Vendor. In the event of a breach of the warranty in this Section 10.1, Vendor, at its own expense, will promptly take one or more of the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it noninfringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Term left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Vendor’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 10.1 and for potential or actual intellectual property infringement by the System.
10.2 From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) if it is a business entity, it is a corporation, LLC, partnership, trust or other business entity validly existing under the laws of its jurisdiction of formation and authorized to do business pursuant to applicable law; and (c) if it is an individual (including a sole proprietorship) he or she is at least 18 years of age. Customer represents and warrants that, to the best of its knowledge: (i) each Customer’s Client will have the full right and authority to enter into, execute, and perform its obligations as required under this Agreement and the Client ToS, with no pending or threatened claim or litigation that would have a material adverse impact on its ability so to perform; and (ii) each Customer’s Client will be the sole proprietorship of an individual 18 years or older or a corporation, LLC, partnership, or another business entity duly authorized to do business pursuant to applicable law. Customer will accurately identify each Customer’s Client and will not provide any inaccurate information about a Customer’s Client or other User to or through the System.
10.3 Warranty Disclaimers. Except to the extent set forth in the SLA and in this Section 10.3, Customer ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) VENDOR HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
11.1 From Customer. Customer shall defend, indemnify, and hold harmless Vendor and the Vendor Associates (as defined below) against any “Indemnified Claim,” meaning any third party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the System, including without limitation: (a) claims by Customer’s Clients or other Users or by Customer’s or Customer’s Clients’ employees; (b) claims related to unauthorized disclosure or exposure of personally identifiable information or other private information, including Customer Data; (c) claims related to infringement or violation of a copyright, trademark, trade secret, or privacy or confidentiality right by written material, images, logos or other content uploaded to the System through Customer’s account, including without limitation by Customer Data; and (d) claims that use of the System through Customer’s account, including by Customer’s Clients or other Users harasses, defames, or defrauds a third party or violates the CAN-Spam Act of 2003 or any other law or restriction on electronic advertising. Indemnified Claims include, without limitation, claims arising out of or related to Vendor’s negligence. Customer’s obligations set forth in this Article 11 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Vendor will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (A party’s “Associates” are its officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
11.2 From Vendor. Vendor shall defend and indemnify Customer and Customer’s Associates against any “Indemnified Claim,” meaning (for purposes of this provision) any third party claim, suit, or proceeding made or brought against Customer by a third party alleging that the System infringes or misappropriates such third party’s intellectual property rights. Vendor’s obligations set forth in this Section 11.2 do not apply to the extent that an Indemnified Claim arises out of: (a) Customer’s breach of this Agreement; (b) Vendor’s modification of the System, Deliverables or functional modules in compliance with specifications provided by Customer, or (c) use of the System in combination with hardware or software not authorized by Vendor, unless the Documentation or Specifications refers to a combination with such hardware or software (without directing the user not to perform such a combination).
12. Limitation of Liability
12.1 Dollar Cap on Liability. IN NO EVENT SHALL VENDOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $25,000 OR THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.
12.2 Exclusion of Consequential Damages and Other Limitations. IN NO EVENT WILL VENDOR BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT. FURTHER, NEITHER VENDOR NOR ANY OF ITS AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) CUSTOMER’S OR CUSTOMER’S CLIENTS’ INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SYSTEM, (II) VENDOR’S DISCONTINUATION OF ANY OR ALL OF THE SYSTEM, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SLA, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SYSTEM FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (c) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF CUSTOMER CONTENT OR OTHER DATA. NEITHER THIS AGREEMENT NOR THE SLA PROVIDES A REMEDY IN RESPECT OF ANY FAILURE, LOSS OF SERVICE, INTERRUPTION OR DELAY OCCURING IN A THIRD-PARTY’S SYSTEM, SOFTWARE OR HARDWARE, INCLUDING ANY REMOTE DATA HOSTING, CLOUD STORAGE OR COMPUTER SERVER SERVICE PROVIDER USED BY VENDOR IN PROVIDING THE SYSTEM (INCLUDING WITHOUT LIMITATION AMAZON WEB SERVICES).
12.3 Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 12 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this 12, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Article 12 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
13. Term & Termination
13.1 Term. The term of this Agreement (the “Term”) shall commence on the Effective Date and continue until last to expire of each subscription provided for in an Order. Each subscription period will renew automatically for successive periods corresponding to the initial subscription period and the Term will be extended accordingly, unless either party refuses such renewal by written notice 30 or more days before the renewal date.
13.2 Suspension of Service for Nonpayment and Acceleration of Fees. If any amount owing by Customer or Customer’s Clients under this or any other agreement for Vendor services is 30 or more days overdue, Vendor may, without limiting its other rights and remedies, accelerate the unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Vendor’s services and Customer’s and its Clients’ use of the System until such amounts are paid in full.
13.3 Termination for Cause. Either party may terminate this Agreement for the other’s material breach by written notice, effective in 30 days unless the other party first cures such breach. Without limiting Vendor’s other rights and remedies, Vendor may suspend or terminate a Customer’s Client’s or other User’s access to the System at any time, without advanced notice, if Vendor reasonably concludes such Customer’s Client or other User has conducted itself in a way that is not consistent with the requirements of the AUP or the other requirements of this Agreement or in a way that subjects Vendor to potential liability.
13.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with Section 13.3, Vendor will refund any prepaid fees covering the remainder of the term of all Orders after the effective date of termination. If this Agreement is terminated by Vendor in accordance with Section 13.3, Customer will pay any unpaid fees covering the remainder of the term of all Orders. In no event will termination relieve Customer of any obligation to pay any fees payable to Vendor for the period prior to the effective date of termination.
13.5 Effects of Termination. Upon termination of this Agreement, Customer shall cease all use of the System and delete, destroy, or return all copies of the Documentation in its possession or control. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 8 (IP & Feedback), 9 (Confidential Information), 10.3 (Warranty Disclaimers), 11 (Indemnification), and 12 (Limitation of Liability); and (c) any other provision of this Agreement or an Order that must survive to fulfill its essential purpose.
14.1 Independent Contractors. The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Vendor employee or contractor will be an employee of Customer.
14.2 Notices. Vendor may send notices pursuant to this Agreement to Customer’s email contact points provided by Customer, and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement to email@example.com, and such notices will be deemed received 72 hours after they are sent.
14.3 Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
14.4 Assignment & Successors; Affiliates. Customer may not assign this Agreement or any of its rights or obligations hereunder without Vendor’s express written consent. This Agreement will be binding upon and inure to the benefit of the parties’ respective successors and permitted assigns. This Agreement is binding on Customer’s Affiliates and Customer shall cause its Affiliates to comply with its terms.
14.5 Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
14.6 No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
14.7 Choice of Law & Jurisdiction. This Agreement will be governed solely by the internal laws of the State of Indiana, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The parties consent to the personal and exclusive jurisdiction of the federal and state courts of Marion County, Indiana.
14.9 Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.
14.10 Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any U.S. law or regulation; or (b) export any software or technology provided by Vendor or otherwise remove it from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software or technology to, a country subject to a United States embargo (as of the Effective Date, Cuba, Iran, North Korea, Sudan, and Syria).
14.11 Entire Agreement. This Agreement (including the Orders) sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
DataVoke Service Level Agreement
Last Updated June 08, 2016
This DataVoke Service Level Agreement (“SLA”) is a policy governing the use of the web services offered by DataVoke, Inc. and its affiliates (collectively “DataVoke”) and the website located at http://www.datavoke.com/ (the “DataVoke Site”; collectively together with DataVoke’s web services, the “System”) under the terms of the DataVoke Terms of Service (the “DataVoke Terms of Service”) between DataVoke and users of DataVoke’s Services (“you”). This SLA applies separately to each account using DataVoke.
Unless otherwise provided herein, this SLA is subject to the terms of the DataVoke Terms of Service and capitalized terms will have the meaning specified in the DataVoke Terms of Service. We reserve the right to change the terms of this SLA in accordance with the DataVoke Terms of Service.
DataVoke will use commercially reasonable efforts to meet the following service levels (“Service Commitment”):
Uptime: Make the System available with a Monthly Uptime Percentage (defined below) of at least 99% during any monthly billing cycle. In the event DataVoke does not meet the Monthly Uptime Percentage commitment, you will be eligible to receive a Service Credit as described below.
Backup Services: Perform nightly full backups, using a 4-hour differential and to store all backups on a secured SAN mirrored to an independent archive. DataVoke compresses and encrypts all archives.
Disaster Recovery: Mirror all services used in the System, allowing for complete failure of one server with no loss of data and minimal (if any) service interruption.
Support Ticket Response: Respond to all support tickets within one (1) business day.
Critical Bug Repair: Perform and correct all critical bug repairs within two (2) weeks.
“Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of 1 minute periods during the monthly billing cycle in which the System was “Unavailable”. If you have been running the System for only part of the month, the System is assumed to be 100% available for the portion of the month that it was not running. Monthly Uptime Percentage measurements exclude downtime resulting directly or indirectly from any DataVoke SLA Exclusion (defined below).
“Unavailable” means that all connection requests to the System fail during a 1 minute period.
A “Service Credit” is a dollar credit, calculated as set forth below, that we may credit back to an eligible account.
Service Credits are calculated as a percentage of the charges paid by you for the System availability that did not meet the Monthly Uptime Percentage commitment in a billing cycle in accordance with the schedule below.
Monthly Uptime Percentage Service Credit Percentage
Less than 99% but equal to or greater than 98.0% 10%
Less than 98.0% 25%
For any period in which you are not obligated to pay charges for use of the System, you will not be entitled to any Service Credit for any Uptime failure during such period. We will apply any Service Credits only against future payments otherwise due from you. At our discretion, we may issue the Service Credit to the credit card you used to pay for the billing cycle in which the unavailability occurred. Service Credits will not entitle you to any refund or other payment from DataVoke. A Service Credit will be applicable and issued only if the credit amount for the applicable monthly billing cycle is greater than one dollar ($1 USD). Service Credits may not be transferred or applied to any other account. Unless otherwise provided in the DataVoke Terms of Service, your sole and exclusive remedy for any unavailability or non-performance or other failure by us to provide the System is the receipt of a Service Credit (if eligible) in accordance with the terms of this SLA.
Credit Request and Payment Procedures
To receive a Service Credit, you will need to submit a claim emailing firstname.lastname@example.org. To be eligible, the credit request must be received by us by the end of the second (2nd) billing cycle after which the incident occurred and must include:
the words “SLA Credit Request” in the subject line;
the dates and times of each Unavailability incident you are claiming;
iii. log-in credentials of each affected User; and your request logs that document the errors and corroborate your claimed outage (any confidential or sensitive information in these logs should be removed or replaced with asterisks).
If the Monthly Uptime Percentage of such request is confirmed by us and is less than the Service Commitment, then we will issue the Service Credit to you within one billing cycle following the month in which the request occurred. Your failure to provide the request and other information as required above will disqualify you from receiving a Service Credit.
DataVoke SLA Exclusions
The Service Commitment does not apply to any unavailability, suspension or termination of DataVoke, or any other DataVoke performance issues:
(i) that result from a suspension described in the DataVoke Terms of Service;
(ii) caused by factors outside of our reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of DataVoke;
(iii) in respect of any failure, loss of service, interruption or delay occurring in a third-party’s system, software or hardware, including any remote data hosting, cloud storage or computer server service provider used by us (including, without limitation, Amazon Web Services).
(iv) that result from any voluntary actions or inactions from you or any third party (e.g., rebooting a database instance, scaling compute capacity, not scaling storage when the storage is full, misconfiguring security groups, VPC configurations or credential settings, disabling encryption keys or making the encryption keys inaccessible, etc.);
(v) that result from you not following the basic operational guidelines described in the DataVoke Documentation (e.g., overloading a database instance to the point it is inoperable, creating an excessively large number of tables that significantly increase the recovery time etc.);
(vi) caused by underlying database engine software that lead to repeated database crashes or an inoperable database instance;
(vii) that result in long recovery time due to insufficient IO capacity for your database workload;
(viii) that result from your equipment, software or other technology and/or third party equipment, software or other technology (other than third party equipment within our direct control); or
(ix) that result from any maintenance as provided for pursuant to the DataVoke Terms of Service; or
(x) arising from our suspension and termination of your right to use DataVoke in accordance with the DataVoke Terms of Service (collectively, the “DataVoke SLA Exclusions”).
If availability is impacted by factors other than those explicitly used in our Monthly Uptime Percentage calculation, then we may issue a Service Credit considering such factors at our discretion.
DataVoke Acceptable Use Policy
Effective June 08, 2016
This Acceptable Use Policy (this “Policy”) describes prohibited uses of the web services offered by DataVoke, Inc. and its affiliates (collectively “DataVoke”) and the website located at http://www.datavoke.com/ (the “DataVoke Site”; collectively together with DataVoke’s web services, the “System”).
DataVoke may modify this Policy from time to time. The services provided by the System are always evolving and the form and nature of the System and the services provided may change from time to time without prior notice to you. The most current version of our Policy will govern our use of your information and will be located at http://www.datavoke.com/aup/. Modifications to the Policy are effective upon the posting of an amended Policy to the DataVoke Site. We may also notify you of changes to the Policy, particularly if we deem the changes to be material. By continuing to access or use the System after changes become effective, you agree to be bound by the revised Policy.
If you violate the Policy or authorize or help others to do so, or if DataVoke otherwise determines such action is warranted, we may suspend or terminate your use of the System in our sole discretion and without prior notice. The examples described in this Policy are not exhaustive.
Eligibility To Use The System
The System are intended for legal use by adults only and are not directed to minors under the age of 18. You may not use the System in any manner or if you are under the age of 18; any registration by anyone under 18 is void.
By accessing or using the System and thereby agreeing to these Terms, you represent and warrant to us: (1) that you are at least 18 years of age; (2) that you have not previously been suspended or removed from the System; and (3) that your registration and your use of the System is in compliance with a currently effective Order for services of the System, the DataVoke Terms of Service, and any and all applicable laws and regulations.
No Illegal, Harmful, or Offensive Use or Content
You may not use, or encourage, promote, facilitate or instruct others to use, the System or the DataVoke Site (i) for any illegal, harmful or offensive use; (ii) to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive; or (iii) for any other purpose not reasonably intended by DataVoke as typical or expected use of the System consistent with the purpose for which the System was created. Prohibited activities or content include:
Illegal Activities. Any illegal activities or in connection with any illegal purpose, or in violation of any applicable local, state, national, or international law or rule or regulation having the force of law, including advertising, transmitting, or otherwise making available gambling sites or services or disseminating, promoting or facilitating child pornography.
Harmful or Fraudulent Activities. You will only use the System for lawful purposes, and you will not use the System for any activities that may be harmful to others, the System, our operations or reputation, including using the System to perpetrate any fraudulent activity, or offering or disseminating fraudulent goods, services, schemes, or promotions (e.g., make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming), sending, storing, or distributing any unlawful material, or engaging in other deceptive practices.
Harmful Content. Content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.
Infringing Activities. You will not impair the proper operation of the System or any network which is used to support or access the System, try to harm the System in any way whatsoever, or copy or distribute any portion of the System or other content without written permission from DataVoke.
Infringing Content. Content that infringes or misappropriates the intellectual property or proprietary rights of others.
Offensive Content. Content that is defamatory, obscene, abusive, invasive of privacy, causes a nuisance, annoyance, or inconvenience, or is otherwise objectionable, including content that constitutes child pornography, relates to bestiality, or depicts non-consensual or illegal sex acts.
No Security Violations
You may not use the System to violate the security or integrity of any network, computer or communications system, software application, or network or computing device (each, a “System”). Prohibited activities include:
Unauthorized Access. Accessing or using any System without permission, including attempting to probe, scan, or test the vulnerability of a System or to breach any security or authentication measures used by a System.
Interception. Monitoring of data or traffic on a System without permission.
Falsification of Origin. Forging TCP-IP packet headers, e-mail headers, or any part of a message describing its origin or route. This prohibition does not include the use of aliases or anonymous remailers.
Interference with Security Features. Interfering with security features of the System, including disabling or circumventing features that prevent or limit use or copying of content, or which violate copyrighted or otherwise legally protected software, or reverse engineering or otherwise attempting to illegally extract any source code of the System.
Interference with Passwords or Accounts. Sharing, selling, or otherwise transferring or permitting another party to make use of the access granted to you to the System, including login, account, or password information, or failing to keep secure and confidential your login, account, and password information, or any other identification we may provide allowing your access to the System.
No Network Abuse
You may not make network connections to any users, hosts, or networks unless you have permission to communicate with them. Prohibited activities include:
Monitoring or Crawling. Monitoring or crawling of a System that impairs or disrupts the System being monitored or crawled.
Denial of Service (DoS). Inundating a target with communications requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective.
Intentional Interference. Interfering with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques.
Operation of Certain Network Services. Operating network services like open proxies, open mail relays, or open recursive domain name servers.
Avoiding System Restrictions. Using manual or electronic means to avoid any use limitations, such as access and storage restrictions.
No E-Mail or Other Message Abuse
You agree you will not distribute, publish, send, or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising, or solicitations (like “spam”), including commercial advertising and informational announcements. You will not alter or obscure mail headers or assume a sender’s identity without the sender’s explicit permission. You will not collect replies to messages sent from another internet service provider if those messages violate this Policy or the acceptable use policy of that provider.
Our Monitoring and Enforcement
DataVoke reserves the right, but does not assume the obligation, to investigate any violation of this Policy or misuse of the System or DataVoke Site. We may:
investigate violations of this Policy or misuse of the System or DataVoke Site; or
remove, disable access to, or modify any content or resource that violates this Policy or any other agreement we have with you for use of the System or the DataVoke Site.
DataVoke may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate customer information. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Policy.
Reporting of Violations of this Policy
If you become aware of any violation of this Policy, you agree you will immediately notify DataVoke and provide us with assistance, as requested, to stop or remedy the violation. To report any violation or suspected violation of this Policy, please contact DataVoke at:
251 N. Illinois St., Suite 300
Indianapolis, IN 46204