BY INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, LICENSEE IS ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. LICENSEE AGREES THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY LICENSEE AND LEGALLY BINDING BETWEEN LICENSEE AND VERDOCS. IF LICENSEE DOES NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT INSTALL THE SOFTWARE.
This End User License (this “Agreement”) is between Verdocs, LLC, a Delaware limited liability company (“Verdocs”), and the customer (“Licensee”) that has downloaded or otherwise procured the Software. For purposes of this Agreement, the “Software” means Verdocs’ online or on-premise products and software accessed by Licensee, to which Licensee are being granted access. Capitalized terms not defined herein shall have the meanings set forth on the applicable order form (“Order Form”) executed by Licensee.
To use the Software, Licensee shall register or create an account, providing all required data or information in a complete and truthful manner. Licensee is responsible for keeping Licensee’s login credentials confidential and safe (“Access Data”). The date that Licensee creates Access Data shall hereinafter be referred to as (the “Acceptance Date”). For this reason, Licensee is also required to choose usernames and passwords that meet high standards of strength. By registering or creating an account, Licensee agrees to be fully responsible for all activities that occur under Licensee’s Access Data. Licensee is required to immediately and unambiguously inform Verdocs if Licensee thinks that Licensee’s personal information, including but not limited to Access Data, has been violated, unduly disclosed or stolen.
Licensee shall have the right to use the Software on a trial basis during the thirty (30) day period following the Acceptance Date (the “Trial Period”). Verdocs shall reimburse Licensee for any fees paid by Licensee to Verdocs hereunder during the Trial Period if Licensee provides Verdocs with a written cancelation notice by no later than the last day of the Trial Period.
Subject to the terms and conditions of this Agreement, including without limitation the payment of any required fees by Licensee hereunder, Verdocs grants to Licensee a non-exclusive, non-transferable, non-assignable license to use: (i) the Software, for Licensee and Licensee’s authorized users, only in object code form only, whether accessed remotely via Verdocs’ internet site (the “Site”) or otherwise; (ii) any associated Access Data; and (iii) documentation pertinent to Licensee’s use of the Software or Site (collectively referred to as the “Licensed Property”). It is understood and agreed that this license shall pertain only to the Licensed Property and does not extend to any other product or service offered by Verdocs.
1.4 Electronic Delivery
All Licensed Property shall be delivered by electronic means. The Licensed Property shall be deemed delivered to Licensee on the Acceptance Date.
Licensee acknowledges that the Licensed Property and its structure, organization, content, and source code constitutes valuable Intellectual Property Rights of Verdocs and/or certain third-parties (the “Protected Parties”). Licensee shall not, at any time during or after the Term, dispute or contest, directly or indirectly, the Protected Parties’ exclusive right in and title to the Licensed Property including the Intellectual Property Rights therein. Licensee recognizes the value of the good will associated with the Licensed Property and any Intellectual Property Rights associated therewith. Licensee acknowledges that the Licensed Property and any Intellectual Property Rights associated therewith and all rights therein including the goodwill pertaining thereto, belong exclusively to the Protected Parties. All rights which are not specifically granted and licensed to Licensee hereunder are hereby reserved by the Protected Parties, and the Protected Parties may exercise such rights at any time without any liability or obligation to Licensee. For purposes of this Agreement, “Intellectual Property Rights” means inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and trade secret rights, and all other intellectual property rights, derivatives thereof of the Protected Parties and all renewals thereto as well as other forms of protection of a similar nature anywhere in the world.
Licensee shall not provide its Access Data to, or otherwise provide access to the Licensed Property to, any third-party. Licensee shall not, and shall not permit any third-party to (i) modify, adapt, alter, translate, or create derivative works from the Licensed Property; (ii) merge the Licensed Property with other software or other content, whether online or otherwise; (iii) sub-license, distribute, sell, provide for service bureau use, lease, rent, loan, or otherwise transfer the Licensed Property to any third-party without the express written consent of Verdocs; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Licensed Property; (v) remove or alter any notices in the Licensed Property; (vi) otherwise use on any other equipment or copy the Licensed Property except as expressly permitted by Verdocs; (vii) use the Software to develop a product that is competitive with the Software; or (viii) assert, against Verdocs or any of its affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any of the Licensed Property.
Further, Licensee may not remove or export from the United States or allow the export or re-export of the Software or anything related to it, or any direct product thereof in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items,” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Licensee shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Software, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers, and the like (collectively, “Equipment”). Licensee shall also be responsible for maintaining the security of the Equipment, including account passwords (including but not limited to administrative and user passwords) and files, and for all uses of a Licensee account or the Equipment with or without Licensee’s knowledge or consent.
Licensee acknowledges and agrees that although the Site may include related legal information, no recommendations are being made by Verdocs regarding Licensee’s decisions related to any agreements, forms, or related advice. Nothing on the Site or otherwise provided by Verdocs constitutes, and Licensee should not consider anything on the Site or delivered via Verdocs to be, investment, accounting, tax, or legal advice. For any such advice, please get in touch with Licensee’s financial advisors, accountants, or attorneys regarding Licensee’s circumstances and needs.
Each party warrants and represents to the other that: (a) it has the full power and authority to enter into this Agreement; (b) this Agreement’s execution has been duly authorized by all necessary corporate action of the party; (c) the execution of this Agreement and the performance of its obligations under this Agreement do not and will not violate any other agreement to which it is a party; (d) this Agreement constitutes a legal, valid and binding obligation when executed and delivered; and (e) any and all activities it undertakes in connection with this Agreement will be performed in compliance with applicable laws, rules and regulations.
Regarding Verdocs’ performance under this Agreement, Licensee agrees to pay the amounts set forth on the Order Form.
(a) Licensee shall be responsible for data that Licensee provides or uses with respect to the Site and the Software. Licensee is solely responsible for determining the suitability of use of the Site and Software for Licensee and complying with any regulations, laws, or conventions applicable to the data you provide and your use of the Site and Software.
(b) Licensee warrants that collection and use of any Licensee Data that Licensee provides while using the Site complies with all applicable data protection laws, rules, and regulations. Licensee acknowledges and agrees that Verdocs may process such personal data in accordance with the Privacy Policy.
(c) Verdocs may collect, store and use data, information, or insights generated or derived from the use of the Software for its business purposes, including providing support for Verdocs’ services, customer account management, industry analysis, benchmarking, analytics, and developing and improving Verdocs’ products and services.
(d) Licensee hereby represents and warrants that: (a) Verdocs has all requisite rights and authority to use the Site under the terms of this Agreement and to grant all applicable rights herein; (b) any information that Licensee submits to Verdocs is true, accurate, and correct; and (c) Licensee will not attempt to gain unauthorized access to the Site, computer systems, or networks under the control or responsibility of Verdocs through hacking, cracking, password mining, or any other unauthorized means.
Verdocs may provide, or third parties may provide, links to other third-party websites, services, or resources (“Third-Party Information”) that are beyond Verdocs’ control. Verdocs makes no representations as to the quality, suitability, functionality, or legality of any third-party content to which links may be provided, and Licensee hereby waives any claim Licensee might have against Verdocs with respect to such Third-Party Information. VERDOCS IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE SITE OR POSTS OF USER CONTENT.
The Licensed Property is currently in compliance with the electronic signature regulations of the United States.
During the Term, Verdocs may provide or make available to Licensee certain upgrades, bug fixes, and the like which it makes generally available, at no additional charge (to the extent typically offered at no extra cost).
For a period of ninety (90) days after the Acceptance Date, in order to ensure that the Software conforms substantially to the functional specifications outlined in the applicable product user documentation for the Software, Verdocs will take commercially reasonable steps to modify or replace any Licensed Property, which in Verdocs’ sole judgment, fails when properly installed. Alternatively, Verdocs or its authorized partners/resellers may at their option refund the fees paid by Licensee to Verdocs or its authorized partners/reseller, as applicable, with the amount to be refunded in either case being proportionate to the remaining license period. Verdocs does not warrant that the Licensed Property will meet Licensee’s requirements or that operation of the Licensed Property will function without interruptions or be error-free.
VERDOCS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF TITLE TO INTELLECTUAL PROPERTY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE ABOUT THE LICENSED PROPERTY. THE WARRANTY OUTLINED IN THIS SECTION 3 DOES NOT APPLY CONCERNING ANY DEFECT, FAILURE, OR NON-CONFORMITY OF THE LICENSED PROPERTY RESULTING FROM IMPROPER INSTALLATION, NEGLECT, ACCIDENT, UNREASONABLE USE, OR SERVICING OR MODIFICATION OF THE LICENSED PROPERTY BY ANYONE OTHER THAN VERDOCS OR AN ORGANIZATION CERTIFIED BY VERDOCS.
4. CONFIDENTIALITY; PROPRIETARY RIGHTS
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Verdocs includes but is not limited marketing information, sales information, Intellectual Property Rights, business plans, trade secrets, know-how, computer programs, operations plans, instructional materials and information, pricing strategies, customer specifications. Proprietary Information of Licensee includes Licensee Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the preceding shall not apply concerning any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or generally becomes available to the public, (b) was in its possession or known by it before receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third-party, (d) was independently developed without the use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law, provided that the Receiving Party uses reasonable efforts to give the Disclosing Party prior notice of the compelled disclosure and reasonable assistance, at the Disclosing Party’s cost, to permit the Disclosing Party to contest or limit the disclosure.
Subject to the provisions of this Section 4, the Receiving Party may provide access to the Disclosing Party’s Proprietary Information to its affiliates and each of their respective officers, directors, managers, owners, employees, contractors, agents, successors, and assigns (collectively, “Authorized Representatives”) who need such access to perform their duties hereunder; provided, however, that any such Authorized Representatives owe a contractual obligation of confidentiality to the Receiving Party with protections no less stringent than those set forth in this Agreement. The Receiving Party shall be solely responsible for any disclosure by its Authorized Representatives.
For purposes of this Agreement “Licensee Data” means Licensee or its customer’s data or content hosted within the Software, including information collected and downloaded directly or indirectly from Licensee or its customers including information that, whether maintained or transmitted individually or in the aggregate with other information, allows a natural person to be identified, including, but not limited to, the name, birthday, address, telephone number, social security number or other unique identifiers of any natural person.
Licensee shall own all right, title, and interest in and to the Licensee Data and any data based on or derived from the Licensee Data. Verdocs shall own and retain all right, title and interest in and to the Licensed Property and all Intellectual Property Rights related thereto.
Notwithstanding anything to the contrary, Verdocs shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Software and related systems and technologies (including, without limitation, information concerning Licensee Data and data derived therefrom), and Verdocs will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Software and for other development, diagnostic and corrective purposes in connection with the Software and other Verdocs offerings, and (ii) disclose such information and data solely in aggregate or another de-identified form in connection with Verdocs’ business. No rights or licenses are granted except as expressly set forth herein.
From time to time, Verdocs may post on the Site or otherwise include among the Licensed Property a Privacy Policy (“Privacy Policy”). Any such Privacy Policy, as Verdocs may amend the same from time to time, is incorporated by reference as outlined in its entirety herein. Use of the Licensed Property constitutes Licensee’s acceptance of any such Privacy Policy as may be in effect from time to time.
Licensee will indemnify, defend and hold Verdocs and its affiliates, and each of their respective Authorized Representatives harmless from and against any and all costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of claims related to (a) Licensee’s access to and use of the Site, including the Software; (b) the infringement or misappropriation of a Verdocs or a third-party’s Intellectual Property Rights; (c) Licensee’s breach of any representation, warranty, or obligation under this Agreement; (d) Licensee’s unauthorized disclosure of Proprietary Information including Licensee Data; and (e) the nature and substance of all documents, data, or other content uploaded by Licensee to the Site.
THE PROVISIONS OF SECTION 3 REPRESENT VERDOCS’ SOLE WARRANTIES AND LICENSEE’S SOLE REMEDIES FOR ANY VIOLATION BY VERDOCS OF ITS OBLIGATIONS HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL VERDOCS’ LIABILITY TO LICENSEE OR ANY OTHER PARTY ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH ANY LICENSED PROPERTY EXCEED THE FEES PAID BY LICENSEE HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEEDING THE EVENT GIVING RISE TO SUCH CLAIM. VERDOCS SHALL NOT BE LIABLE FOR ANY CLAIMS, LOSSES, OR DAMAGES OF LICENSEE OR ANY OTHER INDIVIDUAL OR ENTITY OR LOST PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, OR LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS ARISING UNDER THIS AGREEMENT OR IN CONNECTION WITH ANY LICENSED PROPERTY, HOWSOEVER ARISING, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES BEFOREHAND.
Verdocs will use reasonable efforts to ensure that the Software is available to Licensee most of the time, measured monthly, excluding holidays and weekends and scheduled maintenance. If Licensee requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance.
Verdocs will provide technical support to Licensee via both telephone and electronic mail on weekdays during the hours of 9:00 am through 6:00 pm EST, with the exclusion of Federal Holidays (“Support Hours”).
Licensee may initiate a helpdesk ticket during Support Hours by emailing support@verdocs.com.
Verdocs will use commercially reasonable efforts to respond to all helpdesk tickets within one (1) business day.
If Licensee acquires a license to use the Licensed Property from a Verdocs’ authorized reseller and enters into a written agreement with such reseller for support for the Software Solutions, Licensee must direct support questions directly to such reseller consistent with such agreement.
The parties acknowledge and agree that it would be difficult to measure the damages to a non-breaching party from any breach or threatened breach by a party of Sections 1.5, 4, and 6 of this Agreement; that injury to a non-breaching party from any such breach would be irreparable; and that money damages would therefore be an inadequate remedy for any such breach. Each party agrees that if a party breaches or threatens to breach any of a party’s obligations under Sections 1.5, 4, and 6 of this Agreement, then the non-breaching party, in addition to any other remedies available to it under law, including monetary damages, shall be entitled to specific performance and other equitable relief, including temporary and permanent injunctive relief, without the necessity of showing actual monetary damages or pleading or proving irreparable harm or lack of an adequate remedy at Law and without having to post a bond or other security to enforce Sections 1.5, 4, and 6 of this Agreement.
This Agreement will be governed by Delaware law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. Except where a party is seeking a remedy related to claims of misappropriation or ownership of Proprietary Information or Intellectual Property Rights, or claims under Section 6, each party agrees that before it brings any dispute, action, claim or cause of action arising out of or related to this Agreement, it shall provide written notice to the other party of the specific issue(s) in dispute. Within seven (7) days after such notice knowledgeable executives of the parties shall hold at least one meeting (in person or by remote video conference) for the purpose of attempting in good faith to resolve such matter. If such meetings do not resolve the dispute, then the dispute shall be solely and finally settled by binding arbitration administered by JAMS, in accordance with the provisions of JAMS Comprehensive Arbitration Rules & Procedures. The arbitration shall be presided over by a single arbitrator, mutually agreed to by the parties, with each party bearing an equal share of the arbitrator’s fees and expenses. If the parties are unable to agree to an arbitrator within 30 days of the submission of the dispute to arbitration, one will be appointed by JAMS. The arbitrator shall hold a final hearing and render a written decision within 90 days after the date he or she is selected. The arbitration shall be held in the State of New York. Any decision rendered by the arbitrator shall be binding, final and conclusive upon the parties, and a judgment thereon may be entered in, and enforced by, any court having jurisdiction thereof. The prevailing party in such action will be entitled to recover all costs and expenses, including reasonable attorneys’ fees and costs of any dispute resolution proceeding incurred by such party in connection with such action. The parties and the arbitrator shall be bound to maintain the confidentiality of this Agreement, the dispute and any award, except to the extent necessary to enforce any such award. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, AS WELL AS ALL RIGHTS TO AN APPEAL.
Neither party may assign or transfer any of its rights or obligations under this Agreement without the written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a competitor of the other party.
Any notice, permission, approval or consent requested or given pursuant to this Agreement shall be in writing and shall be given by (a) personal service, courier, certified mail with return receipt requested, to the address set forth on the Order Form, or (b) by e-mail to the email address set forth on the Order Form, so long as either (i) receipt of the same is acknowledged by non-automated reply or (ii) a copy of such notice is promptly transmitted via U.S. Mail, first class. A party may change its address or e-mail for notice purposes upon notice to the other party.
If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from this Agreement.
The parties agree that in the event of a dispute arising under or related in any way to this Agreement, the non-prevailing party shall pay all costs and expenses, including reasonable attorneys’ fees, that may arise or accrue from enforcing this Agreement, obtaining an interpretation of any provision of this Agreement, or in pursuing any remedy provided by applicable law whether such remedy is pursued or interpretation is sought by mediation, arbitration, the filing of a lawsuit, an appeal, and/or otherwise.
None of the terms and conditions contained herein may be added to, modified, superseded, or otherwise altered except by an instrument executed and delivered by each of Licensee and Verdocs. Notwithstanding the foregoing, Verdocs may revise this Agreement, including changing, deleting, or supplementing with additional terms and conditions from time to time in Verdoc’s sole discretion, including to reflect changes in applicable law.
Except for Licensee’s payment obligations under this Agreement, neither party will be liable for any failure or delay in performance under this Agreement to the extent due to any contingency, uncertainty, failure, or cause of, any nature beyond the reasonable control of such party, including unavailability of a telecommunications network or the Site, computer viruses or hacker attacks, fire, explosion, earthquake, storm or other weather, unavailability of necessary utilities or raw materials, strike or other labor difficulties, war or terrorist attack, insurrection, riot, acts of God, proclamation, ordinance or instructions of government or other public authorities, or judgment or decree of a court of competent jurisdiction (not arising out of a breach by such party of this Agreement).
The failure of Verdocs to exercise or enforce in any respect any right provided for herein shall not be deemed to be a waiver by Verdocs of the same or any other right contained herein in the future.
The provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto, and their permitted successors and assigns.
Other than the Order Form, this Agreement constitutes the entire understanding of the parties regarding the subject matter hereof, and revokes and supersedes all prior agreements between the parties, including any option agreements which may have been entered into between the parties, and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents which may be in conflict with said Agreement.
The following Sections: 1.5, 1.7, 3-7, and 11 will survive the expiration or termination of this Agreement, together with any other provisions of this Agreement that, to give proper effect to its intent, should survive such expiration or termination.