Terms and Conditions
This Terms and Conditions shall govern each order or statement of work (each, an “Order”) executed by the entity identified as Customer in such Order (“Customer”, “you” or “your”) and DocuPhase, LLC (“DocuPhase”), a Delaware limited liability company, with its principal place of business located at 13577 Feather Sound Dr. Ste 200, Clearwater, FL 33762 (each a “party” and collectively, the “parties”). The parties acknowledge and agree that they have read and understand these Terms and Conditions and, upon execution of the applicable Order, are legally bound to these Terms and Conditions, together with the applicable Order and any Statements of Work (as defined herein), schedules, exhibits, or other attachments expressly referenced in these Terms and Conditions or the applicable Order (collectively, this “Agreement”).
Version Updated: July 1, 2022
1. GENERAL.
These Terms and Conditions set forth the terms and conditions pursuant to which Customer shall access and use the Software and Services set forth in the applicable Order. Capitalized terms not otherwise defined in this Agreement have the meaning set forth in Schedule 1.
2. SERVICE AND SOFTWARE LICENSE TERMS.
2.1 General.
a. DocuPhase offers to customers licenses to the software program or programs specifically identified in the applicable Order (the “Software”) and SaaS Services, Payment Processing Services, Professional Services and any other services specified in the applicable Order (collectively, the “Services”).
b. You have purchased access to the Software, as indicated in the Order, either as (a) a hosted, annual subscription to the SaaS Service (as defined below) (the “SaaS Subscription”) or (b) as an on-premises, device-based license to the Software (the “Software License”).
c. If You have purchased Payment Processing Services, those Payment Processing Services are subject to the parties mutual agreement to separate written agreements (“Payment Service Terms”). In the event of a conflict between such AP Service Terms and these Terms and Conditions with respect to the Payment Processing Services, those Payment Service Terms shall take precedence.
2.2 SaaS Subscription. If you have purchased a SaaS Subscription, as indicated on the Order, the following terms and conditions apply:
a. SaaS Service: Subject to the terms and conditions of this Agreement, DocuPhase hereby grants to you a non-exclusive, non-transferrable (except as set forth in Section 13.4), limited right and license, without the right to sublicense, for its End Users to remotely access and use the Software via the internet through the use of web browser software as software-as-a-service (“SaaS Service”) in accordance with the Documentation for your internal business operations.
Notwithstanding the foregoing and without limiting DocuPhase’s rights and remedies under this Agreement, DocuPhase reserves the right, at its sole discretion, to suspend your access to the SaaS Service: (i) to address technical, security or other emergency issues; or (ii) if DocuPhase believes, acting reasonably, that you have violated any provision of this Agreement. In such circumstances, DocuPhase will use commercially reasonable efforts to notify you of the reason(s) for suspension as soon as practicable and promptly reinstate your access to the SaaS Service upon resolution of the issue(s). In no event will DocuPhase be responsible to you for damages suffered because of a suspension in accordance with this Section 2.2a.
b. Support Services. DocuPhase will provide the following maintenance and support services to you (“Support Services”) in connection with the Software and SaaS Service:
(i) Availability Description. DocuPhase will use commercially reasonable efforts to keep the SaaS Service operational on a 24/7 basis except for planned downtime, scheduled or emergency maintenance or any unavailability caused by circumstances beyond DocuPhase’s reasonable control including, but not limited to, flood, fire, earthquakes, Internet service provider failures or delays or availability issues (including downtime or service outages). DocuPhase may, if practical, but is not obligated to, provide you with prior notice of any scheduled or emergency maintenance.
(ii) Maintenance Schedule. Most maintenance or upgrade activities for the Software and SaaS Services are scheduled to occur during low peak hours, as reasonably determined by DocuPhase with reference to its customer service metrics. The extent of new features or functionality available following such maintenance or upgrade activity will depend on your then-current Software or SaaS Service subscription entitlement.
(iii) Technical Support Named Contacts. DocuPhase customer service and technical support in relation to the Service is provided to DocuPhase customers only. For the avoidance of doubt, you are responsible for providing first line support to your End Users. Within thirty (30) days of the effective date of the applicable Order, you must provide DocuPhase with the name and contact information for not more than three (3) named contact(s) who are authorized by you to access the Support Services and submit support cases. Your authorized named contact(s) may be changed on written notice to DocuPhase.
(iv) Support Schedule. English language technical support is offered between the hours of 8:00 AM to 8:00 P.M. Eastern Time, Monday to Friday, excluding all federal and state public holidays, via the following toll-free phone number in North America: 1-727-441-8228 Ext 2 or support@docuphase.com. After-hours support (i.e. support outside of the above-described hours) is available as a billable Service if agreed in an applicable Order.
(v) Additional details regarding DocuPhase maintenance and support are available here Subscription Maintenance & Support - DocuPhase.
2.3 Software License. If you have purchased a Software License, as indicated on the Order, the following terms and conditions apply to such Software License:
a. License. Subject to the terms and conditions of this Agreement, DocuPhase hereby grants to you a non-exclusive, non-transferable (except as set forth in Section 13.4 of the Agreement), personal license to (i) load, utilize, store and display the Software in object code format, (ii) use the Documentation in connection therewith and (iii) make one copy of the Software or Documentation for backup or archival purposes solely in support your excise of the license granted herein, provided that all titles, trademark symbols, copyright symbols and legends and other proprietary markings are fully reproduced without modification.
b. Server. Unless otherwise provided in the applicable Order, your Software License is to be installed, accessed and used in relation to only one (1) instance of the Software, running on only one (1) server. If you wish to migrate your instance of the Software from the server where it is originally installed to another server, you are encouraged to contact your DocuPhase Account Manager and request server migration assistance (which would be billed separately as a Professional Service).
c. Hosting. You may permit a third party to host the Software solely for the benefit of and access by the Licensed Parties, provided that such third party hosting provider agrees to be subject to and bound by this Agreement.
d. Verification and Audit. Upon DocuPhase's written request, which shall be no more than once annually:
(1) you agree to provide DocuPhase with a signed statement: (i) verifying that the Software and Documentation are being used in accordance with the Agreement; and (ii) confirming that unless otherwise agreed by DocuPhase in the applicable Order, you are only running one (1) instance of the Software on one (1) server; and
(2) you agree to provide DocuPhase with access to your license file so that DocuPhase can verify your use of the Software in terms of number of Named Users and Named Machine licenses.
(3) If the foregoing verification and audit activity reveals an underpayment of any amounts payable to DocuPhase, you will promptly remit the full amount of such underpayment to DocuPhase. If the underpaid amount exceeds five percent (5%) of the amount payable to DocuPhase for the period audited or such verification and audit reveals a material non-conformance with the terms of the Agreement, then you will also pay DocuPhase’s reasonable costs of conducting such verification and audit.
2.4 Other Services. With respect to the Professional Services, Payment Processing Services and all other Services set forth in the applicable Order other than the SaaS Services, DocuPhase will perform such Services in material conformance with the Order and this Agreement for the Subscription Term set forth in the applicable Order.
2.5 Named Users / Named Machines. You are responsible for ensuring that the number of Named Users and Named Machines permitted to access the SaaS Service or Software, as applicable, through your account does not exceed the number of Named Users and Named Machine subscriptions purchased by you. You shall be responsible for any fees attributable to use in excess of such amounts.
2.6 Third Party Providers. You may permit your authorized consultants, contractors, auditors and agents (“Third Party Providers”) to access and use the Software (whether through a Software License or SaaS Service, as applicable), but only on your behalf in connection with their provision of services to you, subject always to the Agreement. You are responsible for all Third Party Providers’ actions in relation to the Software.
2.7 DocuPhase Personnel. DocuPhase shall appoint a DocuPhase employee to serve as a primary contact with respect to any Professional Services (the “DocuPhase Contract Manager”). DocuPhase may subcontract parts of the Services to affiliated companies or third parties, provided that DocuPhase shall remain responsible for the performance of the Services and the actions of any such affiliated companies or third parties.
2.8 Change Orders. You may submit written request(s) to DocuPhase to change the scope or performance of the Services described in an Order. DocuPhase shall, within a reasonable time after its receipt of your request, provide you with a written estimate of: (a) the likely time required to implement the change; (b) any necessary variations to the Fees and other charges for the Services arising from the change; (c) the likely effect of the change on the Services; and (d) any other impact the change might have on the performance of this Agreement. Promptly after receipt of the written estimate, the parties shall negotiate in good faith the terms of such change, including a reasonable and equitable adjustment to the Fees or work schedule, as applicable (each a “Change Order”). Neither party shall be bound by any Change Order unless and until it is mutually agreed upon in writing.
3. USE LIMITATIONS; RIGHTS RESERVED.
3.1 Use Limitations. All rights granted to you in Section 2 are subject to the following restrictions on use:
a. You shall not modify, translate, or create derivative works based on any element of the DocuPhase Technology.
b. You shall not encumber, transfer, rent, donate, assign, lease, or otherwise use the DocuPhase Technology in any time-sharing or service bureau arrangement.
c. You shall not use the DocuPhase Technology to process data of any non-subscriber third party for a fee or any other consideration.
d. Except as expressly provided in this Agreement, you shall not, market, sell, distribute, sublicense, manufacture, or otherwise commercially exploit the DocuPhase Technology.
e. You shall not and shall not allow third parties to decompile, disassemble, reverse compile, reverse assemble, reverse translate or otherwise reverse engineer the DocuPhase Technology, including the use of any similar means to discover the source code of the DocuPhase Technology or to discover the Confidential Information therein.
f. You shall not alter or remove any printed or on-screen copyright, trademark, patent, proprietary, or other legal notice contained on or in any DocuPhase Technology and shall cause all such notices to be reproduced on all copies thereof.
g. You agree that the purchases and Fees hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by DocuPhase regarding future functionality or features.
h. You shall not lease, license, sell, sublicense, or otherwise transfer your access to or use of the DocuPhase Technology or otherwise provide the benefit of use of the Services or Software to any third party.
i. You shall not use or permit the use of the DocuPhase Technology other than for its intended purpose, including without limitation, in a manner (i) contrary to applicable Law; (ii) that infringes, violates or misappropriates the rights of any third parties, including the privacy rights or intellectual property rights of such parties; or (iii) that is unlawful, harassing, defamatory (untrue and damaging to others), abusive, threatening, or obscene.
j. You shall not publish or disclose to third parties any evaluation of the DocuPhase Technology without DocuPhase’s prior written consent.
You are solely responsible for any and all improper use of the DocuPhase Technology that occurs as a direct or indirect result of any act or omission by you or your End Users. You agree to notify DocuPhase immediately of any unauthorized use of the DocuPhase Technology that is known or suspected by you.
3.2 Reservation of Rights. Subject to the limited rights expressly granted in this Agreement, DocuPhase reserves all rights, title and interest in and to the DocuPhase Technology, and any software or services used in relation to the DocuPhase Technology, including all Intellectual Property Rights therein. Except as expressly set forth in Section 2, all right, title, and interest in and to the DocuPhase Technology, and all service marks, trademarks, trade names, and logos of DocuPhase, together with all suggestions, contributions, or modifications thereto and copies of all of the foregoing, will remain in possession of DocuPhase and its licensors.
4. OWNERSHIP.
4.1 DocuPhase Ownership. DocuPhase and its licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to all Intellectual Property Rights in the DocuPhase Technology, except as otherwise expressly set forth in an applicable Order. You have no title to, ownership of, or any Intellectual Property Rights whatsoever in, any of the DocuPhase Technology or any improvements thereto developed by DocuPhase in connection with the Services.
4.2 Customer Ownership. You and your licensors are, and shall remain, the sole and exclusive owners of all right, title, and interest in and to the Customer Material, including all Intellectual Property Rights therein. You grant to DocuPhase the right and license to use the Customer Material to provide the Services.
4.3 Limited Feedback License. You hereby grant to DocuPhase, at no charge, a non-exclusive, royalty-free, worldwide, transferable, sublicensable (through one or more tiers), perpetual, irrevocable license under your Intellectual Property Rights in and to suggestions, comments and other forms of feedback (“Feedback”) regarding the Services or Software, including Feedback regarding features, usability and use, and bug reports, to reproduce, perform, display, create derivative works of the Feedback and distribute such Feedback and/or derivative works in the Software or any other products or services. You provide any Feedback “as is” without warranty of any kind.
5. FEES AND PAYMENT TERMS.
5.1 Subscription Fees. You agree to pay DocuPhase a fee for the SaaS Service or the Software License, as applicable (the “Subscription Fees”), in the amount and according to the terms set forth in the applicable Order.
5.2 Professional Services and Other Services Fees. You agree to pay DocuPhase a fee for the Services or Software provided under this Agreement in the amount and according to the terms set forth in the applicable Order. Unless otherwise set forth in the applicable Order, fees for SaaS Service, Software or otherwise identified as subscription fees in the applicable Order Form (“Subscription Fees”) shall be paid annually in advance. Unless otherwise set forth in the applicable Order, any pre-paid fees for Professional Services shall expire twelve (12) months after the Effective Date of the applicable Order, after which all unused hours or fees in relation thereto will be forfeited.
5.3 Fees Generally. Fees are non-cancellable and non-refundable except if you terminate for an uncured material breach by DocuPhase pursuant to Section 12.3 in which case DocuPhase will refund you: (i) the amount of any pre-paid Subscription Fees on a pro-rata basis, calculated from the effective date of termination; and (ii) the amount of any pre-paid but undelivered Professional Services as of the effective date of termination, calculated in reference to the milestones or deliverables set forth in the applicable Order. Unless otherwise set forth in the applicable Order, all amounts owed are due thirty (30) days from your receipt of a DocuPhase invoice. All Fees paid and expenses reimbursed under this Agreement are in United States currency.
5.4 Expenses. You shall reimburse DocuPhase for all reasonable travel and expenses incurred by DocuPhase in connection with the performance of the Professional Services in accordance with the DocuPhase Travel Policy, a copy of which is available upon request.
5.5 Late Fees. You agree to pay a late fee of 2% per month (not to exceed the maximum allowed under applicable Law) on all balances not paid when due.
5.6 Taxes. The Fees and other amounts quoted in the Order do not include tax. You are responsible for paying all governmental sales, use, withholding, excise, value added, ad valorem taxes, or duties imposed on your access to and use of the Services, other than taxes based on DocuPhase’s net income or profits. To the extent that DocuPhase is required to collect such taxes, the applicable tax will be added to your invoice. If you are exempt from the payment of taxes, you must provide DocuPhase with an original certificate that satisfies applicable legal requirements. Tax exemption will only apply as of the date that such certificate is provided.
5.7 Offset. Fees and expenses payable by you pursuant to this Agreement may not be withheld or offset by you against other amounts for any reason.
6. CUSTOMER OBLIGATIONS.
6.1 Technical Requirements. You are responsible for procurement and maintenance of the equipment, software, and internet access required to be able to access and use the Software. Acquiring, installing, maintaining, and operating equipment and internet access is solely your responsibility. DocuPhase does not represent or warrant that the SaaS Services will be accessible through all web browser releases.
6.2 Use of Software and Services. You shall not, and shall not permit others, in using the Software or Services to: (i) publish, ship, distribute, or disseminate material or information that encourages conduct that could constitute a criminal offense or give rise to civil liability; (ii) engage in any conduct that could violate applicable Law, constitute a criminal offense or give rise to civil liability for DocuPhase; (iii) misrepresent or in any other way falsely identify your identity or affiliation, including through impersonation or altering any technical information in communications using the Software or Services; (iv) transmit or upload any material through the Software or Services containing viruses, trojan horses, worms, time bombs, cancelbots, or any other programs with the intent or effect of damaging, destroying, disrupting or otherwise impairing DocuPhase’s, or any other person’s or entity’s, network, computer system, or other equipment; (v) interfere with or disrupt the Software, Services, networks, or servers connected to the DocuPhase systems or violate the regulations, policies, or procedures of such networks or servers, including unlawful or unauthorized altering of any of the information submitted through the Software; (vi) attempt to gain unauthorized access to the Software, Services, other DocuPhase customers’ computer systems, or networks using the Software through any means; or (vii) interfere with another party’s use of the Software. DocuPhase has no obligation to monitor your use of the Software. However, DocuPhase reserves the right (but has no obligation) at all times to monitor, review, retain and disclose any information as necessary to satisfy or cooperate with any applicable Law.
6.3 Services. You accept the obligations set forth in this Section 6.3 in relation to the Services:
a. Customer Contract Manager. You shall cooperate with DocuPhase in all matters relating to the Services and appoint a Customer employee to serve as the primary contact with respect to this Agreement (the “Customer Contract Manager”).
b. Access and Assistance; Customer Material. You shall provide such access to your premises, facilities, and computer systems and networks as may reasonably be requested by DocuPhase for the purposes of performing the Services. You shall respond promptly to any DocuPhase request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for DocuPhase to perform the Services. You shall timely provide such Customer Material as set forth in the applicable Orde or Statement of Work or as DocuPhase may reasonably request in order to carry out the Services, and ensure that all such Customer Material is complete and accurate in all material respects.
c. Delay in Performance. If DocuPhase’s performance of its obligations under this Agreement is prevented or delayed by any action or failure to act by you or your agents, subcontractors, consultants, or employees, DocuPhase shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by you, in each case, to the extent arising directly or indirectly from such prevention or delay, and DocuPhase’s obligation to perform will be extended by the same number of days as your prevention or delay. If such prevention or delay on your part results in additional work or incremental cost to DocuPhase, DocuPhase reserves the right to charge you additional Fees, as reasonably determined by DocuPhase.
6.4 Customer Data.
a. You, not DocuPhase, shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness of and the parties’ respective rights to use all data provided by you under this Agreement. You shall be responsible for obtaining any consents and other rights necessary to collect, submit, use and process such data on the Software.
b. Prohibited Data. Except as expressly permitted in the applicable Order or otherwise agreed to by DocuPhase in writing, you shall not transfer to DocuPhase any data considered sensitive, any data that requires special handling, protection, or controls, any data that could result in DocuPhase or the Software being subject to additional legal, regulatory, or compliance requirements (including audits), or any data that if lost, compromised, or disclosed could result in substantial harm, embarrassment, inconvenience, or unfairness to an individual (“Prohibited Data”). Prohibited Data includes but is not limited to biometric or genetic data, health or medical information, attorney-client privileged information, export controlled research, controlled unclassified information, sensitive identifiable human subject research, education records, student loan application or financial aid information, identifiable financial information, employee benefits information, bank or other financial account numbers or information, debit or credit card numbers or information covered by Payment Card Industry Data Security Standard (PCI DSS) standards, unique identifiers such as passport numbers and Social Security Numbers, driver’s license numbers, other government-issued identification numbers, data regarding an individual’s religious, political, or philosophical beliefs or opinions, data regarding trade union membership, and data regarding an individual’s sex life, sexual orientation, or racial or ethnic origin. Any data covered by the Health Insurance Portability and Accountability Act (HIPAA), the Family Educational Rights and Privacy Act (FERPA), the Federal Information Security Management Act (FISMA), the Gramm Leach Bliley Act (GLBA), or any similar international, federal, state, or local law, regulation, or standard related to the privacy and security of sensitive personal information shall also be considered Prohibited Data. You shall be solely responsible and liable for its provision to DocuPhase of any Prohibited Data, and shall defend, indemnify, and hold harmless DocuPhase from and against any claims arising out of your provision to DocuPhase of Prohibited Data. You shall reimburse DocuPhase for any reasonable expenses that DocuPhase incurs as a result of your provision to DocuPhase of Prohibited Data, including but not limited to expenses incurred as the result of an audit, to secure Prohibited Data, or to remove Prohibited Data from DocuPhase’s systems.
7. SECURITY.
7.1 Security. DocuPhase will deploy commercially reasonable security precautions intended to protect against unauthorized access to any Customer Materials stored by DocuPhase in connection with your or your End Users’ operation of the Software. DocuPhase will exercise reasonable efforts to deploy corrections within the Software or make updates available to you for security breaches made known to DocuPhase.
7.2 No Circumvention of Security. Neither Customer nor any End User may circumvent or otherwise interfere with any user authentication or security of the Software. You will immediately notify DocuPhase of any breach, or attempted breach, of security known to you.
8. NON-DISCLOSURE AND CONFIDENTIALITY.
8.1 Disclosure. Each party may disclose to the other party certain Confidential Information of such party or of such party’s associated companies, distributors, licensors, suppliers, or customers. “Confidential Information” means any non-public or proprietary information that is of value to its owner and is treated as confidential, including without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing and the terms of this Agreement which is either marked as confidential or proprietary or by its nature can reasonably be expected to be confidential or proprietary, whether presented in oral, printed, written, graphic or other tangible form; “Disclosing Party” refers to the party disclosing Confidential Information hereunder, whether such disclosure is directly from Disclosing Party or through Disclosing Party’s employees or agents; and “Receiving Party” refers to the party receiving any Confidential Information hereunder, whether such disclosure is received directly or through Receiving Party’s employees or agents.
8.2 Requirement of Confidentiality and Non-Use. The Receiving Party agrees: (a) not to disclose or otherwise make available Confidential Information of the Disclosing Party to any third party without the prior written consent of the Disclosing Party, provided that the Receiving Party may disclose the Confidential Information of the Disclosing Party to its and its Affiliates’ officers, employees, consultants, and legal advisors who have a “need to know,” who have been apprised of this restriction and who are themselves bound by nondisclosure obligations at least as restrictive as those set forth in this Section 8; (b) to use the Confidential Information of the Disclosing Party only for the purposes of performing its obligations or as otherwise authorized under the Agreement; and (c) to promptly notify the Disclosing Party in the event it becomes aware of any loss or disclosure of any of the Confidential Information of Disclosing Party. The obligations in this Section 8 shall survive termination and continue for so long as the applicable information constitutes Confidential Information. Confidential Information shall not include information that: (w) is already known to the Receiving Party without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (x) is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Receiving Party; (y) is developed by the Receiving Party independently of, and without reference to, any Confidential Information of the Disclosing Party; or (z) is received by the Receiving Party from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information.
8.3 Compelled Disclosure. If the Receiving Party becomes legally required to disclose any Confidential Information, the Receiving Party shall provide: (a) prompt written notice of such requirement (if legally permissible) so that the Disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and (b) reasonable assistance, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose no more than that portion of the Confidential Information which the Receiving Party is legally required to disclose and, upon the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or agency that such Confidential Information will be afforded confidential treatment.
8.4 Data Use. You agree that data derived by DocuPhase from DocuPhase’s performance of the Services or input by you may be used by DocuPhase for the purposes of analysis, including statistical analysis, trend analysis, creation of data models, and creation of statistical rules. The results of such analysis (“De-identified Data”) may be used by DocuPhase for any lawful purpose, including making such De-Identified Data publicly available. Notwithstanding anything contained in this Agreement, De-identified Data shall not contain (i) any information that identifies or can be reasonably used to identify an individual person, or (ii) any information that identifies or can be reasonably used to identify you, your Affiliates or your suppliers.
8.5 Return of Confidential Information. Each party agrees to promptly return all the other party’s Confidential Information at the Disclosing Party’s request or, at the Disclosing Party’s option, certify the destruction of such material.
9. LIMITED WARRANTY; DISCLAIMER.
9.1 Limited Warranty. DocuPhase warrants that during the applicable Subscription Term, the Services and software will, under normal use and service, substantially conform to, and perform in all material respects, the functions described in the applicable Documentation. If any such Services fail to comply with the foregoing warranty, you shall provide written notice to DocuPhase prior to the expiration of the warranty period set forth above and such notice will describe in reasonable detail the nature of the non-conformity. In such event, DocuPhase shall use reasonable efforts to repair or rectify such non-conformity. If DocuPhase is unable to repair or rectify such non-conformity, then DocuPhase may terminate this Agreement (including without limitation the licenses granted in this Agreement) with respect to the non-conforming Services and in such event, DocuPhase will refund to you on a pro-rata basis as applicable the portion of Fees paid to DocuPhase prior to termination applicable to the access and use of such non-conforming Services after the termination date. THE REMEDY SET FORTH IN THIS SECTION SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY AND DOCUPHASE’S SOLE OBLIGATION FOR ANY BREACH OF THE WARRANTY SET FORTH IN THIS SECTION.
9.2 Exclusions. The warranty set forth in Section 9.1 does not cover defects or non-conformities arising from (i) misuse of the Software or the Documentation, (ii) any modifications to the Software made by any person or entity other than DocuPhase that is not previously approved by DocuPhase, (iii) any use of the Services by Customer or its Users beyond the scope of the express rights licenses granted in this Agreement, (iv) any use of the Software in combination with other software, hardware or data, or (v) DocuPhase’s compliance with Customer’s request for changes to the DocuPhase Platform or with Customer’s designs, specifications or instructions.
9.3 Customer Data Warranty. You represent and warrant to DocuPhase that you have the right, including in respect of all relevant Intellectual Property Rights and applicable data privacy and other laws, to provide DocuPhase access to and use of the any data that you provide to DocuPhase, including without limitation for use in connection with the Services.
9.4 Mutual Representations and Warranties. Each party represents, warrants and covenants to the other party that: (a) such party has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) such party’s execution of and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by such party to any third party to keep any information or materials in confidence or in trust.
9.5 Disclaimer. OTHER THAN AS EXPRESSLY SET FORTH IN THIS SECTION 9, EACH PARTY DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS TO THE OTHER PARTY REGARDING THIS AGREEMENT, WHETHER ORAL OR WRITTEN, EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING: (I) ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, THE IMPLIED WARRANTY AGAINST INFRINGEMENT, THE IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE ARE EXPRESSLY EXCLUDED AND DISCLAIMED BY DOCUPHASE; AND (II) NO WARRANTY IS MADE THAT USE OF THE SERVICES, DOCUPHASE TECHNOLOGY OR ANY DELIVERABLES, WILL BE ERROR FREE OR UNINTERRUPTED, THAT ANY ERRORS OR DEFECTS IN THE SERVICES, DOCUPHASE TECHNOLOGY OR DELIVERABLES, WILL BE CORRECTED, OR THAT THE FUNCTIONALITY OF THE SERVICES, DOCUPHASE TECHNOLOGY OR DELIVERABLES WILL MEET YOUR REQUIREMENTS.
9.6 NO AGENT OF DOCUPHASE IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF DOCUPHASE AS SET FORTH HEREIN. DOCUPHASE DOES NOT WARRANT THAT YOUR USE OF THE SOFTWARE IS OR WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE (AS WITH TECHNOLOGY GENERALLY), MAY HAVE ERRORS (OR “BUGS”) AND MAY ENCOUNTER UNEXPECTED TECHNICAL PROBLEMS. ACCORDINGLY, FROM TIME TO TIME, CUSTOMER MAY EXPERIENCE DOWNTIME AND ERRORS IN THE OPERATION, FUNCTIONALITY OR PERFORMANCE OF THE SOFTWARE. ACCORDINGLY, CUSTOMER SHALL PUT IN PLACE REASONABLE INTERNAL PROCEDURES AND PROCESSES TO ENABLE IT TO MINIMIZE ANY INCONVENIENCE AND ANY ADVERSE IMPACT OF ANY SUCH DOWNTIME OR ERROR.
10. LIMITATION OF LIABILITY.
10.1 Exclusion of Damages. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOSS OF USE, REVENUE, PROFIT, OR DATA, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2 Liability Cap. EXCEPT AS OTHERWISE PROVIDED IN SECTION 10.3, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO DOCUPHASE PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
10.3 Exceptions. The exclusions and limitations in Section 10.1 and Section 10.2 shall not apply to: (a) the license limitations set forth in this Agreement, including Section 3.1, (b) Section 3.2; (c) Section 8; (d) a party’s obligations under Section 11 and (e) a party’s willful misconduct, gross negligence or fraud.
11. INDEMNIFICATION.
11.1 DocuPhase Indemnification. Subject to Section, 11.3, DocuPhase shall indemnify, defend, and hold harmless Customer, its Affiliates and their respective officers, directors, managers, employees, agents, successors, and permitted assigns (“Customer Indemnitees”) against any third party claim, suit, action, or proceeding (each, an “Action”) based on a claim that the Software or Services infringe any Intellectual Property Right or misappropriates any trade secret of a third party, and shall pay all settlements entered into and damages awarded against you (including reasonable outside counsel fees, if any only if DocuPhase fails to take sole control of such Action as provided in Section 11.3) to the extent based on such an Action; provided, however, that DocuPhase shall have no obligations under this Section 11.1 with respect to claims to the extent arising out of: (a) any express instruction, information, designs, specifications, or other materials provided by you to DocuPhase; (b) use of the Software or Services in combination with any materials, software, or equipment not supplied to you or specified by DocuPhase in writing; or (c) any modifications made to the Software or Services by or on behalf of any person or entity other than DocuPhase. If the Software or Services, or any part thereof, become, or in the opinion of DocuPhase may become, the subject of a claim of infringement or misappropriation, DocuPhase may, at its option: (i) procure for you the right to use such Software or Services free of any liability; (ii) replace or modify the Software or Services to make it non-infringing; or (iii) terminate this Agreement and refund to you any portion of the Fees prepaid by you for the infringing Software or Services. THE FOREGOING STATES THE ENTIRE LIABILITY OF DOCUPHASE WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE SERVICES OR SOFTWARE OR OTHERWISE, AND YOU HEREBY EXPRESSLY WAIVE ANY OTHER LIABILITIES OR OBLIGATIONS OF DOCUPHASE WITH RESPECT THERETO.
11.2 Customer Indemnification. You are responsible for compliance with applicable Laws regarding your access to and use of Customer Material in relation to the Services. Subject to Section, 11.3, you shall indemnify, defend and hold harmless DocuPhase, its Affiliates and their respective officers, directors, employees, agents, successors, and permitted assigns against all Actions based on a claim that you have violated any applicable Law or that any Customer Material provided by you and DocuPhase’s receipt or use thereof in performance of the Services, infringes any Intellectual Property Right or Law, or misappropriates any trade secret of a third party, and shall pay all settlements entered into and damages awarded (including any reasonable outside counsel fees, if any only if you fails to take sole control of such Action as provided in Section 11.3) against DocuPhase to the extent based on such an Action.
11.3 Indemnification Procedures. The indemnifying party shall solely control the defense and settlement of the applicable Action. The party seeking indemnification shall promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party’s sole cost and expense. The indemnifying party shall immediately take control of the defense and investigation of the Action and shall employ counsel of its choice to handle and defend the same, at the indemnifying party’s sole cost and expense. The indemnifying party shall not settle any Action in a manner that requires the indemnified party to pay monies or admit liability or subjects the indemnified party to any ongoing affirmative obligation without the indemnified party’s prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party’s failure to perform any obligations under this Section 11.3 shall not relieve the indemnifying party of its obligations under this Section 11 except to the extent that the indemnifying party can demonstrate that it has been materially prejudiced as a result of such failure. The indemnified party may participate in and observe the proceedings at its own cost and expense.
12. TERM AND TERMINATION.
12.1 Agreement Term. This Agreement shall commence on the Effective Date of the applicable Order and shall continue until the later of (i) the completion of and payment for all Software and Services under all Orders or Statements of Work or (ii) the expiration of the last Subscription Term under this Agreement, unless earlier terminated as provided for below.
12.2 Subscription Term. The Subscription Term for the applicable Software and/or Services shall be as set forth in the applicable Order, unless earlier terminated as provided for below. For clarity, failure to use the DocuPhase Technology as of the date that the Subscription Term commences (the “start date” per the applicable Order) will not be deemed a basis for disputing or refusing to pay all applicable Fees. If the applicable Order specifies that the initial Subscription Term shall automatically renew upon its expiration, the term of the applicable Order shall be extended for successive one year renewal terms (each, a “Renewal Term”) at DocuPhase’s then-current list price, unless either party provides notice of non-renewal at least thirty (30) days’ prior to expiration of the preceding period of the Subscription Term.
12.3 Termination. Without prejudice to any other remedies and in addition to any other termination rights herein, the parties shall have the right to terminate this Agreement or an Order as provided below:
a. By either party if the other party commits a material breach of this Agreement, the applicable Order, and such breach remains uncured thirty (30) days after written notice of such breach is delivered to such other party, including the failure to pay any undisputed Fees due to DocuPhase; or
b. By either party if the other party makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy Laws, Laws of debtor’s moratorium, or similar Laws.
12.4 Effect. Termination of an Order shall not effectuate a termination of this Agreement or otherwise affect any other outstanding Order or Statements of Work unless no other Orders or Statements of Work remain outstanding, in which case this Agreement may terminate pursuant to Section 12.1. Upon expiration or termination of this Agreement for any reason, (i) all outstanding Orders and Statements of Work and all license rights granted under this Agreement shall terminate; (ii) all rights, licenses, and access to the Software granted by DocuPhase to you under this Agreement or such Order, as applicable, will immediately cease; and (iii) unless otherwise deleted by you prior to termination, your Customer Material will be retained in the Software for seven (7) days and permanently deleted thirty (30) days thereafter. Upon your request and at DocuPhase’s then current rates DocuPhase will work with you to transfer your Customer Materials prior to deletion.
12.5 Survival. The rights and obligations of the parties set forth in this Section 12.5 and Sections 3.2, 4, 5, 8, 9.5, 10, 11, 12.4 and 13, will survive any such termination or expiration of this Agreement according to their respective terms.
13. GENERAL. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule (other than New York General Obligations Law Sections 5-1401 and 5-1402). The United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement or the parties. Each party irrevocably submits to the non-exclusive jurisdiction of the courts of the State of New York for the purpose of any suit, action or other proceeding arising out of this Agreement. Each of the parties hereby waives the right to: (a) trial by jury of any suit, action or proceeding; and (b) participate in a class action relating to this Agreement.
13.2 Conflicting Terms. Notwithstanding the content of any Customer purchase order or any other document or record, whether in writing or electronic, relating to the subject matter of this Agreement, the terms of this Agreement shall govern and any conflicting, inconsistent, or additional terms contained in such documents shall be null and void.
13.3 Notice. All communications required or otherwise provided under this Agreement shall be in writing and shall be deemed given when delivered (a) by hand or (b) by a nationally recognized overnight courier service; to the address set forth on the Signature Page, as may be amended by the parties by written notice to the other party in accordance with this Section 13.3. Notice is effective upon delivery to the notice address.
13.4 Assignment. Neither party may assign or transfer this Agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed; provided that either party may assign the Agreement without consent to a successor of all or substantially all of the assets of such party through merger, reorganization, consolidation, or asset acquisition. Any attempted assignment, transfer, or other conveyance in violation of the foregoing shall be null and void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
13.5 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Headings of particular sections are inserted only for convenience and are not to be considered a part of this Agreement or be used to define, limit or construe the scope of any term or provision of this Agreement. Unless the context otherwise specifically requires, all references to sections of this Agreement shall refer to all subsections thereof. Should any provision of this Agreement require judicial interpretation, the parties agree that the court interpreting or construing the same shall not apply a presumption that the terms of this Agreement shall be more strictly construed against one party than against another.
13.6 Severability. In case any one or more of the provisions of this Agreement should be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
13.7 Entire Agreement. This Agreement constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes all written or oral prior agreements or understandings with respect thereto.
13.8 Amendment; Waiver. This Agreement may only be amended or modified by an agreement in writing signed by each party; provided, however, that, except as otherwise agreed to by the parties in the applicable Order, you agree that any Renewal Term shall be subject to the then-current version of these Terms and Conditions, as available at the link set forth in the applicable Order. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13.9 Force Majeure. Neither party shall be liable for any loss or damage resulting from the delay or failure to comply with this Agreement to the extent that such delay or failure is caused, directly or indirectly, by circumstances beyond that party’s (“Impacted Party”) reasonable control, including but not limited to the following force majeure events (“Force Majeure Events”): Acts of God; pandemic, epidemic, outbreak of disease; flood, fire, earthquake or explosion; war, invasion, hostilities (whether war is declared or not), terrorist acts, riot or other civil unrest; government order or law; actions, embargoes or blockades in effect on or after the effective date of the applicable Order; action by any governmental authority; national or regional emergency; strikes, labor stoppages or slowdowns or other industrial disturbances not caused by the Impacted Party’s own employees; or shortage of adequate power or transportation facilities. The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other party, of the nature and duration of the Force Majeure Event and resume performance as soon as reasonably possible. If any condition constituting a Force Majeure Event continues for a period twenty (20) calendar days, the party not claiming the Force Majeure Event may terminate this Agreement upon five (5) calendar days’ written notice. In the event that either party terminates the Agreement as a result of the Force Majeure Event, neither party shall be liable for any loss or damage resulting from the termination.
13.10 Equitable Relief. Each party acknowledges that a breach by a party of Section 3 or Section 8 may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in this Agreement to the contrary.
13.11 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement.
13.12 Relationship of Parties. Nothing in this Agreement shall constitute or be deemed to constitute a partnership between the parties hereto or constitute or be deemed to constitute one party as agent of the other, for any purpose whatsoever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose.
13.13 Publication. You agree that DocuPhase may disclose your name, logo and tradename (the “Customer Brand”) in a factual listing of its customers, in any media, whether printed, electronic or on-line. For avoidance of doubt, DocuPhase will not use the Customer Brand for any other purpose without your explicit consent.
SCHEDULE 1
DEFINITIONS
1. “Affiliate” means, with a respect to a party, any entity that directly or indirectly controls, is directly or indirectly controlled by or directly or indirectly is under common control with such party, where “control” means the ownership of, or the power to vote, directly or indirectly, more than fifty percent (50%) of an entity’s shares or voting rights or the ability to control and direct the management or policies of that entity.
2. “Payment Processing Services” means DocuPhase’s payment processing services as referenced in the applicable Order Form, if applicable.
3. “Customer Material” means the Customer data or information that Customer uploads or creates while using the Services.
4. “Documentation” means the online user guides, documentation and help and training materials published on the DocuPhase website or accessible through the Services, as may be updated by DocuPhase from time to time.
5. “DocuPhase Technology” means the Services (including the Software), Documentation, DocuPhase Confidential Information, and all Intellectual Property Rights in or related to all of the foregoing.
6. “End User” means, as applicable, the Named User of a Licensed Party.
7. “Fees” means the Subscription Fees, Professional Services Fees and all other fees to be paid as expressly set forth in this Agreement.
8. “Intellectual Property Rights” means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works, and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
9. “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction.
10. “Licensed Party(ies)” means the Customer, its Affiliates and their respective independent contractors that use the DocuPhase Technology solely for performing services for Customer.
11. “Named Machine” means a device-based license to the Software that is specific to an individual device and which may be used by any individual to access the Software.
12. “Named User” means a user-based license to the Software that is specific to an individual user and which may not be shared with other individual users to access the Software.
13. “Professional Services” means those consulting, integration, configuration, implementation, and similar services more particularly set forth on an Order.
14. “Subscription Term” means the term so identified in the applicable Order for the SaaS Service or the Software license, as indicated in the applicable Order.
