This Services Agreement ("Agreement") is made by and between Validify, Inc., a company incorporated under the laws of the State of Delaware, with an address at 2035 Sunset Lake Road, Suite B-2, in the city of Newark, zip code 19702 and county of New Castle ("Validify"), and the party accepting the terms and conditions of this Agreement on behalf of yourself or an entity ("Customer"). For purposes of this Agreement, "Effective Date" means the date that Customer accepts this Agreement.
This Agreement governs Customer's access to and use of our web-based application and software solution available and provided through Salesforce.com (“Salesforce”) via http://www.salesforce.com/AppExchange (respectively "Salesforce Site" and "Services").
Customer acknowledges that use of the Services is subject to any Salesforce requirements, conditions and terms.
By installing and/or using the Services and/or by accepting this Agreement Customer represents and warrants that it has read,understood and agrees on behalf of him/herself and/or the entity it represents to all terms and conditions of this Agreement. If Customer accepts this Agreement and/or use the Services on behalf of an entity, Customer represent and warrant that you are authorized by such entity to agree to all the terms and conditions of this Agreement on its behalf. Changes may be made to this Agreement from time to time. Customer's continued use of the Services will be deemed acceptance to amended or updated Agreement. If Customer does not agree to this Agreement or any of its terms, please do not accept the Agreement and/or use the Services.
During the Term (as defined below) and subject to the terms and conditions hereof, Validify shall provide Customer and its authorized users with a limited, revocable, non-exclusive, non-transferable right to use the Services, solely for Customer's internal business uses in connection with Customer's Salesforce account.
2. Service Levels and Support.
Validify shall provide Customer with the Services in accordance with the service levels set forth in Exhibit A hereto.
In consideration of use of the Services, Customer shall pay Validify the fees specified on the Salesforce Site("Fees"). All Fees payable hereunder are inclusive of all applicable VAT, taxes and government charges. In the event that any additional charges will be payable with respect to the Fees, Validify shall provided Customer with a prior notice therefore and Customer shall make payment to Validify in accordance with any amended rates. Fees are due and payable annually upfront within thirty (30) days of the date specified on the invoice. Late payments shall bear interest at the rate of 12% per annum.
4. Representations and Warranties.
4.1. Mutual Representations. Each party represents and warrants that (a) it is duly organized under applicable law; (b) it has the authority to enter in to this Agreement and perform its obligations hereunder; and (c) the execution and performance of this Agreement does not conflict with any contractual obligations it has to any third party or other legal requirement.
4.2. Validify Representations. Validify represents and warrants that it will use commercially reasonable efforts to provide the Services faithfully, diligently, and with skill and ability in accordance with industry standard.
4.3. Customer Representations. Customer represents and warrants that (a) it shall at all times use the Services in compliance with the terms of this Agreement and applicable law; (b) no Customer Material (as defined below) (i) infringes any intellectual property or other rights of any third party, (ii) contains any defamatory, libelous, sexual, pornographic or otherwise offensive material, or(iii) contains any viruses, worms or other malware; (c) Customer has the legal right and ability to provide such Customer Material to Validify for the purposes set forth herein;
Customer shall not and shall not allow any third party to (attempt) to (a) decipher,decompile, disassemble, or reverse-engineer any of the software used to provide the Services without Validify's prior written authorization, including framing or mirroring any part of the Services; (b) circumvent, disable, or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any content thereon; (c) use the Services in connection with any commercial endeavors in any manner, except for the purposes specifically set forth herein; (d) use any robot, spider, assessment search or retrieval application, or any other manual or automatic device or process to retrieve, index, data-mine, or in any way reproduce or circumvent the navigational structure or presentation of the Services; (e) use the Services,or any content thereon, in any manner not permitted by this Agreement or applicable law; or (f)transmit, submit or upload any material to the Services or act in any way that: (1) restricts or inhibits use of the Services; (2) imposes an unreasonably or disproportionately large load on Validify's infrastructure; or (3) stores, contains or transmits anything that contains any virus, worm, trojan horse, or other harmful or disruptive component.
6. Intellectual Property.
6.1. Validify IP. Validify, or as the case may be, its licensors, owns the Services, and all content available therein, including all worldwide intellectual property rights in the Services, all technology, software and algorithms used to provide the Services, and the trademarks, service marks, and logos contained therein. Except as expressly permitted herein, Customer may not copy, further develop, reproduce, republish,modify, alter download, post, broadcast, transmit or otherwise use the Services.Customer will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in the Services. All trademarks are trademarks or registered trademarks of their respective owners.Nothing in this Agreement grants Customer any right to use any trademark,service mark, logo, or trade name of Validify or any third party. Nothing in this Agreement shall be interpreted to provide Customer with any rights in Services except the limited right to use the Services subject to the terms and conditions hereof. If Customer provides Validify with any feedback regarding the Services, Validify may use all such feedback without restriction and/or any payment and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.
6.2. Customer IP. Customer may provide Validify with certain materials,documents, data, access to its system and other materials to be used by Validify in the provision of the Services, including, without limitation, data of Customer available through Customer's Salesforce account (“Customer Material”). Customer owns all rights, title and interest in the Customer Material. Customer hereby grants Validify and its successors and assignees a irrevocable, transferable, worldwide, royalty-free, fully paid-up and non-exclusive license under any of Customer's intellectual property, moral or privacy rights to use, display, and create derivative works of any Customer Material for the provision of the Services in accordance with the terms hereof.
"Confidential Information" means any business and technical information disclosed by one party ("Disclosing Party") to the other party ("Receiving Party") that is identified as confidential or proprietary, or which should reasonably be understood to be confidential or proprietary. Confidential Information does not include information which Receiving Party can show (a) is or has become publicly available without its breach of this Agreement; (b) was in its possession prior to disclosure, (c) was provided by a third party having a lawful right to make the disclosure; or (d) is required to be disclosed by law or a court order("Order"), provided the Receiving Party provides prompt written notice of the requirement and cooperates with Disclosing Party as reasonably necessary to limit or eliminate such requirement, if and to the extent permitted by such Order. Receiving Party will not use the Confidential Information of the Disclosing Party except for performance of its obligations under this Agreement. The terms and conditions of this Agreement, including without limitation any pricing terms hereof, shall be deemed the Confidential Information of Validify.
8.1. Customer Indemnification. Customer shall defend, indemnify and hold harmless Validify (and its officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys' legal fees) that Validify may suffer or incur in connection with any actual or threatened claim, demand, action or other proceeding by any third party arising from or relating to (a) any breach of this Agreement by Customer or anyone on its behalf; (b) Customer's use or misuse of the Services; or (c) any infringement of a third party's intellectual property or other rights.
8.2. Validify Indemnification. Validify shall defend, indemnify and hold harmless Customer (and its officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and reasonable attorneys' legal fees) that Customer may suffer or incur in connection with any actual or threatened claim, demand, action or other proceeding by any third party arising from or relating to a claim that the Services infringe any patent or copyright or misappropriate any trade secret, provided however, that Validify shall have no responsibility or liability for any claim to the extent resulting from or arising out of (a) the use of the Services not in compliance with this Agreement or applicable law;(b) the combination of the Services with any services not provided by Validify or any of its authorized partner/s; (c) the modification of any Services by any party other than Validify; or (d) the use of any version of the Services that is not the most up-to-date version.
8.3. Procedure.The party seeking indemnification hereunder will (i) provide the indemnifying party with prompt written notice of any claim for which indemnification is sought, (ii) reasonably cooperate with the indemnifying party, and (iii)provided that indemnifying party diligently defends the claim with reputable and recognized legal counsel, allow indemnifying party to control the defense of such claim. The indemnifying party may not settle or compromise any claim without the prior written consent of indemnitee. The party seeking indemnification may be represented in any such suit by counsel of its own choosing at its own expense.
9. DISCLAIMER OF WARRANTY.
THE SERVICES ARE PROVIDED ON AN"AS-IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND. VALIDIFY EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SERVICES OR CONTENT TEHREON INCLUDING WITHOUT LIMITATION THE WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF PROPRIETARY RIGHTS,COURSE OF DEALING OR COURSE OF PERFORMANCE. VALIDIFY DISCLAIMS ANY WARRANTIES,EXPRESS OR IMPLIED, (I) REGARDING THE SECURITY, ACCURACY, RELIABILITY,TIMELINESS AND PERFORMANCE OF THE SERVICES AND CONTENT THEREON; OR (II) THAT THE SERVICES WILL BE ERROR-FREE OR THAT ANY ERRORS WILL BE CORRECTED; OR (III)REGARDING THE PERFORMANCE OF OR ACCURACY, QUALITY, CURRENCY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PROVIDED BY THE SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE CUSTOMER MATERIAL IS HOSTED AND MAINTAINED IN ACCORDANCE WITH CUSTOMER'S SEPARATE AGREEMENT WITH SALESFORCE, AND THAT VALIDIFY IS NOT RESPONSIBLE FOR THE LOSS OF CUSTOMER MATERIAL. [
10. LIMITATION OF LIABILITY.
IN NO EVENT SHALL VALIDIFY OR ITS DIRECTORS,OFFICERS, EMPLOYEES, AGENTS OR CONSULTANTS HAVE ANY LIABILITY FOR ANY CONSEQUENTIAL, INDIRECT, DIRECT, SPECIAL OR PUNITIVE DAMAGES, ARISING OUT OF OR RELATING TO THE SERVICES OR THE ARRANGEMENTS CONTEMPLATED HEREIN, INCLUDING IN RESPECT OF LOST PROFITS, LOST BUSINESS OPPORTUNITIES, OR LOST DATA. VALIDIFY'S MAXIMUM CUMULATIVE LIABILITY UNDER THIS AGREEMENT AND/OR ANY CAUSE OF ACTION IS LIMITED TO THE FEES RECEIVED BY VALIDIFY FROM THE CUSTOMER IN RESPECT OF THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM OR CAUSE OF ACTION.
11. Term and Termination.
The term of this Agreement shall commence as of the Effective Date and shall continue for a period of one year thereafter ("Initial Term"). Following the Initial Term, this Agreement shall automatically renew for subsequent terms of one year each (each a "Renewal Term" and together with the Initial Term, the"Term") unless one of the parties provides the other with written notice of its desire not to renew this Agreement at least 30 days prior to the applicable Renewal Term. Notwithstanding the foregoing, (A) either party may terminate this Agreement: (i) if the other party breaches its obligations hereunder and does not cure such breach within five (5) days of the receipt of written notice thereof: ii) for convenience by providing at least 30 days prior written notice to the other party; (B) Validify may terminate this Agreement in the event the Agreement between Validify and Salesforce has been terminated or suspended for any reason, by providing Customer a written notice. Upon the termination or expiration of this Agreement, or upon termination by Customer,not due to breach by Validify (a) Validify shall cease the provision of all Services hereunder, and (b) Customer shall make prompt payment of all amounts due hereunder. Except in the event of termination due to Validify's breach,Customer shall not be entitled to any refund hereunder. Sections 4 - 12 hereto shall survive the termination or expiration of this Agreement for any reason. Except as otherwise set forth herein, no party shall have any liability for the termination of this Agreement in accordance with its terms.
This Agreement sets forth the entire agreement between the parties regarding the subject matter hereof and supersedes all other agreements or understandings between the parties regarding such matters. No amendments or waivers shall be effective unless in writing and executed by both parties. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable for any reason, such provision shall be interpreted to give maximum effect to its terms as possible under law, and the remaining provisions hereof shall be unaffected and continue in full force and effect. Nothing in this Agreement creates any agency, employment, joint venture, or partnership relationship between the parties. Neither party may assign or delegate, any of its right or obligations under this Agreement without the prior written consent of the other party, provided however that Validify may assign its rights and obligations hereunder to a purchaser of all or almost all of its assets. This Agreement will be subject to and governed by the laws of Delaware without regard to conflicts of laws provisions thereof, and the competent courts of Delaware, USA shall have exclusive jurisdiction to hear any disputes arising hereunder.
In Witness Whereof, the parties have caused this Agreement to be executed by their duly authorized officers as of the Effective Date.
Exhibit A - Service Levels and Support
1. Service Commitment.
Validify shall use commercially reasonable efforts to make the Services available 99% of the time with respect to the Services ("Service Commitment").
2. Support Services.
Validify will provide email support to Customer between 8am-5pm EST (Business Hours") on days on which the financial markets in the US are open ("Business Days"). Support requests and inquiries may be sent to email@example.com.
Validify will endeavor to provide support to Customers outside of the Business Hours specified above but makes no commitment in connection therewith.
3. Response and Correction.
Validify will respond to any support requests reported by Customer in writing within one Business Day during Business Hours.
The Service Commitment does not apply when access to or availability of the Services is denied and/or interrupted as a result of acts, omissions, occurrences or anything else including but not limited to: (i) any unavailability caused by circumstances beyond Validify’s reasonable control, including any force majeure event or failure or interruption of Validify’s, Salesforce's or Customer’s services providers and/or communication systems and/or internet service provider and/or electrical power and/or third party processors’ and/or systems network connectivity, acts of government, flood, fire, acts of terror,strikes or other labor problems (other than those involving Validify's employees); (ii) any unavailability caused by Salesforce, including any security evaluation or testing and/or any maintenance or upgrade conducted by Salesforce; or (iii)any planned downtime of which Validify gives 24 hours or more notice thereof to Customer, excluding any urgent circumstances (such as a security threat or imminent or actual system failure). The performance of any scheduled downtime shall be determined in Validify's sole discretion in coordination with Customer. Notwithstanding the foregoing, any downtime shall be schedule during the weekend. Validify shall provide Customer advance notice of any such scheduled downtime.