Acceptance of Agreement.
b. Modification. This Agreement may be modified by Vitil at its sole discretion from time to time, such modifications to be effective upon posting by Vitil on the Software or KnowledgeDesk website homepage (http://knowledgedesk.com) and your use of the Software after such posting will constitute acceptance by you of such changes. Please consult this Agreement regularly. This Agreement was last updated on November 14, 2017.
c. Access and Retention. A link to this Agreement will be found on the KnowledgeDesk website homepage. In order to access and retain this electronic Agreement, you must have access to the World Wide Web, either directly or through devices that access web-based content, and pay any service fees associated with such access. In addition, you must use all software and equipment necessary to make such connection to the World Wide Web, including a computer and modem or other access device. Please print a copy of this document for your records. To retain an electronic copy of this Agreement, you may save it into any word processing program.
Article I – GRANT OF LIMITED LICENSE
(A) Limited License to Use Software. Subject to the terms of this Agreement, Vitil hereby grants to Client, for the use and benefit of the Permitted Users (as defined below), a non-exclusive, non-transferable right to access and use the Software solely for Client’s internal business purposes during the term of this Agreement. Vitil reserves all rights not expressly granted to Client. This license sArticle Vhall expire upon termination of this Agreement.
(B) Limited Users. The license granted by this Agreement shall be for a limited number of named permitted users which shall be identified in the Software’s administrative module (each a “Permitted User”). Licensee fees are based on the number of Permitted Users.
(C) Username/Passwords. Immediately upon the execution of this Agreement, Vitil shall deliver the usernames and passwords and other user identification for Client to access and use the Software. Client shall not share the passwords with any third party and shall keep such passwords strictly confidential.
- Third Party Access.
(A) Third Party Use. During the term of this Agreement, Client may permit its customers (each a “Customer”) the ability to access and use certain Client-authorized content derived from the Software. Client may not permit any Customer to access the password restricted sections of the Software.
(B) Client Solely Responsible For Customer Use and Access. Any transaction between Client and its Customers shall be strictly between Client and the Customer. Client agrees to be responsible for all the acts and omissions of the Customers who are granted access under this section as if they were Client’s own acts or omissions, and Client agrees to indemnify Vitil against any damages it incurs resulting from such access.
Article II – VITIL PROPERTY1. Ownership. Vitil owns and retains all right, title and interest in and to the following: (i) the Software and other technology, documentation, and information provided by Vitil (excluding in all cases the Client Data); (ii) all ideas, know-how, and techniques that may be developed, conceived, or invented by Vitil during its performance under this Agreement; and (iii) all worldwide patent, copyright, trade secret, trademark and other intellectual property rights in and to the property described in clauses (i) and (ii) above (collectively, “Vitil Property”). Except as otherwise expressly authorized herein or by Vitil in writing, the non-exclusive use rights set forth in this Agreement are the entirety of Client’s rights in connection with the Vitil Property. This Agreement is not a sale of Vitil Property or any portion, copy or derivative work thereof. Accordingly, all rights in the Vitil Property are hereby expressly reserved. Vitil shall be entitled to use, license, sell, assign, transfer, and/or otherwise provide rights relating to the Vitil Property to any third party for any purpose free from any claim of Client.
1. Restrictions. Except as otherwise expressly authorized herein or by Vitil in writing, Client shall not directly or indirectly (and shall not permit any unauthorized party to) do any of the following: (i) access, use, sell, distribute, sublicense, sublease, broadcast, or commercially exploit any Vitil Property or any rights under this Agreement, including without limitation any access or use of any Vitil Property on a service bureau basis or for any Client processing services beyond the scope specified in this Agreement (such as for any unauthorized parties on a rental or sharing basis); (ii) copy, modify, or prepare derivative works based on Vitil Property; (iii) reverse engineer, decompile, disassemble, or attempt to derive source code from any Vitil Property; (iv) remove, obscure, or alter any intellectual property right or confidentiality notices, copyright notices or legends appearing in or on any aspect of any Vitil Property; or (v) cause any confusion with Vitil’s brand or identity.
Article III – CLIENT DATA
1. Ownership. As between Vitil and Client, Client shall own all right, title and interest in and to the Client Data including, without limitation, all patent rights, copyright rights, trademark rights, trade secret rights, confidentiality rights, or any other rights therein. “Client Data” means the data and information specifically pertaining to Client’s service or Customers that Client may provide during the term of the Agreement.
2. Right to Use. Subject to the terms of this Agreement, Client hereby grants Vitil a royalty-free, non-exclusive, non-transferable right and license to use, copy, store, and display the Client Data for the sole purpose of enabling Vitil to provide the Software under this Agreement. Client shall retain sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of all Client Data.
3. Collection of Client Data. Vitil agrees that it will not harvest or collect Client Data, nor use such Client Data except as reasonably necessary to provide the Software.
4. Export of Client Data; Retention. Client shall have the ability during the term of this Agreement to export an archive file of Client Data in a standard data format. Vitil will maintain the Client Data obtained by Vitil for up to the later of: (i) the termination of this Agreement; or (ii) such longer period as required by applicable law.
Article IV – FEES AND PAYMENT TERMS1. Fees. Client will pay to Vitil fees in advance for the Software, as set forth in the KnowledgeDesk website. All fees payable hereunder, including the initial fee and recurring annual fees, shall be non-refundable. Failure to pay any fees within ten (10) days after any payment is due may result in a discontinuation in Client’s ability to access and use the Software and/or increased annual fees. If Vitil exercises its right to increase annual fees due to Client’s failure to pay, Vitil shall notify Client of such increase in writing
2. Taxes. All fees and charges required to be paid by Client shall include all governmental taxes, assessments, fees, and duties in connection with the transactions contemplated by this Agreement (excluding taxes based on Vitil’s net income or its authority to do business within a given jurisdiction), unless Client provides Vitil in advance with an applicable and valid tax exemption certificate authorized by the applicable governmental authority. Such taxes specifically include without limitation sales, use, and other similar taxes, assessments, duties, and charges now in effect or enacted in the future that are applicable thereto (collectively, the “Taxes”). If Vitil receives any notice of deficiency with respect to any such Taxes, Vitil will promptly deliver notice thereof to Client so that Client may have a reasonable opportunity to contest such Taxes. Vitil shall be obligated to pay and remit all such Taxes to the appropriate taxing authorities and vendors and to submit to Client promptly upon request evidence of payment and remittance of the same.
3. Nonexclusive Remedies. If, at any time, Client is delinquent in the payment of any fees hereunder or is otherwise in breach of this Agreement, Vitil shall notify Client in writing of such breach and, in such case, Client will have ten (10) days from receipt of Vitil’s written notice to cure the breach. If Client fails to cure such breach within such 10-day period, then Vitil may suspend access/use of the Software in its reasonable discretion and without prejudice to its other rights until such time as the breach has been cured by Client or this Agreement has been terminated by either party. Late payments of undisputed invoices hereunder will accrue interest beginning as of the due date at the rate of one and one-half percent (1½%) per month or the highest rate permitted by applicable law, whichever is less, and shall be due immediately.
Article V – WARRANTIES AND LIMITATIONS
1. Mutual Warranties. Vitil and Client each hereby represents, warrants, and covenants to the other that: (i) it has the authority and right to enter into this Agreement, to grant the rights granted by it under this Agreement, and to perform its obligations under this Agreement and that neither party nor its employees or agents, if any, is under any pre-existing obligation or obligations inconsistent with the provisions of this Agreement; (ii) it has no knowledge of any claim of infringement of any patent, copyright, trademark, or misappropriation of any trade secret or other proprietary right of any third party as a result of the performance of this Agreement or any acts contemplated by this Agreement, and (iii) no consent or approval is required from any third party or governmental authority with respect to the entering into or the performance of this Agreement by such party.
2. WARRANTY DISCLAIMER. CLIENT ACCEPTS RESPONSIBILITY TO VERIFY THAT THE SOFTWARE WILL MEET CLIENT’S SPECIFIC REQUIREMENTS AND PERFORM AS WARRANTED. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, VITIL DISCLAIMS ALL WARRANTIES, GUARANTIES, CONDITIONS OR REPRESENTATIONS OF ANY KIND (EXPRESS OR IMPLIED, ORAL OR WRITTEN), INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, INTEGRATION, SECURITY, FITNESS FOR A PARTICULAR PURPOSE AND THOSE ALLEGED TO ARISE BY A CUSTOM OR USAGE IN A TRADE, OR BY COURSE OF DEALING. VITIL DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE. VITIL HAS NO WARRANTY OBLIGATION FOR THIRD PARTY SOFTWARE EVEN IF VITIL ASSISTED IN EVALUATING OR SELECTING IT. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED “AS IS,” WITH ALL FAULTS, AND WITHOUT WARRANTY OF ANY KIND. CLIENT EXPRESSLY AGREES AND ACKNOWLEDGES THAT USE OF THE SOFTWARE IS AT CLIENT’S SOLE RISK. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY VITIL OR VITIL’S AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE WARRANTIES CONTAINED IN THIS SECTION. VITIL ACCEPTS NO RESPONSIBILITY FOR THE INTEGRITY OR SECURITY OF CLIENT DATA. VITIL DOES NOT GUARANTEE THAT THE SOFTWARE WILL BE UNINTERRUPTED, ERROR FREE, OR COMPLETELY SECURE.
3. LIMITATIONS OF LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, REVENUE, BUSINESS INFORMATION OR DATA, WHETHER IN AN ACTION IN CONTRACT, TORT, PRODUCT LIABILITY, STATUTE OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. VITIL WILL NOT BE LIABLE FOR DIRECT DAMAGES CAUSED BY LATE DELIVERY, OR ANY OTHER CAUSE EXCEPT AS EXPRESSLY PROVIDED HEREIN. VITIL SETS ITS CHARGES AND STANDARD RATES BASED ON THE ALLOCATION OF RISKS SET OUT IN THIS AGREEMENT. THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, INDEMNITY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION, AND OTHER TORTS. NOTWITHSTANDING THE FOREGOING, VITIL SHALL NOT BE LIABLE FOR DEFECTS IN OR FAILURES OF THIRD PARTY PRODUCTS, INCLUDING, BUT NOT LIMITED TO, EQUIPMENT, HARDWARE AND/OR SOFTWARE, OR FOR DEFAULTS BY, OR DEFECTS IN SERVICES RENDERED BY, THIRD PARTIES. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL OF THEIR ESSENTIAL PURPOSE.
4. Maximum LiabilitY. VITIL’s TOTAL liability to CLIENT with respect to any SERVICE, SOFTWARE, PRODUCTS or DELIVERABLES will not exceed the total amount of the CHARGES PAID by CLIENT FOR A PERIOD OF THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY, even if any term of this Agreement fails of its essential purpose.
5. Limitations Period. Neither party may bring any claim or action arising out of or related to this Agreement, including any claim of fraud or misrepresentation, more than one year after the claim accrues. CLIENT AGREES THAT ANY CLAIM NOT PRESENTED WITHIN ONE (1) YEAR OF THE ACCRUAL OF THE CLAIM BY CLIENT SHALL BE DEEMED TO BE WAIVED.
6. No Professional Responsibility. Client understands and agrees that the Software and related operations procedures constitute an information system only and are not a substitute for competent advisors or professional responsibility. Client assumes sole responsibility and liability for the accuracy and interpretation of all output and for the results generated by the Software and operations procedures.
7. Force Majeure. Neither party is liable for failing to fulfill its obligations due to acts of God, civil or military authority, war, riots, strikes, fire, epidemic, cyber-attacks, cyber-hacks, cyber-crimes, or cyber-disruptions or other causes beyond its reasonable control, except for Client’s obligation to make payments. However, Client’s payments may be delayed up to thirty (30) days for reasons described in this Section.
8. Indemnification. Client agrees to indemnify and hold Vitil, its officers, shareholders, affiliates, subsidiaries, licensors, employees, agents, representatives and independent contractors, harmless from any loss, liability, damages, claims, actions, or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of the Software in violation of this Agreement and/or arising from any use of the Software
Article VI – SECURITY
1. AWS. Client acknowledges that Vitil does not maintain Client Data, and that such data is hosted on Amazon Web Services (AWS), a third party provider. Please see AWS’s terms and conditions related to such services. Client acknowledges that no security measures are foolproof and that Vitil makes no warranties or guarantees regarding the security of Client Data or use or access to the Software.
Article VII – TERM AND TERMINATION
1. Term. The term of this Agreement will commence on the date of this Agreement and will continue thereafter for the time period in which the fees are pre-paid, unless terminated sooner under the terms of this Agreement.
2. Termination for Breach. If either party materially breaches this Agreement, the other party may give written notice of its desire to terminate and the specific grounds for termination and, if such default is capable of cure and the party in default fails to cure the default within fifteen (15) days of the notice, the other party may terminate this Agreement immediately upon written notice of its desire to terminate.
3. Termination for Convenience. Either party may terminate this Agreement without cause by delivering a written notice of termination to Vitil at least thirty (30) days before the desired effective date of such termination. No fees shall be refunded to Client if this Agreement is terminated pursuant to this section.
4. Reservation of Remedies. Termination of this Agreement, or any portion of it, shall not limit either party from pursuing other remedies available to it, including injunctive relief. Such termination shall not relieve Client of its obligation to pay all fees that have accrued or are otherwise owed by Client. In the event that Client fails to pay any fees due hereunder, Client shall be in default under this Agreement and Vitil may immediately restrict access to the Software.
5. Effect. Upon termination, the License to use the Software shall be immediately revoked.
Article VIII – MISCELLANEOUS
1. Relationship of Parties; Subcontractors. Vitil and Client are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Vitil and Client. Neither Vitil nor Client will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent, except as otherwise expressly provided in this Agreement. Notwithstanding anything to the contrary, Vitil may in its reasonable discretion delegate all or part of its obligations hereunder to the Vitil-approved subcontractors, provided that Vitil’s subcontractors shall perform to the same standards imposed upon Vitil hereunder and Vitil shall be liable for the conduct of its subcontractors to the same extent as Vitil’s own liability under this Agreement. Each party shall remain responsible, and shall indemnify and hold harmless the other party, for the withholding and payment of all Federal, state and local personal income, wage, earnings, occupation, social security, worker’s compensation, unemployment, sickness and disability insurance taxes, payroll levies or employee benefit requirements now existing or hereafter enacted and attributable to themselves and their respective people.
2. U.S. Government Restricted Rights. The Software is provided with restricted rights. Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Contractor/manufacturer is Vitil.
3. Assignment. This Agreement may not be assigned or transferred by Client without the prior written consent of Vitil, which permission shall not be unreasonably withheld. Vitil may assign this Agreement without the prior written consent of Client.
4. Waiver and Severability. Failure to enforce any term or condition of this Agreement shall not be deemed a waiver of the right to later enforce such term or condition or any other term or condition of this Agreement. If any provision of this Agreement is found to be void or unenforceable, that provision will be enforced to the maximum extent possible, and the remaining provisions of this Agreement will remain in full force and effect.
6. Governing Law. This Agreement shall be governed by, subject to, and interpreted in accordance with the laws of the state of Florida, without regard to conflict of laws principles.
7. Dispute Resolution. All controversies or claims arising out of or relating to this Agreement shall be resolved in accordance with the provisions of this Section. First, the disputing party shall give the other party written notice (the “Notice”) of the controversy or claim in accordance with the notice provision of this Agreement. The parties will attempt in good faith to resolve each controversy or claim within thirty (30) days from the delivery of the Notice by negotiations between senior executives of the parties who have settlement authority and who do not have direct responsibility for the administration of this Agreement. If the controversy or claim has not been resolved within thirty (30) days of delivery of the disputing party’s Notice, then either party may submit the dispute or controversy to binding arbitration, for resolution substantially in accordance with the commercial arbitration rules of the American Arbitration Association (“AAA”). All arbitration proceedings held pursuant to this Agreement shall be held in Sarasota, Florida. The discovery provision of the Florida State Rules of Civil Procedure in effect at the time of arbitration shall be deemed incorporated herein for the purpose of such arbitration proceedings. A panel of three arbitrators, one selected by the Client, another one selected by Vitil, and the third one selected by joint consent of the first two arbitrators, will conduct the arbitration. The arbitrators must be knowledgeable in business information and electronic data processing systems. The arbitrators’ decision and award will be final and binding, and either party may enforce it in any court with jurisdiction. The arbitrators will not have authority to award punitive or other non-compensatory damages to either party. The arbitrators’ award shall be in writing. The parties shall share the procedural costs of arbitration equally. Each party shall pay its own attorney’s fees and other costs incurred by it in connection with the arbitration. Nothing in this Section shall be deemed to prohibit or restrict either party from: (i) seeking injunctive relief, or (ii) seeking such other rights and remedies as it may have at law or equity for any actual or threatened breach of any provision of this Agreement relating to a party’s Confidential Information or proprietary rights.
8. Court Proceedings. Except as otherwise expressly provided in Article VII Section 7, neither party may bring a case in court. If either party disregards this restriction, files a court case and fails to dismiss it promptly upon being notified by the other of this provision, the filing party will pay the other party’s costs and expenses, including attorney’s fees, incurred after the notice in defending the court case. Vitil retains the right to obtain an injunction in court to prevent Client’s misuse of Vitil’s intellectual property. Venue for bringing an action to obtain an injunction shall be the U.S. District Court for Middle District of Florida (Tampa), unless the proceeding involves a matter in which the Federal Court does not have jurisdiction, in which case the venue shall be in Sarasota County, Florida.
Please contact us with any questions regarding this Agreement.