Last Revised: January 2, 2018
GENERAL TERMS AND CONDITIONS
The following Award Program Terms and Conditions (Section I) and Subscription Terms and Condition (Section II) apply to all users of the applicable ValChoice products. The following General Terms and Conditions (Section III) apply to all users of ValChoice products.
As used herein, “Licensee” refers to (i) insurance carriers or other third parties licensing Marks and subscribing to the ValChoice Software and Services and (ii) insurance agents and other third parties subscribing to the ValChoice Software and Services, which parties may also be entitled to use the Marks under certain conditions set forth herein.
I. AWARD PROGRAM TERMS AND CONDITIONS
ValChoice administers the ValChoice insurance award program (the “Program”). ValChoice is the owner of award marks signifying participation in the Program (the “Mark(s)”). Licensee agrees that ValChoice may revise the Program, the criteria for awards in the Program, and the policies and procedures governing participation in the Program from time to time, as ValChoice in its sole discretion deems appropriate.
1. License Grant.
- Subject to the terms and conditions of this Agreement, ValChoice hereby grants to Licensee and Licensee hereby accepts, a limited, non-exclusive, non-assignable right and license to use the Mark(s) specified in the applicable invoice during the Term in connection with marketing, advertising, promotion, sale and distribution of the Licensee’s insurance products (the “Products”) in the territory specified in the applicable invoice (the “Territory”). Licensee’s right to use the Mark(s) immediately ceases upon termination or cancellation of this Agreement.
- Licensee agrees that it will:
- Make its best effort to display the Mark(s) on all advertising material for the Products. Further, all online advertising showing the marks will include a link from Licensee’s website to ValChoice’s website, which describes the Mark(s) and how they were earned. During the Term, Licensee will ensure that its website contains a link to ValChoice’s website.
- Ensure that the Mark(s) are not displayed in conjunction with any products or services other than the Products.
- Make its best effort to display the Mark(s) on all advertising material for the Products. Further, all online advertising showing the marks will include a link from Licensee’s website to ValChoice’s website, which describes the Mark(s) and how they were earned. During the Term, Licensee will ensure that its website contains a link to ValChoice’s website.
- Licensee agrees that its use of the Mark(s) will comply with the brand usage and marketing guidelines distributed by ValChoice from time to time, which may be amended by ValChoice in its sole discretion.
- Licensee will not modify, alter, dilute or misuse the Mark(s) or reduce the value of the Mark(s) or detract from their reputation. The Mark(s) may not be used in any manner that, in the sole discretion of ValChoice, discredits ValChoice or tarnishes its reputation and goodwill, is false or misleading, violates the rights of others, violates any law, regulation, or other public policy, or mischaracterizes the relationship between ValChoice and Licensee.
- Licensee will include on all materials with which the Mark(s) are used, such legends, markings, and notices as are necessary to give appropriate notice of the ownership and/or registered nature of the Mark(s) as instructed by ValChoice, including but not limited to, using a registration symbol with ValChoice’s trademarks in all headers and in the first usage of the trademark within the body of text, and designated as such by using ® adjacent to the trademark, preferably at the upper or lower right hand corner.
- At all times during the Term, Licensee will maintain at least one subscription to the Service (as defined in the Subscription Terms and Conditions in Section II) for each state in which Mark(s) are used. If any agent of Licensee wishes to use the Mark(s) in accordance with the terms and conditions of this Agreement, for every such agent, Licensee or such agent must maintain one (1) additional active subscription for the Service for each physical office of such agent and for each state in which such agent uses the Mark(s). Licensee represents and warrants that the number of agent offices set forth on the applicable invoice is true and correct as of the Effective Date. Licensee shall promptly notify ValChoice of any additional agent offices. Except as specifically set forth herein, Licensee shall not be permitted to sublicense the Mark(s) in any manner whatsoever.
- Upon ValChoice’s request, Licensee will promptly submit a specimen of all materials in connection with which the Mark(s) are used for inspection by ValChoice to ensure compliance with this Agreement. If ValChoice determines that Licensee is using the Mark(s) in any manner not authorized by this Agreement, ValChoice will notify Licensee of such unauthorized use and Licensee will immediately cease using the Mark(s) in such unauthorized manner. Licensee’s failure to comply with this provision will be grounds for ValChoice to immediately terminate this Agreement.
2. Ownership of Mark(s).
Licensee acknowledges that all right, title and interest in and to the Mark(s) is and will remain with the ValChoice. Licensee will do nothing inconsistent with such ownership and all use of the Mark(s) will inure to the benefit of ValChoice. Licensee agrees that nothing in this Agreement will give Licensee any right, title or interest in the Mark(s) other than the right to use the Mark(s) in accordance with this Agreement. Licensee agrees that it will make no claim to or against ValChoice’s title to the Mark(s) or challenge the validity of this Agreement. At ValChoice’s request, Licensee will execute any documents reasonably required by ValChoice to confirm ValChoice’s ownership of all rights in and to the Mark(s). Licensee agrees not to use or make application for registering any mark that is confusingly similar to or that would dilute the Mark(s).
EXCEPT AS STATED IN THIS SECTION 2, VALCHOICE DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE MARK(S), INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT, COMPLETENESS, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. VALCHOICE SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE MARK(S) WILL MEET LICENSEE’S REQUIREMENTS.
In consideration of the rights and licenses granted to Licensee by ValChoice in this Agreement, Licensee shall pay the license fees set forth in the applicable invoice (the “License Fees”) to ValChoice.
If Licensee learns of any infringement or imitations of the Mark(s), or of any use by any person or entity of a mark similar to the Mark(s), it will immediately notify ValChoice of the same. ValChoice may take such action as it deems advisable for the protection of its rights in and to the Mark(s). If requested to do so by ValChoice, Licensee will cooperate with ValChoice in all respects, at ValChoice’s sole expense, including without limitation by being a plaintiff or co-plaintiff in any proceeding and by causing its officers to execute pleadings and other necessary documents. In no event, however, will ValChoice be required to take any action if it deems it inadvisable to do so, and Licensee will have no right to take any action with respect to the Mark(s) without ValChoice’s prior written approval.
II. SUBSCRIPTION TERMS AND CONDITIONS
- “Aggregate Data” means any information or data accessed, compiled, collected, stored or used by ValChoice in connection with the Services, which does not contain or include personally identifiable information.
- “ValChoice Software” means any software used or made available by ValChoice to provide the Service. It excludes any software provided by a third party.
- “Authorized User” means any employee or individual contractor of Licensee, whom Licensee has authorized to use the Service and who is bound in writing (i) to protect the confidential information and property of ValChoice and (ii) to comply with all restrictions of this Agreement.
- “Licensee Data” any data, information or material submitted to ValChoice by Licensee.
- “Effective Date” means the effective date specified in the applicable invoice.
- “Initial Term” means the initial term of this Agreement as set forth in the applicable invoice.
- “Output” means the results generated through use of the Service.
- “Service” means an online service offered by ValChoice, as such service may be modified by ValChoice from time to time.
- “Subscription Fees” means the fees set forth on the applicable invoice or for each report on a “per report” basis, as applicable.
- “Term” means the period that this Agreement is in effect subject to the parties’ rights to terminate.
- “Third Party Data” any data, information or material submitted to ValChoice via the Service by any third party.
- “Web Site” means ValChoice’s web site(s) through which the Service is made available to Licensee.
- Access to and Use of the Service. Subject to the terms of this Agreement, and provided Licensee is not in default hereunder, ValChoice hereby grants to Licensee the non-exclusive, non-transferable right to use and access the Service for the period indicated in the applicable invoice or on a “per report” basis, as applicable, in accordance with this Agreement and solely for the internal purposes of Licensee and not for transfer, distribution, or disclosure to third parties (except as set forth herein) or use for the commercial benefit of third parties. If Licensee subscribing hereunder is an insurance agent, such Licensee shall have the right to use the Mark(s) licensed by any insurance carrier represented by such Licensee in accordance with the same terms and conditions applicable to such insurance carrier’s use of such Mark(s). In connection with the ValChoice Software and Service, Licensee, its affiliates or agents may have the opportunity to participate in live-chat sessions and receive requests for a callback with consumers on a real-time basis. ValChoice shall have no liability whatsoever if any such party is not available when contacted by ValChoice or any such consumer in connection with any such live-chat sessions or callbacks. ValChoice shall also have the option to log out any unavailable Licensee, affiliate or agent, as applicable. Further, in connection with the ValChoice Software and Service, Licensee, its affiliates or agents may have the opportunity to display relevant information in certain directories and/or web pages. Such Licensee, its affiliates or agents shall be responsible for maintaining and updating such information (or notifying ValChoice of any such changes) and ValChoice shall have no liability for any such party’s failure to do so.
- Authorized Users. Licensee shall issue each Authorized User, if any, a unique user identification code (“User ID”) to enable such Authorized User to access and use the Service as permitted hereunder. Licensee shall revoke the User ID of any Authorized User who ceases his or her employment or contractual engagement with Licensee. User IDs shall not be shared or rotated among Authorized Users or issued on a concurrent-usage basis. Licensee must ensure that only Authorized Users have access to and use the Service. If the Licensee is notified or becomes aware that an unauthorized third-party has gained access to or used the Service, Licensee shall promptly notify ValChoice. Notwithstanding the foregoing, each physical office of an agent maintaining an active subscription may allow more than one (1) individual to use the same User ID. Any explicit or implicit waiver of enforcement of this provision by ValChoice on one or more occasions shall not operate as an ongoing waiver or a waiver on any future occasion.
- Restrictions. Licensee shall not (a) use the Service in any manner which is not expressly authorized by this Agreement or which violates any applicable law; (b) copy or reproduce any Output or the ValChoice Software, in whole or in part (except as provided herein); (c) modify, translate or create derivative works of any ValChoice Software; (d) reverse engineer, decompile, disassemble or otherwise reduce any ValChoice Software to source code form; (e) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, or otherwise transfer the Outputs, the Service or Licensee’s right to access and use ValChoice Software; or (f) remove or modify any copyright, trademark or other proprietary notice of ValChoice or its licensors on any Output or contained within ValChoice Software. To the extent the Service is used to generate a report or reports for a Licensee engaged in the business of selling insurance, only one (1) copy of any such report may be distributed to a customer. No additional copies of any such report may be distributed for any reason whatsoever and any such distribution may result, in ValChoice’s discretion, in the immediate termination of this Agreement. To the extent the Service is used to generate a report or reports for a Licensee not engaged in the business of selling insurance, such Licensee shall not be permitted to distribute copies for any reason whatsoever. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED TO VALCHOICE.
3. Ownership; Intellectual Property Rights.
- Ownership of Intellectual Property. Licensee acknowledges and agrees that this Agreement conveys a limited right to use the Service and the ValChoice Software and does not convey title or ownership of the Service or the ValChoice Software, to Licensee. The Service and ValChoice Software and related source code, and any and all materials relating thereto, including all associated intellectual property rights, shall remain at all times the sole, exclusive property of ValChoice and its licensors. Licensee agrees and acknowledges that the ValChoice Software contains the valuable trade secrets and proprietary information of ValChoice.
- Suggestions. Licensee grants to ValChoice a royalty-free, worldwide, transferrable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services or ValChoice Software any suggestions, enhancements requests, recommendations, or other feedback provide by Licensee or any Authorized User relating to the Services or ValChoice Software.
- Aggregate Data. As between Licensee and ValChoice, ValChoice owns all rights, title and interest in and to Aggregate Data. Accordingly, ValChoice may, during the Term and thereafter, use display, transmit, modify and prepare derivative works of Aggregate Data in any media for any lawful purpose, including maintaining and improving the Service and ValChoice Software.
- Security. Licensee shall take all reasonable steps to ensure that no unauthorized persons have access to any Outputs, the Service or ValChoice Software, and to ensure that no Authorized Users shall take any action which would be in violation of this Agreement. Such steps shall include, but shall not be limited to, imposing password restrictions on use of the Service, securing the Licensee’s system, and administering and monitoring use of the Service.
- Reporting. Licensee shall promptly report to ValChoice any actual or suspected violation of Sections 2 and/or 3 hereof and shall take such further steps as may reasonably be requested by ValChoice to prevent or remedy any such violation.
- Relief. Because unauthorized use of the Service is likely to diminish substantially the value of such Service and irreparably harm ValChoice and will not be susceptible to cure by the payment of monetary damages, if Licensee breaches the provisions of Sections 2 or 3 of this Agreement, ValChoice shall be entitled to injunctive and/or other equitable relief, in addition to other remedies afforded by law, to prevent or restrain a breach of Sections 2 or 3 of this Agreement.
- Fees. In consideration for access to and use of the Service, Licensee shall pay the Subscription Fees as set forth on the applicable invoice to ValChoice.
5. User Data.
- Licensee Data Warranty. If applicable, Licensee represents and warrants that (a) it has the authority and right to transmit Licensee Data to ValChoice and to grant the license under Section 5.b.; and (b) the use of Licensee Data will not infringe the intellectual property rights or other proprietary rights of any third party. Licensee covenants that it will only supply ValChoice with data that Licensee has the right to supply.
- License to ValChoice. As between Licensee and ValChoice, Licensee owns all rights, title and interest in and to Licensee Data. Licensee grants ValChoice a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to use display, transmit, modify and prepare derivative works of the Licensee Data for its internal business purposes, including maintaining and improving the Service and ValChoice Software.
- Use of Third Party Data at Licensee’s Risk
ValChoice shall have no responsibility for the accuracy, quality, integrity, legality, reliability, or appropriateness of Third Party Data, and ValChoice shall not be responsible or liable for the deletion, correction, destruction, damage, or loss of any Third Party Data. Licensee acknowledges that use of any Third Party Data generated, obtained or acquired through the use of the Services is at Licensee’s sole risk and discretion. ValChoice and its licensors are not liable or responsible for any results generated using Third Party Data.
6. Limited Warranty; Disclaimer of Warranty.
- Limited Warranty. ValChoice shall use commercially reasonable efforts to make the Service available for use by Authorized Users during the Term but makes no guaranty of continuous availability or uninterrupted use of the Service.
- Limitation. The limited warranty set forth in this Section 6 shall not be applicable in the event that any outage or Service failure arises from (a) any modification to the Service not made by or at the direction of ValChoice, (b) use of the Service in a manner not described in this Agreement, (c) use of the Service in any unlawful, improper or inappropriate manner or for any unlawful, improper or inappropriate purpose, (d) as a result of the negligence or intentional misconduct of Licensee, (e) any data, equipment, software, service or resource not provided by ValChoice, or (f) any portion of the Service which ValChoice designed in accordance with specifications provided by Licensee.
- Security. Licensee is responsible for implementing adequate firewall, password and other security measures to protect Licensee’s systems, data and applications from unwanted intrusion, whether over the Internet or by other means.
- Dependencies. Licensee acknowledges and agrees that (a) the Service requires access to and use of the Internet and that the Internet is an unregulated, public network over which ValChoice exerts no control and (b) ValChoice has no responsibility for operating and maintaining Licensee’s servers and their connection to the Internet to access and use the Service.
- DISCLAIMER OF WARRANTIES. EXCEPT AS STATED IN THIS SECTION 6, VALCHOICE AND ITS LICENSORS DISCLAIM ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE AND VALCHOICE SOFTWARE, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT, COMPLETENESS, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. VALCHOICE AND ITS LICENSORS SPECIFICALLY DISCLAIM ANY WARRANTY THAT THE SERVICE OR VALCHOICE SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS OR WILL OPERATE IN COMBINATIONS OR IN A MANNER SELECTED FOR USE BY LICENSEE, OR THAT THE SERVICE OR THE OPERATION OF THE VALCHOICE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
III. GENERAL TERMS AND CONDITIONS
1. Limitation of Liability.
- LIMITATION OF LIABILITY. VALCHOICE’S AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE LICENSE FEES AND SUBSCRIPTION FEES ACTUALLY RECEIVED BY VALCHOICE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
- EXCLUSION OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL VALCHOICE BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY LICENSEE. IN NO EVENT SHALL EITHER VALCHOICE OR ITS LICENSORS BE LIABLE TO LICENSEE FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, LOSS OF USE OF EQUIPMENT OR LOST CONTRACTS OR FOR ANY SPECIAL INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE MARK(S) OR THE SERVICE, THE USE OR PERFORMANCE OF THE VALCHOICE SOFTWARE OR OUTPUTS OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, EVEN IF VALCHOICE OR SUCH LICENSOR HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
- Acknowledgment. Licensee acknowledges and agrees that the License Fees and Subscription Fees have been set based on the application of the limitations described in this Section.
- ValChoice Obligation to Indemnify. Subject to Section 1 immediately above, ValChoice shall defend Licensee, at ValChoice’s expense, in any third-party suit, claim, or proceeding arising from a claim that Licensee’s use of the Mark(s) or the ValChoice Software as authorized under this Agreement infringes or violates any currently issued United States patent, copyright, trademark or trade secret of any third party, and ValChoice will indemnify Licensee for all damages, settlements, costs and expenses (including reasonable attorneys’ fees) awarded against Licensee; provided, however, that Licensee (i) promptly notifies ValChoice in writing of such suit, claim or proceeding, (ii) gives ValChoice reasonable information, assistance and cooperation required to defend such suit, claim or proceeding, and (iii) allows ValChoice (or its designee) to control the defense of any such action and all negotiations for its settlement or compromise. Licensee may be represented in the defense of any such claim, at Licensee’s expense, by counsel of Licensee’s selection. ValChoice shall have no liability for settlements made or costs incurred without its consent.
- Licensee Obligation to Indemnify. Licensee shall defend ValChoice, at Licensee’s expense, in any third-party suit, claim, or proceeding arising from Licensee’s use of the Mark(s) or the ValChoice Software or Services, and Licensee will indemnify ValChoice for all damages, settlements, costs and expenses (including reasonable attorneys’ fees) awarded against ValChoice. ValChoice shall (i) promptly notify Licensee in writing of such suit, claim or proceeding, (ii) give Licensee reasonable information, assistance and cooperation required to defend such suit, claim or proceeding, and (iii) allow Licensee (or its designee) to control the defense of any such action and all negotiations for its settlement or compromise. ValChoice may be represented in the defense of any such claim, at ValChoice’s expense, by counsel of ValChoice’s selection.
- Injunctive Relief. In the event that an injunctive restraint is obtained against Licensee’s use of the Mark(s) or the ValChoice Software by reason of infringement or violation of any patent, copyright, trademark or trade secret, or if, in ValChoice’s opinion, the Mark(s) or the Service is likely to become the subject of such an injunction, ValChoice shall have the right, at its option, to do one of the following: (i) procure for Licensee the right to continue to use the Mark(s) or the ValChoice Software provided in this Agreement, (ii) replace or modify the Mark(s) or the ValChoice Software so that it becomes non‑infringing (so long as the functionality of the Service is not materially impaired), or (iii) if neither of the preceding clauses (i) and (ii) is reasonably practicable, terminate this Agreement and refund to Licensee a pro-rated portion of the License Fees and Subscription Fees.
- Exclusions. The provisions of Section 2.a. notwithstanding, ValChoice shall not have any liability to Licensee, and Licensee shall indemnify ValChoice, to the extent that any claim is based upon (i) use of the Mark(s) or the ValChoice Software in conjunction with any data (including Third Party Data), equipment, service, software or resource not provided by ValChoice, where the Mark(s) or the the ValChoice Software alone would not be infringing or otherwise be the subject of the claim, (ii) any modification to the Mark(s) or the ValChoice Software not made by or at the direction of ValChoice, (iii) use of the Mark(s) or the ValChoice Software in any unlawful manner or in any manner not authorized under this Agreement, or (iv) any claim of infringement or violation of any patent, copyright, trademark or trade secret in which Licensee has a pecuniary or other material interest, or (v) any portion of the ValChoice Software which ValChoice designed in accordance with specifications provided by Licensee.
- Exclusive Remedy. The indemnification remedies set forth in this Section 2 shall constitute the exclusive remedies of Licensee and the sole liability of ValChoice with respect to claims of intellectual property infringement or violation.
3. Term and Termination.
- Term. Unless earlier terminated pursuant to Section 3.b., this Agreement shall remain in effect from the Effective Date (as set forth in the applicable invoice) and continue in full force and effect for the period(s) specified in the applicable invoice. Thereafter, this Agreement may be renewed on terms and conditions mutually agreed upon by the parties in writing (any such renewal term, together with the Initial Term, is referred to herein as the “Term”). Either party may terminate this Agreement if the other party commits a material breach of this Agreement, which is not cured within thirty (30) days after written notice thereof is given by the non-defaulting party. If the Service is used on a “per report” basis, the Term shall be deemed to be the period of time during which the parties have ongoing obligations to each other, and shall be deemed to terminate upon delivery of the applicable Output by ValChoice and payment by Licensee.
- Effect of Termination. Upon any termination of this Agreement: (a) Licensee shall, and shall cause all Authorized Users to, immediately cease using the Mark(s) and the Service; (b) ValChoice may immediately deactivate Licensee’s account; (c) following (90) days after the termination date, ValChoice may destroy Licensee’s account and all related data, (d) all rights granted to Licensee hereunder, including without limitation all right, title and interest in and to the Mark(s) and all materials depicting or relating to, or derivative of, the Mark(s), will without further action or instrument be assigned to and revert to ValChoice.
- Survival. The parties’ rights and obligations under Sections 2 and 3 of the Award Program Terms and Conditions, Sections 3, 4 and 5.b. of the Subscription Terms and Conditions and Sections 1, 2, 3.b., 4 and 5 of the General Terms and Conditions, as well as any obligations to make payments of fees and other amounts accrued prior to termination, shall survive any termination of this Agreement.
4. Confidential Information
- Confidential Information. Except as expressly provided herein, the parties agree that the receiving party shall not publish or otherwise disclose and shall not use for any purpose any non-public information about the disclosing party’s business or activities that is proprietary and confidential that is furnished to it by the disclosing party pursuant to this Agreement which (i) if disclosed in tangible form is marked “Confidential” or with other similar designation to indicate its confidential or proprietary nature, or (ii) if disclosed orally is indicated orally to be confidential or proprietary by the disclosing party disclosing such information at the time of such disclosure, or (iii) is confirmed in writing as confidential or proprietary by the disclosing party within a reasonable time after such disclosure, or (iv) by its nature or the circumstances surrounding its disclosure should reasonably be regarded as confidential (collectively, “Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information that, in each case as demonstrated by written documentation: (i) was properly in receiving party’s possession or properly known by it, without restriction, prior to receipt from the disclosing party; (ii) was rightfully disclosed to receiving party by a third party without restriction; (iii) is, or becomes generally available to the public or otherwise part of the public domain, other than through any act or omission of the receiving party (or any subsidiary, agent or employee of the receiving party) in breach of this Agreement; (iv) was independently developed by the receiving party without reference to or use of any Confidential Information disclosed by the disclosing party; or (v) is approved in writing by the disclosing party for release.
- Permitted Disclosures. Notwithstanding the provisions of Section 4.a., each party may disclose the disclosing party’s Confidential Information solely to the extent such disclosure is reasonably necessary for: (i) exercising the rights granted to it and fulfilling its obligations under this Agreement; (ii) prosecuting or defending litigation; (iii) complying with applicable governmental regulations; (iv) submitting information to tax or other governmental authorities. If a party is required to make any disclosure of the disclosing party’s Confidential Information in accordance with subsections (i) through (iv) above, to the extent it may legally do so, it will give reasonable advance written notice to the disclosing party of such disclosure, and will use its reasonable efforts to secure confidential treatment of such information prior to its disclosure (whether through protective orders or otherwise). In addition, ValChoice may disclose Licensee’s Confidential Information in connection with maintaining, servicing, debugging, operating and upgrading the Service and ValChoice Software.
- Return of Confidential Information. Upon termination of this Agreement for any reason or upon request of the disclosing party at any time, the receiving party will (i) promptly return to disclosing party the original and all copies of all Confidential Information or, in lieu thereof, certify that all such Confidential Information has been destroyed; and (ii) destroy all notes and copies thereof made by receiving party containing any Confidential Information, provided that neither party shall be obligated to return or destroy Confidential Information to the extent necessary to fulfill its obligations and to enforce its rights under the Agreement or to the extent otherwise required by law, regulation, legal, regulatory or judicial process, rule or practice governing professionals or any internal compliance policy or procedure relating to the safeguarding or backup storage of data; provided that any such Confidential Information so not returned or destroyed shall remain subject to the confidentiality and use covenants contained herein, without regard to term.
- Remedies for Breach of Confidentiality Obligation. The parties agree that any breach or threatened breach of this Section 4 by the receiving party would cause not only financial harm, but irreparable harm to the disclosing party; and that money damages will not provide an adequate remedy for such harm. In the event of a breach or threatened breach of this Section 4 of this Agreement by receiving party, the disclosing party shall, in addition to any other rights and remedies it may have, be entitled to an injunction (without the necessity of posting any bond or surety) restraining the receiving party from disclosing or using, in whole or in part, any Confidential Information.
5. General Provisions
- Invoices. All invoices shall be due and payable in full within thirty (30) days from the invoice date. ValChoice may charge a late fee on all past due amounts at the rate of 1.5% per month or, if lower, the maximum rate permitted by applicable law. Licensee shall pay all of ValChoice’s costs and expenses (including reasonable attorneys’ and auditors’ fees) if legal action is required to collect outstanding balances or to enforce any of ValChoice’s other rights hereunder or at law. All billing discrepancies and disputes must be provided in writing within ninety (90) days of the date of any invoice. After the expiration of such period, all charges assessed shall be deemed accurate and accepted by Licensee.
- Payment Terms; Taxes. All amounts due hereunder are payable in U.S. Dollars. All License and Subscription Fees are exclusive of any applicable taxes, including without limitation, sales, use, value-added, and withholding taxes, and Licensee shall pay all such taxes when due (other than taxes on ValChoice’s net income).
- Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New Hampshire without giving effect to its choice of law rules, and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods. This Agreement shall be deemed to have been executed and delivered by both parties in the State of New Hampshire. The courts of the State of New Hampshire shall have non-exclusive jurisdiction over any proceeding to enforce the rights of any party under this Agreement, and each party waives all rights to object to the jurisdiction of such courts because of inconvenience of forum.
- Assignment. Neither this Agreement nor the rights granted hereunder shall be assigned or transferred by Licensee without the prior written consent of ValChoice, such consent not to be unreasonably withheld, and any attempted transfer without such consent shall be void and have no force or effect. ValChoice may assign this Agreement, in whole or in part, upon written notice to Licensee. For purposes of this Section, a merger, acquisition or change of control of Licensee shall be deemed to be an assignment. This Agreement shall inure to the benefit of the parties and their permitted successors and assigns.
- Third Party Beneficiary. Licensee understands that portions of the ValChoice Software and related documentation may have been licensed to ValChoice by third parties and that such third parties are intended third-party beneficiaries of ValChoice’s rights under this Agreement. Notwithstanding the foregoing, no such third party licensor shall be considered a party hereto or have any obligations hereunder.
- Amendments; Waivers. This Agreement may be amended or modified only by a writing signed by both parties. Any waiver by a party of any breach of any provision of this Agreement by the other party must be in writing to be effective and shall not constitute a waiver of any subsequent breach of the same or any other provision.
- Notices. Any notice by a party under this Agreement shall be in writing and either personally delivered, delivered by facsimile or sent via reputable overnight courier (such as Federal Express) or certified mail, postage prepaid and return receipt requested, addressed to the other party at the address specified in the applicable invoice or such other address of which either party may from time to time notify the other in accordance with this Section. All notices shall be in English and shall be deemed effective on the date of personal delivery, upon confirmation of a facsimile transmission, one day after deposit with an overnight courier, or five days after deposit in the mail.
- Compliance with Laws. Licensee shall, and shall ensure that all Authorized Users, comply with (i) all applicable United States laws and regulations which may govern the use of software by entities or persons located abroad, including without limitation the Export Administration Act of 1979, as amended (the “Act”), any successor legislation and the Export Administration Regulations issued by the Department of Commerce under the Act, and (ii) all applicable foreign laws and regulations, including, without limitation, laws with respect to the privacy and transmission of information and data.
- Commercial Software. If Licensee is an agency, department, or other entity of the United States Government, or funded in whole or in part by the United States Government, or if any ValChoice Software is acquired by or on behalf of a unit or agency of the United States Government, the Government agrees that such ValChoice Software is “commercial computer software” or “commercial computer software documentation” and that, absent a written agreement to the contrary, the government’s rights with respect to such ValChoice Software, including the use, duplication, reproduction, release, modification, disclosure, or transfer of the ValChoice Software and Documentation is limited by the terms of this Agreement, pursuant to FAR § 12.212 and/or DFARS § 227.7202, as applicable.
- Publicity and Advertising. Each party may issue press releases announcing the relationship contemplated by this Agreement. ValChoice shall be entitled to refer publicly to Licensee as one of its subscribers. Prior to distributing any advertising material (including, without limitation, advertising material in print, radio, television or online media) referencing ValChoice or its products or services, explicitly or implicitly, in any manner whatsoever, Licensee shall obtain ValChoice’s prior written approval (which approval shall not be unreasonably withheld).
- Counterpart and Facsimile Signatures. This Agreement and/or the applicable invoice may be executed in two or more counterparts, each of which shall be deemed to be an original, and each of which together shall constitute a single instrument. This Agreement may be executed by facsimile signature. Licensee’s consent to the terms and conditions hereof may also be demonstrated by agreeing to such terms and conditions by clicking on the appropriate indicator on ValChoice’s web site in connection with purchasing certain products or services.
- Force Majeure. Except for the obligation to make payments, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If ValChoice is unable to provide the Service for a period of thirty (30) consecutive days as a result of a continuing force majeure event, Licensee may cancel the affected service(s).
- Non-Disparagement. Licensee shall not, and shall cause its affiliates and agents to not, make any statement, oral or written, publicly or in private, that is disparaging, derogatory, defamatory or intended to harm the reputation or business interests of ValChoice.
- Arbitration. For individual Licensees not purchasing any products or services for business purposes, the following arbitration provision shall be effective. If any dispute arises pertaining to the Service or these terms and conditions (excepting only any cause of action giving rise to a claim for equitable relief), such dispute shall be resolved solely by binding arbitration. The dispute shall be submitted to a single arbitrator selected in accordance with the then-prevailing Rules of Commercial Arbitration of the American Arbitration Association. The arbitration proceeding shall take place in Manchester, New Hampshire or such other location as the parties may mutually agree. The arbitrator shall not contravene or vary in any respect any of the terms and conditions contained herein. The award of the arbitrator shall be final and binding upon the parties, and judgment upon any award rendered therein may be entered and enforced in any court of competent jurisdiction, including the appropriate courts of the State of New Hampshire. Neither this arbitration provision nor a pending arbitration shall prevent either party from obtaining injunctive relief for any matter at any time. Each party shall be responsible for its own costs and expenses incurred in such arbitration; provided that each party shall be responsible for fifty percent (50%) of the fees charged by the arbitrator.