Customer and Docassist hereby agree as follows:
These Terms of Service (“TOS”) and Conditions shall apply to Customer’s use of Docassist’s subscription and professional services (“Service” or “Services”) identified in the Docassist Proposal (Agreement) signed by the parties. The TOS represents the parties’ entire understanding regarding the Services and shall control over any different or additional terms of any purchase order or other non-Docassist ordering document, and no terms included in any such purchase order or other non-Docassist ordering document shall apply to the Services. In the event of a conflict between the TOS and the Agreement, the terms of the Docassist Terms of Service shall control.
2. Right to Use the Services.
2.1. During the Subscription Term set forth in the Agreement, Docassist grants to Customer a nontransferable, nonexclusive right to permit those individuals authorized by Customer or on Customer’s behalf, and who are Customer’s employees, agents or contractors (“Users”), to access and use the Services subject to the terms of the Agreement.
2.2. The Services are provided by Docassist from a data center facility to which Users have remote access via the Internet. Each Agreement proposal defines specific Usage Rights, and Customer shall at all times ensure that its use does not exceed its Usage Rights.
2.3. Customer shall be solely responsible for obtaining and maintaining appropriate equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, computers, computer operating systems, internet access and web browsers (collectively, “Equipment”). Customer shall ensure that Equipment complies with all configurations and specifications set forth by Docassist.
3. Usage Restrictions and Representations.
3.1. Customer shall not directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to or provided with the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or Software; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services or Software; (iii) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive to Docassist; or (iv) remove any proprietary notices or labels from the Services or Software. Customer shall use the Services and Software only for its own internal business operations, and not for the operation of a service bureau or timesharing service, or otherwise for the benefit of a third party. Any business process outsourcing provider must buy a specific subscription to Docassist for each of its customers that will utilize Docassist’s service.
3.2. Customer shall not knowingly or willfully use the Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Docassist’s provision of the Services. Customer shall be responsible for maintaining the security of the Equipment and Customer’s account access passwords. Customer and Docassist agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services. Customer shall be liable for all acts and omissions of its Users.
3.3. Customer represents and warrants that Customer will use the Services in compliance with all applicable laws and regulations, including those related to privacy, data protection (including European Union and national data protection policies as set forth in Section 10), intellectual property, consumer and child protection, pornography, obscenity or defamation).
4.1. Docassist owns or has rights to all intellectual property rights in and to the Services and Software (including all derivatives or improvements thereof). All suggestions, enhancements, requests, feedback, recommendations or other input provided by Customer or any other party relating to the Services or Software shall be owned by Docassist, and Customer hereby does and shall make all assignments and take all reasonable acts necessary to accomplish the foregoing ownership. Any rights not expressly granted herein are reserved by Docassist.
4.2. Customer owns any data, information or material originated by Customer that Customer submits or compiles in the course of using the Services (“Customer Data”). Docassist has no ownership rights in or to Customer Data. Customer shall be solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to Customer Data. Customer Data shall be deemed to be Customer Confidential Information pursuant to Section 9 below.
5. Billing and Payment.
5.1. Customer shall pay all fees set forth in the Agreement. All fees are non-cancelable and nonrefundable, except as expressly specified in Section 7.b of these Terms of Service. All fees are exclusive of taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties (excluding U.S. taxes based on Docassist’s income), even if such amounts are not listed on the Service Agreement. Customer shall pay all fees in U.S. Dollars or in such other currency as agreed to in writing by the parties.
5.2. All amounts invoiced hereunder are due and payable as specified in the Agreement. If not specified in the Agreement, all service fees must be paid prior to the delivery of service. No refunds or credits are provided for partial months of service, or refunds for months unused or for unused login accounts or services.
5.3. If at any time Docassist determines that Customer is exceeding its Usage Rights, Docassist shall notify Customer in writing and Customer shall bring its usage within the limits of such Usage Rights. If Customer fails to do so within 10 days of receipt of Docassist’s notice, Docassist reserves the right to charge and Customer agrees to pay Docassist’s then-current usage fees for such overage.
6. Term and Termination.
6.1. The initial term for the use of Docassist’s service shall commence as of the date the User Acceptance test is completed and, unless earlier terminated as set forth below, shall remain in effect through the end of the Subscription Term in the respective Agreement. All sections of the Agreement which by their nature should survive termination will survive, including without limitation, accrued rights to payment, use restrictions and indemnity obligations, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.2. In the event of a material breach by either party, the non-breaching party shall have the right to terminate the applicable service, as defined in the Proposal, for cause if such breach has not been cured within 30 days of written notice from either party specifying the breach in detail. Docassist may immediately suspend Customer’s password, account, and access to the Services if (i) Customer fails to make payment due within ten business days after Docassist has provided Customer with notice of such failure; or (ii) Customer violates Section 2.a., 3, or 9 of these Terms of Service. Any suspension by Docassist of the Services under the preceding sentence shall not relieve Customer of its payment obligations under the Proposal. If Docassist terminates service for Customer’s material breach, all fees set forth on such service are immediately due and payable.
6.3. Upon any termination or expiration of a Subscription Term without renewal, Customer’s right to access and use the Services covered by that Agreement shall terminate. Notwithstanding the foregoing, at Customer’s request if received within 30 days of termination of the Agreement, Docassist will provide the Customer an export of the data of their service account, subject to payment of applicable fees for any necessary media associated with such export services. Customer acknowledges and agrees that Docassist has no obligation to retain Customer Data and that Docassist will irretrievably delete and destroy Customer Data after 60 days following termination.
7. Representations, Disclaimer of Warranties, Indemnities.
7.1. Each party represents and warrants to the other party that it has the power and authority to enter into the agreement defined by the signed Docassist proposal. Docassist warrants to Customer that it will use best efforts to (a) perform the Services substantially in accordance with its documentation under normal use; and (b) provide the Services in a manner consistent with its Company standards. Customer must notify Docassist of any warranty deficiencies within 30 days from performance of the relevant Services in order to receive warranty remedies.
7.2. For breach of the express warranty set forth above, Customer’s exclusive remedy shall be the re-performance of the deficient Services. If Docassist cannot re-perform such deficient Services as warranted, Customer shall be entitled to recover a pro-rata portion of the current service period (beginning with the service commencement or renewal service date) fees paid to Docassist for such deficient Services, and such refund shall be Docassist’s entire liability.
7.3. The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Docassist’s reasonable control, but Docassist shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled unavailability of the Services.
7.4. Docassist shall defend, indemnify and hold Customer harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes the intellectual property rights of a third party; provided, that Customer (a) promptly gives written notice of the Claim to Docassist; (b) gives Docassist sole control of the defense and settlement of the Claim (provided that Docassist may not settle or defend any Claim unless it unconditionally releases Customer of all liability); and (c) provides to Docassist, at Docassist’s cost, all reasonable assistance. Customer shall defend, indemnify and hold Docassist harmless against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with Claims made or brought against Docassist by a third party alleging that Customer Data, or Customer’s use of the Services in violation of the Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party or violates any law or regulation; provided, that Docassist (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle or defend any Claim unless it unconditionally releases Docassist of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.
7.5. Except for the express warranties set forth herein, Docassist and its third party providers hereby disclaim all express or implied warranties with regard to the services, including but not limited to any implied warranties of merchantability, fitness for a particular purpose, title, non-infringement and quality. Docassist and its third party providers make no representations or warranties regarding the reliability. availability, timeliness, suitability, accuracy, or completeness of the service or the results customers may obtain by using the services. Without limiting the generality of the foregoing, Docassist and its third party providers do not represent or warrant that (a) the operation or use of the services will be timely, uninterrupted or error-free; or (b) the quality of the services will meet customers requirements. Customer acknowledges that neither Docassist nor its third party providers control the transfer of data over communication facilities, including the internet, and that the services may be subject to limitations, delays, and other problems inherent in the use of such communication facilities. Docassist is not responsible for any delays, delivery failures, or other damage resulting from such problems. Except where expressly provided otherwise by Docassist, the services are provided to the Customer on an “As Is” basis.
8. Limitation of Liability.
Neither party nor its third party licensors shall be liable under any contract, negligence, strict liability or other theory: (a) for error or interruption of use, inaccuracy or cost of procurement of substitute goods, service or technology or loss of business; (b) for any indirect, exemplary, incidental, special or consequential damages; (c) for any matter beyond it’s reasonable control, even if such party has been advised of the possibility of such loss or damage; or (d) for any amounts that, together with amounts associated with all other claims, exceed the lesser of $25,000 or the fees paid by the Customer in the proceeding 12 months.
9. Confidential Information.
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Such information includes, without limitation, Customer Data, information related to Customer’s login identifiers and credentials for Accounts and the nature and performance of Customer’s marketing programs. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use (except as expressly permitted in Section 10 below) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to Confidential Information after five years following the termination of the Agreement or any Confidential Information that the Receiving Party can document (a) is or becomes generally available to the public; or (b) was in its possession or known by it prior to receipt from the Disclosing Party; or (c) was rightfully disclosed to it by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party; or (e) is required by law. Customer Data will be destroyed as set forth in Section 6.c., and, upon Customer’s request, Docassist shall certify to such destruction in writing.
10. Privacy and Data Protection.
Customer shall be knowledgeable about and at all times compliant with all privacy and data protection laws applicable to its location and operations, such as, by way of example, the European Union Data Protection Directive and member state implementations thereof.
11. Customer Statistical Information.
Notwithstanding anything else in the Agreement or otherwise, Docassist may monitor Customer’s use of the Services and use Customer Data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Services, and may make such information publicly available, provided that such information does not incorporate Customer Data and/or identify Customer’s Confidential Information. Docassist retains all intellectual property rights in such information.
Docassist may give notice applicable to Docassist’s customer base by means of a general notice on the Services portal, and notices specific to Customer by electronic mail to Customer’s e-mail address on record in Docassist’s billing account information or by written communication sent by first class mail or pre-paid post to Customer’s address on record in Docassist’s account information. If Customer has a dispute with Docassist, wishes to provide a notice under the Agreement, or becomes subject to insolvency or other similar legal proceedings, Customer shall promptly send written notice to Docassist at 11606 City Hall Promenade, Suite 205, Miramar, Florida 33025, U.S.A.
13. Force Majeure.
Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 20 days, either party may cancel unperformed Services upon written notice. This section does not excuse either party of its obligations to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the Services provided.
14. General provisions.
14.1. Any action, claim, or dispute related to the Agreement will be governed by Florida law, excluding its conflicts of law provisions, and controlling U.S. federal law. The Uniform Computer Information Transactions Act will not apply to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. The failure of either party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. Except for actions for nonpayment or breach of either party’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than one year after the cause of action has accrued.
14.2. The TOS and signed Agreement represent the parties’ entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications. The exchange of a fully executed Proposal by fax or electronic signature shall be sufficient to bind the parties to the Terms of Service and the Proposal. The Proposal may be amended only by written agreement of the parties. If any provision of the Proposal is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
14.3. No joint venture, partnership, employment, or agency relationship exists between Docassist and Customer as a result of the signed Proposal or use of the Services. Neither party may assign the Proposal without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval shall not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning company. Any purported assignment in violation of this Section shall be void.