DEVCON TERMS AND CONDITIONS
These Terms govern your access and use of the cloud-based platform and related products and services (“Services”) provided by DEVCON (“Company”). By using our Services, you’re agreeing to be bound by these Terms. If you’re using our Services for an organization, you’re agreeing to these Terms on behalf of that organization and in these Terms, “you” or “your” refers to that organization.
We may modify these Terms from time to time by posting the most current version on our website. New features that we add to our Services are subject to these Terms. If a modification materially reduces your rights, we will notify you (by, for example, sending a message to the email address associated with your account, or posting on our blog or on our website or as a notification inside DEVCON application). If you do not agree to a modification, you may terminate your use of our Services or request us to terminate the provision of our Services to you. By continuing to use our Services after the modification comes into effect, you are agreeing to be bound by the modified Terms.
You represent and warrant that you are at least 18 years of age, or the applicable age of majority in your geographic area, and that you have the legal ability, right and authority to be bound by, or bind your organization to, these Terms. You agree to provide us with current, complete and accurate registration information as prompted by our Services registration process (“Registration Data”). You agree not to omit or misrepresent any Registration Data, and you agree to update such data to ensure that such data is current, complete and accurate. You further authorize us to verify your Registration Data as required for your use of our Services.
Company shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Service and Software in a manner which minimizes errors and interruptions. Software may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
You will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the SaaS platform (“Software”); modify, translate, or create derivative works based on the Service or any Software (except to the extent expressly permitted by Company or authorized within the Service); use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
You will comply with the most recent technical documentation for the Services. If you develop technology to work with a Service, your compliance with the documentation is required.
You may only use the Services for your content that is owned, licensed or lawfully obtained by you.
Further, you may not remove or export from the United States or allow the export or re-export of the Service, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
You represent, covenant, and warrant that you will use the Services only in compliance with Company’s standard policies then in effect (the “Policy”) and all applicable laws and regulations. You will review, not use code surfaced in the Software including, but not limited to exploit html. Failure to do so will result in immediate removal of account and access and legal recourse. You hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) connected with any claim or action that arises from an alleged violation of the foregoing or otherwise from your use of Software. Although Company has no obligation to monitor your use of the Software, Company may do so and may prohibit any use of the Software it believes may be (or alleged to be) in violation of the foregoing.
You shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Software, including, without limitation (collectively, “Equipment”). You shall also be responsible for maintaining the security of the Equipment, your account, passwords and reports provided by Company.
SERVICE LEVEL AGREEMENT - SOFTWARE
Company shall provide direct phone, email and chat support issues relating to the Software. Company shall respond to all requests for technical support based on the following within normal business hours (8:00 am-5:00 pm CST):
Level 1 – within 30 minutes – Software is unavailable, unreachable or otherwise cannot be accessed.
Level 2 – within one business day – General inquiries not related to Software availability.
Company will provide notice of at least two business days when scheduled maintenance leads to downtime for the Software.
SERVICE LEVEL AGREEMENT - ALERT TECHNOLOGY
Company shall provide direct phone, email and chat support issues relating to the Alert Technology. Company shall respond to all requests for technical support based on the following within normal business hours (8:00 am-5:00 pm CST):
Once active, new exploits are detected, alert technology is updated to block within 24 hours.
CONFIDENTIALITY; PROPRIETARY RIGHTS
Each party understands that the other party has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information”). Proprietary Information of Company includes non-public information regarding techniques and know-how related to the Service, and features, functionality and performance of the Software. Information delivered to you via Company’s Service or Software will also remain confidential, unless otherwise authorized by you. Your proprietary information includes non-public data provided by you to Company to enable the provision of the Services and Software. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in connection with the Software or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
You shall own all right, title and interest in and to the Data as well as the Deliverables, outputs and reports provided by Company to you. Company shall own and retain all right, title and interest in and to (a) Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed, and (c) all intellectual property rights related to any of the foregoing.
Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning your data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
LIMITATION OF LIABILITY AND DAMAGES
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT THE AGGREGATE LIABILITY UNDER THIS AGREEMENT OF EITHER PARTY SHALL BE LIMITED TO THE TOTAL AMOUNT PAID BY YOU TO COMPANY DURING THE INITIAL SERVICE TERM. EAC PARTY ACKNOWLEDGES THAT SUCH AN AGGREGATE LIABILITY IS A FAIR AND REASONABLE ESTIMATE OF ANY LOSS OR DAMAGE LIKELY TO BE SUFFERED BY THE OTHER PARTY IN THE EVENT OF A BREACH UNDER THIS AGREEMENT. NEITHER PARTY OR ANY OF THEIR RESPECTIVE SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR ANY OTHER THEORY, OR FOR ANY LOST REVENUE, LOST SALES, LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER ECONOMIC LOSS ARISING OUT THIS AGREEMENT OR THE USE (OR INABILITY TO USE) THE COMPANY’S SOFTWARE, WHETHER OR NOT THE OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS SET FOR IN THIS SECTION 7 ARE FAIR AND REASONABLE IN RELATION TO THE BENEFITS RECEIVED BY EACH PARTY AND ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. ACCORDINGLY, THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS SET FORTH IN THIS SECTION 7 SHALL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS BELOW.
Each party represents and warrants that (a) it has the full right, power and authority to enter into this Agreement, provide the Service and/or Software set forth herein and to discharge its obligations hereunder, and (b) the execution and delivery of this Agreement and the performance of its obligations hereunder does not and will not violate any agreement to which it is a party or which it is or will be otherwise bound.
You represent and warrant that it has the right to (a) deliver and/or provide access to its own accounts and systems, as well as third-party systems and other intellectual property required and (b) permit Company to provide the Services and/or Software described.
You represents and warrants that Company is not responsible for any risks to you that are uncovered by the Company’s Services or Software.
You agree to indemnify, defend and hold harmless Company and its subsidiaries and affiliates and the officers, directors, employees, licensees and agents thereof from and against any and all damages arising from or related to any third-party claim brought against any indemnified party that arises from or is related to any breach of representation or warranty made hereunder by you.
Company represents and warrants that (i) the Company’s Service and Software shall not violate or infringe upon the intellectual property rights of any third party; and (ii) the Company does not include any materials owned by or licensed from third parties, unless otherwise disclosed to the you. Company further agree to indemnify, defend and hold You harmless and Your subsidiaries and affiliates and officers, directors, employees, licensees and agents thereof from and against any and all damages arising from or related to any third-party claim brought against any indemnified party that arises from or is related to any breach of representation or warranty made hereunder by Company as well as the acts or omissions of Company.
Controlling Law; Forum and Venue: This Agreement shall be construed and interpreted according to the laws for the State of Delaware and of the United States of America without regard to conflicts of law principles. All disputes arising under this Agreement must be brought in the state and federal courts located in Delaware. The parties consent to the venue in and the personal jurisdiction of these courts.
Equitable Relief: Both parties agree that certain breaches of this Agreement would result in irreparable harm and that money damages would be an inadequate remedy for such breach. Accordingly, the non-breaching party will be entitled to seek immediate equitable and other provisional relief, including, without limitation, specific performance of this Agreement and preliminary, temporary and/or permanent injunctive relief, as a remedy for such breach in addition to any other remedies available at law or in equity and without prejudice to any such remedies.
Force Majeure: “Force Majeure” shall mean any labor dispute, strike, lockout, riot, war, act of terrorism, power outage, earthquake, fire or other act of God or government restriction. If because of a Force Majeure, either party is unable to perform in whole or in part its obligations as set forth in this Agreement (other than the obligation to pay amount as they become due), then such party shall give the other party prompt written in notice of such cause, and shall be relieved of those obligations to the extent it is unable to perform for as long as such cause continues or for ninety (90) days, whichever is shorter. If after ninety (90) days the Party affected by such Force Majeure is unable to continue performance, the other party may terminate this Agreement. Neither party shall be liable for any loss, injury, delays or damages suffered or incurred by the other Party due to the above causes or to the termination of the Agreement, pursuant to this Section.
Successors and Assigns: Either party may assign its rights and obligations under this Agreement. Notwithstanding the foregoing, a corporate reorganization or an assignment by you that is made in connection to a bankruptcy. The Agreement shall inure to the benefit of and bind the parties and their respective successors and permitted assigns.
Publicity: Neither party may use each other’s marks or directly or indirectly disclose any relationship between the parties in an announcement, a press release or any marketing materials, without the written consent of the other party.
Insurance: Each party shall procure and maintain at its sole cost, beginning not later than the Effective Date and ending not earlier than the end of the Term (other than with respect to the errors and omission insurance, as described below), the following types of insurance policies: (a) commercial general liability insurance written on an occurrence basis (as opposed to a claims made basis), covering bodily injury and death, broad form property damage, advertising injury, personal injury, products liability, and liability arising from the activities of independent contractors, with not less than one million dollars ($1,000,000) combined single limits arising out of any one occurrence and aggregate where applicable; and (b) errors & omissions insurance covering any and all claims arising out of or relating to the Services with limits not less than one million dollars ($1,000,000) for any one occurrence and in the aggregate (such insurance shall be in effect no later than the Effective Date and shall be continuous for not less than three (3) years after the last day of the Term. The continuity of such coverage may be provided by successive renewals of such policy). (c) Network Security/ Privacy Coverage, coverage to apply to any claims arising out of the provision of Services. Coverage to have minimum limits of one million dollars ($1,000,000) per occurrence. All policies shall be issued by insurance carriers that are licensed and admitted with a rating of not less than “A+ VII” by A.M. Best or otherwise acceptable to the other party, whose reasonable acceptance shall not be withheld. The parties represent and warrant that the policies are primary and they name the other party, its officers, directors, members, employees, affiliates and agents as additional insureds (primary, non-contributory), as their interests may appear. The parties covenant that no later than ten (10) days after execution of this Agreement, they shall deliver to the other a certificate which evidences such insurance policies and those named as additional insureds. Each party is responsible for determining whether the above minimum insurance requirements are adequate to protect its interests. The above minimums do not constitute a limitation on either party’s liability.
Entire Agreement: This Agreement including all understandings, representations, conditions, warranties and covenants, between the parties concerning the subject matter hereof. This Agreement supersedes, the terms of this Agreement govern, any prior or collateral agreements of between the parties, whether written or oral, with respect to the subject matter hereof.