Terms of Service
Last updated: 11 April 2018
1.1. Subject to all other terms and conditions of this Agreement, Emergo grants to Client a non-exclusive, non-transferable account license to access and use the Service in accordance with the terms and conditions herein (the “License”).
1.2. Client may use the License solely for its internal business operations. Under its License, Client may add one more of its employees as individual secondary users (the “Authorized Users”).
- Confidentiality and Proprietary Rights
2.1 The parties acknowledge that by reason of their relationship under this Agreement, they may receive or have access to (such party being a “Recipient”) certain information and materials concerning the other party’s (such party being a “Discloser”) business, technology, and/or products (including the Service) that is confidential and of substantial value to the other party, which value would be impaired if such information were disclosed to third parties (“Confidential Information”). Except as provided herein, the Recipient agrees that it will not use in any way for its own account or the account of any third party, nor disclose to any third party, any such Confidential Information, except as needed to provide the Service under this Agreement, and will protect the confidentiality of such information with the same degree of care which it uses to protect its own confidential information, using no less than a reasonable degree of care. Such use and non-disclosure obligations shall not apply to information which (a) was already rightfully known to Recipient prior to the Discloser disclosing it; (b) is in or has entered the public domain through no breach of this Agreement or other wrongful act of Recipient; (c) has been rightfully received from a third party not under obligation of confidentiality; (d) has been approved for release by Discloser’s written authorization; (e) is required to be disclosed by law; or (f) was independently developed by Recipient, as evidenced by documentation, without reference to or reliance on Discloser’s Confidential Information. Upon the written request of Discloser, Recipient shall promptly destroy all documents and information, however recorded, which contain Discloser’s Confidential Information; provided that Recipient shall be permitted to maintain one (1) copy in an encrypted archived computer system backup that was made in accordance with its corporate business continuity or disaster recovery procedures.
2.2 Client owns all rights, title, and interest (including intellectual property) in and to the data that Client or its Authorized Users submit and upload into the Service, which may include information about Client’s products and business affairs (the “Client Content”). Except as expressly permitted herein, Emergo agrees that it will not use any Client Content in any way for its own account or the account of any third party, nor disclose Client Content to any third party. Except as expressly stated herein, this Agreement does not grant Emergo any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect to any intellectual property of Client. Emergo may share Client Content with its Personnel, provided that any such individuals are bound by confidentiality obligations at least as restrictive as those herein (“Personnel” means, as to either party, the employees and contractors of that party or its affiliates).
2.3 Emergo, its affiliates, and/or their licensors own all rights, title, worldwide intellectual and industrial property rights (including patents, copyright, supplementary protection certificates, rights in know-how, trademarks, designs, models, design rights, rights to prevent passing off or unfair competition, together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions) in and to the Service and all computer code, operating instructions, graphics, designs, pictures, logos, information, materials, and other content therein, whether in written, graphical, or other form (the “Emergo Content”). Client agrees that it will not use Emergo Content in any way for its own account or the account of any third party, nor disclose any Emergo Content to any third party. Except as expressly stated herein, this Agreement does not grant Client any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses in respect to any intellectual property of Emergo, its affiliates, and/or their licensors.
2.4 Client and Authorized Users may not: (i) attempt to modify, duplicate, create derivative works from, or distribute all or any portion of a Service or the Emergo Content; (ii) attempt to decompile, disassemble, reverse engineer, or in any way derive source code from the Service or the Emergo Content; (iii) access all or any part of a Service or the Emergo Content in order to build a competitive product or service (for the purposes of this provision, accessing a Service or the Emergo Content to develop a similar product or service for Client’s internal use constitutes a competitive purpose); (iv) use a Service or the Emergo Content to provide services to third parties or in a time-sharing or service bureau capacity, or (v) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make a Service or the Emergo Content available to any third party except the Authorized Users.
2.5 By using the Service and submitting or uploading the Client Content to the Service, Client hereby grants to Emergo and its affiliates a limited, non-exclusive, worldwide, fully-paid, royalty-free, perpetual, right and license to use the Client Content for the purpose of offering additional services or products to Client from Emergo or its affiliates, preparing analyses of such data in an aggregate manner (together with data from other users of the Service) that does not identify Client, to publishing, displaying, creating derivative works from, incorporating into other works, and distributing such analyses. Client further consents that Emergo and its affiliates may review the Service account, including the Client Content therein, for the purpose of monitoring Client’s and Authorized Users’ usage of the Service and developing improvements or corrections to the Service.
2.6 The Service is not intended as the primary storage for Client Content, and Client is responsible for independently maintaining copies of any Client Content it uploads to the Service. Emergo uses commercially reasonable measures to protect the security of Client Content; however, Emergo cannot guarantee that unauthorized parties will never be able to overcome its security measures. Client waives any claims against Emergo related to the use of the Service by Authorized Users or anybody else to whom Client or its agents provided credentials, or to any breach, deletion, or corruption of Client Content that occurs despite Emergo’s use of commercially reasonable measures to protect the security of such data. No data or content transmitted over Emergo’s networks, the internet, or wirelessly, or through or in connection with the Service is guaranteed to be secure or free from unauthorized intrusion, and data stored by Emergo or its service providers may be deleted, modified, or damaged. If Client wishes to protect the transmission of data or files to Emergo, it is Client’s responsibility to use a secure encrypted connection to communicate with and use the Site.
- Supplemental Support
3.1 Emergo may be available to provide ad hoc consulting support to Client in connection with matters related to the Service (“Supplemental Support”). Emergo shall provide Supplemental Support only if Client agrees in writing to such support and the associated pricing. If Client engages Emergo for Supplemental Support, Emergo will assign that work to its Personnel as it deems appropriate to provide the requested support. Any Supplemental Support is subject to all other terms of this this Agreement.
- Warranty and Repairs
4.1 Emergo warrants to Client that the Service and any Supplemental Support will be provided in accordance with this Agreement and generally recognized industry standards for similar services, and that the Service and Emergo Content do not infringe any third party’s intellectual property rights. Client may provide Emergo written notice of any deficient services promptly after discovery of same. If there has been a material breach of the foregoing warranty, Emergo will promptly repair, replace, or re-perform, at its own expense, the deficient services (or the deficient parts thereof) as to which it received timely notice. In the event a breach is not cured in accordance with these terms, or as a practical matter the breach cannot be cured, Client shall be entitled to an alternate remedy of a refund (if the applicable fees were previously paid) or credit (if the applicable fees were not previously paid) for fees charged for deficient services, in an amount proportionate to the extent of the uncured breach (subject to the limitations set forth in Section 8). The warranty set forth in this clause is exclusive, and any other warranties (including, without limitation, any implied warranties of merchantability, fitness for a particular purpose, or suitability for any purpose) or guarantees (including, without limitation, any guarantee as to a particular result or as to the action or position that a governmental authority may take) are disclaimed and waived.
- Fees and Expenses
5.1 In consideration for the provision of the Service by Emergo, Client agrees to pay any license and service fees applicable to the Service, in accordance with the pricing selections made by Client when ordering the Service via the Website. Client is responsible for any sales tax (or any substantial equivalent), if applicable. If Client requires a purchase order, any such purchase order is for billing purposes only and will not delay invoicing or modify any terms of this Agreement, including the applicable payment terms.
5.2 Payments made via the Website for the Service are processed by a third party payment processing company. Any liability by Emergo or its affiliates related to payment processing, including the payment processing company’s handling and storage of payment information, is disclaimed and waived.
5.3 If an invoice becomes past-due, Emergo may suspend access to the Service until such invoice is paid. The Service may include a timing mechanism that causes it to cease functioning if Client has not renewed its license to the same prior to the expiry of the applicable term.
- Client Obligations
6.1 Client is solely responsible for: (i) the activities of the Authorized Users with respect to the Service; (ii) submitting and uploading Client Content into the Service; (iii) the accuracy, quality, legality, reliability, and integrity of the Client Content; (iv) obtaining and maintaining all systems, communications and telecommunications infrastructure needed to access and use the Service; (v) keeping passwords and account information secret and for all acts that occur if it fails to do so, and (vi) ensuring it and Authorized Users are authorized to share with Emergo any data provided to Emergo.
6.2 With respect to Client Content, Client is further responsible for ensuring that Client Content does not include any information or material that: (i) violates, infringes or misappropriates any third party’s copyright, trademark, trade secret, right of publicity or other intellectual property or proprietary right; (ii) is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (iii) violates any law or that would constitute a criminal offense or give rise to a civil liability; (iv) advocates or provides instruction on illegal activity or discuss illegal activities with the intent to commit them; (v) collects or stores personal data about other users or otherwise violates another user’s privacy; or (vi) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
6.3 Client shall ensure that each Authorized User keeps a secure password for use of the Service and shall keep that password confidential. Client shall promptly notify Emergo of any unauthorized access and use of Client’s or an Authorized User’s account.
- Term and Termination
7.1 This Agreement shall remain in effect for the duration of Client’s use of the Service, subject to early termination as set forth below.
7.2 Either party may terminate this Agreement by ten (10) days’ written notice to the other party. Additionally, either party may immediately terminate this Agreement by written notice to the other party if the other party either: (i) commits a material breach of this Agreement and, where capable of remedy, fails to remedy such breach within three (3) days of being given written notice identifying the breach; or (ii) ceases productive operations or becomes or is declared insolvent or bankrupt, the subject of any proceedings relating to liquidation, insolvency or for the appointment of a receiver or similar officer for it (or to any analogous proceedings), makes an assignment for the benefit of all or substantially all of its creditors, or enters into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations.
7.3 On termination or expiration of this Agreement for any reason, the License and Authorized Users’ access to the Service will terminate and all associated licenses and rights will revert back to Emergo and its licensors.
7.4 The termination or expiration of this Agreement will not discharge Client’s obligations to pay the fees and expenses incurred prior to such termination.
7.5 Sections 2, 7, 8, and 9 of this Agreement will survive any expiration or termination of the Agreement.
- Dispute Resolution and Limitations
8.1 In the event of any dispute relating to this Agreement, the Service, the Website, or any Supplemental Support, the parties shall first attempt to resolve the dispute through informal dialogue, which may commence at the operational level and be referred to the executive level, as necessary. If the parties are unable to resolve a dispute through other means, either party may file suit in the state or federal courts in Austin, Texas, USA. Each party irrevocably submits to the exclusive jurisdiction of the foregoing courts over any dispute related to this Agreement, the Service, the Website, or any Supplemental Support, provided that any order or judgment issued by such courts may be enforced wherever a party can be found. The Agreement is governed by the laws of the state of Texas, United States of America, without regard to conflicts of law principles. The parties voluntarily waive any right to trial by jury. In the event a party rejects a written financial offer to settle a dispute and ultimately does not receive a judgment for damages greater than such offer, such party shall be responsible for the other party’s reasonable legal fees, costs, and expenses incurred after presentation of the offer.
8.2 Emergo and its licensors provide the Service and the content therein as-is. Emergo and its licensors do not represent or warrant that Client’s use of the Service will be uninterrupted or error-free, or that the Service will meet Client’s requirements. Emergo reserves the right to modify the Service at any time.
8.3 The Service is not a consulting service, and any information included in the Service is not tailored to Client’s products or business. The information available via the Service is general in nature and is not intended to constitute a definitive, comprehensive, or global statement of information on any subject. The Service may include information on a particular subject without including similar information regarding other markets and/or related subjects. Where a Service includes alert mechanisms, any default alert times are placeholders and Client is responsible for setting alert times that are appropriate to its needs and circumstances. The Service is meant to supplement, and not supplant, Client’s own efforts to ensure compliance of its business and products with regulatory and other requirements. In some situations Client may be provided content which has been translated from its original language into another language; Emergo is not responsible for any inaccuracies or faults in the translated version of any content, and the original version shall always prevail over the translated version in the event of any conflicts.
8.4 Emergo and its affiliates assume no responsibility for the safety, efficacy, design, fitness, suitability, marketability, compliance, usage, or performance of any products manufactured or sold by Client or its affiliates, or for the acts or omissions of Client or any third parties. Although Services or Supplemental Support may relate to legal issues, Emergo does not provide legal advice or services and none of the Services or any Supplemental Support shall be construed as legal advice or opinion. Emergo disclaims and Client waives any liability by Emergo or its affiliates with respect to the matters set forth in this clause.
8.5 If a tribunal of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, such provision shall be reformed to the minimal extent necessary to preserve its intent and render it valid and enforceable, and if reformation is not practicable, the invalid provision (or portion thereof, to the minimal extent necessary) shall be severed, and the balance of the Agreement shall remain enforceable to the full extent permitted by law.
8.6 ANY LIABILITY BY EMERGO OR ITS AFFILIATES OR PERSONNEL RELATED IN ANY WAY TO THIS AGREEMENT, THE SERVICE, OR ANY SUPPLEMENTAL SUPPORT FOR ANY CLAIMS (REGARDLESS OF THE THEORY OF LIABILITY, INCLUDING CLAIMS STATED IN ANY FORM OF NEGLIGENCE OR OTHER TORT) WILL UNDER NO CIRCUMSTANCE EXCEED THE TOTAL FEES RECEIVED BY EMERGO UNDER THIS THIS AGREEMENT. UNDER NO CIRCUMSTANCE WILL EMERGO OR ITS AFFILIATES OR PERSONNEL HAVE ANY LIABILITY FOR ANY CLAIMS FOR: INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY NATURE WHATSOEVER; LOSS OF PROFITS, GOODWILL, USE, DATA, FUTURE BUSINESS, OR PRODUCTION; CANCELLATION OF CONTRACTS ENTERED INTO BY CLIENT; BUSINESS INTERRUPTION; OR OTHER INTANGIBLE LOSSES (EVEN IF EMERGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
- General Provisions
9.2 Emergo is an independent contractor and is not an employee, partner, or joint venturer of Client or its affiliates. The rights and remedies under this Agreement may not be enforced by anyone other than the parties hereto.
9.3 Client’s access to and use of the Service shall not result in evaluation or certification of Client’s products or product registrations, nor any authorization to use any of Emergo’s or its affiliates’ marks.
9.4 Notices shall be in writing and effective when delivered by hand, mail, or email (provided that the sender retains proof of successful time-dated transmission of any electronic communication). The failure of a party to enforce any right or claim under this Agreement shall not be deemed to be a waiver of such right or claim.
9.5 In this Agreement, words denoting the singular include the plural and vice versa.
9.6 This Agreement may not be modified except by a writing signed by both parties.
9.7 This Agreement may not be assigned or transferred by either party without the prior written consent of the other party; provided that either party may, without the prior consent of the other, assign all of its rights under this Agreement to its corporate affiliate.