TERMS AND CONDITIONS
Donnelley Financial LLC’s ("DFS") ActiveDisclosure is a software tool designed for the creation, review and distribution of financial reports, and Customer agrees to purchase this software (the "Software"), from DFS, subject to the terms and conditions set forth herein as well as the provided Solution Proposal (collectively, the "Agreement").
- LICENSE; INTELLECTUAL PROPERTY.
Subject to the terms of this Agreement, DFS hereby grants Customer a revocable, non-exclusive, non-sublicensable, non-transferable, limited right and license to utilize the Software for Customer’s business transactions. Customer shall not allow any third party to use or access the Software provided to Customer hereunder. Title and all ownership rights in the Software and any adaptation thereof, including all related patents, copyrights and other proprietary rights, are and shall at all times remain with DFS. Customer shall not attempt to reverse compile, reverse engineer or disassemble (except as permitted by law), duplicate, modify or distribute any element of the Software (including without limitation any technological element of the Software). All data submitted by Customer and all deliverables, if any, specifically created for Customer hereunder shall be Customer's sole property.
DFS shall use commercially reasonable efforts to ensure that the Software is provided in a secure environment and without interruption, which may be modified from time to time by DFS. DFS does not warrant that the Software will meet all of Customer's business requirements, or that the Software will be free of errors, interruption, faults or delays. Customer acknowledges and agrees that scheduled downtime may be required for upgrades, backup or maintenance. If Customer is likely to be affected by scheduled downtime, DFS shall use commercially reasonable efforts to provide notification of such scheduled downtime on the site. In the event DFS breaches this warranty, the sole and exclusive obligation of DFS, and the sole and exclusive remedy of Customer, is limited,at DFS' option, to (i) the replacement, reworking or reprinting of the defective Software or (i i) the return of that portion of the purchase price applicable to the defective Software. Customer will pay DFS, at its then-standard rates, for any processing reruns or any other additional work performed by DFS due to Customer submitting improper data or materials that are incorrect or incomplete. In the event of a privacy or security breach, Customer agrees to cooperate with DFS to validate and investigate such breach and provide DFS with sufficient details, to the extent known by Customer, for DFS to determine and define the root cause of such breach, including, but not limited to, the actual return of affected packages to DFS and relevant communication from affected parties. EXCEPT FOR ANY EXPRESS WARRANTY SET FORTH HEREIN, DFS MAKES NO, AND DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, INDEMNITIES OR GUARANTEES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY EITHER PARTY OR OTHERWISE WITH RESPECT TO THE SOFTWARE AND THE ACCURACY, OPERATION, FUNCTIONALITY, QUALIFICATIONS OR CAPABILITIES OF THE SOFTWARE OR RESOURCES PROVIDED HEREUNDER, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR USE, AND WARRANTIES OF UNINTERRUPTED OR ERROR FREE PERFORMANCE OF SOFTWARE.
- CUSTOMER WARRANTY.
Customer represents and warrants that none of the Customer data furnished to DFS by Customer or altered by DFS at Customer's direction infringes any copyright, trademark, trade secret or other intellectual property right, is libelous, or otherwise violates the rights of or will cause damage or injury to other persons, and (ii) all data provided to DFS will be comply with any applicable law, rule or regulation.
- LlMITATION OF LIABILITY.
DFS' maximum liability for any and all claims arising directly or indirectly from the performance of its obligations under this Agreement shall not in the aggregate exceed the purchase price of the Software affected. No action, regardless of form or legal theory asserted, arising out of, related to or in connection with this Agreement may be brought by Customer against DFS more than one year after the cause of action has arisen. IN NO EVENT SHALL DFS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, LOSS OF PROFITS, LOSS OF USE OR DATA OR INTERRUPTION OF BUSINESS, COSTS OF SUBSTITUTE GOODS OR SERVICES, WHETHER SUCH DAMAGES OR LOSSES ARE ALLEGED IN TORT (INCLUDING NEGLIGENCE), CONTRACT OR INDEMNITY, EVEN IF DFS OR ITS AGENTS WERE ADVISED OR AWARE OF THE LIKELIHOOD OF SUCH DAMAGES OR LOSSES OCCURRING.
Each party agrees: (i) to hold information of the other party designated as confidential ("Confidential Information") in confidence by using the same degree of care to safeguard such Confidential Information as it uses to protect its own information of like character, but in no event less than a reasonable degree of care; (ii) to limit disclosure of Confidential Information of the other party to its employees having a need to know such information for the purposes of this Agreement; (iii) not to disclose any Confidential Information to any third party; and (iv) to use Confidential Information solely and exclusively in accordance with the terms of this Agreement. Confidential Information shall remain the property of the disclosing party, and the receiving party will not be deemed by virtue of its access to Confidential Information of the disclosing party to have acquired any right or interest in or to any Confidential Information. This section shall not affect either party's right to use or disclose information that: (a) is or may hereafter be in the public domain; (b) the receiving party can show was known to it without any confidentiality obligation prior to the disclosure by the disclosing party; (c) is disclosed to the receiving party by a third party, without violation of any confidentiality obligation, subsequent to disclosure by the disclosing party; (d) is independently developed by the receiving party without use of the Confidential Information of the disclosing party; or (e) is required to be disclosed pursuant to governmental or judicial process, provided that notice of such process is promptly provided to the disclosing party in order that it may have every opportunity to intercede in such process to contest such disclosure. The confidentiality provisions shall survive the termination and/or expiration of this Agreement for a period of two years from the date of disclosure.
DFS shall, at its sole cost and expense, release, defend, indemnify and hold harmless Customer, its directors, officers, agents, employees, and shareholders from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys' fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to a claim that the technology used by DFS for the Software infringes a patent, copyright, trademark, trade secret or other proprietary right of a third party, provided that this indemnity shall not apply to the extent that the infringement was caused by any modification of the Software conducted by or on behalf of the Customer or any data submitted by Customer. Customer shall, at its sole cost and expense, release, defend, indemnify and hold harmless DFS, its directors, officers, agents, employees, and shareholders from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys' fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to a claim that the data submitted by Customer for the Software infringes a copyright, trademark, trade secret or other proprietary right of a third party or violates applicable law. The party seeking indemnification shall notify the other party promptly of any such action, suit or proceeding and shall cooperate fully with the indemnifying party in the defense of any such claim. The indemnifying party shall have sole control of the defense of any such action and all negotiations for its settlement or compromise, provided that such settlement or compromise shall not interfere with DFS' provision of the Software. The indemnified party may participate, at its expense, in the defense of any such action, but shall make no admission of liability or settle any claim without the prior written agreement of the indemnifying party.
- TERM AND TERMINATION.
The term of this Agreement shall be set forth in the Solutions Proposal. Either party may terminate this Agreement upon thirty days advance written notice to the other party in the event the other party is in material breach of its obligations herein, which is not remedied within such thirty day period. Upon the expiration or termination of this Agreement, DFS shall deliver to Customer a remaining service, completed or in process, in DFS' possession and any raw materials produced or acquired in connection with this Agreement. DFS shall issue a final invoice for all such items, which shall be paid by Customer in accordance with the payment terms of this Agreement as set forth in the Solution Proposal.
- FORCE MAJEURE.
DFS DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE SOFTWARE, AS SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES AND SOFTWARE PROVIDED OR CONTROLLED BY THIRD PARTIES AND ON THE PUBLIC INTERNET INFRASTRUCTURE, AS WELL AS OTHER EVENTS BEYOND THE CONTROL OF DFS AT TIMES, ACTION OR INACTION PARTIES OTHER THAN DFS OR EVENTS BEYOND DFS' REASONABLE CONTROL ("FORCE MAJEURE EVENTS") CAN IMPAIR OR DISRUPT DFS' ABILITY TO PROVIDE THE SOFTWARE OR CUSTOMER'S OR ITS END USERS' ABILITY TO ACCESS THE SOFTWARE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DFS DISCLAIMS, AND CUSTOMER SHALL NOT HOLD DFS RESPONSIBLE FOR, ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH ACTIONS OR FORCE MAJEURE.
DFS may: (i) include Customer in current customer lists on its website and other promotional materials, which are shown to prospective users; (ii) display Customer's logo in a rotating display of other companies' logos on its website and other promotional materials; and (iii) use, reproduce and display testimonials, white papers and other materials approved by Customer on its website and in other promotional materials.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. Neither party shall assign or otherwise transfer this Agreement without the prior express written consent of the other party, such consent not to be unreasonably withheld. DFS hereby reserves the right, in its sole discretion, to subcontract any portion or all of this Agreement. This Agreement supersedes and merges all prior proposals, understandings, and agreements, oral and written, between the parties relating to the subject matter of this Agreement and may not be modified or altered except by written instrument duly executed by both parties signing this Agreement. Customer agrees that this Agreement exclusively governs and controls the rights of the parties so that any purchase order or other writing Customer may submit to DFS shall be for Customer's convenience only. This Agreement shall be governed by the internal laws of the State of New York, without regard to its conflicts of law provision(s). Except as otherwise provided herein, DFS reserves the right at any time to modify the features, functionality or performance of the Software and to modify this Agreement at any time. This Agreement shall not be deemed to create any employment, partnership, or joint venture relationship between the parties hereto. Neither party shall have the authority or represent itself as having the authority to bind the other party to any agreement or commitment with a third party or otherwise.
End of Terms and Condition
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