BY ACCESSING THE COMMERCIAL UNDERWRITER™ CLOUD SERVICE OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH AN ORDERING DOCUMENT THAT INCORPORATES THIS AGREEMENT, YOU, AS THE USER, AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF YOU ARE AN EMPLOYEE, USER OR REPRESENTATIVE OF AN ENTITY, SUCH AS A COMPANY OR CORPORATION, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.  IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.  

 

END USER LICENESE AGREEMENT / CLOUD SERVICE AGREEMENT

 

This End User License Agreement / Cloud Service Agreement (“Agreement”), effective as of the Effective Date (defined below), is entered into by and between AB Software LLC, a Wyoming limited liability company (“Provider”) and the User (defined below). This Agreement sets forth the terms and conditions that govern the Order (defined below) for Cloud Service (defined below) under this Agreement.  For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Provider and User agree as follows:

 

1. DEFINITIONS

 

“Analysis Data” means: (a) all statistical and other information compiled or generated by Provider related to the performance, operation or use of the Cloud Service; and (b) any and all information, works of authorship and concepts provided by User to Provider, during or after the Service Period, for purposes of feedback or suggestions related to troubleshooting, enhancing or improving the Cloud Service.  The term “Analysis Data” excludes all Personal Information. 

 

Ancillary Software” means any software agent or tool owned or licensed by Provider that Provider makes available to User for download as part of the Cloud Service for purposes of facilitating User’s access to, operation of, or use with, the Service Environment.  The term “Ancillary Software” excludes Third Party Technology. 

 

Auto Renew” or “Auto Renewal” is the process by which the Service Period of the Cloud Service is automatically extended for an additional Service Period unless such Cloud Service is otherwise terminated in accordance with the terms of the Order or this Agreement. The Order specifies which, if any, Cloud Service is subject to Auto Renewal as well as any terms applicable to any such renewal. 

 

“Cloud Service ” means the cloud-based services (e.g., software as a service offerings), that provide access to the Software specified in the Order.  

 

Collaborator Data” means any and all data, databases, information, text and data files provided to User by a third party in connection with User’s Commercial Financial Activities. 

 

“Commercial Financial Activities” will have the meaning provided for such term in Section 3.1 of this Agreement. 

 

Documentation” means information that: (a) describes technical or functional aspects of the Software or Cloud Service, including without limitation, any user manuals, guides, specifications, use policies, license terms, help interfaces, support databases and readme files; and (b) is accessible at www.commercialunderwriter.net or through a different URL specified by Provider or link accessible through the Cloud Service. 

 

“Effective Date” means the earlier of the following dates: (a) the date upon which User clicked the electronic acceptance or agreement button accompanying this Agreement; or (b) the date upon which User otherwise accepted this Agreement as evidenced by an electronic signature, an acknowledgment of acceptance in an email or electronic document, or the physical signature of the paper form of this Agreement or a related signature page for this Agreement.

 

“End-User” means each person who uses, accesses or views the Cloud Service or any Output thereof, including, without limitation, each employee, contractor, agent or representative directed or authorized by User to use the Cloud Service. 

 

“End-User Account” means a Cloud Service entryway that: (a) is used exclusively by an End-User employed or hired by User; (b) is limited to a single End-User and not shared amongst multiple End-Users; and (c) requires such single End-User to enter a unique login credential (e.g., a unique username-password combination or unique thumbprint profile) for accessing the Cloud Service. 

 

“Order” means an ordering webpage, ecommerce shopping cart, form or other document issued by Provider that: (a) makes reference to this Agreement; (b) identifies User or is coupled to User’s online account at Provider’s website; and (c) specifies or identifies the Cloud Service, together with any fees due by User and other terms that are applicable to this Agreement or the Cloud Service.  The term “Order” includes such ordering document, singly, if User places a single order and several of such ordering documents if User places multiple orders. 

 

“Output” means the information generated by operation of the Cloud Service based on User Data input by User, including, without limitation, reports, charts, graphs, tables and lists. 

 

“Party(ies)” means Provider and/or User.

 

“Personal Information” means: (a) personally identifiable information usable to identify a person, such as a person’s name, address, social security number, driver’s license number, state ID number; and (b) nonpublic information that is recorded, organized or arranged in combination with such personally identifiable information, such as income, debt and credit score. 

 

“Profile Information” will have the meaning provided for such term in Section 8.1 of this Agreement. 

 

Service Environment” means the combination of hardware and software components owned, licensed, controlled or managed by Provider that: (a) enable the operation of the Cloud Service; and (b) may, depending upon the Order, function as host of the Software, Third Party Data or User Data. 

 

Service Period” means the period of time for the performance of the Cloud Service as specified in the Order. The Service Period is subscription based, meaning the Service Period is in effect for a period of time and must be renewed in order to continue use of the Cloud Service.

 

Software” means: (a) the object code (not source code) and datasets of the software owned, controlled or licensed by Provider to which Provider grants User access as part of the Cloud Service, including any Updates provided as part of the Cloud Service; (b) the object code (not source code) of the Ancillary Software; and (c) the Documentation.  The term “Software” excludes Third Party Technology. 

 

Third Party Data” means any data, databases, information, text, files, images, graphics, illustrations, audio files, video files, photographs and other content and material, in any format, that are obtained or derived from third party sources and made accessible to User through, within, or in conjunction with User’s use of, the Cloud Service.  Examples of Third Party Data may include data feeds from, or links to, financial websites and financial industry databases that may be provided to supplement the reporting or analytical features of the Cloud Service.  The term “Third Party Data” excludes Third Party Technology. 

 

“Third Party Service” will have the meaning provided for such term in Section 9.3 of this Agreement. 

 

Third Party Technology” means third party technology that is licensed under Third Party Terms and not under the terms of this Agreement.

 

Third Party Terms ” means any separate license terms specified in the Documentation that apply to Third Party Technology. 

 

“Trial Period” a period of fourteen (14) consecutive calendar days following the date of the Order. 

 

“Updates” means any and all patches, bug fixes, updates, upgrades and enhancements of the Cloud Service that Provider makes available to User. 

 

“User” means each person or organization (including, without limitation, a company, corporation or partnership) that is identified in the Order (defined above) and has executed this Agreement. 

 

User Data” means all information provided by User in connection with User’s Commercial Financial Activities that reside in, or run on or through, the Service Environment, including, without limitation, text, data files, images, graphics, information, audio data, videos, photographs and other content and material, in any format.  The term “User Data” excludes all Analysis Data. 

 

2. ORDER

 

This Agreement will apply to, and be valid for, the Order accompanying this Agreement. This Agreement may also be referenced for any purchase that increases the quantity of the original Cloud Service ordered (e.g., adds End-Users), for any Cloud Service options offered by Provider, and for any renewal or Auto Renewal of the Service Period of the original Order.  In such event, this Agreement, will apply to, and be valid for, any such purchase. 

 

3. COMMERCIAL FINANCIAL ACTIVITIES

 

3.1 Purpose of Cloud Service. User understands and acknowledges that: (a) the Cloud Service is an analytical aid for use by User in User’s underwriting of commercial real estate property and investment in commercial real estate (collectively, “Commercial Financial Activities”); and (b) the purpose of the Cloud Service is to analyze User Data input by User and provide Output based on the User Data. 

 

3.2 Skills. User understands and acknowledges that: (a) User must have sufficient education, skills and experience in the field of Commercial Financial Activities to properly use the Cloud Service, properly input the appropriate User Data and properly interpret the Output; and (b) if the User Data is inaccurate, incomplete, corrupt or input into wrong data fields or otherwise input contrary to the Documentation, the Output will be inaccurate, wrong, unreliable, misleading or otherwise deficient.  

 

3.3 Due Diligence. User understands and acknowledges that there are numerous factors associated with or indicative of the risks of engaging in Commercial Financial Activities, including, without limitation, the results of evaluating the borrower’s financial condition, property appraisal reports, assessments of credit, interest rate, liquidity, operations, compliance and repayment capacity, assessments of collateral values, site inspections, debt analysis, reviews of environmental and regulatory compliance with applicable laws and regulations, and opinions from legal counsel, tax advisors and accountants.  User also understands and acknowledges that: (a) depending upon the type of transaction, the due diligence process for engaging in any Commercial Financial Activity can involve an evaluation of all of these factors; and (b) the Output is only one factor for User to consider in conjunction with all other factors of the due diligence process, as determined based the judgment of User. 

 

3.4 Assumption of Risk. User understands and acknowledges the risk that, with or without use of the Cloud Service, User could lose part or all of the capital or funding that User contributes in connection with Commercial Financial Activities.  Also, User understands, acknowledges and agrees that the use of the Cloud Service is in no way any guarantee, warranty or assurance with respect to any outcome related to any Commercial Financial Activity of User.  User hereby assumes all risks associated with User’s Commercial Financial Activities. 

 

3.5 Liability for Commercial Financial Activities. In no event will Provider have any liability whatsoever for any damage or loss incurred by User in connection with any Commercial Financial Activity or lending, investment, financial or business decision of User. 

 

3.6 Collaborator Obligations.  User understands and acknowledges that: (a) in the course of User’s Commercial Financial Activities, User might receive Collaborator Data from third parties, including, without limitation, prospective co-lenders, co-underwriters, co-investors or other collaborators; and (b) User might enter into agreements with such third parties (e.g., non-disclosure agreements) related to the confidentiality of the Collaborator Data or other terms or conditions related to the Collaborator Data.  If User elects to include Collaborator Data in the User Data, User will comply with the such agreements and fulfill User’s obligations under such agreements.  Without limiting the foregoing, User will not use the Cloud Service to share or disclose any Collaborator Data, User Data or Output with any parties in violation of any such agreement.  In no event will Provider have any liability whatsoever for any damage, loss or claim arising from User’s breach of any such agreement. 

 

4. RIGHTS GRANTED BY PROVIDER; RESTRICTIONS

 

4.1 Cloud Service Usage. Subject to the terms and conditions of the Order and this Agreement, User will have a non-exclusive, non-assignable, non-sublicensable, revocable, worldwide, limited right to: (a) use the Cloud Service during the Service Period solely for purposes of User’s Commercial Financial Activities; (b) internally display portions of the Software within User’s business solely to the extent necessary to use the Cloud Service; and (c) generate copies of the Output and electronically transmit (e.g., email) such copies to other Users, such as prospective co-lenders, co-underwriters, co-investors or other collaborators who are identified in an Order and have executed a copy of this Agreement.  Such right will automatically terminate upon the end of the Service Period or the termination of this Agreement, whichever comes first.  The granting of such right will be contingent upon and conditioned upon User’s full compliance with the terms and conditions of this Agreement, the Documentation and the Order. (e.g.  In the event of the breach of any such terms or conditions, such right will be automatically revoked.  User will be fully responsible for End-Users’ compliance with this Agreement, the Documentation and Order.  

 

4.2 Limited Period of Use. User will not acquire under this Agreement, any right or license to use the Cloud Service, Software or Cloud Service Environment in excess of the scope or duration stated in the Order.  Upon the end of the Cloud Service ordered, User’s right to use the Cloud Service will automatically terminate, and User will have no access to the Cloud Service, Software or Cloud Service Environment.   

 

4.3 Ancillary Software. In conjunction with the Cloud Service, Provider may provide User with online access to download certain Ancillary Software for use with the Cloud Service. For example, to activate or access the Cloud Service (or certain features thereof), it might be necessary for User to download and install certain Ancillary Software on User’s computer.  If Provider does not specify Third Party Terms for such Ancillary Software, User will have a non-exclusive, non-assignable, non-sublicensable, revocable, limited right to use such Ancillary Software solely to facilitate User’s access to, operation of, and/or use of the Cloud Service Environment, subject to the terms of this Agreement and the Order.  User’s right to use such Ancillary Software will automatically terminate upon the earlier of Provider’s notice (which may be provided through a posting at a URL address designated by Provider), the end of the Cloud Service associated with the Ancillary Software, the date on which the right or license to use the Ancillary Software ends under the Third Party Terms specified for such programs, or the termination of this Agreement.   The granting of such right will be contingent upon and conditioned upon User’s full compliance with the terms and conditions of this Agreement, the Documentation and the Order.  In the event of the breach of any such terms or conditions, such right will be automatically revoked.

 

4.4 No Shipment. Except as otherwise expressly set forth in the Order for specified Cloud Service offerings (e.g., a specified delivery service for a private cloud system installed at User’s facility), Provider will have no delivery obligation for Software and will not ship copies of any Software programs to User as part of the Cloud Service. 

 

4.5 Third Party Technology. The Cloud Service may contain or require the use of Third Party Technology. User will be responsible for complying with the Third Party Terms specified by Provider that govern User’s use of Third Party Technology.  Provider may provide certain notices to User in the Documentation, including readme or notice files in connection with such Third Party Technology.  User will not acquire any ownership of, or intellectual property rights in, the Third Party Technology. 

 

4.6 End-User Accounts. User’s use of the Cloud Service and the number of End-Users of the Cloud Service will be limited to the number of End-User Accounts specified in the Order. User will not attempt to circumvent such limitation by permitting its representatives or agents to share the same End-User Account regardless of whether such sharing occurs at different times.  For clarity, and by way of example, User will not allow one employee or peer to login with name1/password2 in the morning and then later in the same day, allow a different employee to login with the same name1/password2.  

 

4.7 Further Restrictions. User will not directly or indirectly (by causing or permitting others to):

(a)  license, sublicense, sell, rent, lease, sublease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Cloud Service, Software, Ancillary Software or Cloud Service Environment available, to any third party, other than as expressly permitted in the Order;

(b)  modify, make derivative works of, disassemble, decompile or reverse engineer any part of the Software or Cloud Service by reviewing data structures or similar materials produced by programs or by any other means;

(c)   remove or modify any program markings or any notice of Provider’s or its licensors’ proprietary rights;

(d)  perform or disclose any benchmark or performance tests of the Cloud Service, including the Software, without Provider’s prior written consent;

(e)  copy, disseminate, screen capture or otherwise create, for public consumption (e.g. online forum, blog, or website, etc.) pictures of the protected internal content of the Cloud Service;

(f)    perform or disclose any of the following security test activities related to the Cloud Service Environment or associated infrastructure without Provider’s prior written consent: network discovery, port and service identification, vulnerability scanning, password cracking, remote access testing or penetration testing;

(g)  make the programs or materials resulting from the Cloud Service (excluding User Data) available in any manner to any third party for use in the third party’s business operations except to that User may transmit Output to another User in accordance with Section 3.1 above; or

(h)  access or use the Cloud Service to build or support, or assist a third party in building or supporting, products or services competitive with Provider. 

 

4.8 Improper Use. User will not use, or permit use of, the Cloud Service by any means (including, without limitation, by uploading, emailing, posting, publishing or otherwise transmitting any material, including User Data or Third Party Data) for any purpose that may: (a) constitute an infringement of intellectual property or other rights; or (b) otherwise violate any applicable laws, ordinances or regulations.  In addition to any other rights afforded to Provider under this Agreement, Provider reserves the right, but has no obligation, to take remedial action if any material violates the foregoing restrictions, including the removal or disablement of access to such material.  Provider will have no liability to User arising from any such action taken by Provider.  User will have sole responsibility for the use, accuracy, quality, integrity, legality, reliability and appropriateness of all User Data.

 

5. USER OBLIGATIONS

 

5.1 Unauthorized Parties. User will make every reasonable effort to prevent unauthorized third parties from accessing the Cloud Service. 

 

5.2 Responsibility for End-Users. User will be responsible for identifying and authenticating all users of End-User Accounts, for approving access by such End-Users to the Cloud Service, for controlling against unauthorized access by such End-Users, and for maintaining the confidentiality of usernames, passwords and account information of such End-Users.  By federating or otherwise associating End-User and End-User Account usernames and passwords with Provider, User hereby accepts responsibility for, and will be responsible for, the timely and proper termination of End-User records in User’s local identity infrastructure (e.g., intranet or central server) or on User’s local computers.  User will not (and will cause its End-Users not to) perform any upload or transmission, or take any other action, with the intention or recklessness to harm, impair or disable the Cloud Service or Cloud Service Environment.  Provider will not be responsible for any harm caused by End-Users, including individuals who are not authorized to have access to the Cloud Service but who are able to gain such access because usernames, passwords or accounts were not terminated on a timely basis in User’s local identity management infrastructure or User’s local computers.  User will be responsible for all activities that occur under User’s and End-Users’ usernames, passwords or accounts or that result from User’s or End-Users’ access to the Cloud Service.  User will provide written notice to Provider immediately after discovery of any unauthorized use of the Cloud Service. 

 

5.3 Compliance with Laws. In User’s performance of Commercial Financial Activities and other acts related to the Cloud Service or this Agreement, User will comply with, and abide by, all applicable laws, orders and regulations. 

 

5.4 Updates. User will accept all Updates generally released by Provider and as may be described in the Documentation.  Except for emergency or security-related maintenance activities, User will cooperate with Provider for scheduling any Update implementation based on Provider’s next available standard maintenance window.

 

6. RIGHTS GRANTED BY USER

 

6.1 User Data. User hereby grants to Provider and its affiliates, a paid-up, royalty-free, worldwide, non-exclusive license to receive, store, process and transmit the User Data for purposes of providing the Cloud Service and exercising Provider’s rights under this Agreement. 

 

6.2 Cloud Service Tools. Provider may use tools, scripts, software, and utilities (collectively, “Tools”) to monitor and administer the Cloud Service and to help resolve User service requests.  The Tools store User Data residing in the Cloud Service Environment  to provide the Cloud Service to the User. Provider may use User Data to assist User with use of Cloud Service or to troubleshoot the Cloud Service.  Provider may use User Data and/or Analysis Data and other information collected by the Tools to assist in managing Provider’s product and service portfolio, to improve Provider’s product and service portfolio, to help Provider address deficiencies in its product and service offerings, and for Cloud Service management. 

 

6.3 Analysis of User Data . During the term of this Agreement, Provider will have the right to: (a)to receive, store, use, copy, duplicate, reproduce, sort, manipulate, reformat, display, transmit, extract from, scrub, sanitize, filter, modify, augment, analyze, interpret and otherwise process the User Data, resulting in Analysis Data;and (b) use the User Data and Analysis Data toimprove service quality, to perform internal audits, and to develop, validate, evaluate and improve test protocols, performance benchmarks, algorithms, metrics, scoring systems, predictive models and decision support tools.

 

6.4 Testimonials. At Provider’s request, User will cooperate with Provider to prepare testimonials with wording approved by User.  Provider will have the right to include User’s name, biographical information and such testimonials in Provider’s marketing materials. 

 

7. DOCUMENTATION; UPDATES; AFFILIATES

 

7.1 Compliance with Documentation. The Cloud Service is subject to and governed by the Documentation applicable to the Order. The Documentation may define provisioning and management processes applicable to the Cloud Service (such as capacity planning), types and quantities of system resources (such as storage allotments), functional and technical aspects of the Cloud Service, Output and Ancillary Software.  User acknowledges that the use of the Cloud Service in a manner not consistent with the Documentation may adversely affect Cloud Service performance and may result in additional fees. 

 

7.2 Increase in End-Users. If the Cloud Service enables User to exceed the ordered quantity of End-User Accounts (e.g., by including adjustable settings for counts for Users, sessions, storage, etc.), then User will be responsible for promptly purchasing an additional End-User Account quantity to account for User’s excess usage in accordance with the Order.  For any month that User does not promptly purchase such additional quantity, Provider may require User to pay, in addition to the fees for the additional quantity, an excess usage fee for those Cloud Service equivalent to ten percent (10%) of the total fees for the month in which such excess usage occurred. 

 

7.3 Updates and Maintenance. Provider will have no obligation to: (a) maintain, fix, enhance or upgrade the Cloud Service or Software or otherwise create or provide any Updates; or (b) provide User with any assistance, help, trouble-shooting or other support relating to the Software or Cloud Service.  Provider may, at its sole discretion, implement Updates or other changes to the Cloud Service during the Service Period, including, without limitation: (i) changes to Documentation, infrastructure, security, technical configurations or application features; and (ii) updates to reflect changes in technology, industry practices, patterns of system use, laws and availability of Third Party Data; provided, however, that such Updates and changes will not result in a material reduction in the level of performance or availability of the applicable Cloud Service provided to User for the duration of the Service Period. 

 

7.4 Use of Affiliates. Provider and its affiliates may perform part or all of the Cloud Service from locations worldwide and through use of subcontractors worldwide. 

 

8. DATA SECURITY

 

8.1 No Personal Information.  User will not include any Personal Information in the User Data.  Without limited the foregoing, User will inspect all User Data (and all Collaborator Data therein) to ensure that it excludes any and all Personal Information before inputting the User Data through the Cloud Service.  Notwithstanding the foregoing, in establishing an account or End-User accounts for the Cloud Service, User may input through the Cloud Service, the contact information of User and End-Users, such as email addresses, names, addresses and phone numbers (collectively, “Profile Information”).

 

8.2 Security Safeguards. The Documentation applicable to the Order define the administrative, physical, technical and other safeguards applied to the User Data and Profile Information residing in the Cloud Service Environment, and they describe other aspects of system management applicable to the Cloud Service. User will be responsible for any security vulnerabilities, and the consequences of such vulnerabilities, caused by the User Data, including any viruses, Trojan horses, worms or other programming routines contained in the User Data that could: (a) limit or harm the functionality of a computer, tablet or other Internet access device; or (b) damage, intercept or expropriate data.

 

8.3 Incident. In the event that User causes User Data to contain Personal Information in breach of Section 8.1 above, and either Party discovers an incident involving any access or  misuse of such Personal Information by an unauthorized party while such Personal Information is being processed or stored by Provider, such party (“Discovering Party”) will provide the other Party with written notice of any such event.  The Discovering Party will provide such notice promptly and in no case later than ten (10) business days after learning about any such event.  The Discovering Party will include in such notice, a description of the circumstances and facts related to such event.  The Parties will cooperate to investigate such event to effectuate the Parties’ separate or collective responsibilities under the applicable laws. 

 

9. THIRD PARTY RESOURCES

 

9.1 Third Party Data. As part of certain Cloud Service offerings, Provider may provide User with access to Third Party Data within the Cloud Service Environment.  The type and scope of any Third Party Data will be defined in the Documentation applicable to the Order.  User will not, by virtue of this Agreement, acquire any ownership or intellectual property rights in the Third Party Data, and User’s rights to use such Third Party Data will be subject to, and governed by, the terms applicable to such content as specified by the third party owner, author or provider of such content.  Any Third Party Data made accessible by Provider in or through the Cloud Service Environment is provided on an “as-is” and “as available” basis without any warranty of any kind. 

 

9.2 Linking. The Cloud Service may enable User to link to, transmit User Data to, or otherwise access, other websites, content, products, services, and information of third parties.  Provider does not control, and will not be responsible for, such websites or any such content, products, services or information accessible from or provided through the Cloud Service.  User will bear all risks associated with access to and use of such websites, third party content, products, services and information. 

 

9.3 Third Party Service. User acknowledges that: (a) the nature, type, quality and availability of Third Party Data may change at any time during the term of this Agreement; and (b) features of the Cloud Service that interoperates with services of third parties (each, a “Third Party Service”), depend on the continuing availability of such third parties’ respective application programming interfaces (APIs) for use with the Cloud Service.  Provider may update, change or modify the Cloud Service under this Agreement as a result of a change in, or unavailability of, such Third Party Data, Third Party Cloud Service or APIs.  If any third party ceases to make its Third Party Data or APIs available on reasonable terms for the Cloud Service, as determined by Provider in its sole discretion, Provider may cease providing access to the affected Third Party Data or Third Party Service without any liability to Provider.  Any changes to Third Party Data, Third Party Service or APIs, including their availability or unavailability, during the term of this Agreement will not affect User’s obligations under this Agreement or the Order, and User will not be entitled to any refund, credit or other compensation due to any such changes. 

 

10. INTELLECTUAL PROPERTY

 

10.1 Provider Intellectual Property. Provider or its licensors will retain all ownership and intellectual property rights (including, without limitation, copyrights, database rights, trade secret rights, trademark rights and patent rights) in and to the Software, Cloud Service, Cloud Service Environment and Documentation, and in and to anything developed or delivered by or on behalf of Provider under this Agreement.  User will not acquire any rights in such intellectual property, whether implied or otherwise, other than those rights expressly stated in this Agreement.  Provider and its suppliers reserve all rights not expressly granted to User in this Agreement.

 

10.2 Analysis Data. Provider will be the sole owner of all right, title and interest in and to all Analysis Data.  To the extent that User conceives of, authors or otherwise provides any portion of the Analysis Data, User hereby assigns, conveys and transfers all right, title and interest in such portion to Provider, including, without limitation, all copyrights (including, without limitation, all rights to create derivative works based on the Analysis Data), database rights, patent rights and all other intellectual property rights therein.  For Provider’s purpose of perfecting such rights, User will execute assignment instruments during or after the term of this Agreement at Provider’s request and at no charge to Provider. 

 

10.3 Proprietary Notices. User will not remove or alter the attribution, copyright, trademark, proprietary and other legal notices displayed through the Cloud Service, on the Output, on the Documentation or on the interfaces of the Ancillary Software. 

 

11. CONFIDENTIALITY AND RECORDS

 

11.1 Confidential Information. The Parties acknowledge that either Party (“Discloser”) might disclose confidential information to the other Party (“Recipient”) in connection with this Agreement.  The term “Confidential Information,” as used in this Agreement, will mean this Agreement (including its terms and Orders) financial, legal and business information shared between the Parties in connection with this Agreement, User Data, Analysis Data, Software (including, without limitation, all source code therein), Documentation, Cloud Service and Cloud Service Environment, all of the foregoing excluding any and all information that: (a) is or becomes generally available to the public through no act of Recipient; or (b) is required to be disclosed by governmental regulation or court order, provided that Recipient provides Discloser with sufficient advance written notice to allow Discloser to seek a protective order or to contest any such court order. 

 

11.2 Obligations. Recipient will: (a) hold and maintain in confidence, all Confidential Information received from Discloser; (b) not disclose to any third party, the Confidential Information received from Discloser; and (c) not use the Confidential Information received from Discloser for any purpose not related to or permitted by this Agreement; provided, however, that Recipient may disclose Confidential Information: (i) to those employees, agents or subcontractors who are contractually required in writing to protect it against unauthorized disclosure in a manner no less protective than required under this Agreement; or (ii) in accordance with the United States Defend Trade Secrets Act (18 U.S.C. Ch.90) if User is an individual disclosing Confidential Information in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney and solely for the purpose of reporting or investigating a suspected violation of law, or if such individual discloses the Confidential Information in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.  

 

11.3 Confidentiality Period. The rights and obligations under this Section 11 will survive the termination of this Agreement into perpetuity; provided, however, that, upon the termination of this Agreement, Provider will have the right to permanently delete or otherwise destroy any and all of User’s Confidential Information and User Data that resides within the Cloud Service Environment to the extent permitted by applicable law.  Provider will have the right to perform such deletion or destruction upon or after the termination of this Agreement. 

 

11.4 Access to Records. Within ten (10) days of Provider 's written request to User, Provider and its affiliates, by their duly authorized agents and representatives, will have the right to inspect the records, documents and materials maintained by User relating to the Cloud Service or other aspects of this Agreement.  Provider may provide such request from time to time, and User will permit such inspection during ordinary business hours, subject to: (a) such security procedures as User may reasonably impose; and (b) such limitations as may be required under applicable governmental or regulatory rules, regulations or statutes governing the conduct of User's business. 

 

12. FEES AND TAXES

 

12.1 Payment of Fees. All fees payable to Provider will be due by the due date specified in the Order .  Once placed, the Order is non-cancelable, and the sums paid are nonrefundable, except as provided in Section 12.5 below.  User will pay any sales, value-added or other similar taxes imposed by applicable law that Provider must pay based on the Cloud Service ordered, except for taxes based on Provider’s income.  Fees for the Cloud Service listed in the Order do not include taxes or expenses. 

 

12.2 Invoicing. User acknowledges that Provider may send multiple invoices to User for Cloud Service rendered under different Orders.  Provider may send the invoices electronically to the email address of User specified in the applicable Order for invoicing.  Provider will not be required to mail invoices in paper form. 

 

12.3 Authorization for Automatic Recurring Payment.  The Order may enable User authorize an automatic recurring payment for fees owed to Provider through use of a financial account (e.g., credit card, debit card or bank account) specified by User.  If User provides such authorization, Provider will have the right to : (a) automatically charge any such card for the fees owed in accordance with the Order; and (b) automatically withdraw such fees by initiating debit entries to any such bank account.  Provider may perform such right on an automatic, recurring basis in accordance with the terms of User’s authorization.  User will maintain the availability of funds through such financial account for the full payment of such fees.  User certifies that User is an authorized user of any such credit card and owner of any such bank account, and that User will not dispute these recurring transactions with User’s credit card company or bank as long as the transactions correspond to the terms of the Agreement.  User may terminate the authorization by terminating the Auto Renewal in accordance with this Agreement, but if User owes any amounts as of the date of such termination, the authorization will remain in effect until Provider has received such amounts. 

 

12.4 Availability. User acknowledges that User has not relied on the continued availability of any Cloud Service after the Service Period as consideration for assuming the payment obligations provided in the Order. 

 

12.5 Trial Period – Refund. Unless the Order provides otherwise, User may use the Cloud Service on a trial basis during the Trial Period.  If, within the Trial Period, User provides Provider with a written request to cancel the Cloud Service and receive a refund, Provider will terminate the Cloud Service and provide User with a full refund of the fees received from User under the Order. 

 

13. TERM AND TERMINATION

 

13.1 Term. The term of this Agreement will begin on the Effective Date and end upon the expiration of the Service Period; provided, however, that such term may be terminated earlier or renewed in accordance with the terms of this Section 13. 

 

13.2 Trial Period – Termination. User may terminate any Order for any reason by providing Provider with a written termination notice within the Trial Period. 

 

13.3 Auto Renewal. Provider will provide the Cloud Service for the Service Period specified in the Order, unless earlier suspended or terminated in accordance with this Agreement or the Order. If specified in the Order, the Cloud Service will Auto Renew for additional Service Periods unless: (a) User provides Provider with written notice no later than sixty (60) days prior to the end of the applicable Service Period of User’s intention not to renew such Cloud Service; or (b) Provider provides User with written notice no later than sixty (60) days prior to the end of the applicable Service Period of its intention not to renew such Cloud Service. 

 

13.4 Suspension.

(a)  If User fails to make any payment when due according to the Order, Provider will have the right to immediately suspend and disable the Cloud Service.  Provider may notify User of any such suspension, stating the amount of the payment due to resume the Cloud Service.  Provider’s suspension right under this Section will not waive Provider’s right to terminate this Agreement or the Order in accordance with Section 13.5 below. 

(b)  Provider may temporarily suspend a User account, any End-User Account, and access to or use of the Cloud Service if User or an End-User violates any provision within Section 3, 4, 5, 7, 8, or 11 of this Agreement, or if in Provider’s reasonable judgment, the Cloud Service or any component thereof, is about to suffer a significant threat to security or functionality.  In the case of such a threat: (a) Provider will provide advance notice to User of any such suspension in Provider’s reasonable discretion based on the nature of the circumstances giving rise to the suspension; and (b) Provider will use reasonable efforts to re-establish the affected Cloud Service promptly after Provider determines, in its reasonable discretion, that the threat giving rise to the suspension has been cured.  From the start of any suspension period under this Section through the termination of this Agreement, Provider may, in its discretion, provide User with, or make available to User, the User Data as existing in the Cloud Service Environment on the date of suspension. If any of the foregoing causes of suspension is not cured within thirty (30) days after the suspension starts, Provider may terminate the Cloud Service under the Order or this Agreement entirely. Any suspension or termination by Provider under this Section will not excuse User from User’s payment obligations under this Agreement. 

 


 

13.5 Termination Due to Breach. If Provider or User breaches a term of this Agreement and fails to cure the breach within thirty (30) days of written specification of the breach, then the breaching Party will be in default, and the non-breaching Party may terminate the Order under which the breach occurred or this entire Agreement.  If Provider terminates the Order or this Agreement according to such procedure, User will pay within thirty (30) days, all amounts that have accrued prior to such termination, as well as all sums remaining unpaid for the Cloud Service ordered under this Agreement plus related taxes and expenses.  Except for nonpayment of fees, the non-breaching Party may agree, in its sole discretion, to extend the thirty day period for so long as the breaching Party continues reasonable efforts to cure the breach. While User is in default under this Agreement, User may not use the Cloud Service. 

 

13.6 Treatment of User Data. Upon the termination of this Agreement, User will no longer have rights to access or use the Cloud Service, including the associated Software and Cloud Service Environment.  Upon the termination of this Agreement, Provider will have the right to: (a) permanently delete or render inaccessible any User Data that remains in the Cloud Service Environment; and (b) archive, store and retain User Data for legal archival or data analysis purposes, subject to Provider’s confidentiality obligations under Section 10 above.  For avoidance of doubt, Provider will have no obligation to retain or preserve any User Data after the termination of this Agreement. 

 

13.7 Survival. The restrictions, prohibitions and obligations under Section 4 (and Provider’s rights under such Sections) will survive the termination or expiration of this Agreement.  The rights and obligations under the following provisions will survive the termination or expiration of this Agreement: Sections 3, 5, 6.4, 8.3 and 10 through 18. 

 

14. WARRANTIES, DISCLAIMERS AND EXCLUSIVE REMEDIES

 

14.1 Warranties by User. User hereby represents and warrants that: (a) User has the appropriate level of financial education, skill and experience to use the Cloud Service for Commercial Financial Activities; (b) User has the right to use the Collaborator Data, add the Collaborator Data to the User Data and use the Collaborator Data through the Cloud Service; and (c) User’s performance of activities for in connection with this Agreement will not violate any applicable laws or regulations, nor will it violate any agreements or rights of third parties affiliated with User, including, without limitation, co-lenders, co-underwriters, co-investors, loan applicants, borrowers and investees. 

 

14.2 Warranty by Provider. Provider hereby represents and warrants that it will perform the Cloud Service in all material respects as described in the Documentation.  If the Cloud Service provided to User is not performed according to such warranty, User must promptly provide a written notice to Provider that describes the deficiency in the Cloud Service (including, as applicable, the service request number notifying Provider of the deficiency in the Cloud Service).  In response to such notice, Provider will use reasonable efforts to resolve any such deficiency that Provider can identify.  The warranted provided in this Section will automatically expire and terminate upon the end of the Service Period or the termination of this Agreement, whichever comes first. 

 

14.3 PROVIDER’S EXCLUSION OF WARRANTIES. TO THE EXTENT NOT PROHIBITED BY LAW, THE WARRANTIES OF PROVIDER EXPRESSLY STATED IN SECTION 14.2 OF THIS AGREEMENT ARE EXCLUSIVE, AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THOSE FOR CLOUD SERVICE, SOFTWARE, CLOUD SERVICE ENVIRONMENT OR DOCUMENTATION.  THE FOLLOWING PROVISIONS SHALL APPLY SUBJECT ONLY TO THE WARRANTY EXPRESSLY STATED IN SECTION 14.2 OF THIS AGREEMENT:

 

(A)    TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER AND ITS SUPPLIERS PROVIDE THE SOFTWARE, CLOUD SERVICE, CLOUD SERVICE ENVIRONMENT AND DOCUMENTATION “AS IS”, ON AN “AS-AVAILABLE” BASIS, AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER WARRANTIES, REPRESENTATIONS AND CONDITIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR PERFORMANCE, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE, AND OF LACK OF SECURITY.  PROVIDER DOES NOT WARRANT OR GUARANTEE THAT: (A) THE CLOUD SERVICE OR SOFTWARE WILL BE ERROR-FREE OR WITHOUT DEFECTS OR VIRUSES; (B) THE CLOUD SERVICE WILL BE PERFORMED ERROR-FREE, UNINTERRUPTED OR WITHOUT SECURITY VULNERABILITIES; (C) PROVIDER WILL CORRECT ANY CLOUD SERVICE ERRORS OR DEFECTS WITH THE SOFTWARE, (D) THE CLOUD SERVICE OR SOFTWARE WILL OPERATE IN COMBINATION WITH ANY HARDWARE, OTHER SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY PROVIDER; OR (E) THE CLOUD SERVICE OR SOFTWARE WILL SATISFY USER OR MEET USER’S EXPECTATIONS.  USER ACKNOWLEDGES THAT PROVIDER DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE CLOUD SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.  PROVIDER WILL NOT BE RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. PROVIDER WILL NOT BE RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE CLOUD SERVICE THAT ARISE FROM USER DATA, USER’S SOFTWARE OR THIRD PARTY TECHNOLOGY. 

 

(B)    PROVIDER DOES NOT MAKE ANY REPRESENTATION OR WARRANTY REGARDING THE RELIABILITY, ACCURACY, COMPLETENESS, CORRECTNESS, OR USEFULNESS OF THIRD PARTY DATA OR SOFTWARE PROVIDED BY USER OR ANY THIRD PARTY.  PROVIDER DISCLAIMS ALL WARRANTIES AND LIABILITIES ARISING FROM OR RELATED TO SUCH THIRD PARTY DATA AND THIRD PARTY SOFTWARE. 

 

(C)   PROVIDER DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR ASSURANCE WITH RESPECT TO ANY OUTCOME OF ANY COMMERCIAL FINANCIAL ACTIVITIES THAT MAY BE BASED, IN WHOLE OR IN PART, ON THE CLOUD SERVICE OR THE OUTPUT OF THE CLOUD SERVICE.  USER HEREBY ASSUMES ALL RISKS OF LOSS AND LIABILITY ARISING FROM USER’S DECISIONS IN CARRYING OUT COMMERCIAL FINANCIAL ACTIVITIES. 

 

15. LIMITATION OF LIABILITY

 

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PROVIDER NOR ITS AFFILIATES OR SUPPLIERS WILL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS, DATA OR DATA USE, OR ANY DAMAGES OR LOSS ARISING FROM BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE OR CLOUD SERVICE, EVEN IF PROVIDER OR ANY AFFILIATE OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  PROVIDER’S AND ITS AFFILIATES’ MAXIMUM LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE, THE CLOUD SERVICE, CLOUD SERVICE ENVIRONMENT, THE DOCUMENTATION, THE OUTPUT OR ANY ORDER RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, WILL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO PROVIDER FOR THE CLOUD SERVICE UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM, PROVIDED THAT SUCH TOTAL AMOUNT WILL BE LIMITED TO THE FEES PAID BY USER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM LESS ANY REFUNDS OR CREDITS RECEIVED BY USER FROM PROVIDER UNDER SUCH ORDER. 

 


 

16. INDEMNIFICATION

 

User will, at all times during and after the term of this Agreement, defend, indemnify and hold harmless, Provider and its parents, subsidiaries, affiliates, stockholders, managers, directors, officers, employees, agents, beneficiaries, assignees, successors in interest, and any third party that provides products or services to, or receives products or services from, Provider (collectively, “Provider Group”) from and against any and all losses, claims, lawsuits, proceedings, expenses, recoveries and damages, including reasonable legal expenses, costs and attorneys’ fees, arising out of: (a) a third party’s claim of infringement of such third party’s intellectual property rights based on the use of any information, design, specification, instruction, software, service, data, hardware or material furnished by User to Provider for purposes of this Agreement; (b) a third party’s claim arising from User’s actual or alleged failure to comply with the applicable laws; or (c) a third party’s claim resulting from User’s breach of any of its representations, warranties or obligations provided in this Agreement.  The indemnification obligations under this Section will begin upon Provider Group’s initial discovery of the claim.  Any time after such discovery (before or after a court judgment), Provider Group may invoice User for reimbursement amounts owed under this Section, and User will pay such amounts within thirty (30) days after receiving such invoice. 

 

17. DISPUTE RESOLUTION

 

17.1 Definitions. For the purposes of this Section 17, the term “Dispute” will mean any dispute, controversy or claim arising out of or relating to: (i) this Agreement, its interpretation, or the breach, termination, applicability or validity of this Agreement; (ii) the Software, Cloud Service, Cloud Service Environment, Documentation, Output, User Data, Collaborator Data or Analysis Data; or (iii) any other dispute arising out of or relating to the relationship between Provider and User.  For purposes of this Section 17, the term “User Group” will mean User, End-Users and those in privity with User, such as its beneficiaries. 

 

17.2 Binding Election of Arbitration or Court of Law.

 

(a)  Action Initiated by Provider.  If Provider elects to initiate a legal proceeding arising from a Dispute with User, Provider will have the right to resolve the Dispute through binding arbitration under Section 17.3 below or through a court of law under Section 17.4 below.  Provider will have the right to elect arbitration or a court of law at its sole discretion. 

 

(b)  Action Initiated by User. If User elects to initiate a legal proceeding arising from a Dispute with Provider, User will provide Provider with written notice of such Dispute, specifying and describing the Dispute in detail.  Within thirty (30) days after receiving such Dispute, Provider may provide User with a written response and thereafter, Provider and User will endeavor to resolve such Dispute amicably.  If the Parties fail to resolve such Dispute within thirty (30) days after Provider’s response, User may provide Provider with written notice of User’s decision to initiate a legal proceeding.  After receiving such notice, Provider will have the right to select, at its sole discretion, whether such proceeding will occur by arbitration under Section 17.3 below or by a court of law under Section 17.4 below.  Provider may notify User of Provider’s selection within ten (10) business days after receiving such notice.  If Provider does not notify User of such selection within such period, User will have the right to resolve the Dispute solely through binding arbitration under Section 17.3 below, not through a court of law. 

 

17.3 Arbitration. If any Dispute is to be resolved by arbitration in accordance with Section 17.2 above, the terms of this Section 17.3 will apply. 

 

(a)  No Lawsuit. No member of Provider Group or User Group will submit any Dispute to any court of law.  Provider Group and User Group hereby forfeit their right to file and litigate a lawsuit in a court of law relating to any Dispute.  User Group understands that, in the absence of this Section, User Group would have had a right to litigate disputes through a court, including the right, if any and subject to the rules of User Group’s jurisdiction, to litigate claims on a class-wide or class-action basis, and that User Group has expressly and knowingly waived those rights and agreed to resolve any Disputes through binding arbitration in accordance with the provisions of this Section 17.  This arbitration provision will be governed by the Federal Arbitration Act, 9 U.S.C. Section 1, et seq.

 

(b)  American Arbitration Association. Provider Group and User Group may each provide the other party with written notice of its intention to initiate arbitration with respect to any Dispute.  If Provider Group and User Group do not amicably resolve or settle the Dispute in writing within thirty (30) days after such notice, the notifying party will have the right to submit such Dispute to the American Arbitration Association (“AAA”) for binding resolution.  Any such Dispute will be resolved exclusively and finally by the AAA.  The AAA’s Commercial Rules will govern the arbitration proceeding.  Provider Group and User Group will agree upon another arbitration forum if AAA ceases all of its operations.  The arbitration will be conducted before a single arbitrator and will be limited solely to the Dispute between Provider Group and User Group.  The arbitration, or any portion of it, will not be consolidated with any other arbitration and will not be conducted on a class-wide or class action basis.

 

(c)  Selection of Arbitrator. Provider Group and User Group will confer after service of written notice of arbitration to select a single, agreed-upon arbitrator to arbitrate the Dispute.  If Provider Group and User Group are unable to agree upon an arbitrator within thirty (30) days after the date of such notice, the AAA will assign an arbitrator.  Any decision or award rendered in such arbitration proceeding will be final and binding on Provider Group and User Group, and judgment may be entered thereon only in the State or Federal courts in Onondaga County, New York. 

 

(d)  Substantive Law; Limitations on Award; Place; Language. In the arbitration, the arbitrator will apply the laws of the State of Delaware, excluding its conflict of law principles.  The arbitrator will not have the right to award treble damages or punitive damages.  The location of the arbitration will be in Onondaga County, New York, and the arbitration will be conducted in the English language.  The Uniform Computer Information Transactions Act will not apply to this Agreement or to the Order. 

 

(e)  AAA Contact Information. Information may be obtained from the AAA online at www.adr.org or by calling the phone number or writing to the address specified at such website. 

 

17.4 Court of Law. If any Dispute is to be resolved by a court of law in accordance with Section 17.2 above, the terms of this Section will apply.  The governing law will be the laws of the State of Delaware, excluding its conflict of law principles.  The State and Federal courts located in Onondaga County, New York will have sole and exclusive jurisdiction over such Dispute.  The Provider Group and User Group each hereby waive all claims of immunity from such jurisdiction.  Venue for such Dispute will be in Onondaga County, New York.  The Uniform Computer Information Transactions Act will not apply to this Agreement or to the Order. 

 

17.5 Equitable Relief. Notwithstanding anything in this Agreement to the contrary, in the event of a breach or threatened breach of Section 3, 4, 5, 7, 8, 10 or 11 of this Agreement by User, User acknowledges that Provider’s remedies at law would be inadequate and that Provider would suffer continuing and irreparable injury to its businesses and opportunities, and therefore, in the event of any such violation or threatened violation, Provider will be entitled, in addition to any other remedies available, to seek a temporary restraining order and other injunctive relief without any requirement to prove actual damages or to post a bond, and Provider will be entitled to any other appropriate equitable relief that the court deems proper. 

 

18. MISCELLANEOUS

 

18.1 Export. The export laws and regulations of the United States and any other relevant local export laws and regulations will apply to the Cloud Service.  Such export laws will govern User’s use of the Cloud Service (including technical data) and any Output or other Cloud Service deliverables provided under this Agreement.  User will comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations).  User will not, directly or indirectly, export any data, information, software programs or materials resulting from Cloud Service (or direct product thereof) in violation of these laws.  User will not use any data, information, software programs or materials resulting from Cloud Service (or direct product thereof) for any purpose prohibited by these laws including, without limitation, nuclear, chemical or biological weapons proliferation, or the development of missile technology. 

 

18.2 Force Majeure.  Neither Party will be responsible for a breach of this Agreement directly caused by any failure or delay of performance if caused by: an act of war, terrorism, cyberattack, hostility, or sabotage; an act of God; a pandemic; an electrical, internet or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancelation of any export, import or other license); or another event outside the reasonable control of the obligated Party (each, a “Force Majeure Event”).  Each Party will promptly notify the other Party of the occurrence of a Force Majeure Event and will use reasonable efforts to mitigate the effects of such event. If such event continues for more than thirty (30) days, either Party may cancel unperformed Cloud Service and the Order upon written notice. This Section will not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or User’s obligation to pay for the Cloud Service. 

 

18.3 Notice.

 

(a)  All notices under this Agreement will be in writing and may be given by personal delivery, nationally recognized courier service, mail, e-mail, facsimile or any other commercially reasonable method to User’s address as provided in the Order or to Provider’s address as provided below in this Section.  Notices will be deemed to have been received upon the earlier of the following: (i) actual receipt; (ii) delivery, if delivered personally or by a national recognized courier service; (iii) one business day after being deposited with a nationally recognized courier service for delivery within 24 hours; (iv) three business days after being deposited in U.S. mail, by registered or certified mail, return receipt requested and postage prepaid; (v) five business days after being deposited in the U.S. mail for general delivery with postage prepaid; (vi) facsimile machine notification that such notice sent by facsimile was successfully delivered; or (vii) a manual, non-automated e-mail reply by the recipient of such notice.   

 

(b)  Provider’s address for notice purposes will be as follows: AB Software LLC, 3225 McLeod Drive, Suite 100, Las Vegas, Nevada 89121, Email: support@commercialunderwriter.net or any change in such addresses as Provider may post on its website (www.commercialunderwriter.net) or otherwise provide to User from time to time. 

 

18.4 Assignment. User will not assign any rights or delegate any obligations under this Agreement without the prior written consent of Provider.  Any assignment in violation of this Agreement will be void.  Provider may assign all or any part of its rights under this Agreement without User’s consent to any subsidiary, affiliate, successor in interest or other party through contractual assignment, merger, acquisition or otherwise.  This Agreement will be binding upon the heirs, successors, legal representatives and permitted successors or permitted assigns of the Parties. 

 


 

18.5 Audit. Provider may audit User’s use of the Cloud Service (e.g., through use of software tools) to assess whether User’s use of the Cloud Service complies with the Order and this Agreement.  User will cooperate with Provider’s audit and provide reasonable assistance and access to information.  Any such audit will not unreasonably interfere with User’s normal business operations.  User will pay within thirty (30) days of written notification, any fees applicable to User’s use of the Cloud Service in excess of User’s rights under this Agreement. If User does not pay, Provider may terminate the Cloud Service or Order.  Provider will not be responsible for any of User’s costs incurred in cooperating with the audit.   

 

18.6 Independence of Orders. The purchase of Cloud Service or other service offerings, programs or products as described in one Order constitutes an offer that is separate from any other Order.  User understands that User may purchase Cloud Service or other service offerings, programs or products independently of any other Order.  User’s obligation to pay under any Order is not contingent on performance of any other service offerings or delivery of programs or products under another Order. 

 

18.7 Independent Contractors. In the performance of this Agreement, the Parties will at all times act as, and be deemed to be, independent contractors.  Provider will not be considered an employee, joint venturer, agent or partner of User.  Neither Party will be authorized to assume or create any obligations or responsibilities, express or implied, on behalf of, or in the name of, the other Party.  No third Party beneficiary relationships are created by this Agreement. 

 

18.8 Third Party Consents. User will obtain, at Users sole expense, any rights or consents from third parties necessary for the User Data and Third Party Data, as well as any other vendor’s products or services provided by User that User uses with the Cloud Service, including such rights and consents as necessary for Provider to perform the Cloud Service under this Agreement. 

 

18.9 Severability. If any term of this Agreement is held invalid or unenforceable by a court of competent jurisdiction, or becomes invalid or unenforceable by operation of law, the remainder of this Agreement will continue in full force and effect, and such term will be replaced with another term consistent with the purpose and intent of this Agreement. 

 

18.10 Waiver. Neither Party's delay or failure in enforcing any right or remedy afforded under this Agreement or by law will prejudice or operate to waive that right or remedy or any other available right or remedy. 

 

18.11 Amendment. This Agreement and the Order may not be modified, and the rights, obligations and restrictions may not be altered or waived except in a writing signed by authorized representatives of User and Provider, through mutual consent evidenced by email exchange between User and Provider, through mutual consent conducted online through one or more webpages or online click-to-accept forms presented by Provider. Provider may provide electronic notice via email exchange or by posting a notice online to inform the User that this Agreement has been amended. Upon accessing or logging into the Cloud Service, the User acknowledges receipt and acceptance of such amendments.

 

18.12 Further Assurances and Cooperation. Upon the reasonable request of Provider, User will execute any additional certificates, instruments or other documents that may be reasonably necessary to fully implement this Agreement.  User will provide Provider with all information, access and full good faith cooperation reasonably necessary to enable Provider to provide the Cloud Service, and User will perform any actions described in the Order as User responsibilities. 

 

18.13 Entire Agreement. This Agreement and the information incorporated into this Agreement by written reference (including, without limitation, each Order), is the complete agreement for the Cloud Service ordered by User and supersedes all prior or contemporaneous agreements or representations, written or oral, regarding the Cloud Service. 

 

18.14 Conflicts. The terms of this Agreement and the Order will supersede the terms in any purchase order, procurement internet portal, or other similar non-Provider document, and no terms included in any such purchase order, portal or other non-Provider document will apply to the Cloud Service.  In the event of any conflict between the terms of the Order and the terms set forth in the sections of this Agreement, the Order will control unless expressly stated otherwise in the Order. 

 

18.15 Agreement Versions .  Provider may update the version of this Agreement from time to time.  To request the version of this Agreement in effect as of the Effective Date, User may contact Provider at the notice address set forth above.  The latest version of this Agreement is also accessible to the User from the Cloud Services.

 

Last Revised: September 9, 2017