TERMS OF USE AND SERVICES
This Agreement (as further defined below) is entered into by and between the Versaterm Public Safety US, Inc. (“Versaterm”) and You (“Agency” or “you”) and is effective upon the last signature date of a letter of Agreement (“Effective Date”).​
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1. Definitions.
For the purposes of these Terms of Use and Services, these terms will have the following meanings:
1.1 “Agreement” or “Terms of Use” means these Terms of Use and Services.
1.2 "Authorized User" means an employee, consultant, or contractor of Agency authorized by Agency to access and use the Services on Agency’s behalf.
1.3 "Confidential Information" means this Agreement, the Software, Agency Data and all ideas, designs, business models, databases, drawings, documents, diagrams, formulas, test data, marketing, financial or personnel data, technology, products, sales information, trade services, know-how Agency or supplier information, including information provided by such Agency’s or suppliers, or any other information already furnished or to be furnished or made available by one Party to the other, whether in oral, written, graphic or electronic form including any such information exchanged during informational sessions designated as confidential, including, without limitation, information concerning a Party's actual and potential customers and other Intellectual Property Rights of such Party, provided, however, that Confidential Information shall not include any data or information: (i) that, at the time of disclosure, is in or, after disclosure, becomes part of the public domain, through no act or failure on the part of the receiving Party, whether through breach of this Agreement or otherwise; (ii) that, prior to disclosure by the disclosing Party, was already in the possession of the receiving Party, as evidenced by written records kept by the receiving Party in the ordinary course of its business, or as evidenced by proof of actual prior use by the receiving Party; (iii) independently, custom developed by the receiving Party, by Persons having no direct or indirect access to the disclosing Party's Confidential Information provided that the receiving Party provides clear and convincing evidence of such independent development; (iv) which, subsequent to disclosure, is obtained from a third Person: (A) who is lawfully in possession of the such information; (B) who is not in violation of any contractual, legal, or fiduciary obligation to either Party, as applicable, with respect to such information; and (C) on a non-confidential basis; or (v) is further disclosed with the prior written consent of the disclosing Party, but only to the extent of such consent.
1.4 "Agency Data" means collectively any data, files, documentation, or other information: (i) that Agency or any of its Authorized Users may upload to Versaterm Platform when using the Subscription Services; and (ii) processed through the use of the Subscription Services, excluding Third Party Data and any Versaterm Data.
1.5 "Customizations" means all Agency-requested modifications made to the Software or User Documentation by or for Versaterm in accordance with the terms of this Agreement, which shall be at Agency's expense.
1.6 "Enhancements" means any changes or additions to the Software, that improve functions, add new functions, improve performance, or corrects errors by changes in system design or coding, including but not limited to changes or additions that are made to the Software to provide substantial additional value or utility.
1.7 “Letter of Agreement” means the letter signed by Versaterm and Agency regarding the Subscription Services to be provided to the Agency.
1.8 "including" means "including without limitation" and is not to be construed to limit any general statement which it follows to the specific or similar items or matters immediately following it.
1.9 "Intellectual Property" means any property, tangible or intangible, that may be subject to Intellectual Property Rights, including without limitation, ideas, formulae, algorithms, concepts, techniques, processes, procedures, approaches, methodologies, plans, systems, research, information, documentation, data, data compilations, specifications, requirements, designs, diagrams, programs, inventions, technologies, software (including its source code), tools, products knowledge, know-how, including without limitation, trade secrets, and other materials or things.
1.10 "Intellectual Property Rights" means: (a) any and all proprietary rights anywhere in the world provided under: (i) patent law; (ii) copyright law, including moral rights; (iii) trademark law; (iv) design patent or industrial design law; (v) semiconductor chip or mask work law; (vi) trade secret law; (vii) privacy law; or (viii) any other statutory provision or common law principal applicable to this Agreement which may provide a right in either: (A) Intellectual Property; or (B) the expression or use of Intellectual Property; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing.
1.11 "Licensed Materials" means collectively the Versaterm Platform, Software, and the User Documentation.
1.12 “Maintenance and Support” means the technical support services with respect to the specific Licensed Materials for which you have contracted with Versaterm, or as further described on a Quote, Service Schedule, Letter of Agreement or as posted on Versaterm’s website.
1.13 "Network Aggregator Provider" means a third party service provider, not selected by Versaterm, that offers connectivity services to securely link separate networks.
1.14 “Open Source Software Components” means software programs, libraries, or distributable (commonly known as “public,” “open source,” or “free” software) made publicly available by the copyright holders.
1.15 "Party" means either Agency or Versaterm and "Parties" means both.
1.16 "Person" means any individual, company, corporation, partnership, government or government agency, authority or entity howsoever designated or constituted.
1.17 "Point of Access" means Versaterm's, or its subcontractor's, border router, which is used to establish connectivity from the Versaterm Platform to Versaterm's, or its subcontractor's, internet provider, or the public internet.
1.18 “Professional Services” all professional services purchased by Agency in respect of the Subscription Services or use of Software (if installed on Agency’s premises) , including implementation services, data migration, specialized support, training services and any other services as further described in a Service Schedule or the Statement of Work.
1.19 “Provisioning” means the Software has been made available and accessible by Versaterm to the Customer by providing the Customer with a log-in.
1.20 “Quote” means a quote issued by Versaterm signed between the Customer and Versaterm identifying the Services or other products and services identified purchased or licensed by the Customer.
1.21 “Services” means the Subscription Service, Licensed Materials, Professional Services and Maintenance and Support as described in a Quote or Service Schedule.
1.22 “Service Schedule” means the document attached to the Letter of Agreement which defines the Subscription Services and if applicable the SOW.
1.23 "Software" means the computer programs owned by Versaterm and which are licensed to Agency under this Agreement, including: (a) all maintenance modifications (updates and upgrades); (b) Enhancements; (c) Customizations, now developed or to be developed by or for Versaterm during the Term; and (d) all formulas, routines, subroutines, algorithms, concepts, techniques, know-how and ideas implemented or embodied in any of the foregoing, in any form. To avoid doubt, the software excludes third-party components.
1.24 “Statement of Work or “SOW” means the document incorporated as part of the Agreement and attached to the Letter Agreement under which Versaterm provides the Agency additional Professional Services related to the Software, including training, specialized support and data migration.
1.25 "Subscription Service” means any combination of the following: (i) limited access and use rights to the Versaterm Platform on a hosted basis, (ii) hosting services, (iii) support services, and (iv) any other similar generally applicable services that Versaterm provides to its customers in accordance with the User Documentation. For the avoidance of doubt, Subscription Services do not include Professional Services.
1.26 “Term” means the term set out in Section 3, paragraph (a).
1.27 “Third-Party Data” means any data owned by a third-party that the Agency accesses via the Software.
1.28 “Third-Party Component” means any components of the Subscription Services provided by third parties, including Open Source Software Components and third-party proprietary software or services (e.g. Amazon Web Services (AWS)).
1.29 “Third-Party Supplier” means any party who provides products and/or services, including Open Source Software and Third Party Components that contribute to the overall Software provided to the Agency by Versaterm.
1.30 "User Documentation" means the user manuals, guides, and specifications with respect to the operation, use, functions, and performance of the Software, as revised from time to time, and any additional documentation for Customizations produced by Versaterm, in written or online electronic form.
1.31 "Versaterm Platform" means the Software, Versaterm Server and such devices and peripherals physically located with the Versaterm Server, including all computer hardware, software, network elements, and electrical and telecommunications infrastructure located behind the Point of Access.
1.32 "Versaterm Server" means that computer server located at Versaterm's premises, or a third-party provider of hosting and/or network services, that houses the Software.
1. Term and Subscription Term
(a) This Agreement is effective as of the last signature date of the Letter of Agreement and shall expire upon the expiration of the Subscription Term.
(b) Unless otherwise indicated in an applicable state contract or to which Versaterm is a contractor or a subcontractor or document issued by a reseller, the "Subscription Term" shall commence on the date the Software is made available and accessible to the Agency ("Start Date") and shall continue for a period of twelve (12) months, unless otherwise terminated in accordance with the terms of this Agreement. Upon the expiration of the Initial Subscription Term, this Agreement shall automatically renew for successive periods of one year ("Renewal Terms") unless either party provides written notice of non-renewal at least thirty (30) days before the expiration of the then-current Subscription Term. Each Renewal Term shall be subject to the terms and conditions of this Agreement unless otherwise amended in writing by both parties.
(c) Notwithstanding any other provision of this Agreement, the Agency may terminate this Agreement, without penalty or further obligation, upon written notice to the Provider in the event that sufficient state funding necessary to meet the Agency’s payment obligations under this Agreement is not appropriated, allocated, or otherwise made available by the applicable state or governmental authority. The Agency shall provide such notice as soon as reasonably practicable upon learning of the non-availability of funding. Upon such termination, the Agency shall be relieved of any future payment obligations under this Agreement and shall not be liable for any damages or penalties resulting from such termination.
2. License
(a) Provided that Customer is not in default, for the duration of the applicable Subscription Term identified in a Letter of Agreement, Service Schedule or Quote Versaterm hereby grants to Customer a revocable, limited, non-exclusive, non-sublicensable, non-transferable, and royalty-free license to access and use of the Subscription Service or Licensed Materials identified in a Letter of Agreement, Quote or Service Schedule for Customer’s operations.
(b) Agency shall have the right to access, use, install, and use the Licensed Materials solely as expressly granted or otherwise outlined in these Terms of Use.
(c) Agency shall not:
(i) use, reproduce, display, perform or otherwise exploit the Software except as expressly authorized in these Terms of Use;
(ii) copy any of the Software or User Documentation except as reasonably necessary to use the Software for its internal use as authorized herein, and in all cases subject to the confidentiality provisions hereof, and provided that all copyright notices and any other proprietary notices are included;
(iii) assign, transfer, lease, export or grant a sublicence of the Software or the license contained in these Terms of Use to any Person except as expressly authorized herein;
(iv) decompile, disassemble, reverse engineer, or otherwise access or attempt to gain access to the Software’s source code;
(v) give any Person other than its employees, consultants, contractors and/or clients of Agency or other individuals listed pursuant to the Agreement access to the Software or;
(vi) rent or lend, with or without charge, any system which includes the Software to any Person including clients and Agency’s;
(vii) operate at any time on a regular or irregular basis an online or offline customer service bureau involving the Software;
(viii) permit (and Customer shall take all necessary precautions to prevent) third parties (including, any parties affiliated or related to Agency) to use the Software in any way that would constitute a breach of these Terms of Use;
(ix) use any APIs, other than the APIs expressly authorized for use by Versaterm, with the Software or use any authorized APIs in a manner that is not permitted or published by Versaterm;
(x) remove or modify any proprietary marking or restrictive legends placed on the Licensed Materials;
(xi) use any device, software, or routine to interfere with the proper working of the Software or to bypass any security features of the Software; or
(xii) introduce into the Versaterm Platform any viruses, worms, defects, trojan horses, malware, or any items of a destructive nature,
(d) Agency shall be solely and exclusively responsible for the supervision, management, and control of Agency’s and each of its Authorized User’s use of the Licensed Materials and shall require each Authorized User to maintain all passwords and other access credentials with respect thereto.
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3. Agency’s Obligations
(a) Where the Software will require access and use of the Versaterm Platform, Versaterm shall operate and maintain the Versaterm Platform in accordance with the applicable Agreement. Access to the Versaterm Platform may be through a secure connection with the public internet or using a Network Aggregator Provider. Agency acknowledges and agrees that Versaterm is not responsible or liable for any communication over the public internet, or for the Network Aggregator Provider's network or its operation or the Network Aggregator Provider's network's failure to deliver communication to and from the Versaterm Platform on a timely basis.
(b) Agency shall be fully responsible for the acts and omissions of all Persons that are authorized or otherwise allowed, by Agency, to use or have access to the Software and User Documentation.
(c) Agency agrees to co-operate with and advise Versaterm of all information which would be reasonably required to permit Versaterm to deliver and, if applicable, install the Software. Agency shall respond promptly to any Versaterm request to provide information, approvals, authorizations or decisions that are reasonably necessary for Versaterm to provide the Software.
(d) Subject to the terms and conditions of these Terms of Use, Agency shall provide Versaterm with all reasonable access, which may include remote access, to Agency’s systems and premises for the purpose of Versaterm performing its obligations pursuant to these Terms of Use, and the failure of Agency to provide such access shall relieve Versaterm of its obligation to perform such obligations.
(e) Agency shall notify Versaterm immediately of any actual or suspected unauthorized use of its passwords or API keys for the Versaterm Platform.
4. Ownership
(a) Agency acknowledges and agrees that all rights, title and interests in and to the Licensed Materials, including all Intellectual Property embodied therein, are and shall at all times remain the exclusive property of Versaterm and that, except as expressly set forth herein, no rights, title or interests, including any license, is granted to Agency hereunder by implication, estoppel, or otherwise of any kind whatsoever in or to the Licensed Materials or any portion thereof, except, in each case, for the rights and licenses expressly granted to Agency herein. Agency further acknowledges and agrees that all Third-Party Components are and shall at all times remain the property of the applicable Third-Party Suppliers.
(b) Agency shall not remove any Versaterm trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Service.
(c) If Agency provides any feedback, comments, suggestions, ideas, descriptions of processes, or other information to Versaterm about or in connection with any Licensed Materials, including any ideas, concepts, know-how or techniques contained therein (collectively, “Feedback”), then Agency hereby grants Versaterm and its affiliates a worldwide, fully paid-up, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, without any compensation to Agency or any restriction or obligation on account of Intellectual Property Rights or otherwise. Without limiting the generality of the foregoing, nothing in these Terms of Use limit Versaterm’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
5. Agency Data and Hosting Provider
(a) Agency hereby grants to Versaterm a limited, non-exclusive, non-transferable, royalty-free right to use, reproduce, manipulate, display, transmit and distribute the Agency Data solely in connection with providing the Licensed Materials to Agency, and improving and developing the Licensed Materials. Except as specified otherwise in the Agreement, Agency shall be solely responsible for providing, updating, uploading and maintaining all Agency Data.
(b) Agency acknowledges and agrees that Versaterm: (i) will not be responsible for the accuracy, completeness or adequacy of any Agency Data or the results generated from any Agency Data uploaded to the Versaterm Platform and processed by the Software; (ii) has no control over any Agency Data or the results therefrom; (iii) does not purport to monitor Agency Data; and (iv) if Software is installed on Agency premises, shall not be responsible to back up or maintain any back up of the Agency Data or any portion thereof.
(c) Versaterm may change its third-party hosting provider (“Hosting Provider”) at any time. Agency’s use of the Licensed Materials is subject to any applicable restrictions imposed by the Hosting Provider. Notwithstanding any other provision of this Agreement, Versaterm shall not be liable for any problems, failures, defects or errors with the Licensed Materials to the extent caused by the Hosting Provider. Agency acknowledges that costs for the Licensed Materials reflect the fact that Versaterm is not responsible for the acts and omissions of the Hosting Provider.
6. Confidentiality
(a) Each Party acknowledges that all Confidential Information consists of confidential and proprietary information. Except as required by law, each Party shall hold Confidential Information of the other Party in trust and confidence for and on behalf of such other Party, and shall take commercially reasonable measures to maintain the confidentiality of the Confidential Information, which measures shall in any event be no less than what such Party would implement to protect its own Confidential Information of a similar nature or value. Each Party agrees not to make use of Confidential Information other than to the extent necessary for the exercise of rights or the performance of obligations under this Agreement, and not to release, disclose, communicate or otherwise make it available to any third-party other than officers, directors, employees, consultants and contractors of Versaterm or Agency, as applicable, who reasonably need to know it in connection with the exercise of rights or the performance of obligations under this Agreement.
(b) Each Party agrees that any breach of this Section 6 ("Confidentiality") may give rise to irreparable damage to the other Party, the injury to the other Party from any such breach would be difficult to calculate, and that money damages would therefore be an inadequate remedy for such breach. Each Party agrees that the other Party will be entitled, in addition to all other remedies that the other Party may have under this Agreement, at law or in equity, and without showing or proving any actual damage sustained by it, to a permanent or temporary injunction or other order to restrain any breach, threatened breach or the continuation of any breach of this Section 10.
(c) Upon the termination or expiration of this Agreement, each Party will return to the other Party all Confidential Information with respect to such Service Schedule which is then in its possession or control. Upon the termination of this Agreement, each Party will return to the other Party all Confidential Information of such other Party which is then in its possession or control.
(d) Notwithstanding the above, Versaterm reserves the right to retain Agency Data on audit logs and server system logs and in support tickets, support requests, and direct communications with Versaterm, saved as part of routine back-ups or as otherwise may be required by law.
7. Representations and Warranties of Versaterm.
(a) Versaterm represents and warrants that it will use commercially reasonable efforts to ensure that all Software delivered to Agency is, at the time of shipment, free of any known computer software viruses.
8. Versaterm’s Indemnity
(a) Versaterm will defend at its own expense any claim, proceeding or suit (for purposes of this Section 8, a "Claim") brought against Agency to the extent such Claim alleges that any Licensed Materials provided under this Agreement infringes a proprietary right of a third-party which is enforceable within Canada or the United States, and will indemnify and pay all damages finally awarded against Agency by courts of competent jurisdiction on account of such infringement together with all reasonable costs and expenses (including reasonable legal fees as determined by courts of competent jurisdiction) incurred by Agency as a direct result of such Claim, provided Versaterm is given: (i) prompt written notice, however, no later than ten (10) days, of the Claim; (ii) all reasonable information and assistance which it may require to defend the Claim; (iii) sole control of the defense of the Claim, and all negotiations for its settlement or compromise; and provided further: (iv) that the alleged infringement does not result from any alterations, modifications or enhancements to the Software or Documentation made by Agency or on its behalf by a third-party, or the use or operation of the Licensed Materials in combination with other software, products, data, apparatus or equipment not provided by Versaterm.
(b) Notwithstanding anything to the contrary in this Agreement , Versaterm shall not be responsible for any cost, expense or compromise incurred or made by Agency in respect of a Claim without Versaterm's express prior written consent.
(c) If any Claim has occurred, or in Versaterm’s opinion is likely to occur, Versaterm may, at its option and expense: (a) procure for Agency the right to continue using the applicable Licensed Materials, (b) replace or modify the same so that it becomes non-infringing without loss of material functionality; or (c) if applicable, if none of the foregoing alternatives is reasonably available, or available on commercially reasonable terms, at Versaterm’s discretion, discontinue the Service and use of the Software refund any pre-paid and unused portion of the Fees paid by the applicable paying party in respect of Agency’s use of the Software for the remainder of the then-current portion of the Subscription Term.
(d) Notwithstanding the above, Versaterm shall have no obligation for any Claim based upon Third-Party Components, which are warranted solely by the individual Third-Party Supplier.
(e) This Section 8 states the entire obligations of Versaterm with respect to any infringement of any Intellectual Property Rights of any third-party.
9. Agency's Indemnity
(a) Unless prohibited by applicable law, Agency shall defend at its own expense any Claim brought against Versaterm, its affiliates or any of their respective directors, officers, employees, consultants, contractors or agents (each, a “Versaterm Indemnitee”), to the extent such Claim: (i) alleges, directly or indirectly, that any Agency Data infringes any Canadian or U.S. Intellectual Property Right of a third person; or (ii) is in relation to Agency's use of the Software, including contrary to applicable law, except however to the extent Versaterm is obligated to indemnify Agency pursuant to Section 9; provided that Agency is given: (a) prompt written notice of the Claim or of any allegations or circumstances known to Versaterm which could result in a Claim, (b) all reasonable information and assistance from Versaterm, at Agency's expense, which Agency may require to defend the Claim; and (c) sole control of the defense of the Claim, and all negotiations for its settlement or compromise thereof; provided that Versaterm’s express prior written consent shall be required for any such settlement or compromise that (i) does not fully and irrevocably release all Versaterm Indemnitees from any liability of any kind a full release with respect thereto, (ii) limits in any manner Versaterm’s right to use, distribute or commercialize any Licensed Materials, or (iii) that includes any admission of wrongdoing by or creates or is reasonably likely to create any reputational harm to any Versaterm Indemnitee.
10. Exclusion of Other Warranties and Conditions
(a) EXCEPT AS EXPRESSLY STATED IN THESE TERMS OF USE, THE LICENSED MATERIALS, THIRD-PARTY COMPONENTS OR ANY SERVICES PROVIDED HEREUNDER, ANY SERVICE SCHEDULE OR ANY SOW ARE PROVIDED ON AN "AS IS", “WHERE-IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND. THE REPRESENTATIONS AND WARRANTIES GIVEN BY VERSATERM IN SECTION 11 ARE IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, IN RELATION TO ANY LICENSED MATERIALS, THIRD-PARTY COMPONENTS OR SERVICES PROVIDED UNDER THESE TERMS OF USE, ANY SERVICE SCHEDULE OR ANY SOW, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. VERSATERM HEREBY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY COMPONENTS OR THE ACTS OR OMISSIONS (INCLUDING WITH RESPECT TO THE PROVISION OF ANY SERVICES) OF ANY THIRD-PARTY SUPPLIER.
(b) AGENCY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE AND OPERATION OF ANY SOFTWARE OR THIRD-PARTY COMPONENTS, AND THE RESULTS OBTAINED FROM SUCH USE AND OPERATION, ARE AT THE SOLE AND EXCLUSIVE RISK OF THE AGENCY AND THAT VERSATERM ASSUMES NO LIABILITY OR RESPONSIBILITY WITH RESPECT TO ANY RELIANCE UPON THE RESULTS OBTAINED BY AGENCY OR ANY THIRD-PARTY.
11. Exclusion of Indirect Damages.
UNDER NO CIRCUMSTANCES WILL VERSATERM BE LIABLE FOR ANY OF THE FOLLOWING UNDER THIS AGREEMENT FOR ANY REASON: (A) SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITH RESPECT TO LOSS OF PROFITS, REVENUES, AGENCYS OR CONTRACTS, LOSS OF USE OF EQUIPMENT, LOSS OF OR DAMAGE TO DATA OR AGENCY RECORDS, REPUTATIONAL HARM, OPERATIONAL OR SERVICE INTERUPTIONS, BUSINESS INTERRUPTION, OR LACK OF AVAILABILITY OF AGENCY MATERIALS OR FACILITIES, INCLUDING AGENCY'S COMPUTER RESOURCES, SOFTWARE AND ANY STORED DATA (INCLUDING AGENCY DATA) OR RECORDS; OR (B) ANY THIRD-PARTY CLAIMS AGAINST AGENCY FOR LOSSES OR DAMAGES (EXCEPT AS EXPRESSLY PROVIDED IN SECTION 13), IN EACH CASE, EVEN IF ADVISED OF THE POSSIBILITY OF SAME OR EVEN IF SAME WERE REASONABLY FORESEEABLE.
12. Limitation of Direct Damages.
THE TOTAL AGGREGATE LIABILITY OF VERSATERM UNDER THIS AGREEMENT IN ANY CIRCUMSTANCES IS LIMITED TO THE AMOUNT PAID FOR THE SERVICES PROVIDED BY VERSATERM AND PAID TO VERSATERM PURSUANT TO WHICH SUCH LIABILITY AROSE OR IS ASSOCIATED DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM GIVING RISE TO THE LIABILITY AROSE. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY OUTLINED IN THIS SECTION SHALL NOT APPLY TO DAMAGES ARISING FROM VERSATERM’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
13. Termination.
In addition to any other rights or remedies hereunder:
(a) Unless otherwise indicated in an applicable state contract or to which Versaterm is a contractor or a subcontractor or document issued by a reseller, Versaterm reserves the right to terminate the Subscription Services for convenience by providing ninety (90) days’ written notice to the Agency.
(b) Versaterm may terminate the Agency’s access and use of the Subscription Services at any time on giving Agency notice in writing if: (i) Agency infringes any copyright or other Intellectual Property Right or other industrial or proprietary right of Versaterm; (ii) in Versaterm’s reasonable judgment, Agency’s use of the Software poses a security risk to the Software or any third party.
14. Orderly Termination
(a) Upon any termination or other expiration of an agreement to use the Versaterm services., each Party shall forthwith return to the other Party all Confidential Information, documentation, papers, material, and other property of the other Party in its possession or control.
(b) In addition to the obligations in Section 13 above, upon termination or upon expiration of the Subscription Term, Agency shall:
(i) immediately discontinue use of the Licensed Materials;
(ii) ensure that all Persons using the Licensed Materials pursuant to these Terms of Use cease all use thereof;
(iii) promptly (and in any event within five (5) days) return to Versaterm all copies of the Licensed Materials in its (or any Authorized Users’ or other Persons’ to whom it provided access to any Licensed Materials) possession or control;
(iv) permanently erase all Licensed Materials, in whole or in part, from all computer systems, storage devices and other electronic recording systems in Agency’s possession or control and cause each Authorized User and each other Person to whom it provided access to any Licensed Materials to do the same;
(v) deliver within thirty (30) calendar days of such termination or expiration a certificate certifying that Agency and all such Persons to whom Agency has provided access to any Licensed Materials have complied with the terms of this Section 20(b), as applicable; and
15. Notices.
(a) The address for notices to Customer shall be the address indicated in the Letter of Agreement. The address for notices to Versaterm shall be the following: 1 North MacDonald, Suite 500, Mesa, Arizona, USA, 85201, Attention to: Legal Department, legal@versatmerm.com.
(b) Unless otherwise specified in this Agreement, all notices, requests, demands and other communications under this Agreement shall be in writing and shall only be duly given: (a) on the date of sending if sent by email, or (b) on the third business day after posting if sent, during normal postal conditions, by registered or certified mail.
16. Suspension
If Agency has materially violated this Agreement, Versaterm may immediately suspend Agency's and each of its Authorized Users' right to access or use any Licensed Materials (including access to the Versaterm Platform) or receive any Subscription Services.
17. Service Levels Agreements and Support Terms
You acknowledge that the Services have specific service level agreements, customer support and other specific terms associated with the applicable Services which shall be referred either in a Quote, attached to or outlined in a Letter Agreement or as posted on Versaterm’s website at www. https://www.versaterm.com/legal.
18. General Terms
This Agreement constitutes the entire agreement between Versaterm and Customer regarding Customer’s use of the Services. All prior agreements, negotiations, undertakings, and discussions, whether oral or written, are superseded by this Agreement and there are no warranties, representations, or covenants between the Parties in connection with this Agreement, except as specifically set forth or referred to in this Agreement. (b) Except as expressly provided otherwise, dates and times by which Versaterm or Agency is required to render performance (other than dates and times for payment of money) this Agreement shall be postponed automatically to the extent and for the period of time that Versaterm or Agency, as the case may be, is prevented from meeting them by reason of any causes beyond its reasonable control, provided the Party prevented from rendering performance notifies the other Party promptly and in detail of the commencement and nature of such a cause, and provided further that such Party uses its commercially reasonable efforts to render performance in a timely manner utilizing to such end all resources reasonably required in the circumstances, including obtaining supplies or services from other sources if same are reasonably available. (c) If any provision of these Terms of Use is determined to be invalid or unenforceable by a court of competent jurisdiction from which no further appeal lies or is taken, that provision shall be deemed to be severed herefrom, and the remaining provisions of these Terms of Use shall not be affected thereby and shall remain valid and enforceable. (d) Section headings used in these Terms of Use are for convenience of reference only and shall not be construed as defining, limiting, or describing the scope or intent of these Terms of Use, as applicable. (e) These Terms of Use shall be binding upon and enure to the benefit of the Parties and their respective successors and permitted assigns. (f) In these Terms of Use words in the singular number include the plural and vice versa; words in the masculine gender include the feminine and neutral genders. (g) None of these Terms of Use shall be changed or amended except in writing by an amendment executed by authorized representatives of each Party. (h) These Terms of Use, as well as any matters relating to these Terms of Use, shall be governed by the laws of the state where the Agency’s headquarters is located. Any lawsuit, action, claim or legal proceeding arising out of or related to this Agreement shall be brought exclusively in the United States in the state where Agency’s headquarters is located and jurisdiction over any such lawsuit, action, claim, or legal proceeding shall lie exclusively in this forum. (i) Each Party acknowledges that it has not been induced to enter into these Terms of Use by any representations, warranties or covenants not expressly stated herein or therein. (j) Agency shall ensure that its employees, consultants, contractors and agents comply with the terms and conditions of these Terms of Use to the extent that such Persons are entitled or obligated under the terms hereof or thereof to exercise any rights or perform any obligations hereunder or thereunder. Agency shall be responsible for the actions of all such employees, consultants, contractors and agents. (k) Versaterm may reference the existence of the business relationship between the Parties for the purposes of referencing Customer as a customer of Versaterm, including in Versaterm’s customer list. (l) All obligations accrued to the date of termination as well as the Sections of this Agreement listed below shall survive the termination of this Agreement made pursuant to this Agreement for as long as necessary to permit their full discharge: 1, 2 (b), 2(c), 2(d), 3 (b), 6, 8-12, 14, and 16-18.