General Terms and Conditions
The Products provided pursuant to the Order Form signed by the parties are subject to the following General Terms and Conditions:
- Payment. All fees are exclusive of taxes, if any. Client shall pay SpotRight for the Products as set forth in the Order Form along with any applicable taxes. Client’s failure to make timely payments shall constitute a default and shall entitle SpotRight to suspend its provision of the Products immediately.
- Confidentiality. The Products, Client data, the terms and conditions of this Agreement and any proprietary or confidential information of either Party (collectively, “Confidential Information”) provided hereunder by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) shall be held in confidence by the Receiving Party and shall not be disclosed or used for any purpose other than as expressly provided in this Agreement. The Receiving Party shall (a) protect the Confidential Information of the Disclosing Party with at least the same degree of care with which it protects its own confidential or proprietary information, but not less than a reasonable degree of care, and (b) instruct its employees and all other parties who are authorized to have access to the Disclosing Party’s Confidential Information of the restrictions contained in this Agreement. The Receiving Party shall limit access to the Disclosing Party’s Confidential Information to the Receiving Party’s own employees, agents, contractors, Service Providers and consultants (collectively, “Representatives”) who have a “need-to-know” such information; provided, however, that such Representatives have executed an agreement with the Receiving Party with confidentiality provisions at least as restrictive as those contained herein. The Parties hereby undertake to ensure the individual compliance of their respective Representatives with the terms hereof and shall be responsible for any actions or inactions of such Representatives. The Receiving Party shall, as soon as reasonably practical after discovery, report to the Disclosing Party any unauthorized use, disclosure or access to the Disclosing Party’s Confidential Information, subject to any restrictions placed on the timing of such notice by a law enforcement or regulatory agency investigating the incident. In addition, the Receiving Party shall take reasonable measures to prevent any further unauthorized use, disclosure or access.
- Intellectual Property. Notwithstanding any provision of this Agreement to the contrary, the following shall be and remain the sole property of SpotRight: (a) The Products and any data sourced therefrom; (b) SpotRight-proprietary applications, data models, SpotRight-proprietary business rules, as well as all computer programs, code elements, routines, libraries, tools, methodologies, processes, or technologies created, adapted, or used by SpotRight in its business generally, including all associated intellectual property rights. Further, the following shall be and remain the sole property of Client: Client data that is used in connection with the Products.
- General restrictions. The Products may not for exclusionary or discriminatory purposes. The Products cannot be used as a factor in establishing an individual’s creditworthiness or eligibility for credit, insurance or employment or in connection with credit repair services. The Products cannot be used to advertise, sell or exchange any illegal or illicit products or services, including, without limitation, pornography, illegal drugs or illegal weapons.
- Warranties. SpotRight warrants that it has the necessary equipment, computer capacity, software, programs, and trained personnel to properly perform consistent with standard industry practices; that it will perform in a professional and workmanlike manner; and that it has implemented and will maintain an information security program that contains administrative, technical, and physical safeguards that are appropriate to its size and complexity, the nature and scope of its activities, and the sensitivity of any consumer information at issue. SpotRight makes no warranty with respect to turnaround times for analyses as times will vary depending on the size of the analysis, system volume, and other factors. Each Party warrants to the other that it has full power and authority to enter into and perform the Agreement; the execution and delivery of the Agreement have been duly authorized; its Confidential Information has been legally obtained; the provision of its Confidential Information to the other does not violate any laws or agreements with third parties; and it will comply with all applicable laws, rules, and regulations. EXCEPT AS OTHERWISE STATED IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES HEREUNDER, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR, WITH RESPECT TO DATA PRODUCTS, ACCURACY, COMPLETENESS, OR CURRENTNESS. Either Party may suspend the Agreement if performance or delivery would be illegal or in violation of any applicable law, rule, or regulation.
- Indemnification. Each Party (the “Indemnifying Party”) agrees to indemnify and hold the other Party, its agents and employees (collectively, “Indemnified Party”) harmless from and against any damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of Indemnifying Party’s misconduct or negligence.
- Limitation of Liability. SpotRight’s sole obligation, and Client’s exclusive remedy, for any claim arising out of defective Products shall be to re-perform or re-deliver the Products in question without charge. Neither Party shall be liable for any indirect, incidental, special or consequential damages (including loss of income, revenue, profits, or goodwill, BUT NOT INCLUDING ANY FEES PAYABLE HEREUNDER), even if a party has been advised of the possibility of such damages in advance. Either Party’s aggregate liability to the other for direct damages that arise out of or are related to this Agreement or any applicable Order Form shall be limited to fees paid by Client within the most recent twelve (12) month period.
- Miscellaneous. The Agreement shall be governed and construed in accordance with the laws of the State of Delaware, without regard to conflict of law principles. In the event of a conflict, the General Terms and Conditions will control and resolve the conflict, unless specifically stated otherwise in the Order Form. Neither Party shall be liable for any losses arising out of the delay or interruption of its performance of obligations under the Agreement due to any act of God, act of governmental authority, act of public enemy, terrorism, war (whether or not declared), riot, flood, civil commotion, insurrection, severe weather conditions, or any other cause beyond the reasonable control of the Party delayed. This Agreement constitutes the entire agreement between the Parties with respect to the subject-matter hereof, and supersedes any and all written or oral prior agreement and understandings between the Parties. The descriptive headings of the sections of this Agreement are for convenience only and do not constitute a part of this Agreement. If any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable, the same shall not affect any of the other provisions herein. Unless otherwise specifically provided for in this Agreement, no provision of the Agreement, express or implied, is intended to confer rights or other benefits to any third party. Failure or delay by either Party in exercising any right hereunder shall not operate as a waiver of such right. Any provision of this Agreement that contemplates performance or observance subsequent to any termination of this Agreement, including all provisions with respect to fees, proprietary information, confidentiality, and limitation of liability, shall survive any termination of this Agreement and continue in full force and effect.