TextGen Cloud Solutions Agreement
This Cloud Solutions Agreement is entered into between you and TextGen, LLC and governs your use of and access to the Solution. The term “Agreement” refers collectively to these terms and conditions and, as applicable the Solution Description for the applicable Solution.
This Agreement is effective upon your (a) approval of a Solution Description; (b) acceptance of these terms pursuant to an online order process; (c) accessing or using the Solution; or (d) acceptance of terms between you and a wholesaler that references this Agreement, if you purchased through a wholesaler. “You,” “your” or “Customer” means the customer entity (or end-user entity, if you purchased through a wholesaler) identified in the applicable Solution Description or online order process and includes any of your affiliates that place an order for the Solution. “TextGen,” “us,” “we” or “our” means TextGen, LLC, on behalf of itself and its suppliers and licensors. You agree that your purchase of the Solution is solely for your internal business use. The Solutions purchased under this Agreement are not for resale.
“Activation Instructions” means any instructions, user IDs, software license keys or passwords that we may provide you in respect of specific Solutions to enable you to activate or access the Solution.
“Cloud” means a combination of hardware, services, software and networking elements made available by us under a Solution Description that comprise an information technology system. Depending on the Solution purchased, the Cloud may consist of a dedicated system for your use only (whether located on a TextGen site or on the Customer’s site), the right to use certain parts of a shared system maintained for multiple customers, or a combination of some dedicated elements and some shared elements.
“Confidential Information” means (i) data you transmit to us or store as part of the Solution or information provided to us on a Solutions Description; (ii) pricing and other Solution terms, marketing and sales information, know-how, audit and security reports, product development plans, or other proprietary information or technology provided to you (including Software); and (iii) Trade Secrets or any information designated as Confidential. Information developed without reference to another party’s Confidential Information, or that is a part of or enters the public domain or otherwise is made available to a party other than through a violation of confidentiality, will not be Confidential Information.
“Intellectual Property” means all patents, applications for patents, copyrights, moral rights, author’s rights, rights of publicity, mask works, Trade Secrets, know-how, contract rights, licensing rights and/or any other intellectual or proprietary rights recognized by any jurisdiction, whether now existing or hereafter arising. Intellectual Property also includes corporate names, trade names, trademarks, service marks or other proprietary designations.
“Services” means any and all services performed by us as described in one or more Solution Descriptions, including our providing access to and use of the Cloud.
“Software” means any software, library, utility, tool or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by us in connection with a Solution. Software includes software locally installed on your systems and software accessed through the internet or by other remote means including websites, portals and cloud-based solutions to utilize a Solution in accordance with this Agreement.
“Solution” means the combination of the Services performed and Software provided by us to you pursuant to a Solution Description, including use of the Cloud in connection with the provision of a Solution.
“Solution Description” means a statement of work, service description, solution description or other agreement that references this Agreement.
“Third-Party Products” means any non-TextGen software or services provided, made available or otherwise used by us in connection with the Solution, including any Customer provided software, hardware or services.
“Trade Secret” means any information not commonly known or available to the public, which (i) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
2. Quotes, Ordering and Payment. If you purchased a Solution through a wholesaler, the terms and conditions of sale (including pricing) for the purchase will be as agreed between you and the wholesaler. This Section 2 applies to direct sales only.
We will charge amounts for Solutions as set forth in the applicable Solution Description or, if not specified, the current list pricing provided on our website. All orders are subject to our acceptance. Usage in excess of these numbers will result in additional costs. Solutions are invoiced monthly beginning on the Activation Date. We, or our wholesaler(s), will invoice you locally, per the billing address(es) you provide, in the applicable currency. Invoices are due and payable within thirty (28) days from the invoice date. We reserve the right to charge a late payment fee of 1.5 percent per month against overdue amounts or the maximum rate permitted by law, whichever is less. Late payment fees are recalculated every thirty (30) days based on your current outstanding balance, which may include any previously accrued and unpaid late payment fees.
The charges stated in any Solutions Description or invoice will include all duties, levies or any similar charges and will exclude VAT or equivalent sales or use tax. You are responsible, on behalf of yourself and your affiliates, for the payment of all taxes and fees assessed or imposed on the Solution in any geography in which you receive the benefit of the Solution, including any sales, use, excise, value-added or comparable taxes, but excluding taxes for which you have provided a valid resale or exemption certificate. Should any payments become subject to withholding tax, you or your affiliates will deduct these taxes from the amount owed and pay the taxes to the appropriate tax authority in accordance with applicable tax laws. You will promptly provide us with receipts or documents evidencing these tax payments. We are not liable for any withholding tax, penalty or interest due as a result of your failure to withhold any applicable tax.
3. Activation. With respect to certain Solutions, after our receipt and acceptance of an order (whether placed directly with TextGen or through a wholesaler), you will receive Activation Instructions. The date Activation Instructions are transmitted or, in the event Activation Instructions are not required, the effective date of the applicable Solution Description or the date an online order is executed is the “Activation Date.” You are responsible for providing, maintaining and monitoring one dedicated email address for the receipt of notices and other communications related to the Solution.
4. Term Renewals. The “Term” for any Solution begins on the Activation Date and extends for the period indicated in the Solution Description (or, if you purchased through a wholesaler, the applicable period in your order with the wholesaler). If you purchased directly from TextGen, we may automatically renew this Agreement and the related Solution(s) for a successive Term at our then-current list price. By continuing to use the Solution(s) beyond the expiration of the applicable Term, we may renew this Agreement and the related Solution(s) in our discretion for a successive Term at our then-current list price. If you purchased through a wholesaler, the terms and conditions of renewal for the purchase will be as agreed between you and the wholesaler.
5. Termination. Either party may terminate this Agreement if the other party commits a material breach and the breach is not cured within ninety (90) days of receipt of written notice describing the nature of the breach. If you purchased multiple Solutions, termination of an individual Solution will not terminate this Agreement unless the circumstances giving rise to termination generally affect all purchased Solutions. Notwithstanding the foregoing, we may terminate this Agreement or the affected Solutions upon written notice to you if (i) you are delinquent on your payment obligations for thirty (30) days or more; (ii) you declare bankruptcy, are adjudicated bankrupt or a receiver or trustee is appointed for you or substantially all of your assets; or (iii) you purchased through a wholesaler and as applicable: the agreement between you and such wholesaler expires or is terminated, the agreement between TextGen and such wholesaler expires or is terminated or your wholesaler is delinquent on its payment obligations to TextGen. In the event we terminate pursuant to this Section 5, we will not be liable to you.
Upon expiration of the Term for all Solutions purchased pursuant to this Agreement, either party may terminate this Agreement by providing thirty (30) days written notice. Upon termination of this Agreement, all rights and obligations under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations and any obligations that expressly or by implication are intended to survive termination.
6. Assignment. You may not assign this Agreement or any rights or obligations under this Agreement to a third-party without our prior written consent. We may assign, sell or otherwise transfer our rights to a business, product line or substantially all of our assets, provided the transferee agrees to perform the obligations under this Agreement. We may subcontract or delegate in whole or in part this Agreement, provided that we remain responsible for the performance of the Solution. For purposes of this Agreement, any change of control will be deemed an assignment.
7. Proprietary Rights. Except for information created or otherwise owned by you or licensed by you from third-parties, including all information provided by you to us through the Solution or for use in connection with the Solution, all right, title, and interest in the Intellectual Property embodied in the Solution, including the know-how and methods by which the Solution is provided and the processes that make up the Solution, will belong solely and exclusively to us or our licensors, and you will have no rights in any of the above, except as expressly granted in this Agreement. The Services and the Software used to provide the Solution embody valuable Trade Secrets and proprietary rights of TextGen and/or our licensors and are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Any Intellectual Property developed by us during the performance of the Solution will belong solely and exclusively to us and our licensors.
8. Suspension, Deletion and Modification. We may suspend all or part of the Solution or your access to or use of data stored in the Cloud (i) if you (or your wholesaler, if you purchased through a wholesaler) are delinquent on payment obligations for fifteen (15) days or more; (ii) upon receipt of a subpoena or law-enforcement request; or (iii) when we have a commercially reasonable belief that you have breached this Agreement or that your use of the Solution poses an imminent security risk or may subject TextGen to liability . We will use commercially reasonable efforts to give you at least twelve (12) hours notice of a suspension unless we determine in our commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect us or our customers.
We may delete your data stored in the Cloud (a) sixty (60) days following any termination by us pursuant to Section 5 of this Agreement. If we are providing the Solution in connection with a trial program such as a demo, evaluation, pilot or proof of concept (a “Trial”), immediately following the conclusion of the Trial we may delete your data stored in the Cloud and are under no obligation to return your data to you. If, however, immediately following the conclusion of the Trial you renew the Solution for the standard term, we will store your data in the Cloud in accordance with this Agreement.
We may modify the functionality or features of the Solution at any time, provided that the modification does not materially denigrate the functionality of the Solution (as described in the applicable Solution Description) during the Term. We will not be liable to you or any third-party for any such modification. From time to time, we may change the location where the Solution is provided; provided, however, we will remain responsible for the delivery of the Solution.
It may be necessary for us to perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the Software, which may temporarily degrade the quality of the Solution or result in a partial or complete outage of the Solution. Although we cannot guarantee that you will receive advance notice of repairs or maintenance, we will endeavor to provide at least seven (7) days notice of scheduled updates and patches.
9. Access and Use. To the extent Software is provided as a part of the Solution, such Software is provided subject to the following terms:
A. License. For the applicable Term, and subject to the restrictions below, we grant you a non-exclusive, limited, revocable license under our Intellectual Property rights to access and use the applicable Software as permitted by this Agreement.
B. Restrictions. Unless otherwise expressly permitted in this Agreement, without our prior written consent, you will not:
(i) permit any third-party to use or copy the Software;
(ii) modify, translate, alter, adapt, publish, transmit, remove, reverse engineer, decompile, disassemble, reproduce, distribute, display, create derivative works, compilations or collective works based on or otherwise exploit any of the Software;
(iii) merge the Software with any other software;
(iv) except in connection with providing a Customer Solution, sell, sublicense, rent, lease, grant a security interest in or otherwise transfer rights to the Software;
(v) benchmark the performance of the Software or Solution without our prior written consent; or
(vi) except in connection with providing a Customer Solution, use the Software to operate in or as a time-sharing, outsourcing or service bureau environment or in any way allow third-party access to the Solution.
C. Rights Reserved. THE SOFTWARE IS LICENSED, NOT SOLD. Except for the license expressly granted herein, TextGen, on behalf of itself and its licensors and suppliers, retains all right, title and interest in and to the Software and in all related Intellectual Property and its derivative works, including registrations, applications, renewals and extensions of such rights (the “Works”). The rights in these Works are valid and protected in all forms, media and technologies existing now or hereinafter developed and any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, display, republication or performance of the Works, except as specifically permitted herein, is strictly prohibited. TextGen, on behalf of itself and its licensors and suppliers, retains all rights not expressly granted herein.
D. Open Source Software. A portion of the Software may contain or consist of open source software, which you may use under the terms and conditions of the specific license under which the open source software is distributed.
10. Privacy. For information about our privacy practices, please read our privacy policies at www.textgen.com. These policies explain how we treat your personal information and protect your privacy.
11. Acceptable Use Policy. You must use reasonable security precautions in connection with your use of the Solution and comply with laws and regulations applicable to your use of the Solution. You must cooperate with our reasonable investigation of Service outages, security issues and any suspected breach of this Agreement. We may add or modify restrictions on use of the Solutions, provided that the changes are commercially reasonable, consistent with industry norms and apply to all customers.
12. Customer Obligations. You are responsible for keeping your account permissions, billing and other account information up to date. If you purchased directly from TextGen, you must pay when due the amounts for the Solution stated in the applicable Solution Description or other agreement between you and TextGen. If you purchased from a wholesaler, you must pay when due the amounts for each Solution stated in the applicable agreement between you and the wholesaler. Certain Solutions may contain features designed to interoperate with Third-Party Products. If the Third-Party Product is no longer made available by the applicable provider, we may stop providing the related Solution feature and you will not be entitled to any refund, credit or other compensation. In our performance of the Solution, we may obtain information related to your use of the Solution. You agree that we may use such information in an aggregated, anonymized form to assist in improving and optimizing various aspects of the Solution or in support of generic marketing activities related to the Solution.
You are responsible for the data and software you use or store in the Cloud, including its maintenance, operation and compatibility in and with the Cloud, and any third-party claims regarding the same. You understand and agree that we have no control over the content of the data processed by us and that we perform the Services on your behalf. If you transmit data to a third-party website or other provider that is linked to or made accessible by the Solution, you consent to our enabling such transmission, but such transmission and any related interaction is solely between you and the third-party website or provider and may be subject to additional terms and conditions provided by the third-party website or provider. We will not be responsible for any disclosures, modifications or deletion of your data resulting from any such transmission. We make no warranties about and will have no liability for such third-party websites or providers.
You will be deemed to have taken any action that you permit, enable or facilitate any person or entity to take related to this Agreement, any Customer Solution or use of any Solution. You are responsible for the use of the Solutions and any person who gains access to your data or the Solution as a result of your failure to use reasonable security precautions, even if the use was not authorized by you. You are responsible for any Customer Solution, including (i) controlling the access to, and use and security of, the Customer Solution and the data residing in or processed via the Customer Solution, and (ii) maintaining the security of the passwords and other measures used to protect access to any end-user account.
You are responsible for selecting, obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Solution and for ensuring that the equipment is compatible with the Solution. You are responsible for properly configuring and using the Solution and taking your own steps to maintain appropriate security, protection and back-up of your data, software and any Customer Solution, including the use of appropriate encryption, backup and archiving. You acknowledge that the Solutions are not intended to replace and do not replace the need for you to maintain regular data backups or redundant data archives. You are responsible for maintaining backup copies of your data that may be stored or processed by us in the course of our provision of Solutions. You understand and agree that we are not responsible for any loss or corruption of your data or software. You remain responsible for properly handling and processing notices claiming that your data, software or any Customer Solution violates a person’s rights.
13. Customer License Grant. Customer grants to TextGen the necessary rights to operate any Customer-provided software, including a non-exclusive, royalty-free license (which shall terminate upon termination of the applicable Solution) to install, deploy, use, execute, reproduce, display, perform and run such software (including, without limitation, guest operating systems and application programs), as are reasonable or necessary for TextGen to perform or provide the Solution. As between you and TextGen, you are responsible for providing, updating, uploading and maintaining any Customer-provided software and paying all fees associated therewith, including any software license and maintenance fees. If, in order to provide the Solution, we are required to install, patch, manage or otherwise use or access software that you license from a third-party software vendor, then you represent and warrant that you have obtained a written license agreement with the vendor that permits us to perform these activities.
Customer grants to TextGen a nonexclusive, royalty-free license to access, use, reproduce, modify, perform, display and distribute Customer data as is reasonable or necessary for TextGen to perform or provide the Solution. It is Customer’s responsibility to obtain, at its own expense, all licenses, consents and approvals required to grant to TextGen the rights and licenses in this Agreement.
14. High-Risk Disclaimer. The Solutions are not fault-tolerant and are not designed or intended for use and may not be used in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines or any other application in which the failure of the Solutions could lead directly to death, personal injury or severe physical or property damage (collectively, “High-Risk Activities”). We expressly disclaim any liability or express or implied warranty of fitness for High-Risk Activities.
15. Important Additional Information. NOTHING IN THIS SECTION WILL EXCLUDE OR LIMIT OUR WARRANTY OR LIABILITY FOR LOSSES THAT MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW. AS SUCH, ONLY THE LIMITATIONS THAT LAWFULLY APPLY TO YOU IN YOUR JURISDICTION WILL APPLY TO YOU, AND IN SUCH EVENT OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
A. Limited Warranty. THE SOLUTION, TOGETHER WITH ALL THIRD-PARTY PRODUCTS AND OPEN SOURCE SOFTWARE PROVIDED BY TEXTGEN, IS PROVIDED “AS IS.” TEXTGEN (INCLUDING ITS AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS LICENSORS AND SUPPLIERS (COLLECTIVELY AND TOGETHER WITH TEXTGEN, THE “TEXTGEN PARTIES”), MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE SOLUTION OR ANY OF THE SOFTWARE OR SERVICES INCLUDED THEREIN, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (1) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY OR NON-INFRINGEMENT; (2) RELATING TO THE PERFORMANCE OF SOFTWARE (INCLUDING WHETHER THE SOFTWARE IS OR WILL BE SECURE, ACCURATE, COMPLETE, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS OR OTHER HARMFUL COMPONENTS OR PROGRAM LIMITATIONS, OR THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED ) OR OUR PERFORMANCE OF THE SERVICES (INCLUDING WHETHER THE SERVICES ARE OR WILL BE UNINTERRUPTED, TIMELY OR WITHOUT ERROR) OR THE SECURITY OF THE SOLUTION; (3) REGARDING THE RESULTS TO BE OBTAINED FROM THE SOLUTION (INCLUDING THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS OR EFFECTIVENESS OF ANY REPORTS, DATA, RESULTS OR OTHER INFORMATION OBTAINED OR GENERATED BY YOU RELATED TO YOUR USE OF THE SOFTWARE ) OR THE RESULTS OF ANY RECOMMENDATION BY US; OR (4) ARISING OUT OF ANY COURSE OF DEALING OR TRADE USAGE. ANY WARRANTY ON A THIRD-PARTY PRODUCT IS PROVIDED BY THE PUBLISHER, PROVIDER OR ORIGINAL MANUFACTURER, WHETHER OR NOT SUCH THIRD-PARTY PRODUCT IS DESIGNATED BY US AS “CERTIFIED,” “APPROVED” OR OTHERWISE. IN THE EVENT WE ARE PROVIDING THE SOLUTION IN CONNECTION WITH A TRIAL, THE SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES.
WITH RESPECT TO YOUR USE OF THE SOFTWARE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH PROBLEMS OR VIRUSES ARE THE DIRECT RESULT OF OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT .
YOU AGREE THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SOLUTIONS, INCLUDING TELEPHONE, COMPUTER NETWORKS AND THE INTERNET, OR FOR TRANSMITTING INFORMATION CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO OR USE OR OPERATION OF THE SOLUTIONS. WE WILL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF YOUR ACCESS TO OR USE OF THE SOLUTIONS OR THE IMPACT SUCH INTERFERENCE OR PREVENTION MAY HAVE ON OUR ABILITY TO PERFORM THE SOLUTIONS.
B. Limitation of Liability. EXCEPT FOR AN UNAUTHORIZED DISCLOSURE OF CONFIDENTIAL INFORMATION IN BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 15(C) OR INFRINGEMENT/MISAPPROPRIATION OF INTELLECTUAL PROPERTY, NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY (a) LOSS OF REVENUE, INCOME, PROFIT, SAVINGS OR BUSINESS OPPORTUNITY; (b) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK, OR THE RECOVERY OF SUCH; (c) BUSINESS INTERRUPTION OR DOWNTIME; (d) LOSS OF GOODWILL OR REPUTATION; (e) SERVICES, SOFTWARE, DELIVERABLES OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE; OR (f) THE PROCUREMENT OF SUBSTITUTE SOLUTIONS; ARISING OUT OF OR IN CONNECTION WITH THE SOLUTIONS PROVIDED HEREUNDER.
OUR TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING WITH RESPECT TO ANY SOLUTIONS PROVIDED HEREUNDER) IN ANY 12-MONTH PERIOD WILL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY TEXTGEN DURING THE PRIOR TWELVE (12) MONTHS OF THIS AGREEMENT FOR THE SPECIFIC SOLUTION GIVING RISE TO SUCH CLAIM(S).
THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE. THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR OUR SALE AND PERFORMANCE OF THE SOLUTION TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
C. Confidentiality. Confidential Information may not be disclosed except to affiliates, employees, agents and subcontractors who “need-to-know” it and who have agreed in writing to treat the Confidential Information under terms at least as restrictive as those in this Agreement. Each party agrees to take the necessary precautions to maintain the confidentiality of the other party’s Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient will provide reasonable advance notice to other party before making the disclosure.
D. Indemnification. We will defend and indemnify you from and against any claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim or action that the Solution (excluding Third-Party Products and open source software) infringes or misappropriates that third-party’s Intellectual Property rights enforceable in the country in which the Solution is sold to you. In addition, if we receive prompt notice of a claim that, in our reasonable opinion, is likely to result in an adverse ruling, then we will, at our option, (i) obtain a right for you to continue using the Software or that allow us to continue performing the Services; (ii) modify the Software or Services to make them noninfringing; (iii) replace the Software or Services with a noninfringing equivalent; or (iv) refund any prepaid fees for the allegedly infringing Services that have not been performed or provide a reasonably depreciated or pro rata refund for the allegedly infringing Software. Notwithstanding the foregoing, we will have no obligation under this Section D for any claim resulting or arising from (1) modifications of the Software or Services that were not performed by or on behalf of us; (2) the combination, operation or use of the Software or Services in connection with a Third-Party Product (the combination of which causes the claimed infringement); or (3) our compliance with your written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by you. This Section D states Customer’s exclusive remedies for any third-party Intellectual Property claim or action, and nothing in this Agreement or elsewhere will obligate us to provide any greater indemnity to Customer. This paragraph of Section D will not apply in the case of a Trial.
You will defend and indemnify the TextGen Parties from and against any claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim or action relating to (a) your failure to obtain or maintain any appropriate license, Intellectual Property rights or other permissions, regulatory certifications or approvals associated with technology or data provided by you, or associated with Software, Third-Party Products or other components directed or requested by you to be installed or integrated as part of the Solution; (b) your breach of this Agreement or violation of any applicable law, regulation or order; (c) any inaccurate representation regarding the existence of an export license or any allegation made against the TextGen Parties due to your violation or alleged violation of applicable Control Laws; (d) you providing any Excluded Data to TextGen; (e) tax liabilities that are your responsibility pursuant to Section 2; (f) your use of the Solution; and (g) your provision of your own services, software, technology or solution, including, without limitation, any Customer Solution.
Each party will defend and indemnify the other party against any third-party claim or action for personal bodily injury, including death, to the extent directly caused by the indemnifying party’s gross negligence or willful misconduct in the course of performing its obligations under this Agreement.
E. Indemnification Procedure. The indemnified party will (i) promptly notify the indemnifying party in writing of any claim; (ii) grant the indemnifying party sole control of the defense and resolution of the claim; and (iii) cooperate with the indemnifying party, at the indemnifying party’s expense, in defending and resolving the claim. Failure to provide prompt notice, however, will not affect the indemnifying party’s obligations to the extent the failure does not materially prejudice the indemnifying party’s ability to defend the claim.
In no event will an indemnifying party consent to the entry of any judgment or enter into any settlement with respect to any third-party claim without the prior written consent of the indemnified party (not to be unreasonably withheld) unless the judgment or settlement involves only the payment of money damages, without admission of fault, and expressly and unconditionally releases the indemnified party from all liabilities and obligations with respect to the claim.
F. Independent Contractor Relationship; No Third-Party Beneficiaries. The parties are independent contractors. No provision of this Agreement creates an association, trust, partnership or joint venture or imposes fiduciary duties, obligations or liability between you and us. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement. This Agreement does not and is not intended to confer any rights or remedies, express or implied, upon any person other than the parties hereto.
G. Force Majeure. Neither party will be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which performance is delayed by circumstances beyond its reasonable control, such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, riot, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of internet traffic carriers or actions or omissions of regulatory or governmental authorities (including the passage of laws or regulations or other acts of government or law enforcement that impact the delivery of the Solution) (a “Force Majeure”). The delayed party will promptly provide the other party with written notice of the Force Majeure. The delayed party’s performance will be excused for the duration of the Force Majeure, but if the Force Majeure lasts longer than thirty (30) days, then the other party may immediately terminate, in whole or in part, this Agreement or the applicable Solution Description by giving written notice to the delayed party. In the case of a Force Majeure, Customer acknowledges and agrees that its data may not be recoverable and accepts responsibility for re-entry of such data.
J. Revision to Online Terms. Any revisions to this Agreement (“Revisions”) are not effective until the date we publish the Revisions on our website.
K. Order of Precedence. If there is a conflict between the terms of any of the documents that comprise this Agreement, the documents will govern in the following order: the Solution Description, these terms and conditions.
L. Entire Agreement; Severability. This Agreement is the entire agreement between you and TextGen with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements between you and TextGen for the Solution. Except as otherwise provided for in Section 15.J, no amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement should be found to be void or unenforceable, the provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force and will not be terminated.
M. U.S. Government Restricted Rights. The Software and documentation provided with the Software and Services are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as these terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end-users acquire the Software and documentation with only those rights set forth herein. Contractor/manufacturer is TextGen, LLC, 2325 Maryland Road, Suite 150, Willow Grove, Pennsylvania 19090.
N. Governing Law. This Agreement and ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN YOU AND TEXTGEN (including any affiliates, contractors and agents, and each of their respective employees, directors and officers) arising from or relating to this Agreement, its interpretation or the breach, termination or validity thereof, any relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third-parties who are not signatories to this Agreement), or any related service (a “Dispute” ) shall be governed by the laws of the State of Pennsylvania, without regard to conflicts of law.
O. Jurisdiction and Venue. The parties agree that any Dispute will be brought exclusively in the state or federal courts located in Montgomery County, Pennsylvania. The parties further agree to submit to the personal jurisdiction of the state and federal courts located in Montgomery County, Pennsylvania, and agree to waive any objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
P. Bench Trial. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute.
Q. No Class Actions. NEITHER CUSTOMER NOR TEXTGEN WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OF A CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
R. Limitation Period. NEITHER PARTY will be liable for OR ASSERT any claim more than two years after THE claim first arose.
S. Waiver. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers must be in writing to be effective.
T. Notices. Notice to us under this Agreement must be in writing and sent by overnight courier or certified mail to TextGen, LLC, 2325 Maryland Road, Suite 150, Willow Grove, Pennsylvania 19090.
Additional Terms for Customer in Canada:
This Canadian Addendum to the Agreement applies to Customer, where Customer is given access to a Solution or Customer Solution in Canada. For greater certainty this Canadian Addendum is intended to facilitate the sale of Solutions from TextGen directly to a Canadian company.
1. Data Privacy.
1.1 You acknowledge that the Solution is provided from facilities located outside of Canada and any data, or information you provide through the Solution (including personal information) will be transmitted and stored outside of Canada.
1.2 You will be responsible to ensure that you have obtained all rights, permissions, and consents or have provided disclosures necessary to use and transfer such data and information outside of Canada in conjunction with TextGen’s performance of the Solution.
1.3 You will also be responsible to ensure that you are permitted to disclose or transfer data and information outside of Canada under any laws that may be applicable to your business, including the data and information collected and used by or in the course of conducting your business.
Cloud Solutions Agreement Acceptable Use Policy
This Cloud Solutions Agreement Acceptable Use Policy (the “AUP”) sets forth certain limitations and restrictions required in connection with your use of (i) the Solutions, and (ii) any online portal, console, dashboard or similar interface used in accessing the Solutions (the “Portal”). We may revise this AUP from time to time to add or modify restrictions on your use of the Solutions or the Portal. If you violate this AUP, we may suspend or terminate your use of the Solutions.
Terms used in this AUP that are capitalized and not otherwise defined have the meanings set forth in the TextGen Cloud Solutions Agreement.
You are prohibited from (1) attempting to use or gain unauthorized access to our or to any third-party’s networks or equipment; (2) permitting other individuals or entities to copy the Solutions; (3) providing unauthorized access to or use of Activation Instructions; (4) attempting to probe, scan or test the vulnerability of the Solutions or of a system, account or network of TextGen or any of our customers or suppliers; (5) interfering or attempting to interfere with service to any user, host or network; (6) engaging in fraudulent, offensive or illegal activity of any nature; (7) uploading any content, or engaging in any activity, that is pornographic, obscene, harassing, abusive, slanderous or defamatory or that encourages, promotes or expresses racism, hatred, bigotry or violence; (8) engaging in any activity that infringes the intellectual property rights or privacy rights of any individual or third-party; (9) transmitting unsolicited bulk or commercial messages; (10) intentionally distributing worms, Trojan horses, viruses, corrupted files or any similar items; (11) restricting, inhibiting or otherwise interfering with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Solutions (except for tools with safety and security functions); or (12) restricting, inhibiting, interfering with or otherwise disrupting or causing a performance degradation to any TextGen (or TextGen supplier) facilities used to deliver the Solutions. TextGen may in its sole discretion determine whether your use of the Solutions or the Portal is a violation of this AUP.
We may investigate suspected violations of this AUP. We may report suspected violations of this AUP to applicable law-enforcement authorities or third-parties and may cooperate with any investigation of illegal activities associated with your use of the Solutions, the Portal, the system or network, or any violation of this AUP.
TextGen Cloud Solutions Agreement
Revision Date: June 1, 2013