Last Updated: May 27, 2022
PLEASE READ THIS AGREEMENT CAREFULLY. BY COPYING, INSTALLING, OR USING ALL OR ANY PORTION OF THIS SOFTWARE, YOU (HERINAFTER “CUSTOMER”) ACCEPT ALL TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE PROVISIONS ON LICENSE RESTRICTIONS, LIMITED WARRANTY, LIMITAITON OF LIABILITY, AND SPECIFIC PROVISION AND EXCEPTIONS. CUSTOMER AGREES THAT THIS AGREEMENT IS LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY CUSTOMER. THIS AGREEMENT IS ENFORCEABLE AGAINST CUSTOMER. IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THE AGREEMENT, CUSTOMER MAY NOT USE THE SOFTWARE.
The Software will cause Customer’s Computer to AUTOMATICALLY CONNECT TO THE INTERNET. The Software may also require activation or registration. See below.
1. DEFINITIONS. Capitalized terms used but not defined elsewhere in this Agreement shall have the respective meanings set forth below:
1.1. “Affiliate” means with respect to an entity party to this Agreement, any entity which, directly or indirectly, controls, is controlled by or is under common control with such party, where control means the ability to direct the affairs of an entity through ownership of voting interest, contract rights or otherwise.
1.2. “Authorized User” means an individual in Customer’s company or practice who is authorized by Customer to use the Software and who is covered by an appropriate License hereunder. An Authorized User must be a full-time or part-time employee (but may be a contract/temporary employee) working for Customer primarily out of the Designated Office(s) for the purpose of assisting Customer in its day-to-day business activities. An Authorized User does not acquire individual rights in the Software other than the right to use the Software on Customer’s behalf and pursuant to the rights granted to Customer and subject to the terms and conditions of this Agreement, including subsection 2.3 hereof.
1.3. “Client” means to the extent Customer is a CPA firm, any third-party client of Customer that has entered into a direct agreement with Customer for audit, tax and/or accounting services.
1.4. “Customer” means the person or entity identified as the customer in the Order Form(s). The term “Customer” can also include an Affiliate of the primary Customer, provided that such Affiliate is specifically named as a covered entity on the applicable Order Form.
1.5. “Designated Office(s)” means the site(s), location(s), and/or address(es) for which Customer licenses the Software as identified in the Order Form(s).
1.6. “Fees” means the amounts payable by Customer to AUDET under the Order Form(s) and this Agreement.
1.7. “License(s)” means the licenses granted to Customer to use the Software as provided under subsection
2.1 of this Agreement.
1.8. “Online Account” means the authorized access to AUDET’s servers, networks and/or systems, including, for access for third party affiliates, including Adobe e-signature and Amazon Chime online meetings, as established by AUDET for each Authorized User, and includes the controls, permissions, and data unique to such user.
1.9. “Online Account Access Information” means the private access information (for example, username and password) used by each Authorized User to access his/her individual Online Account.
1.10. “Order Form” means (i) a written order in a form approved by AUDET and executed by Customer that provides for Customer’s acquisition of a License to the Software, (ii) a written order in a form approved by AUDET and accepted by Customer by execution thereof and/or payment therefore that provides for Customer’s acquisition of a License for additional Software title(s); or (iii) any renewal form for License(s) sent to Customer by AUDET under which Customer exercises its right to renew. All Order Forms incorporate and are subject to the terms and conditions of this Agreement.
1.11. “Software” means the particular Notis software, that’s identified in the Order Form(s) for Customer, including the files, databases, documentation, materials, modifications, revisions, optional features, enhancements, and Updates, if any. Under no circumstances shall Customer receive, or be entitled to receive, any source code for the Software or any portion or component thereof.
1.12. “Updates” means all minor revisions, patches, fixes, and other improvements (version upgrades excluded) provided by AUDET as part of AUDET’s Support, in its sole discretion, to a particular version of the Software.
The use of the word “including” means “including without limitation.”
2. LICENSE, RESTRICTIONS & OWNERSHIP
2.1. License.
2.1.1. Grant of License. Subject to the terms and conditions of this Agreement, AUDET grants to Customer a limited, revocable, nontransferable, nonexclusive right and license to use, and to permit Authorized Users to use, the Software solely for Customer’s internal use and for the purpose of performing audit, tax and/or accounting services for Clients without any further right to use, sublicense, distribute, transfer, transmit or otherwise exploit the Software in any manner. All end users of the Software must be Authorized Users who are covered by an appropriate License hereunder, which has been established and documented in an Order Form. The Software may only be used by Authorized Users who primarily work out of a Designated Office. Customer may obtain a license for additional locations only if included in an Order Form and provided payment of the applicable Fees has been made in advance of any use by Authorized Users who primarily work out of such additional locations.
2.1.2. Condition of License. The License(s) granted to Customer under this Agreement are conditioned upon Customer’s compliance with the terms of this Agreement and the Order Form(s), including the timely payment of all applicable Fees.
2.1.3. Clients. Certain Applications may include functionality that is documented and intended to allow Clients to access Customer’s Online Account to view data specific to such Client. Customer may provide such limited access to its Clients.
2.2. Restrictions. Customer must not do or attempt to do, or permit others to do or attempt to do, any of the following: (a) adapt or create derivative works of, port, copy or modify the Software in any way; (b) remove or modify AUDET’s copyright notices, trademark, logo, legend or other notice of ownership from the Software or any copy thereof; (c) access, view, read, modify, reverse compile, reverse assemble,
disassemble or print the Software’s source code or object code or other runtime objects, components or files distributed with the Software; (d) otherwise reverse engineer, modify or copy the look and feel, functionality or user interface of any portion of the Software; (e) defeat, disable or circumvent any protection mechanism related to the Software; (f) rent, lease, distribute (or redistribute), provide or otherwise make available the Software, in any form, to any third-party (including in any service bureau or similar environment); (g) share use or access of the Software with other practitioners (including outsourcers performing work for Customer) even if Customer shares office space or equipment(service bureaus and outsources are not Authorized Users); (h) share Online Account or Online Account Access Information with third parties; (i) use the Software to process the data of clients of a third-party (whether on an outsourcing, service bureau, or other basis); (j) install a copy of any installed Software at an office location not registered and/or licensed as a Designated Office with AUDET; or (k) publish, distribute (or redistribute) or sell any document retrieved through the Software (even if in the public domain) to any individual or entity outside of Customer’s own company, except for documents prepared for Clients within the scope of the normal and intended use of the Software (l) create any “links” to or “frame” or “mirror” the Application or any portion thereof. In addition, Customer shall not violate or attempt to violate the security of AUDET’s networks or servers, including (i) accessing data not intended for Customer or log into a server or account which Customer is not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper written request and authorization; or (iii) attempting to interfere with service to any user, host or network, including by means of submitting a virus, overloading, flooding, spamming, mail bombing or crashing.
2.3. Protection of Online Account Access Information. AUDET will supply Customer with the means to create private Online Account Access Information for its Authorized Users so that such Authorized Users may log into their respective Online Accounts. Online Accounts are designed for private use and should only be accessed through Authorized User’s Online Account Access Information. Customer is fully responsible for the protection and confidentiality of its Authorized Users’ Online Account Access Information. Customer acknowledges and agrees that Customer is responsible for all activity under Customer’s and its Authorized Users’ Online Accounts by any person and for insuring that all use of Customer’s and its Authorized Users’ Online Accounts is for authorized purposes only and complies fully with the provisions of this Agreement. Customer agrees to promptly notify AUDET of any unauthorized use of any Online Account Access Information or any other breach of security upon becoming aware thereof, assist in preventing any recurrence thereof and otherwise cooperate fully in any proceedings or other actions undertaken to protect the rights of AUDET.
2.4. Unauthorized Acquisition. AUDET prohibits the use of any product or service from AUDET that has been improperly obtained and/or accessed. For purposes of illustration, but not limitation, examples include any products or services that are: (a) acquired from an unauthorized reseller or distributor; (b) pirated, cracked or hacked, including through the use of Online Account Access Information established for use by another individual; (c) acquired with the intent or for the purpose to use in a manner that is illegal, fraudulent, in violation of this Agreement or otherwise outside the normal, stated and/or reasonably understood purpose of such product or service; or (d) acquired with the use of false or inaccurate statements and/or information (e.g., false name, contact information, EFIN, or payment information; false declaration of the total number of end users; or false claim of ownership of multiple business locations with the intention of obtaining a multi-office discount).
2.5. Reservation of Rights & Ownership of Developed Materials. AUDET and its Affiliates, and any applicable licensors, retain all intellectual property and other rights in the Software (including all patent, copyright, trade secret, trade name, trademark, and other proprietary rights related to the Software which are protected under United States intellectual property laws and international treaty provisions). Unauthorized use of any of the Software will result in cancellation of this Agreement as well as possible civil damages and criminal penalties. Customer is not permitted to use “AUDET,” or any other trade or
service marks of AUDET or any of its Affiliates in Customer’s announcements, advertising or other materials unless expressly agreed to in writing by an authorized representative of AUDET. Customer acknowledges and agrees that AUDET and its Affiliates’ and any applicable licensors’ retention of contractual and intellectual property rights is an essential part of this Agreement. AUDET and its Affiliates and any licensors (as applicable) will own and Customer hereby assigns to AUDET all rights in (i) any copy, translation, modification, adaptation or derivative work of the Software, including any improvement or development thereof, whether provided as part of Support, Services or otherwise, and whether or not developed by or for Customer, and (ii) any suggestions, ideas, enhancement requests, feedback, or recommendations provided by or on behalf of Customer.
2.6. U.S. GOVERNMENT RESTRICTED RIGHTS. The Software is provided with RESTRICTED RIGHTS. Any use, duplication or disclosure of the Software by the United States Government is subject to restrictions as set forth in Federal Acquisition Registration (FAR) FAR 12.212 and, to the extent required under U.S. federal law, the minimum restricted rights as set out in FAR 52.227-19 or FAR 52.227-14. To the extent any Technical Data is provided pursuant to the Agreement, such data is protected per FAR 12.211 and DFARS 227.7102-2. In the event that any of the above referenced agency regulations are modified or superseded, the subsequent equivalent regulation will apply. The name of the manufacturer is AUDET Incorporated, 2206 Old Emmorton Road, Suite 100-318, Bel Air, MD 21015. If Customer is an agency, department, or other entity of any State government, the United States Government or any other public entity or funded in whole or in part by the United States Government, then Customer hereby agrees to protect the Software from public disclosure and to consider the Software exempt from any statute, law, regulation, or code, including any Sunshine Act, Public Records Act, Freedom of Information Act, or equivalent, which permits public access and/or reproduction or use of the Software.
2.7. Delivery. Except as otherwise provided in Section 3.1 below, online delivery of the Software to Customer will take place when it becomes available to the entire client base of AUDET.
3. FEES AND PAYMENT
3.1. Fees. Customer must pay to AUDET the Fees for the Software (including associated Support and access to Adobe e-signature and Amazon Chime) as set forth in an Order Form. Additional Fees, as documented on an Order Form, may be charged for additional Support or Services. Customer agrees to pay all such Fees within thirty (30) days of the invoice date. AUDET may assess a late payment Fee equal to the lesser of one and one-half percent (1½%) of the unpaid amount or the highest interest rate allowed by applicable law for each succeeding thirty (30) day period or portion thereof in which Fees are not paid in full. In addition, AUDET, in its discretion, may suspend sending the Software and/or Updates, or deny access to Adobe e- signature and Amazon Chime, if there is an unpaid invoice that is outstanding. ALL SALES ARE FINAL.
3.2. License Based on Volume of Processed Documentation Uploads, Adobe E-Signature and Amazon Chime meetings. This provision is applicable only if Customer has obtained a License for which the Fee is based on the number of document uploads, Adobe e-signatures and Amazon Chime meetings during the applicable Term (“Volume-Based License”). If the actual volume of processed document upload and Adobe e-signature is greater than the volume of estimated processed uploads, e-signs and meetings designated or confirmed by Customer at the time of order or renewal for a Volume-Based License, AUDET reserves the right to charge Customer the difference between the License Fee for the estimated volume of processed uploads, e-signs and meetings and the License Fee for the actual number of processed Adobe e- signatures and Amazon Chime meetings during the relevant Term. Customer shall pay such amount within thirty (30) days of receiving an invoice from AUDET.
3.3. Taxes. Fees are exclusive of any taxes, assessments or duties that may be assessed upon the Software, License(s), Support or Services provided under this Agreement or on third-party fees disclosed in an Order Form, including sales, use, excise, value added, personal property, electronic/Internet commerce, export,
import and withholding taxes. Customer is responsible for directly paying any such taxes assessed against it, and Customer will promptly reimburse AUDET for any such taxes payable or collectable by AUDET. Such taxes do not include taxes based upon AUDET’s income. Taxes are calculated on product plus additional charges, where applicable. Taxes include state and local sales or use taxes and are based upon the Customer’s deliver-to address and/or Designated Office location(s). Tax exemption certificates, if any, must be submitted at the time of order. Customer acknowledges that the Software and all Updates thereof are pre-written software of general application.
4. TERM & TERMINATION
4.1. Expiration of Rights. Subject to the terms of subsection 4.2 – 4.5, Customer’s License to the Software will be perpetual. Notwithstanding the foregoing, (a) Customer’s access to Support (including Updates) shall expire one (1) year from the initial date of delivery for the applicable Software and (b) Customer’s use of any prior year version of any Software is at Customer’s own risk and AUDET makes no representation or warranty, and AUDET shall have no responsibility, obligation or liability, including without limitation, to provide any Support, with respect to any such use whatsoever. Notwithstanding the term set forth above and for the avoidance of doubt, Customer will not receive the next year version of Notis, unless Customer has renewed its respective License(s) thereto for such next year.
4.2. Expiration of Agreement. This Agreement will expire upon the expiration of Customer’s Support and access to Adobe e-signatures and Amazon Chime pursuant to Section 4.1 above. The following sections will survive expiration of this Agreement: subsections 5.3, 8.3, 8.4, 8.5 and 8.6.
4.3. Termination of Agreement for Cause by AUDET
4.3.1. This Agreement, including all License(s), Support, access to Adobe e-signature and Amazon Chime, and Services provided hereunder, may be terminated by AUDET for cause, in its sole discretion: (i) immediately upon notice to Customer if Customer commits an incurable breach of the terms or conditions of this Agreement, or (ii) if Customer fails to cure a curable breach of this Agreement within thirty (30) days of being provided with notice of such breach.
4.3.2. Upon any termination of this Agreement under Section 4.3.1, all rights granted to Customer hereunder will immediately terminate and Customer must cease all further use of the Software, Support at AUDET’s discretion, either return to AUDET, or destroy, all copies of the Software. Upon request of AUDET, Customer must certify in writing to AUDET that it has destroyed or returned all copies of the Software and that Customer and its Authorized Users are no longer using any applicable Software previously licensed hereunder.
4.3.3. Termination of this Agreement pursuant to this subsection 4.3 will not require payment of a refund to Customer and will not affect: (a) Customer’s obligation to pay any Fees due, or (b) any remedies available to AUDET by law or equity.
4.3.4. The following sections will survive termination of this Agreement under this subsection 4.2.
4.4. Suspension of Access. In addition to any other suspension or termination rights of AUDET pursuant to this Agreement, AUDET may suspend or terminate Customer’s access to its Online Account(s) without notice (a) in the event Customer (including any Authorized User, Client or other person or entity acting through or on behalf of Customer) is determined by AUDET, in AUDET’s sole judgment, to have or attempted to have damaged, harmed or misused AUDET’s software, server, network or other systems, or
(b) as necessary or appropriate to comply with any law, regulation, court order, or other governmental request or order which requires immediate action or otherwise protect AUDET from potential legal liability or harm to its business. AUDET will use commercially reasonable efforts to notify Customer of the reason(s) for such suspension or termination action as soon as reasonably practicable unless such action is
due to subsection (a) hereof. In the event of a suspension (other than due to subsection (a) hereof), AUDET will promptly restore Customer’s access to its Online Account(s) as soon as the event giving rise to the suspension has been resolved as determined in AUDET’s discretion. Nothing contained in this Agreement will be construed to limit AUDET’s actions or remedies or act as a waiver of AUDET’s rights in any way with respect to any of the foregoing activities. AUDET will not be responsible for any loss or damages incurred by Customer as a result of any termination or suspension of access as set forth in this Section.
4.5. Renewals. Customer may renew, pursuant to the terms and conditions of this Agreement (and subject to Section 11.1 hereof), its previously purchased License(s) for Software by paying the then-applicable renewal Fees as set forth in the renewal Order Form. After renewing, Customer will obtain a new version of the Software title that was renewed when such version becomes available and an additional annual term of Support and access to Adobe e-signature and Amazon Chime. AUDET, in its discretion and for any reason, may decide not to renew Customer’s License(s) to the Software (including associated Support and access to Adobe e-signature and Amazon Chime); in which case, AUDET will make a reasonable effort to notify Customer of this decision prior to the expiration of Customer’s then-current term.
5. SUPPORT
5.1. Support. During each annual Support term as set forth in Section 4.1 above, AUDET will provide such remote product support for the Software as AUDET provides generally to customers as part of its then current Software support program (“Support”). Support shall not include, and AUDET will not provide, any audit, tax, accounting, legal or other professional or expert advice of any kind, including: the appropriate handling of audit, tax and accounting issues, or otherwise. AUDET may also choose not to provide Support for Software that is not installed on hardware that meets AUDET’s standard published system requirements. Customer agrees that Customer and/or Customer’s agents or employees will not knowingly place more than one call at any given time to AUDET’s telephone Support number(s) regarding the same situation, Support question, issue or matter. AUDET reserves the right to terminate Customer’s access to Support if it determines that Customer is committing acts that are disruptive to AUDET’s Support or other business operations (e.g., placing multiple calls at one time; being verbally abusive to Support representatives; providing Clients with access information to AUDET customer Support lines, etc.).
5.2. Updates. Also, as part of Support, AUDET may, from time to time, provide Customer with Updates of the Software. However, supplying Updates will be at AUDET’s discretion and AUDET will have no obligation, express or implied, to provide Updates. AUDET reserves the right to charge additional license Fees for any optional and ancillary features and/or functionality it may market in connection with the Software.
5.3. Data Retention. AUDET will use reasonable efforts to retain the information and data properly submitted to AUDET’s servers by Customer as part of Customer’s authorized use of the Software (“Customer Data”) for at least one year following the year in which Customer submitted any such Customer Data. AUDET will then maintain such Customer Data in accordance with its internal business practices. It is Customer’s responsibility to backup onto Customer’s own local system all data and records that Customer submits to AUDET.
5.4. Data Security; Ownership. AUDET shall implement and maintain reasonable information security measures and policies intended to: (i) safeguard the security of Customer Data, (ii) protect against known or anticipated threats to the security of Customer Data and (iii) investigate and react to any known or suspected unauthorized access to or loss of Customer Data. As between AUDET and Customer, AUDET acknowledges that Customer retains ownership of the Customer Data. However, by submitting Customer Data to AUDET’s servers through use of the Software, Customer grants AUDET the nonexclusive, worldwide, transferable right, on a royalty-free basis, to possess, store, use, copy, distribute and process Customer Data solely for the purposes of fulfilling AUDET’s obligations and/or exercising AUDET’s rights
hereunder. This right may be sub-licensed only to third parties assisting AUDET in providing the Software or otherwise fulfilling AUDET’s obligations hereunder. Customer represents, warrants, and covenants to AUDET that AUDET’s use of the Customer Data in compliance with the foregoing license grant shall not infringe, misappropriate, or otherwise violate any intellectual property rights, or other rights, of any third- party. Customer acknowledges and agrees that security safeguards, by their nature, are capable of circumvention and that AUDET does not, and cannot, guarantee
that the Software, AUDET’s systems, and the information contained therein (including continental information) cannot be accessed by unauthorized persons capable of overcoming such safeguards. For avoidance of doubt, the parties acknowledge and agree that in no event shall (i) AUDET be responsible or liable for any unauthorized access to or loss of Customer Data if such unauthorized access or loss would have been avoided or mitigated by the use of a subsequent version (and/or Update) of the Software that is provided to Customer and (ii) any unauthorized access to or loss of Customer Data constitute a breach by AUDET of its confidentiality obligations under this Agreement.
5.5. Customer Adobe eSign Information. Notwithstanding any of the foregoing or any other provision of this Agreement, in the event Customer has licensed Adobe eSign, Customer acknowledges and agrees that Adobe eSign is a third-party functionality and accordingly, AUDET does not store or retain any information, documentation and/or records resulting from Customer’s use of Adobe eSign, including without limitation, any electronically signed engagement letters or any e-signature audit trail (collectively, “Customer eSign Information”). It is Customer’s sole responsibility to backup and maintain on Customer’s own systems all Customer eSign Information as required by applicable laws, rules and regulations.
6. SERVICES
6.1 General. AUDET may offer certain additional services related to the Software. Such services may include, but are not limited to: (i) sign up services; (ii) training for Customer personnel; and (iii) any other services specifically identified in an Order Form (hereinafter referred to as “Services”). For avoidance of doubt, in no event shall any component or functionality of the Software be deemed a Service under this Agreement. AUDET will provide Services, at Customer’s election and following Customer’s signature and AUDET’s acceptance of an Order Form describing the nature, scope, project assumptions, fees, duration, location(s) of the covered Services, in each case in accordance with such Order Form and subject to the terms and conditions of this Agreement.
6.2 Services Performance. In performing Services, AUDET may assign AUDET personnel, authorized agents or qualified third-party contractors (“Consultants”). Customer agrees to provide the information, facilities, personnel and equipment, including, if applicable, suitably configured computers that may reasonably be identified by AUDET as necessary or appropriate to the performance of any Services. Customer shall advise AUDET of any hazards to the health and safety of AUDET’s personnel on the Customer’s premises and provide AUDET’s personnel with appropriate information regarding applicable safety and security procedures.
6.3 Services Pricing. Unless otherwise provided in the applicable Order Form, all Services shall be provided on a time and expense/materials basis at AUDET’s then current rates. AUDET reserves the right to impose a higher rate for Services performed upon the request or with the approval of Customer in excess of a forty (40) hour week or during weekend or holiday periods. Estimates are provided for Customer’s information only and are not guaranteed. Customer shall pay or reimburse AUDET for all reasonable travel and other out-of-pocket expenses incurred in connection with AUDET’s performance of Services hereunder.
7. CUSTOMER’S PROFESSIONAL RESPONSIBILITY AND WARRANTIES
7.1. Professional Responsibility. Customer understands, agrees and acknowledges that: 7.1.1. Use of the Software does not relieve Customer of responsibility for the preparation, content, accuracy (including computational accuracy), and review of documentation provided by Customer while using the Software or any other work product generated by Customer while using the Software;
7.1.2. Customer will neither inquire nor rely upon AUDET for audit, tax, accounting, legal or other professional or expert advice of any kind;
7.1.3. Customer will retrieve in a timely manner any electronic communications made available to Customer by AUDET; and
7.1.4. Customer is fully and solely responsible for: (a) selection of adequate and appropriate versions of the Software to satisfy Customer’s business needs and achieve Customer’s intended results; (b) use of the Software; (c) all results obtained from the Software; (d) selecting, obtaining and maintaining all hardware, software, computer capacity, Internet service, program and system resources and other equipment and utilities needed to install and use the Software, and for all costs associated therewith; and (e) selection, use of, and results obtained from any other programs, applications, computer equipment or services used with the Software.
7.2. Customer’s Representations. Customer represents, warrants and covenants that:
7.2.1. Customer has full power and authority to enter into this Agreement and all Order Forms hereunder and to perform its obligations under this Agreement and such Order Forms, and that this Agreement and all such Order Forms have been duly authorized and constitute valid and binding obligations of Customer;
7.2.2. Customer is licensing the Software solely for Customer’s own use and/or to provide audit, tax and accounting services to Customer’s direct Clients and, to the extent Customer has obtained a Volume-Based License, Customer has provided or confirmed to AUDET a good faith estimate of the number of document uploads, e-signatures and Amazon meetings, Customer expects to process during the applicable Term, which number is then used by AUDET to determine the appropriate License Fee;
7.2.3. Customer will not use the Software to create a product, service or database that competes with AUDET or the Software;
7.2.4. Customer is responsible for complying with all laws, rules, regulations and procedures of local, state, federal and foreign authorities applicable to Customer and its business, including all laws, rules, regulations and procedures of the Internal Revenue Code and Service;
7.2.5. Customer will be solely responsible for compliance with this Agreement by the Authorized Users and, to the extent applicable, all Clients;
7.2.6. Customer will not otherwise violate the rights of any third-party while using the Software;
7.2.7. Customer has sole responsibility for the content and accuracy of all Customer Data;
7.2.8. Customer will not upload or transmit any Customer Data: (i) that Customer does not have the lawful right to copy, transmit, distribute, and display (including any Customer Data that would violate any confidentiality or fiduciary obligations that Customer might have with respect to the Customer Data); (ii) for which Customer does not have the consent or permission from the owner of any personally identifiable information contained in the Customer Data; (iii) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights or violates any privacy rights of any third-party (including
any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (iv) that is false or misleading; (v) that is defamatory, obscene, or offensive; (vi) if the uploading or transmission would violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability or (vii) that constitutes protected health information under the Health Insurance Portability and Accountability Act (HIPAA) or any successor law;
7.2.9. Customer will not use the Software to transmit, route, provide connections to or store any material that violate or promote the violation of any of the restrictions of subsection 7.2.8 above;
7.2.10. To the extent Customer needs to upload or transmit to AUDET’s servers any Customer Data subject to the General Data Protection Regulation (EU) 2016/679, Customer shall first contact AUDET at contact@goaudet.com and AUDET shall provide Customer with an addendum to this Agreement setting forth the terms and conditions of AUDET’s processing of such Customer Data pursuant to this Agreement; and
7.2.11. AUDET reserves the right, in its sole discretion, at any time, to remove any Customer Data that it believes to be in violation of this Agreement.
7.4. Indemnification. Customer agrees to indemnify and hold harmless AUDET, its employees, officers, directors and Affiliates against any and all liability (including damages, recoveries, deficiencies, interest, penalties and reasonable attorney’s fees) to third parties (including any Clients, the IRS and any taxing authorities) relating to: (a) Customer’s breach of any of its obligations, representations and/or warranties under this Agreement; or (b) except to the extent of claims for which AUDET is liable under Section 8 below, Customer’s use of the Software, Adobe e-signature and Amazon Chime and/or any third-party software, application or service.
8. AUDET WARRANTIES
8.1. AUDET’s General Warranties. AUDET represents and warrants that: (a) it has title to the Software or the right to grant Customer the rights granted hereunder; (b) the Software does not violate any third- party’s United States patent, copyright or trade secret rights; and (c) AUDET has not inserted any virus or similar device to erase data. Customer’s sole and exclusive recourse and remedy – and AUDET’s sole, exclusive and entire liability – for a breach of items (a) and (b) by AUDET shall be the exercise of its indemnity rights under subsection 8.2 below. For a breach of item (c) Customer’s sole and exclusive recourse and remedy – and AUDET’s sole, exclusive and entire liability – shall be to terminate the Agreement and obtain a refund of the Fees paid for the directly affected Software less an allocation for use made by Customer prior to the breach.
8.2. Indemnification by AUDET.
8.2.1. Subject to the other terms and conditions set forth herein, AUDET agrees to defend Customer, its employees, officers, directors and Affiliates at AUDET’s sole cost and indemnify Customer (by paying for damages finally awarded against Customer or any amounts payable in any settlement entered into in compliance with this Agreement) from and against any claims, demands, actions or proceedings by any unaffiliated third-party alleging that the Software as provided hereunder infringes or violates such third- party’s United States patent, copyright or trade secret rights; provided that: (i) AUDET is notified promptly in writing of the claim; (ii) AUDET controls the defense, settlement and approval of the claim; and (iii) Customer reasonably cooperates, assists and gives all necessary authority to AUDET and reasonably required information in connection with the defense or settlement of the claim.
8.2.2. AUDET’s indemnity obligations under subsection 8.2.1 hereof will not apply if and to the extent that they arise from or relate to: (i) the use of the Software in any form or substance other than as provided by
AUDET hereunder and as required to be used by Customer hereunder; (ii) use of a superseded version of some or all of the Software if the infringement or violation would have been avoided or mitigated by the use of a subsequent version (and/or Update) of the Software that is provided to Customer; (iii) the modification of the Software by Customer or any third-party not authorized in writing by AUDET to do so;
(iv) the use of the Software in combination with any intellectual property, services, reports, documentation, hardware, software, data or technology not supplied by AUDET; or (v) any data or information, or other intellectual property supplied by Customer, an Authorized User or any third-party.
8.2.3. If the Software becomes, or in AUDET’s opinion, is likely to become, the subject of a third-party claim covered by AUDET’s indemnification obligations under subsection 8.2.1, then AUDET may, in its sole discretion and at its sole cost and expense: (i) procure for Customer the right to continue using such Software; (ii) modify the infringing portion of the Software so as to render it non-infringing but still appropriate for its intended use under this Agreement; or (iii) replace the infringing portion of the Software with non-infringing items with substantially similar functionality. If AUDET reasonably determines that none of the foregoing is commercially practicable, then AUDET may elect to terminate this Agreement and grant Customer a refund of the Fees paid for the affected Software less an allocation for use made by Customer prior to the termination.
8.2.4. This Section 8.2 states AUDET’s entire liability and the sole and exclusive remedy of Customer, its employees, officers, directors and Affiliates and any Authorized User with respect to any actual or claimed infringement or other violation of any third-party’s intellectual property rights.
8.3. Limited Warranty. EXCEPT AS STATED IN SUBSECTION 8.1, THE SOFTWARE, SUPPORT. ADOBE E-SIGNATURE AND AMAZON CHIME AND ALL SERVICES PROVIDED HEREUNDER ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. AUDET DISCLAIMS AND EXCLUDES ANY AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IRRESPECTIVE OF ANY COURSE OF DEALING OR PERFORMANCE, CUSTOM OR USAGE OF TRADE. CUSTOMER BEARS THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE, INCLUDING ADOBE E-SIGNATURE AND AMAZON CHIME. AUDET DOES NOT WARRANT THAT USE OR OPERATION OF THE SOFTWARE OR ADOBE E-SIGNATURE AND AMAZON CHIME WILL BE UNINTERRUPTED, THAT THEIR USE OR OPERATION WILL BE ERROR OR DEFECT FREE, THAT ALL DEFECTS WILL BE CORRECTED OR THAT THE SOFTWARE WILL PROPERLY OPERATE ON ANY SPECIFIC OPERATING SYSTEM OR COMPUTER HARDWARE OR CONFIGURATIONS OR BEFORE OR AFTER ANY SPECIFIC DATE OR TIME PERIOD. CUSTOMER WILL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SOFTWARE AND AUDET WILL HAVE NO LIABILITY THEREFORE.
8.4 Limitation of Liability and Damages. NEITHER PARTY (AND, IN THE CASE OF AUDET, ITS AFFILIATES, CONSULTANTS, DISTRIBUTORS, AGENTS, SUBCONTRACTORS AND LICENSORS) WILL HAVE ANY LIABILITY TO THE OTHER OR ANY THIRD-PARTY (INCLUDING ANY CONTRACTOR, AGENT, AFFILIATE OR CLIENT OF CUSTOMER) FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE, INCLUDING EXEMPLARY AND PUNITIVE DAMAGES, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, THE SOFTWARE, SUPPORT, ADOBE E-SIGNATURE AND AMAZON CHIME AND/OR ANY SERVICES PROVIDED HEREUNDER. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY WITH RESPECT TO ANY VIOLATION OF EITHER PARTY’S INTELLECTUAL PROPERTY RIGHTS AS SET FORTH HEREIN. THE TOTAL LIABILITY OF AUDET AND ITS AFFILIATES, CONSULTANTS, DISTRIBUTORS, AGENTS, SUBCONTRACTORS AND LICENSORS TO
CUSTOMER OR ANY THIRD-PARTY RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, THE SOFTWARE, SUPPORT, ADOBE E-SIGNATURE AND AMAZON CHIME AND/OR ANY SERVICES PROVIDED HEREUNDER, FOR ANY AND ALL CLAIMS OR TYPES OF DAMAGES, SHALL NOT EXCEED THE TOTAL FEES PAID HEREUNDER BY CUSTOMER FOR THE SOFTWARE OR SERVICES GIVING RISE TO SUCH CLAIM IN THE TWELVE-MONTH PERIOD PRECEDING THE DATE SUCH CLAIM OR CAUSE OF ACTION FIRST AROSE.
AUDET is not an insurer regarding performance of the Software or otherwise. Customer agrees to assume the risk for: (a) all liabilities disclaimed by AUDET herein, and (b) all alleged damages more than the amount of the limited remedy provided hereunder. The allocations of liability in this subsection 8.4 represent the agreed, bargained-for understanding of the parties and AUDET’s compensation hereunder reflects such allocations. THE LIMITATION OF LIABILITY AND TYPES OF DAMAGES STATED IN THIS AGREEMENT ARE INTENDED BY THE PARTIES TO APPLY REGARDLESS OF THE FORM OF LAWSUIT OR CLAIM A PARTY MAY BRING, WHETHER IN TORT, CONTRACT OR OTHERWISE, AND REGARDLESS OF WHETHER ANY LIMITED REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
8.5 Internet Connectivity; Disclaimer. Access to Adobe e-signature and Amazon Chime and to Customer’s Online Account(s) is made available by AUDET (either itself or through a third-party) via the Internet. Customer shall provide, at Customer’s own expense, all necessary hardware, applications and Internet connectivity necessary for such access. Customer acknowledges that the Internet is known to be unpredictable in performance and may, from time to time, impede access to Adobe e-signature and Amazon Chime and/or to Customer’s Online Account(s). Customer agrees that AUDET is not in any way responsible for any interference with Customer’s use of or access to Adobe e-signature and Amazon Chime and/or to Customer’s Online Account(s) arising from or attributable to the Internet and Customer waives any and all claims against AUDET in connection therewith.
8.5.1 Automatic Connections to the Internet. The Software may cause Customer’s Computer, without notice, to automatically connect to the Internet and to communicate with Audet website or Audet domain for purposes such as validating Software license and providing Customer with additional information, features, or functionality. Audet’s Privacy Policy, governs such connection and communication. Specifically:
8.5.2 Pursuant to the Privacy Policy, Audet may (a) track website visits through the use of cookies, web beacons, and similar devices and (b) collect and transmit Customer information.
8.5.3 As permitted by applicable law or as consented to by Customer, Audet may (a) send Customer transactional messages to facilitate Audet Online Service or the activation or registration of the Software or (b) deliver in-product marketing to provide information about the Software and other product and Services using information including, but not limited to, platform version, version of the Software, license status, and language.
8.5.4 Updating. The Software may cause Customer’s Computer, without additional notice, to automatically connect to the Internet (intermittently or on a regular basis) to (a) check for Updates that are available for download to and installation on the Computer and (b) notify Audet of the results of installation attempts.
8.5.5 Activation. The Software may require Customer to (a) obtain an Audit ID, (b) activate or reactivate the Software, including activation of certain components or features, (c) register the software, or (d) validate the License. Such requirement may cause Customer’s Computer to connect to the Internet without notice on install, on launch, and 5n a regular basis thereafter. Once connected, the Software will collect and transmit information to Audet as further described in (“Activation Terms”). Software or Customer may also
receive information from Adobe related to Customer’s license. Audet may use such information to detect or prevent fraudulent or unauthorized use not in accordance with a valid license. Failure to activate or register the Software, validate the subscription, or a determination by Audet of fraudulent or unauthorized use of the Software may result in reduced functionality, inoperability of the Software, or a termination or suspension of the license.
8.5.6 Use of Online Services. The Software may cause Customer’s Computer, without additional notice and on an intermittent or regular basis, to automatically connect to the Internet to facilitate Customer’s access to content and services that are provided by Audet or third parties as further described in Section 15 (Online Services). In addition, the Software may, without additional notice, automatically connect to the Internet to update downloadable materials from these online services as to provide immediate availability of these services even when Customer is offline. If Customer access Audet Online, then additional information such as Customer’s user name, email address may be transmitted to and stored by Audet pursuant to the Privacy Policy.
8.6 Third-party Products. The Software may contain code, content, features, functionality and components that are provided by third-parties. In addition, Adobe e-signature and Amazon Chime and/or other products or services used in connection with the Software may be offered through AUDET but will be provided by third-parties. Any such third-party products or services shall be provided “AS IS” without warranty of any kind by AUDET. All rights and obligations with respect to any such third-party products or services shall be governed exclusively by the terms and conditions of agreements provided by suppliers of said third-party products and services and Customer hereby releases AUDET from all liability and responsibility with respect thereto.
9. DISPUTE RESOLUTION
9.1. Audit. Upon AUDET’s written request, Customer must furnish AUDET with a signed certificate verifying that Customer’s use of the Software is (a) in compliance with the terms of this Agreement, (b) only at the Designated Office(s) and (c) only by Authorized Users and to the extent permitted herein, Clients. At its expense, AUDET may, itself or by third-party agents, audit Customer’s compliance with the requirements of this Agreement. Any such audit will be conducted not more than once per calendar year and during regular business hours at Customer’s facilities and will not unreasonably interfere with Customer’s business activities. During any such audit AUDET and its designees may have access to Customer’s computer systems and records and conduct forensic reviews thereof and may interview any of Customer’s current and former employees and contractors. If AUDET determines that Customer has not paid the appropriate Fees, Customer will be invoiced for such Fees, plus an additional 1.5% monthly interest rate, or the maximum lawful amount, of the unpaid Fees (dating back to the time when such Fees should have been paid). Customer shall pay (directly or by reimbursing AUDET) the reasonable cost of the audit if the audit detects unpaid Fees that exceed five percent (5%) of the total Fees actually paid for the period so audited. This right shall not limit or preclude any additional remedies available to AUDET provided by law or equity.
9.2. Limitations Period. Except for collection actions which may be brought by AUDET within the applicable statute of limitations period at any time and without limiting claims for indemnification hereunder, any claim or cause of action arising under or otherwise relating to this Agreement, any Order Form, or the subject matter hereof or thereof, whether based on contract, tort (including negligence) or otherwise, must be commenced within one year from the date such claim or cause of action first arose.
9.3. Jurisdiction. Customer agrees that this Agreement shall be interpreted and enforced according to the laws of the State of Maryland, without any regard to conflicts of law rules that would require another jurisdiction’s law to apply. All disputes arising out of or relating to this Agreement shall be instituted and prosecuted exclusively in a state or federal court located in Baltimore, Maryland, with each of AUDET and
Customer specifically consenting to extraterritorial service of process for that purpose. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply in any respect to this Agreement or to the parties in general.
9.4. Waiver of Jury Trial. EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ORDER FORM OR THE SUBJECT MATTER HEREOF OR THEREOF.
9.5. Enforcement. Customer will pay all of AUDET’s attorneys’ fees and costs and expenses incurred in the enforcement of any of the provisions of this Agreement.
9.6. Remedies. Customer acknowledges that the Software and other proprietary information of AUDET are unique and that, in the event of any breach of this Agreement by Customer, AUDET may not have an adequate remedy at law, and will be entitled to seek injunctive or other equitable relief without the necessity of proving actual damages. Unless specifically stated otherwise elsewhere in this Agreement, the various rights, options, elections, powers and remedies of a party or parties to this Agreement shall be construed as cumulative and no one of them exclusive of any others or of any other legal or equitable remedy, which said party or parties might otherwise have in the event of breach or default in the terms hereof.
9.7. Notices. All notices, demands, consents or requests given by a party hereto must be in writing and sent by delivery via a third-party, nationally recognized tracked express mail service, postage prepaid, addressed to either Customer’s billing address or AUDET Incorporated, Attn: Software Sales, 2206 Old Emmorton Road, Suite 100-318, Bel Air, MD 21015. Customer agrees to always provide AUDET with Customer’s most current contact information, including Customer’s address, phone number, fax number and e-mail address.
9.8. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, such provision shall be, to the maximum extent permitted by applicable law, construed or limited, and/or deemed replaced by a revised provision, to the extent (and only to the extent) necessary to render it valid, legal and enforceable and, as nearly as possible, to reflect and achieve the parties’ intentions in agreeing to the original provision. If it is not possible to so construe, limit or reform any such provision, then the invalid, illegal or unenforceable provision shall be severed from this Agreement. In any event, the remaining provisions of this Agreement shall be unaffected thereby and shall continue in full force and effect.
9.9. Waiver. A party’s failure or delay to require compliance with any term of this Agreement, or to exercise any right provided herein, shall not be deemed a waiver by the party of such term or right. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the parties, shall operate as a waiver or legally bar a party from enforcing any right, remedy or condition. All waivers must be made in writing and signed by the waiving party and any such waiver on one occasion is effective only in that instance and only for the purpose that it is given and is not to be construed as a waiver on any future occasion.
10.CONFIDENTIALITY
10.1. Nonuse and Nondisclosure. Customer and AUDET agree that during the term hereof and for four
(4) years after termination or expiration of this Agreement, or for such longer period as may be required by applicable law or regulation (e.g., IRS regulations), all non-public information furnished or disclosed to the other pursuant to this Agreement, including the terms of Customer’s Order Form(s), proprietary information within the Software, Customer Data and any discussions between the parties regarding other potential business relationships (the “Confidential Information”), shall be held in strict confidence by the other party, and will not be used other than as provided herein or made available or disclosed to any third-party without
the other party’s prior written consent. Each party also agrees to restrict dissemination of such Confidential Information to only those employees or third-party consultants or service providers who have a need to know such Confidential Information to perform the obligations under this Agreement. Each party will be deemed to have fulfilled its confidentiality obligations under this Section 10 if it affords the other party’s Confidential Information at least the same degree of care it takes in protecting its own confidential information from unauthorized disclosure (but in no event using less than a reasonable degree of care).
10.2. Exceptions. Notwithstanding the above restrictions, neither party will have any obligation for any nonuse or nondisclosure of Confidential Information which (a) is now or subsequently enters the public domain through means other than disclosure by a party hereto in breach of the terms of this Agreement; (b) is lawfully obtained from a third-party without an obligation of confidentiality; (c) is independently developed by such party or is already lawfully in the possession of the receiving party free of any obligation of confidence to the other party; or (d) is intended or aimed at detecting or reporting suspicious and/or possible fraudulent activity. Furthermore, the confidentiality obligations herein will not restrict disclosure of information required to be disclosed by law, by court order or by order of any government or administrative tribunal having jurisdiction over the recipient, provided that the recipient must, to the extent legally permitted, notify the disclosing party of any such requirement prior to disclosure in order to afford such other party an opportunity to seek a protective order to prevent or limit disclosure, and the recipient will reasonably cooperate with the disclosing party’s efforts to obtain such protective order.
10.3. Expiration. Subject to Section 5.3, upon termination or expiration of this Agreement, both parties agree to destroy all copies of written Confidential Information. Notwithstanding any of the foregoing, AUDET shall be entitled to keep copies of Confidential Information (i) preserved or recorded in any computerized data storage device or component (including any hard drive or database) or saved automatically to standard back-up or archival systems, and/or (ii) as required by applicable law or regulation; provided, that such Confidential Information shall remain subject to the confidentiality requirement of this Section 10. The disclosing party will retain all proprietary rights to the information it discloses hereunder, regardless of the expiration of the obligations under this Section 10.
11.MISCELLANEOUS
11.1. Entire Agreement. This Agreement, along with the Order Form(s), and any other terms otherwise published by AUDET outside of this Agreement, constitutes the entire and exclusive agreement, understanding and representation, express or implied, between Customer and AUDET with respect to the subject matter hereof; it is the final expression of that agreement and understanding, and it supersedes all prior agreements and communications between the parties (including all oral and written proposals) with respect to said subject matter. In the event of a conflict, this Agreement will control, then the Order Form, and then any other terms provided by AUDET, unless AUDET explicitly acknowledges and upholds the particular conflict in such other document. Oral statements made about the Software, Support, Adobe e- signature and Amazon Chime and/or any Services will not constitute warranties, will not be relied on by Customer, and will not be binding or enforceable. No supplement, modification or amendment of this Agreement will be binding unless executed in writing by AUDET and Customer after reasonable opportunity to accept or reject such supplement, modification or amendment, provided that AUDET may supplement this Agreement if such supplement is a clarification or is otherwise not adverse to Customer. AUDET reserves the right to revise this Agreement from time to time in its discretion, provided that any such revisions shall not be effective with respect to Customer until the commencement of Customer’s next renewal term, if any.
11.2. No Construction Against Drafter. Each of the parties hereto acknowledge that they have had the opportunity to be represented by independent counsel of their choice prior to entering into this Agreement and any Order Form hereunder. As a consequence, the parties agree that in construing this Agreement
and/or any Order Form hereunder, no provision hereof shall be construed in favor of one party on the ground that such provision was drafted by the other.
11.3. Evaluation Use of Software. If Customer is using any AUDET software on a trial, demonstration or evaluation basis, then this Agreement will govern such use by Customer except as modified by this subsection 11.3. Software provided to Customer for trial, demonstration or evaluation purposes shall only be used at one authorized location for a limited period of time. Certain functionality of such software may be disabled or restricted. Commercial use of such software is not authorized, is outside the scope of this Agreement, and is a violation of U.S. and international copyright laws. Customer is required to remove any trial, evaluation or demonstration copies of software from any and all Customer equipment upon the conclusion of the trial, evaluation or demonstration and to destroy or promptly return such copies to AUDET. Customer must purchase a License from AUDET before using the Software for commercial purpose. The following sections of this Agreement shall not apply to Customer’s use of any software provided on a trial, demonstration or evaluation basis: subsections 2.1, 2.2, 8.1 and 8.2, and Sections 3, 4 and 5.
11.4. Force Majeure. Neither party hereto shall be held liable for the failure to perform any obligation, or for the delay in performing any obligation, arising out of or connected with this Agreement if such failure or delay results from or is contributed to by any cause beyond the reasonable control of such party including failures or delays caused by the act or omission of any governmental authority, fire, flood, failures of third- party suppliers, acts or omissions of carriers, transmitters, providers of telecommunications or Internet services, vandals, hackers or other event beyond such party’s reasonable control.
11.5. Export Restrictions. Customer is advised that the Software is subject to the U.S. Export Administration Regulations and diversion contrary to U.S. law and regulation is prohibited. Customer agrees to not directly or indirectly export, import or transmit the Software to any country, end user or for any end use that is prohibited by any applicable U.S. regulation or statute (including to those countries embargoed from time to time by the U.S. government or the United Nations). Additionally, Customer agrees to not directly or indirectly export, import, transmit or use the Software contrary to the laws or regulations of any other governmental entity that has jurisdiction over such export, import, transmission or use. Customer represents and agrees that neither the United States Bureau of Industry and Export Administration nor any other governmental agency has issued sanctions against Customer or otherwise suspended, revoked or denied Customer’s export privileges.
11.6. Modification/Replacement of Software. AUDET reserves the right, in its sole discretion and without first consulting with Customer, to discontinue or modify the Software for any reason. However, if the Software is discontinued during the term of a License granted hereunder, then AUDET will, in its discretion, either: (a) continue to provide Support for the discontinued Software for the remainder of the then current License term; (b) provide a pro-rata refund of the License Fees paid for the discontinued Software; or (c) replace the discontinued Software for the duration of the License term with a successor product having equal or greater functionality (with AUDET reserving the right to charge extra Fees for any such greater functionality). If Customer purchases Software that is discontinued prior to its shipment to Customer, AUDET will provide Customer a refund of the Fees paid toward such Software.
11.7. No Third-Party Beneficiary. No third-party is intended to be or shall be a third-party beneficiary of any provision under this Agreement. AUDET and Customer shall be the only parties entitled to enforce the rights set out in this Agreement.
11.8. Data Transmission Notification. Customer’s use of the Software and/or Adobe e-signature and Amazon Chime may transmit to AUDET’s servers various information relating to how Customer and its Authorized Users use the Software and/or the Adobe e-signature and Amazon Chime services, as well as
general information about Customer’s and its Authorized Users’ computer system from which AUDET’s servers are being accessed (for example, system configuration, type of internet connectivity, RAM, CPU, operating system, browser version), as well as certain records that Customer has created while using the Software. AUDET may use this information for purposes of improving, enhancing or further developing the Software and/or the Adobe e-signature and Amazon Chime services, for internal quality assurance and software error checking, to assist users with multiple offices and as otherwise necessary or appropriate to perform its obligations pursuant to this Agreement. AUDET shall keep this information confidential in accordance with Article 10 hereof.
11.9. Assignment Neither this Agreement, the License(s) granted hereunder nor the Software may be sublicensed, assigned, sold, hypothecated, or transferred by Customer without the prompt notification to and prior written consent of AUDET, which shall not be unreasonably withheld in the case of an internal restructuring involving Customer unrelated to a change in ownership. In the event of a merger or acquisition, Customer and AUDET will reasonably cooperate with one another to re-evaluate the new combined Software needs of Customer and AUDET will determine any necessary or appropriate modifications to this Agreement and pricing structure. In the event that Customer merges with or acquires a current customer using Software (hereinafter “Acquired AUDET Customer”):
a) The Acquired AUDET Customer’s agreement will continue unaffected through the end of the then- current year of the term of the Acquired AUDET Customer’s agreement (“End Date”); and
b) Customer and AUDET will re-evaluate the new combined needs and implement any changes, including adjusted pricing, effective following the End Date.
Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this Agreement without the prior written consent of AUDET shall automatically terminate the rights granted hereunder and shall be void and of no effect. Customer agrees that AUDET’s retention of these contractual and other legal rights is an essential part of this Agreement.
12 Online Services
12.1 Provided by Audet. The Software facilitates Customer’s access to content and various services that are hosted on websites maintained by Audet or its integrations (“Audet Online Services”). Examples of such Audet Online Services might include, but are not limited to: Adobe e-signature, Amazon Chime, HelpCrunch, product Welcome Screens, and storage of Customer’s Software settings. In some cases an Audet Online Service might appear as a feature or extension within the Software even though it is hosted on a website. Access to an Audet Online Service may require Customer to activate the Software feature, obtain an ID (such as with Adobe), consent to Additional Terms of Use, or require a separate fee in order to access such Audet Online Services. Audet Online Services might not be available in all languages or to residents of all countries and Audet may, at any time and for any reason, modify or discontinue the availability of any Audet Online Service. Audet also reserves the right to begin charging a fee for access to or use of an Audet Online Service that was previously offered at no charge. When the Software accesses an Audet Online Service, Customer’s use of such Audet Online Service is governed by the Audet Privacy Policy, by getnotis.com Terms of Use, and by any Additional Terms of Use that might be presented to Customer at that time.
12.2 EXCEPT AS EXPRESSLY AGREED BY AUDET OR ITS AFFILIATES OR A THIRD PARTY IN A SEPARATE AGREEMENT, CUSTOMER’S USE OF AUDET ONLINE SERVICES AND THIRD PARTY ONLINE SERVICES IS AT ITS OWN RISK UNDER THE WARRANTY AND LIABILITY LIMITATIONS OF SECTIONS 7 AND 8.
12.3 Digital Certificates (ADOBE)
12.3.1 Use. Digital certificates are issued by third party certificate authorities, including Adobe Certified Document Services (CDS) vendor AUDET, or can be self-signed.
12.3.2. Terms and Conditions. Purchase, use, and reliance upon digital certificates is the responsibility of Customer and a Certificate Authority. Before Customer relies upon any certified document, digital signature, or Certificate Authority services, Customer should review the applicable terms and conditions under which the relevant Certificate Authority provides services, including, for example, any subscriber agreements, relying party agreements, certificate policies, and practice statements.
12.3.3. Acknowledgement. Customer agrees that (a) the Software, due to configuration or external issues, might show a signature as valid despite the fact a digital certificate may have been revoked or expired prior to the time of verification; (b) the security of integrity of a digital certificate may be compromised due to an act or omission by the signer of the document, the applicable Certificate Authority, or any other third party; and (c) a certificate may be a self-signed certificate not provided by a Certificate Authority. CUSTOMER IS SOLELY RESPONSIBLE FOR DECIDING WHETHER OR NOT TO RELY ON A CERTIFICATE. UNLESS A SEPARATE WRITTEN WARRANTY IS PROVIDED TO CUSTOMER BY A CERTIFICATE AUTHORITY, CUSTOMER’S USE OF DIGITAL CERTIFICATES IS AT ITS SOLE RISK.
12.3.4. Indemnity. Customer agrees to hold AUDET and any applicable Certificate Authority harmless for any and all liabilities, losses, actions, damages, or claims (including all reasonable expenses, costs, and attorney’s fees) arising out of or relating to Customer’s use of, or any reliance on, any service of such authority, including, without limitation: (a) reliance on an expired or revoked certificate; (b) improper verification of a certificate; (c) use of a certificate other than as permitted by any applicable terms and conditions, this agreement or applicable law; (d) failure to exercise reasonable judgment under the circumstances in relying on issuer services or certificates; or (e) failure to perform any of the obligations as required in the terms and conditions related to the services.
