IMPORTANT - READ CAREFULLY. THESE TERMS OF USE APPLY TO AND GOVERN THEACCESS AND USE OF VENDOR PORTAL SERVICES, SOFTWARE AND APPLICATIONS(COLLECTIVELY, THE “SERVICES”)OFFERED BY DAKCS SOFTWARE SYSTEMS, INC. (“DAKCS,”“WE,” “US,” OR “OUR”), AND ALL CONTENTCONTAINED THEREIN. WE MAY REVISE ANDUPDATE THESE TERMS OF USE FROM TIME TO TIME. ALL USERS OF THE SERVICES MUST CHECK THESE TERMS OF USE PERIODICALLY FORCHANGES. ALL CONTINUED USE OF THESERVICES WILL BE SUBJECT TO THESE TERMS OF USE, AS MAY BE REVISED.
1) ACCEPTANCE OF THESE TERMS OF USE
By creating an account with Us, and executing a Schedule A (defined below) for the Services, logging into the Services or otherwise using the Services, the Vendor identified in Schedule A (the “Vendor,” “You,” or “Your”), on behalf of itself and each of its Authorized Users (defined below), unconditionally agrees to these Terms of Use. The terms of Schedule A are incorporated into these Terms of Use as though specifically included herein, and references to these Terms of Use will include Schedule A. You acknowledge and represent to Us that You have read and understood these Terms of Use. If at any time You are unable or unwilling to comply with these Terms of Use, You must cease use of the Services.
2) DEFINITIONS
“Confidential Information” includes all trade secrets, know-how, intellectual property and other information that is not generally known, and which is used in or pertains to Our or Your business. Confidential Information of a Party includes confidential information of that Party’s suppliers, customers and other third Party who have entrusted their confidential information to that Party. Confidential Information does not include information that is independently developed by employees of the receiving Party who have not had access to or use of Confidential Information of the disclosing Party or information that is placed in the public domain by the disclosing Party.
“Interface” means the portion of software that exchanges data between Your system and Our Services.
“Party/Parties” means each company individually/both.
“Portal Fees” means the amount charged to You for the exchange of data through the Interface to our Services.
“Schedule A” means the pricing schedule for the Services transactional charges supporting Your approved offering to a mutual client and the monthly access charges.
“Services” means Our portal and associated programming to which Your Interface connects to provide interoperability between Your systems and Our client.
3) SERVICES/VENDOR PORTAL INTERFACE
We will make available to You data interchange instructions and all other
documentation, information necessary for You to create one or more Interfaces that achieves interoperability between the SaaS and on premise software systems provided by Us to our clients and Your products/services or software. You will test each Interface, subject to Our approval before offering such Interface to Our clients, and provide support for that Interface as reasonably requested. You agree to only use the Interface for approved use cases, specifically avoiding use cases and/or features that are competitive to products We offer, such as texting and email services.
4) PORTAL FEES
You agree to pay Us the Portal Fees as listed in Schedule A. Your Customer Fees apply for each customer that exchanges or accesses any data with Your
products/services or software through Our Services. All fees will be paid by credit card, debit card or ACH. We require Your preferred payment method on file and an authorization to automatically debit that account for the Fees, including the Set Up Fee. All Fees will be automatically deducted on the 25th of each month. Monthly access fees per client will be charged at the end of each month. Transactional Data Exchange Fees are due within forty-five (45) days after the close of each calendar month following Your use of the Services. By the 15th of each month, a report should be emailed to Us showing the complete Data Exchange Fee calculation. For the avoidance of doubt, the
calculation is expected to show transactional fees charged to the client multiplied by the percentage charge from Schedule A. Portal Fees will be earned when transaction fees are paid by the customer. Late payments will be charged interest of one percent (1%) per month, not to exceed the maximum amount allowed by law. Any late payment fees will be paid with the principal amount. All fees on Schedule A are exclusive of any taxes, which may be charged by Us if applicable.
5) CHANGES AND ADDITIONS TO YOUR SOFTWARE/SERVICES
You will notify us of at least thirty (30) days prior to any changes in your
products/services or software that may affect the operation of any Interface to ensure proper testing and Our approval of the changes.
6) SECURITY
Both Parties shall employ appropriate security measures in accordance with applicable industry practice and maintain a comprehensive information security program relating to customer and consumer data. Upon discovery of a breach or other security event, the discovering Party shall notify the other Party as soon as possible, but in no case later than fifteen (15) days following the discovery.
7) TERM AND TERMINATION
These Terms of Use shall remain in effect until one Party provides the other Party with a30 day written notice of termination. Either Party may terminate these Terms of Use immediately upon written notice to the other Party if: (i) the other Party or any of its employees, agents, consultants, contractors or representatives breaches any obligation hereunder and such Party fails to cure the breach to the notifying Party’s satisfaction within thirty (30) days after written notification of the specific breach and demand for such cure; or (ii) the other Party ceases to conduct business in the normal course, is declared insolvent, undergoes any procedure for the suspension of payment, makes a
general assignment for the benefit of creditors or a petition for bankruptcy,
reorganization, dissolution or liquidation is filed by or against it and such petition is not discharged within one hundred and twenty (120) days of its filing.
8) TERMINATION CONSEQUENCES
Upon termination of these Terms of Use for any reason: (i) We will cease distributing Interfaces except that We can fulfill any orders that were received as of the termination date and any orders placed in reliance on quotes provided by You to customers and prospective customers within ninety (90) days prior to the termination date; (ii) termination of these Terms of Use will not terminate or otherwise limit the right of any customer to use any Interface that was provided to customer during the term of these Terms of Use or after the term as permitted in subsection (i) above whether such customer is using the Interface
in connection with a premise license or receiving SaaS services from Us; and (iii) You will remain obligated to pay Portal Fees to Us with respect to all customers who continue to use Our services to access Your Interface after termination of these Terms of Use. All terms herein which, by their nature, are intended to survive termination of these Terms of Use will survive termination, including all obligations of payment, confidentiality, and indemnification as well as limitations of liability and ownership terms.
9) CONFIDENTIALITY
a) Non-Disclosure. Each Party agrees that it will not use Confidential
Information of the other Party except to carry out their obligations under
these Terms of Use. Each Party further agrees that they will not disclose
Confidential Information of the other Party except (i) to their employees for
whom access is necessary to carry out the purposes of this agreement,
provided that the employer will be responsible for ensuring such employees’
compliance with the obligations of this Section; or (ii) pursuant to a
requirement of a court, government agency, or law, including without
limitation, state and federal securities laws; provided that if either Party is
required by a court, government agency, or applicable law to disclose any
Confidential Information of the other Party, it will notify the disclosing Party
immediately upon learning of such requirement so that the disclosing Party
has an opportunity to take action to protect the confidentiality of the
Confidential Information. Unauthorized use or disclosure of Confidential
Information will cause irreparable damage to the disclosing Party for which
there is no adequate remedy at law and the disclosing Party will be entitled
to immediate injunctive relief. If an unauthorized use or disclosure occurs,
the receiving Party will immediately notify the disclosing Party, use best
commercially reasonable efforts to recover the Confidential Information and
prevent its subsequent unauthorized use or dissemination, including
availing itself of actions for seizure and injunctive relief. If a Party fails to
take these steps in a timely and adequate manner, the disclosing Party may
take them in its own or in the receiving Party’s name and at the receiving
Party’s expense.
b) Return. Upon termination of these Terms of Use for any reason or promptly
upon the disclosing Party’s request, the receiving Party will return
Confidential Information of the disclosing Party in the receiving Party’s
possession or control or (at the disclosing Party’s option) destroy such
Confidential Information and certify to the disclosing Party in writing that the
Confidential Information has been destroyed. Notwithstanding the
foregoing, You will not be obligated to return the documentation or other
information received from Us in connection with the Interfaces while a
customer is actively using the Interface, as permitted by section 7.
10)INTELLECTUAL PROPERTY RIGHTS
You will own all copyright and all other right, title and interest in the Interfaces and other materials You create. We will not, and will not permit or assist any third Party to, create derivative works of, modify, reverse engineer, disassemble or decompile the Interfaces or the Your software. We will own all copyright and all other right, title and interest in all Our Services. You will not, and will not permit or assist any third Party to, create derivative works of, modify, reverse engineer, disassemble or decompile Our Services.
11) WARRANTIES
a) We represent and warrant to You that We have full power and authority to
enter into these Terms of Use.
b) You represent and warrant to Us that:
i) You have full power and authority to enter into these Terms of Use
and carry out your obligations herein;
ii) Your agreement to these Terms of Use, Your performance of Your
obligations hereunder;
iii) These Terms of Use constitute Your legal, valid and binding
obligations;
iv) You own or otherwise have and will have the necessary rights and
consents in and relating to your data so that it does not and will not
infringe, misappropriate or otherwise violate any Intellectual Property
Rights;
v) Your data has at all times and will in the future be, when used through
the Services, in compliance with applicable law and these Terms of
Use.
c) EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THESE
TERMS OF USE, ALL SERVICES ARE PROVIDED “AS IS” AND WE
HEREBY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS,
IMPLIED, STATUTORY, OR OTHER, AND WE SPECIFICALLY DISCLAIM
ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, AND NON-
INFRINGEMENT.
12) INDEMNIFICATION
a) We agree to indemnify, defend and hold harmless You, Your officers,
directors, and employees from and against any and all loss, cost, damage,
expense or liability (including any attorneys’ fees, court costs, and related
legal expenses whether incurred in defending against such claim or
enforcing this Section) (each a “Claim”), arising out of or resulting from
claims or allegations by third parties that Our Services actually or allegedly
infringes, misappropriates, or otherwise violates a third Party’s patent rights,
copyrights, trademark rights, trade secrets, or other intellectual property
rights.
b)You agree to indemnify, defend and hold harmless Us, Our officers,
directors, and employees from and against any and all loss, cost, damage,
expense or liability (including any attorneys’ fees, court costs, and related
legal expenses whether incurred in defending against such claim or
enforcing this Section) (each a “Claim), arising out of or resulting from
claims or allegations by third parties that Your products/services or Software
actually or allegedly infringes, misappropriates, or otherwise violates a third
Party’s patent rights, copyrights, trademark rights, trade secrets, or other
intellectual property rights.
c) The Indemnified Party will be entitled to participate in the defense of any
such claims and to employ legal representation at its own expense to assist
in the handling of such claims. Each Party will obtain the prior written
approval of the other Party, which approval will not be unreasonably
withheld, before settling any such claim or ceasing to defend against such
claim if such settlement or cessation would cause injunctive or other relief to
be imposed against an Indemnified Party or would prejudice any intellectual
property interest of an Indemnified Party
13) LIMITATION OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. THE AGGREGATE AND TOTAL LIABILITY OF EITHER PARTY FOR ANY AND ALL CLAIMS ARISING OUT OF THESE TERMS OF USE WILL BE LIMITED TO DIRECT DAMAGES AND WILL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY VENDOR TO COMPANY DURING THE
SIX (6) MONTH PERIOD IMMEDIATELY BEFORE THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES.
14) GOVERNING LAW
These Terms of Use and Schedule A are governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Utah.
15) ALTERNATIVE DISPUTE RESOLUTION
Any controversy or claim greater than $25,000 arising out of or relating to these Terms of Use, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association (https://www.adr.org) in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any oral hearing procedures required for arbitration
will take place in Ogden, Utah. Any controversy or claim brought by You which is less than $25,000 arising out of or in relation to these Terms of Use, or the breach thereof, shall be settled in small claims court in Ogden, Utah. Any controversy or claim brought by Us which is less than $25,000 arising out of or in relation to this contract, or the breach thereof, shall be settled in small claims court in an appropriate jurisdiction of Our choice. Excepted to the above, is immediate temporary or permanent injunctive relief. Any award in arbitration initiated under this section shall be limited to monetary damages and shall
include no injunction or direction to any party other than the direction to pay a monetary amount. The award of the arbitrators shall be accompanied by a reasoned opinion. The parties agree that failure or refusal of a Party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that Party to present evidence or cross-examine witness. In such event, the other Party shall be required to present evidence and legal argument as the arbitrator may require for the making of an award. The prevailing Party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing Party.
16) TIME LIMITATION
Any claim against Us must be made within one (1) year that You first knew of (or with reasonable inquiry, could have discovered) the act or omission that gave rise to the claim.
17) NOTICES
All notices, requests, consents, claims, demands, waivers, and other communications under these Terms of Use have binding legal effect only if in writing and addressed to a party as at the address indicated on the Schedule A, or such other address that such party may designate from time to time in accordance with this Section. Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile
or e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid. A Party may change its address by written notice to the other Party.
18) ASSIGNMENT
Either Party may not assign these Terms of Use by operation of law or otherwise without the prior written consent of the other Party, which shall not be unreasonably withheld. Any merger, consolidation or change of ownership of a controlling voting interest will be considered to effect an assignment for purposes of this Section. Any assignment other than as provided in this Section is void and of no force or effect.
19) SEVERABILITY AND WAIVER
If any provision of these Terms of Use is held to be invalid, illegal, or unenforceable, such provision will be considered stricken from these Terms of Use, and the validity, legality, and enforceability of the remaining provisions will not in any way be affected or impaired thereby. Neither Party will, by mere lapse of time, without giving notice or taking other action hereunder, be deemed to have waived any breach by the other Party of any of the provisions of these Terms of Use. Further, the waiver by either Party of a particular breach of these Terms of Use by the other will not be construed as nor constitute a continuing waiver of such breach or of breaches of the same or other provisions of these Terms of Use.
20) FORCE MAJEURE
Neither Party will be in default if its failure to perform any obligation hereunder (except for failure to pay) is caused solely by supervening conditions beyond that Party’s reasonable control; provided, however, that in order to avail itself of the excuse from performance under this Section, the Party seeking such excuse must demonstrate diligence in notifying the other Party and in attempting to remedy any such supervening conditions.
21) INDEPENDENT CONTRACTORS
The Parties to these Terms of Use are independent contractors and are not partners, joint ventures, agents, franchiser or franchisee or representatives of each other. Neither Party will have the power to bind the other, nor will either Party misstate or misrepresent its relationship hereunder.
22) CHANGES TO TERMS OF USE
We may, from time to time, make modification (by amendment, replacement, and/or adding new provisions) to these Terms of Use at any time. Unless a later effective date is stated, the modified version of these Terms of Use will be effective immediately when posted on the Vendor Portal Terms of Use website or emailed to You. We will provide notice of changes to the Terms by: (a) posting the amended version of the Terms of Use on the Vendor Portal website; and/or (b) emailing notice to the email account associated with Your account. You are responsible to check the Services and these Terms of Use regularly for modifications of these Terms of Use. Your continued use and/or access of
any of the Services after the effective date of a modification to these Terms of Use will be conclusive proof that You agree to be bound by the modified version of these Terms of Use.
23) ENTIRE AGREEMENT
These Terms of Use, together with Schedule A and any other document incorporated herein, constitutes the sole and entire agreement between You and Us with respect to the subject matter of these Terms of Use, Schedule A, and such other documents and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter.
