End User License Agreement | EULA
1. General. The Service, consisting of access to certain application software (including GVT’s proprietary software, FAMCare (the “Software”)) content and/or other information, and other content owned or licensed by GVT and/or its licensors (such licensors, collectively, the “Contributors”), is provided by GVT and located at a GVT supplied Internet Address (the “Site”). As part of the service GVT will provide Customer with use of the Service including a browser interface and data encryption, transmission, access and storage.
2. Restricted License. Subject to the terms and conditions of this Agreement, GVT hereby grants to Customer (and Customer accepts) a non-exclusive, non-transferable license to access and use the Service for the number of “Users” allocated via the ordering process. Rights not expressly granted to Customer are hereby reserved by GVT and/or the respective Contributor. GVT and each Contributor shall have the right to assert and enforce the provisions of this Article 2 directly on its own behalf. Customer agrees (a) to abide by this Agreement; and (b) to keep, and to cause its employees and contractors to keep, Customer authorized account (“Account”) information confidential, including Customer password, third party passwords, usernames and any other information related to the Service (“Account Information”), and to inform GVT promptly upon the unintended and/or undesired disclosure of any portion of such Account Information.
Customer’s use of any Contributor products incorporated into the Software or separately licensed pursuant to Schedule A to this Agreement may be subject to, and Customer shall execute and comply with, Contributor license agreements governing the use of such Contributor products.
Customer may permit third parties who are neither employees nor contractors of Customer to use portions of the Services for purposes of accessing Customer data. All such third party users will be bound by the same terms and conditions of this agreement.
3. Intellectual Property Rights. It is hereby understood and agreed that as between GVT and Customer, GVT is the owner of all rights, title and interest, including all Intellectual Property Rights (as defined below) to the Software, the Service and the Site. For the purposes of this Agreement, “Intellectual Property Rights” shall mean any and all of the following: (a) rights associated with works of authorship throughout the universe, including but not limited to copyrights, moral rights, and mask-works; (b)Trademark and trade name rights and similar rights; (c)Trade secret rights; (d) Patents, designs, algorithms and other industrial property rights; (e) All other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated, including, but not limited to logos, “rental” rights, rights of publicity, and rights to remuneration), whether arising by operation of law, contract, license, or otherwise; and (f) All registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing).
Except as expressly provided herein, Customer does not acquire any rights to the Service through the purchase of licenses to the Service or the Site. Customer may not reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code (i.e., the human-readable form of any computer programming code) (“Source Code”) of the components of the Service, or create derivative works based thereon. Customer also may not download, republish, reproduce, copy, post, transmit, or in any way distribute any material from the Site unless such activities are in direct furtherance of Customer’s permitted use of the Service and do not in any way violate this Agreement or any Contributor product license agreements.
Customer is not permitted to: (a) rent, lease, assign or transfer all or any part of the Service and/or Customer Account Information to any person or entity without the prior written consent of GVT; (b) remove any proprietary notices, labels, or marks on any component of the Service (or the Service or Site generally), whether in machine language or Source Code; (c) use the Service to provide a service bureau by which the Service can be accessed by third parties or by which information produced pursuant to the Service is sold or given to third parties via pay per call or other arrangements; or (d) sublicense, assign, delegate or otherwise transfer this license or any of the related rights or obligations for any reason without the prior written consent of GVT (any attempt to sublicense, assign, delegate or transfer this license, either by contract, statute, corporate merger of any sort, regulation or court order, without the prior written consent of GVT shall be voidable at GVT’s sole and absolute discretion). Failure to comply with these restrictions will result in automatic termination of this Agreement.
4. Privacy. GVT will not disclose any proprietary information about Customer’s use of the Service. GVT will handle Customer’s data in a PIPEDA-compliant manner.
5. Account Information and Data. Customer is the owner of all data submitted to the Service (“Customer Data”), and GVT will, as set forth herein, provide the data to Customer at the termination of this Agreement. GVT will keep confidential any data entered into the system by Customer and will not disclose any of the data entered into the system to a third party without explicit written permission by Customer.
Upon termination of the Service, and upon the written request of Customer, GVT will make available to Customer a backup copy of its SQL Server 2008 database within 30 days after termination. GVT reserves the right to withhold, remove and/or discard Customer Data for any breach, including, without limitation, Customer non-payment. Notwithstanding any provision of this Agreement to the contrary, before removing or discarding any Customer Data and before terminating Customer’s right to access or use Customer Data accessible through the Site, GVT will give Customer thirty (30) days’ prior written notice and an opportunity to download all customer data from the Site.
GVT will download all customer data for a fee of $500 per occurrence as long as it is accepted in a SQL format. If customer requires a different format it will be billed on our time and materials basis at our billable rate of $200 per hour.
6. Fees. Customer shall pay all fees or charges to account in accordance with Schedule A to this Agreement. All payment obligations are non-cancelable and all amounts paid are nonrefundable unless written notice is received from the Customer within 30 days after contract signing that Customer wishes to terminate this agreement; provided, however, that if Customer terminates this Agreement pursuant to Section 10 or GVT terminates this Agreement pursuant to Section 10 other than for Customer’s breach, Customer’s obligation to pay fees and charges shall terminate on the date this Agreement terminates, and GVT shall promptly refund to Customer any amounts prepaid by Customer for licenses, hosting and modules for the period post termination. Any fees that were prepaid for professional services work will be refunded to the customer provided no professional services have been delivered. To the extent that GVT has performed professional services for the customer within the 30 days after signing the contract, GVT will collect what is due and refund the unused portion to the customer.
Customer is responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. Customer must provide GVT with an executed original copy of this contract, and a form of payment such as a company check or valid credit card as a condition to commencement of the Service. An authorized License Administrator may add licenses by executing an amendment to Schedule A. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. All pricing terms are confidential, and Customer agrees not to disclose them to any third party.
7. Billing and Renewal. GVT charges and collects in advance for use of the Service. GVT will automatically renew and bill Customer’s credit card (a 3% convenience fee applies) or issue an invoice to Customer with the frequency set forth on Schedule A. The renewal charge will be equal to the then-current number of total User licenses in effect during the term – times the license fee, unless GVT has given Customer written notice of a fee increase at least thirty (30) days prior to the expiration of the Term or any renewal term, which shall be effective upon renewal and thereafter. GVT shall not be permitted to increase the license fee more often than one time per consecutive twelve (12) month period and shall not increase by more than three (3%) percent of the amount of the license fee for the immediately prior annual term. Fees for other services will be charged on an as-quoted basis. GVT’s fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on GVT’s income.
Customer agrees to provide GVT with complete and accurate billing and contact information. This information includes Customer’s legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. Customer agrees to update this information within 30 days after any change to it. If the contact information Customer has provided is false or fraudulent, GVT reserves the right to terminate Customer’s access to the Service in addition to any other legal remedies.
All Customers will be billed in US dollars and subject to U.S. payment terms and pricing schemes.
If Customer believes billing is incorrect, Customer must contact GVT in writing within five (5 days) after the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
GVT reviews work “in progress” on a monthly basis. For ongoing projects and project work, any task that has over 10 hours of work recorded and that has not been billed, will be allocated and billed as a progress billing item. Work will continue until completed and a final invoice rendered for the unbilled work or over 10 more hours are accumulated in which case another progress billing will be sent.
In addition, for any project task that has gone idle for 60 days, we reserve the right to close out and invoice for the work performed to date. In both situations, an invoice may be issued at the end of the month.
8. Non-Payment and Suspension. In addition to any other rights granted to GVT herein, GVT reserves the right to suspend or terminate this Agreement and Customer access to the Service if Customer’s account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Customer will continue to be charged for User licenses during any period of suspension. If Customer or GVT initiates termination of this Agreement, Customer will be obligated to pay the balance due on Customer’s account computed in accordance with the Charges and Payment of Fees section above. Customer agrees that GVT may charge such unpaid fees to Customer’s credit card or otherwise bill for such unpaid fees.
GVT reserves the right to impose a reconnection fee in the event Service is suspended and thereafter Customer requests access to the Service. Customer agrees and acknowledges that GVT has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if GVT has complied with the notice requirement of paragraph 5 above.
9. Term. This Agreement shall begin on the 1st day of the month following the date GVT receives payment as described in Schedule A and will continue until the services are terminated as per paragraph 10 below.
10. Termination. The renewal for this contract is automatic unless notice is given in writing within 30 days of current contract expiration date notifying GVT that customer does not wish to renew. If Customer chooses to cancel prior to the completion of the established contract term, Customer is responsible to pay the additional $1,010 deferment from the first year’s payment terms. See Schedule A.
11. Equipment Operation. Customer is solely responsible for acquiring and maintaining all computer hardware and software, telephone, and other equipment, and all communications and other services needed for access to and use of the Service.
12. Security and Data Storage. Without GVT’s prior express written consent Customer shall not permit or allow other persons to have access to or to use Customer Account Information other than Customer employees, consultants or agents who have been notified of the restrictions set forth in this Agreement. Customer agrees to maintain the confidentiality of all of Customer Account Information and agree to be primarily responsible for all activity pursuant to Customer Account.
GVT shall employ appropriate security practices to protect Customer’s data on GVT’s networks and on the servers and other devices connected to GVT’s network. GVT shall be responsible for compliance with all notification, reporting, and other legal requirements relating to any unauthorized release of data or other breach of security on GVT’s network and the servers and other devices connected to GVT’s network.
GVT shall also be responsible for compliance with all notification, reporting, and other legal requirements relating to any unauthorized release of data or other breach of security that arises out of any act or failure to act on the part of GVT, regardless of whether such act or failure to act was negligent, grossly negligent, or intentional. Under any circumstance covered by this section, Customer, at its sole discretion, may also comply with any notification, reporting, or other legal requirement, provided, however, that compliance shall not relieve GVT of any of its responsibilities set forth in this section or otherwise existing under applicable law.
13. Customization. If Customer requests GVT to customize the Services (for example, to generate additional or different reports), the exact nature of the customization as well as the charge therefor shall be set out in Schedule A. to this Agreement. Custom development and system tailoring that exceeds 50 hours (or $10,000) is subject to maintenance fees at 21% of the development work above 50 hours.
14. Acceptance. Deliverables shall be deemed accepted ten (10) days after delivery to CLIENT unless CLIENT, within that time period, notifies GVT that the Deliverables fail to conform to the applicable specifications; provided, however, that if CLIENT could not within that same period reasonably know or determine the Deliverables fail to conform to such specifications, CLIENT shall have 10 days after CLIENT knows or should have reasonably known of such nonconformity, to inform GVT. GVT shall promptly use commercially reasonable efforts to remedy any nonconformity within a reasonable time.
15. Limited Warranties. GVT warrants that during the term of this Agreement, the Software, which is the principal component of the Service, will perform substantially in accordance with the functionality indicated in the applicable specifications for such software. GVT further warrants that Customer’s use of the Service in accordance with this Agreement will not violate the intellectual property rights, including patent, copyright and trade secret, of any third parties.
GVT warrants that during the term of this Agreement that “Uptime” as hereinafter defined will be no less than 99.9 % of twenty-four (24) hours per day, seven (7) days per week. ”Uptime” means the period of time during which a user can log onto the Site and utilize the Service. Upon Customer’s written request GVT will make available to Customer Site downtime reports calculated on a monthly basis. If Uptime falls below the level specified above, Customer’s remedies shall be limited to the following:
If uptime falls between 98 – 99.9%, during any one contract year – Customer will receive a 10% discount on the hosting invoice.
If uptime falls between 90-97.9%, during any one contract year – Customer will receive a 20% discount on the hosting invoice.
If uptime falls below 90%, during any one contract year – Customer will receive a 100% discount on the hosting portion of the fees.
The discounts provided in this paragraph 15 are Customer’s sole remedy in the event that the Uptime falls below 99.9%
i. Urgent – Severity Level One (1) – 24 hours a day, 365 days of the year. Upon GVT’s receipt from Customer of a report of the problem, a technician will be immediately assigned to commence resolution of the reported problem. Technicians will be alerted and will respond within 30 minutes. GVT will maintain a commercially reasonable continuous effort to resolve the reported problem.
ii. High – Severity Level Two (2) – During normal business hours (9:00 a.m. – 6:00 p.m. EST Monday through Friday excluding holidays), unless otherwise agreed by the parties hereto on a case-by-case basis. If the problem is reported during normal business hours, an engineer will be immediately assigned to commence resolution of the reported problem. In the event that the problem is reported outside of normal business hours, a technician will be assigned to commence resolution of the reported problem at the beginning of the next business day. Once an engineer is assigned, the Contractor agrees to maintain a commercially reasonable continuous effort during regular business hours to resolve the reported problem.
iii. Normal – Severity Level Three (3) – During normal business hours (9:00 a.m. – 6:00 p.m. EST Monday through Friday excluding holidays). During normal business hours, the problem will be logged into the support tracking system and an engineer will be assigned to resolve the problem on a next available basis.
a. Urgent –- Severity Level One (1) – The System is totally inoperative and/or real-time use is not possible.
b. High – Severity Level Two (2) – A module or component of the Licensed Software application is inoperative, creating a critical situation for that function, however the general use of the application is possible.
c. Normal – Severity Level Three (3) – All other problems arising with respect to the Licensed Software which are not critical, including Customer requested corrective support, preventative maintenance and, if applicable, any Contractor required enhancements and/or installations.
Lowering of priority disclaimer:
*** GVT maintains the right to lower Priority on submitted ticket. If the Customer is not in agreement, please respond via ticket. The ticket will then be evaluated for reconsideration, and the Customer will be notified in accordance with the current priority response guidelines.
16. Limitation of Liability. Except to the extent that the following have been caused by the negligence of GVT, Customer specifically agrees that GVT shall not be responsible for the unauthorized access to or alteration of customer transmission(s) or data, any material or data sent or received or not sent or received, the disclosure of any private information, any transmission(s) entered in through the Service, any expenses, damages or injury caused by any failure of performance, error, omissions, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or use of record. Customer also agrees that GVT is not responsible for any threatening, defamatory, obscene, offensive or illegal content or conduct of any third party not under the direct control of GVT. Customer shall indemnify and hold GVT harmless against any claims that may arise, or damages costs and expenses that GVT may incur, as a result of the matters set forth in this paragraph not caused by the negligence of GVT.
Customer acknowledges that the operation and availability of the communications systems, including, without limitation, telephone service, computer networks and the Internet, used for accessing and interacting with the Service can be unpredictable and may, from time to time, interfere with or prevent access to or operation of the Service. Customer acknowledges that GVT is not responsible for any such interference with or prevention of Customer use of or access to the Service.
IN NO EVENT: (a) WILL GVT’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF ALL FEES PAID TO GVT BY CUSTOMER FOR USE OF THE SERVICE PURSUANT TO PARAGRAPH 6 HEREOF; AND (b) WILL GVT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES. THE LIABILITY LIMITATIONS OF THIS PARAGRAPH APPLY: (i) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (ii) EVEN IF GVT IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND iii) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. IF APPLICABLE LAW LIMITS THE APPLICATION OF THE PROVISIONS OF THIS PARAGRAPH, GVT’S LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMISSIBLE.
17. Severability. Waiver. If any provision of this Agreement shall be determined to be invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby. The failure of GVT to exercise any right provided for herein shall not be deemed a waiver of any right hereunder.
18. Indemnification. Customer agrees to indemnify, defend and hold harmless GVT and each and every Contributor, and their respective affiliates, officers, directors, employees, consultants, agents and licensors from harmless from and against any and all claims, demands, causes of action, damages, liabilities, losses, costs and expenses, including attorneys’ fees (collectively, the “Claims”), arising out of, incident to, or resulting directly or indirectly from (a) the accuracy of Customer Data; (b) Customer’s use of the Service (except to the extent that such Claims were caused by the negligence of GVT or any employee, contractor or agent of GVT); or (c) the breach by Customer of any of its warranties, duties and obligations hereunder. The foregoing indemnity includes, but is not limited to, any claim, demand or damages resulting from or related to the disclosure of any “Personal Health Information” (as defined in the Health Insurance Portability and Accountability Act of 1996) contained in the Customer Data, whether such disclosure results from Customer or third party access to the Customer Data.
GVT hereby indemnifies and holds Customer and its subsidiaries and affiliates (including all officers, directors, employees, contractors and agents of the foregoing) harmless from and against any and all claims that (1) the Software infringes any patent, trademark, copyright or other third party intellectual property rights; (2) a breach of this Agreement; and (3) violations of applicable law.
19. Equitable Relief. Customer acknowledges that, at the time this Agreement is entered, it would be impossible or inadequate to measure and calculate all of GVT’s damages for the breach of certain provisions of this Agreement and that it would require a court of competent jurisdiction to ascertain GVT’s damages. Accordingly, if Customer breaches or threatens to breach any of Customer obligations set forth in paragraphs 2 and 3 of this Agreement, GVT shall be entitled, without showing or proving any actual damage sustained, to a stipulated temporary restraining order, and shall thereafter be entitled to apply for a preliminary injunction, permanent injunction, and/or order compelling specific performance, to prevent the breach of Customer obligations under this Agreement, and to the extent permitted by law, Customer waives the requirement that GVT post any bond in connection therewith. Nothing in this Agreement shall be interpreted as prohibiting GVT from pursuing or obtaining any other remedies as otherwise available to it for such actual or threatened breach, including recovery of damages.
20. Governing Law/Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of Missouri, without reference to principles of conflict of laws, and any action brought by the Parties to enforce or interpret any provision of this Agreement shall be brought exclusively in an appropriate state court or federal court in St. Louis, Missouri. The Parties hereby consent to such jurisdiction and waive any objection to such venue.
21. Modifications to Terms. Any amendment to the Terms and Conditions of this agreement would require the approval of Customer and GVT. The amendment of the agreement would take place through an addendum.