Services.
Scope of Services. Subject to the terms and conditions of this Agreement, DataVisor shall provide Customer with remote access to DataVisor’s fraud detection services as more fully described in the applicable Order Form (“Services”).
Internal Use Only. The Services are for use only by Customer as integrated with Experian services only. The Services are for Customer’s internal business purposes only and may be used solely in connection with the Customer product specified on the Order Form and are not to be used for the benefit of any third party or for any other purposes.
Restrictions. As between the parties, DataVisor hereby reserves all intellectual property rights in the Services, all underlying software, architecture, algorithms, inventions, technology, processes, and related documentation, as well as all improvements and modifications made to any of the foregoing in connection with the performance of the Agreement. Customer agrees not to reverse engineer, reverse assemble, decompile, or otherwise attempt to derive source code from any such Services, including software contained therein. No license is granted, by implication, estoppel or otherwise, under any such intellectual property rights except for the right to access and use the Services as set forth herein. Customer shall provide supervision, control and management of the use of the Services. Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services and to notify DataVisor of any unauthorized access that may come to Customer’s attention. Customer shall not interfere with or disrupt the integrity or performance of the DataVisor Services or third-party data.
Customer Data. To use the Services, Customer will provide to DataVisor certain data, which may include email address, IP address, user ID, telephone number and other information that end users provide to Customer when signing up for use of the Customer Product (collectively “Customer Data”). As between the parties, Customer shall own all right, title, and interest in and to the Customer Data. Customer agrees to grant and hereby grants to DataVisor a perpetual, non-exclusive license to use such Customer Data (a) in order to provide the Services to Customer; (b) for statistical use (provided that such data is not personally identifiable); and (c) as necessary to maintain and improve the Services. Customer represents and warrants that it implements and maintains a privacy policy that complies with all applicable privacy laws and regulations and meets at least the industry standard, and that its provision of the Customer Data to DataVisor complies with such privacy policy and all applicable laws and regulations and will not violate any privacy or other rights of any third party.
Updates and Upgrades. DataVisor may update the DataVisor Services at any time and from time to time in its sole discretion. DataVisor shall include in the DataVisor Services provided hereunder any such updates that DataVisor generally makes available to its customers free of charge. Upgrades or add-ons that include new features or substantial increases in functionality may be subject to additional charge.
Confidential Information.
Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party’s business, plans, customers, technology, and products, including the terms and conditions of this Agreement (“Confidential Information”). Each party shall not use in any way, for its own account or the account of any third party, except as expressly permitted by this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party’s Confidential Information and shall take reasonable precautions to protect the confidentiality of such information.
Exceptions. Information will not be deemed Confidential Information if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party.
Disclaimer.
DATAVISOR DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. DATAVISOR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE; OR WILL DETECT ALL UNWANTED, ILLEGAL, SUSPICIOUS, OR FRAUDULENT ACTIVITY; OR WILL NOT DETECT ACCOUNTS THAT ARE NOT UNWANTED, ILLEGAL, SUSPICIOUS, OR FRAUDULENT.
Limitations of Liability.
Exclusions. DATAVISOR WILL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY LOST REVENUE, LOST PROFITS, REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OF DATA, OR INTERRUPTION OF BUSINESS, EVEN IF DATAVISOR IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
Maximum Liability. DATAVISOR’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER RELATED TO OR IN CONNECTION WITH THIS AGREEMENT WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY CROSSCORE TO DATAVISOR FOR THE 12 MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
Indemnification.
DataVisor’s Indemnification of Customer. DataVisor shall, at its own expense, defend or at its option settle any third party claim brought against Customer to the extent it alleges that DataVisor’s provision of the Services under this Agreement infringes any copyright, trade secret, patent or trademark of any third party, and shall pay those judgments finallyawarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action agreed to by DataVisor; provided that Customer provides DataVisor with (i) prompt written notice of such claim; (ii) control over the defense and settlement of such claim; and (iii) proper and full information and assistance to settle and/or defend any such claim. Notwithstanding the foregoing, in no event shall DataVisor be liable for any such claim to the extent that it is based on (a) any modification to the Services performed by a party other than DataVisor, where the infringement would not have occurred but for that modification, (b) any use of the Services in combination with other products or services not furnished by DataVisor, where the infringement would not have occurred but for that combination, or (c) any use of the Services not expressly authorized by DataVisor under this Agreement, where the infringement would not have occurred but for that unauthorized use. The foregoing provisions of this Section 9.1 state the entire liability of DataVisor, and the sole remedy of Customer, with respect to any actual or alleged claim of infringement or misappropriation of intellectual property rights, or any intellectual property non-infringement warranty.
Customer’s Indemnification of DataVisor. Customer shall, at its own expense, defend or at its option settle any third party claim brought against DataVisor to the extent it alleges that (a) Customer’s use of Services violates any applicable law or regulation, (b) Customer does not have the right to provide the Customer Data to DataVisor, or (c) the Customer Data infringes the copyright, trade secret, privacy, publicity, or other rights of any third party, and shall pay those judgments finallyawarded against DataVisor in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action agreed to by Customer; provided that DataVisor provides Customer with (i) prompt written notice of such claim; (ii) control over the defense and settlement of such claim; and (iii) proper and full information and assistance to settle and/or defend any such claim. The foregoing provisions of this Section 9.2 state the entire liability of Customer, and the sole remedy of DataVisor, with respect to any actual or alleged claim of infringement or misappropriation of intellectual property rights, or any intellectual property non-infringement warranty.
Term and Termination.
Term and Renewal. The term of the Services shall be for an initial period of one year as set forth on the Order Form (“Initial Term”). After the Initial Term, this Agreement will automatically renew for additional one-year terms (each a “Renewal Term”) unless either party provides the other party with notice of non-renewal at least 30 days prior to the expiration of the Initial Term or the then-current Renewal Term.
Termination. Either party will have the right to terminate this Agreement if the other party breaches any material term or condition of this Agreement and fails to cure such breach within 30 days after receipt of written notice of the same, except in the case of Customer’s failure to pay fees, which must be cured within five days after receipt of written notice from DataVisor.
Suspension. At DataVisor’s sole option, DataVisor may suspend Customer’s access to the Services in the event of any breach by Customer of a material term or condition of this Agreement and reinstate such access at such time as the breach has been cured.
Effect of Termination. Upon the effective date of expiration or termination of this Agreement: (a) DataVisor may immediately cease providing Services; (b) any and all payment obligations of Customer will become due immediately; and (c) within 30 days after such expiration or termination, each party shall return all Confidential Information of the other party in its possession at the time of expiration or termination and shall not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement. Those provisions which by their nature should survive termination of this Agreement, including without limitation confidentiality, restrictions, intellectual property, limitation of liability and warranty disclaimers, shall survive.
Miscellaneous Provisions.
Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including act of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to correct promptly such failure or delay in performance.
Government Regulations. Customer shall not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
Governing Law; Dispute Resolution. This Agreement and any dispute hereunder is made under and will be governed by and construed in accordance with the laws of the State of California (except that body of law controlling conflicts of law). Except for the right of either party to apply to any court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute as to the interpretation, enforcement, breach, or termination of this Agreement will be settled by binding arbitration in San Francisco County, California, under the Rules of Arbitration of the International Chamber of Commerce Court of Arbitration, by a single arbitrator appointed in accordance with such rules. Arbitration shall be conducted in English. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction.
Assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without the prior written consent of DataVisor, except that Customer may assign this Agreement, upon prior written notice to DataVisor, in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. Any attempted assignment or delegation without such consent will be void. DataVisor may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, sale or transfer of substantially all of its assets. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
Notices. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, or mailed by registered or certified mail, return receipt requested, postage prepaid to the address for the applicable party first written above, or at such other address as may hereafter be furnished in writing by either party hereto to the other. Such notice will be deemed to have been given as of the date it is delivered. Notices may also be given via email to the following email addresses, provided that each email notice shall be accompanied by a confirmation copy delivered to the recipient in accordance with one of the methods listed above.
DataVisor address for notice: DataVisor, Inc., 883 N Shoreline Blvd, Mountain View, CA 94043, Attn: Finance & Legal, legal@datavisor.com
Customer email address for notice: as set forth on the Order Form.
Relationship of Parties. DataVisor and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between DataVisor and Customer. Neither DataVisor nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein.
General Terms. This Agreement, including all documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together shall constitute one and the same instrument. In the event any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default and will not act to amend or negate the rights of the waiving party.
Publicity. Customer agrees that DataVisor may include the name, logo, and success stories of Customer on DataVisor’s website, press releases, promotional and sales literature, and advertising materials.