Your Acceptance of these Terms
These Terms of Service and Conditions (“Terms”), together with the IT Security Policy, the fully executed Order Form and any Statements of Work, shall constitute the Licensed Software License and Service Agreement (this “Agreement”), between the Licensee (as identified on the Order Form or Statement of Work, as applicable) (“Licensee”) and Transactionly LLC (“Transactionly” and together with Licensee, each a “party” and together the “parties”).
The effective date of this Agreement is the date set forth on the applicable Order Form or Statement of Work. Any additional Order Form or Statement of Work executed after the effective date shall be incorporated herein by reference and governed by this Agreement. Licensee is responsible for reviewing these Terms prior to executing an Order Form or Statement of Work. By executing an Order Form or Statement of Work, or accessing or using the Services, Licensee confirms that it accepts the terms and conditions of these Terms.
The rights and obligations of the parties set out in any executed Order Form or Statement of Work shall be governed by these Terms. In the event of any inconsistency between a provision of any applicable Order Form or Statement of Work and a provision of these Terms, the provision of the relevant Order Form or Statement of Work shall prevail solely with respect to resolving any conflict. For the avoidance of doubt, the order of precedence shall be: (1) Order Form, (2) Statement of Work and (3) these Terms.
IF LICENSEE IS USING THE SERVICES DURING A P.O.C., LICENSEE’S USE OF THE SERVICES DURING THE P.O.C PERIOD IS GOVERNED BY THESE TERMS. IF LICENSEE CONTINUES TO USE THE SERVICES AFTER THE CONCLUSION OF THE P.O.C. PERIOD WITHOUT A FULLY EXECUTED SUBSCRIPTION AGREEMENT BETWEEN TRANSACTIONLY AND LICENSEE, LICENSEE UNDERSTANDS THAT THESE TERMS WILL ALSO GOVERN LICENSEE’S ONGOING USE OF SUCH SERVICES.
LICENSEE MAY NOT ACCESS THE SERVICES IF LICENSEE IS TRANSACTIONLY’S DIRECT COMPETITOR, OR TO MONITOR THE SERVICES’ FUNCTIONALITY, PERFORMANCE, AVAILABILITY OR ANY OTHER COMPETITIVE OR BENCHMARKING-RELATED PURPOSES.
BY SIGNING LICENSEE’S CONTRACT FOR THE SERVICES, OR USING THE SERVICES, LICENSEE AFFIRMS THAT LICENSEE IS AT LEAST 18 YEARS OF AGE. IF “LICENSEE” IS A COMPANY, LICENSEE AFFIRMS THAT (I) LICENSEE IS AN EMPLOYEE, DIRECTOR, OR AGENT OF SUCH COMPANY; (II) THAT LICENSEE HAS THE LEGAL AUTHORITY TO BIND SUCH COMPANY TO THESE TERMS; AND (III) THAT SUCH COMPANY AGREES TO THE TERMS AND WILL COMPLY WITH THE TERMS WHEN USING THE SERVICES. IF LICENSEE DOES NOT HAVE SUCH AUTHORITY, OR IF LICENSEE DOES NOT AGREE WITH THE TERMS, LICENSEE MUST NOT ACCEPT THESE TERMS AND MAY NOT USE THE SERVICES.
1.1. “Affiliate” means with respect to any entity, an entity who directly or indirectly, has the power to Control, whether through ownership of (a) more than fifty percent (50%) of the voting equity or (b) more than fifty percent (50%) of an interest in a joint venture in which either party’s Control over the joint venture is set forth in writing, and in each case, for as long as such Control exists. “Control” and its correlative terms means, with respect to any entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities, as trustee or executor, as general partner or managing member or manager, by contract or otherwise.
1.2. “Agreement” is defined in the preamble.
1.3. “Applicable Laws” means any and all applicable federal, state, local and foreign laws, statutes, ordinances, rules, regulations and directives of any applicable jurisdiction.
1.4. “Authorized Users” mean the named employees of, and authorized individuals who provide services to, Licensee and its Permitted Affiliates to whom Licensee has provided a log in identification to access the Licensed Software on behalf of Licensee; provided that the maximum number of Authorized Users is set forth on the Order Form.
1.5. “Confidential Information” is defined in Section 5.
1.6. “Designated External Users” mean the individuals invited by Authorized Users to access the Licensed Software in accordance with the permission granted by the Authorized Users, which permission may not be greater than those held by such Authorized Users; provided that the maximum number of Designated External Users is set forth on the Order Form.
1.7. “Disclosing Party” is defined in Section 5.
1.8. “Documentation” means the instructional, operating or user manuals that Transactionly provides to Licensee in any form, including electronic, printed and diskette, relating to the operation of the Licensed Software.
1.9. “Documents” means any documents uploaded to the Licensed Software by Licensee.
1.10. “Force Majeure” means any cause beyond a party’s control, as a result of which such party is unable to perform its obligations under this Agreement. Such causes include but are not limited to acts of God, labor conflicts, acts of war or civil disruption, governmental regulations imposed after the fact, public utility failures, industry-wide shortages of labor or material, pandemics, epidemics or natural disasters.
1.11. “IT Security Policy” means that certain IT Security Policy hosted on Transactionly’s website as the same may be updated and revised from time to time.
1.12. “Licensed Software” are the software products identified on the Order Form as being licensed hereunder.
1.13. “Licensee” is defined in the preamble.
1.14. “Licensee Data” means any data that Licensee, any Authorized User or Designated External User uploads or enters into the Licensed Software.
1.15. “Order Form” is the portion of this Agreement that is executed by both parties and identifies the Licensed Software, the term of the Agreement, fees and other agreed upon terms of this Agreement.
1.16. “Permitted Affiliate” means any current or future Affiliate of Licensee for as long as such entity constitutes an Affiliate as defined herein.
1.17. “P.O.C.” means a proof of concept of the Licensed Software by Licensee.
1.18. “P.O.C. Period” means the period of time during which the P.O.C. will take place.
1.19. “Receiving Party” is defined in Section 5.
1.20. “Reports” means any reports generated by the Licensed Software based on the Documents.
1.21. “Services” include, but are not limited to, (i) access to the Transactionly proprietary software application for organizing, managing and/or closing transactions; (ii) access to the Transactionly proprietary software application for storing, sharing and/or signing documents; (iii) support, training and maintenance services; and (iv) any other services specified in any Order Form or Statement of Work.
1.22. “Statement of Work”, if applicable, is the portion of this Agreement that is executed by both parties and identifies any additional agreed-upon terms of this Agreement.
1.23. “Terms” is defined in the preamble.
1.24. “Transactionly” is defined in the preamble.
1.25. “Transactionly Technology” means the Services, the Licensed Software, including all of the software, code, interfaces, processes, images, graphics, text or other materials contained therein, and other technology used by Transactionly in providing the Services.
1.26. “Usage Data” means usage data that does not identify, or reasonably permit identification of Licensee Data.
Licensee may designate Authorized Users as having “administrator status” with respect to the Licensed Software. Authorized Users may permit Designated External Users to access and use the Licensed Software. Designated External Users may only access the Licensed Software for as long as such permission is granted by the Authorized User and shall be subject to the same restrictions applicable to Authorized Users. Designated External Users may not exercise any rights granted to Licensee, its Permitted Affiliates or the Authorized Users other than the right of access to and use of the Licensed Software. Licensee and its Permitted Affiliates shall be responsible for Authorized Users and Designated External Users’ compliance with the terms hereof.
If this Agreement is entered into as part of a P.O.C., this Agreement shall terminate as indicated on the most recently executed P.O.C. Order Form. In all other circumstances, the term of this Agreement will continue unless and until terminated by either party upon written notice to the other party. Transactionly may provide Licensee with notice of termination by e-mail. The following provisions will survive any termination of this Agreement: Section 4 (“Intellectual Property Rights; License”) (except as expressly provided therein), Section 5 (“Confidentiality”), Section 6 (“Privacy”), Section 8 (“Cross Border Data Transfers”), Section 9 (“Representations and Warranties; Disclaimer”), Section 10 (“Liability”), Section 11 (“Changes to Agreement; Inactivity or Cancellation or Termination of Subscription”) and Section 12 (“General Provisions”).
4.1. Licensee Data. Licensee retains all right, title and interest (including, but not limited to, intellectual property rights) in and to any Documents, any Reports, Licensee’s Confidential Information and any Licensee Data. During the term of this Agreement, Licensee grants Transactionly a non-exclusive license to access the Licensee Data in order to generate Usage Data.
4.2. Transactionly Technology. Transactionly retains all right, title and interest (including, but not limited to, intellectual property rights) in and to the Transactionly Technology, Transactionly’s Confidential Information, any Documentation made available to Licensee by Transactionly for use with the Services, the collective ideas, know-how, inventions, methods, or techniques developed or conceived as a result of providing the Services hereunder, including any derivative works, improvements, enhancements and/or extensions made to the Services and any information reflecting the access or use of the Licensed Software by or on behalf of Licensee, including but not limited to visit-, session-, impression-, click through- or click stream-data and any statistical or other analysis, information or data based on or derived from any of the foregoing. Any modifications to the Services, including in response to Licensee’s paid-for customization request, will be the sole property of Transactionly. During the term of this Agreement and in accordance with this Agreement, Transactionly grants to Licensee a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable worldwide license to permit Licensees to access and use the Licensed Software solely for Licensee’s internal business purposes.
4.3. Licensee Responsibilities. Licensee will limit access to the Services to Authorized Users and Designated External Users. Licensee shall not, directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of the Licensed Software; (ii) copy, modify or create derivative works based on the Licensed Software; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer Licensee’s rights to use the Licensed Software; (iv) use the Licensed Software for timesharing or service bureau purposes; (v) use the Licensed Software to develop any similar or competitive service; (vi) use the Services or any Documents or Reports in violation of any Applicable Laws or third party rights; (vii) introduce any viruses, worms, malware or other destructive code into the Licensed Software; (viii) bypass any measures Transactionly uses to restrict access to the Licensed Software; (ix) remove or modify any proprietary marking or restrictive legends placed on the Licensed Software; or (x) use the Services or Licensed Software to store or transmit malicious code, or to transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights. Licensee represents, warrants and covenants on behalf of itself, the Authorized Users and Designated External Users that it: (a) has all necessary rights to use the Documents in connection with the Licensed Software without violating any fiduciary duty, duty of confidentiality, contractual obligation or Applicable Laws; (b) will not use, or permit the use of, the Services, the Licensed Software, the Documents or the Reports for illegal, fraudulent, or unethical purposes or otherwise in a manner that could give rise to civil or criminal liability; and (c) will not interfere with or impede the ability of others to use the Services or the Licensed Software. Licensee shall ensure that it, its Authorized Users and Designated External Users comply with the provisions of the Agreement applicable to use of the Services and shall be liable for any and all use of and access to the Licensed Software by any Authorized Users and/or Designated External Users.
The parties acknowledge and agree that each party (the “Receiving Party”) has and will have access to certain confidential information (“Confidential Information”) of the other party (the “Disclosing Party”). “Confidential Information” means all information provided by the Disclosing Party to the Receiving Party hereunder (i) that is proprietary and/or non-public information related to the business activities of the Disclosing Party, its subsidiaries and/or its Affiliates, including any business plans, strategy, pricing, or financial information; (ii) relating to the Disclosing Party’s methods, processes, code, data, information technology, network designs, passwords, and sign-on codes; (iii) including the terms of this Agreement; and/or (iv) any other information that is designated as confidential by the Disclosing Party. Confidential Information of Transactionly shall also include the Services, and Confidential Information of Licensee shall also include the Documents and Reports. Confidential Information does not include information that is or was, at the time of the disclosure: (a) generally known or available to the public prior to the date of this Agreement; (b) received by Receiving Party from a third party that to Receiving Party’s knowledge is not subject to a confidentiality agreement with Disclosing Party; (c) already in Receiving Party’s possession prior to the date of receipt from Disclosing Party; or (d) independently developed by the Receiving Party without reference to, or use of, Disclosing Party’s Confidential Information, provided in each case that such information was not obtained by the Receiving Party as a result of any unauthorized or wrongful act or omission, or breach of this Agreement, or breach of any legal, ethical or fiduciary obligation owed to the Disclosing Party. At all times the Receiving Party shall: (1) use the same standard of care to protect the Disclosing Party’s Confidential Information as it uses to protect its own confidential information of a similar nature, but not less than a commercially reasonable standard of care, (2) not use the Disclosing Party’s Confidential Information other than as permitted under this Agreement, and (3) not disclose, distribute, or disseminate the Confidential Information to any third party, except as permitted by this Agreement.
Without limiting the following, Transactionly shall maintain appropriate physical, technical and administrative safeguards for protection of the security, confidentiality and integrity of the Documents. Licensee acknowledges that the structure of the systems used in connection with the Services makes it technically possible for a limited number of Transactionly personnel to access the Documents. Transactionly personnel will only access the Documents subject to the confidentiality restrictions in Section 5 hereof, and with the consent of Licensee or to the extent reasonably required (i) to perform the Services on behalf of Licensee; (ii) to investigate or correct a system error or otherwise improve the Services; (iii) to respond to duly authorized information requests of police, law enforcement, or other governmental authorities; (iv) to comply with any Applicable Law, subpoena, discovery request or court order; (v) to investigate and help prevent security threats, fraud, or other illegal, malicious, or inappropriate activity; (vi) to verify compliance with the provisions hereof; or (vii) to enforce/protect the rights and properties of Transactionly.
If Licensee is required to comply with international data protection laws and regulations governing the international or cross-border data transfer of information, and is not using the Services via a local installation option, Licensee is hereby advised that the data centers in which the infrastructure for the Services, Documents and Licensee Data are housed are located in the jurisdiction listed on the applicable Order Form. Licensee must not use the Services if this causes conflict with Licensee’s local data protection laws.
Each party represents and warrants that this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS SECTION 9, TRANSACTIONLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY REPRESENTATIONS OR WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, TRANSACTIONLY MAKES NO WARRANTY THAT (I) THE SERVICES, INCLUDING THE TRANSACTIONLY TECHNOLOGY, THE REPORTS, OR ANY OTHER SERVICES OR DELIVERABLES PROVIDED HEREUNDER (COLLECTIVELY, THE “MATERIALS”) WILL MEET THE REQUIREMENTS OF LICENSEE OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE OR DATA NOT PROVIDED BY TRANSACTIONLY, (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE MATERIALS WILL BE ACCURATE OR RELIABLE, OR (IV) ANY ERRORS IN THE MATERIALS WILL BE CORRECTED. THE MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITH ALL DEFECTS. NO ORAL OR WRITTEN INFORMATION OR COMMUNICATIONS GIVEN BY TRANSACTIONLY, ITS EMPLOYEES, OR AGENTS WILL INCREASE THE SCOPE OF THE ABOVE WARRANTY OR CREATE ANY NEW OR ADDITIONAL WARRANTIES.
EXCEPT FOR DAMAGES ARISING FROM A PARTY’S FRAUD OR WILLFUL MISCONDUCT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL (I) EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUES, DATA LOSS OR USAGE, OR LOSS OF OPPORTUNITIES, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (II) EITHER PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE SERVICES, REGARDLESS OF CAUSE OR THEORY OF RECOVERY, EXCEED ONE HUNDRED DOLLARS ($100). To the extent any liability of a party cannot be disclaimed, excluded or limited as aforesaid under Applicable Law, such liability shall be disclaimed, excluded and limited to the fullest extent permitted under Applicable Law.
Transactionly may amend the Terms from time to time by posting the revised Terms on Transactionly’s website and/or by providing written notice of such amendment to Licensee. Any revised Terms will take effect from the date of posting or notice to Licensee, unless otherwise specified in such posting or notice. Licensee should check Transactionly’s website frequently for any such revisions. Licensee’s continued use of the Services shall be deemed to constitute its acceptance of any such revised Terms.
12.1. Relationship of the Parties. The relationship of the parties under this Agreement is one of independent contractors. This Agreement does not create an agency, partnership, franchise, joint venture, fiduciary or employment relationship between the parties.
12.2. Entire Agreement. If Licensee has entered into an Order Form with Transactionly, the terms of the most recent Order Form shall supersede this Agreement. If Licensee has entered into a non-disclosure agreement (or similar agreement) with Transactionly, the terms of the non-disclosure agreement shall prevail where any terms conflict with this Agreement. This Agreement sets forth the entire agreement of the parties as to its subject matter and, other than stated in this Agreement, supersedes all prior agreements, negotiations, representations, and promises between them with respect to its subject matter.
12.3. Force Majeure. Neither party shall be in default if its failure to perform or delay in performing any obligation under the Agreement (other than payment obligations) is caused by Force Majeure.
12.4. Assignment. Neither party may assign this Agreement or any Order Form, in whole or in part, without the other party’s prior written consent, not to be unreasonably withheld, conditioned or delayed; provided, however, that Transactionly may assign the Agreement without Licensee’s consent to any entity that acquires all or substantially all of the business or assets of Transactionly related to the Services, whether by merger, reorganization, acquisition, sale, operation of law, change in control or otherwise. Any assignment made in conflict with this provision shall be void. This Agreement is binding upon and will inure to the benefits of each of the parties and their respective successors and assigns. Nothing in this Agreement is intended or shall be construed to give any person, other than the parties hereto, their successors and permitted assigns, any legal or equitable right, remedy or claim under or in respect of this Agreement.
12.5. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right unless expressly acknowledged and agreed to by both parties in writing. A waiver of rights under this Agreement will not be effective unless it is in writing and signed by an authorized representative of the party that is waiving the rights. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
12.6. Severability. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same instrument. If any provision of the Agreement, or portion thereof, is found to be invalid, unlawful or unenforceable to any extent, the parties shall negotiate in good faith amendments to the Agreement to reflect the original intent of the parties as closely as possible. Such invalid provision or portion thereof will be severed from the remaining provisions, which will continue to be valid and enforceable to the fullest extent permitted by Applicable Laws.
12.7. Governing Law and Jurisdiction. This Agreement, and any and all disputes directly or indirectly arising out of or relating to this Agreement, will be governed by and construed in accordance with the laws of the State of Delaware, without reference to the choice of law rules thereof. The parties agree to submit to the exclusive jurisdiction over all disputes hereunder in the courts in the State of Delaware, United States of America.
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Last Updated: May 5, 2020