Terms of Service
Last Updated: January 29, 2024
PLEASE READ THESE TERMS AND ANY SPECIFIC AND/OR SUPPLEMENTAL TERMS AND CONDITIONS CAREFULLY BEFORE USING THE ROYDAN AND/OR PROVIDER PRODUCTS. THESE TERMS, ALONG WITH THE MASTER SOFTWARE LICENSE AGREEMENT GOVERN YOUR USE OF THE ROYDAN AND PROVIDER PRODUCTS IN GENERAL. BY USING THE ROYDAN AND PROVIDER PRODUCTS YOU AGREE TO BE BOUND BY THESE TERMS AND ANY SPECIFIC AND/OR SUPPLEMENTAL TERMS AND CONDITIONS INCLUDING THOSE OF THE MASTER SOFTWARE LICENSE AGREEMENT.
1. Definitions
1.1 ”Licensed Software.” Computer program(s) as specified on the applicable Online Quote, and any updates that may be provided by ROYDAN from time to time. Should any changes to the computer program(s) be necessitated by either party, ROYDAN will provide a Replacement or Supplemental Online Quote, its status as “Replacement” or “Supplemental” being indicated on the Online Quote. In the absence of a new Master Software License Agreement being entered and as stated in the current Master Software License Agreement, the current Master Software License Agreement will remain in enforceable effect as will with current version of the ROYDAN Terms of Service.
1.2. “ROYDAN Enterprises’ Application Server.” The server(s) dedicated by ROYDAN for the purpose of hosting the Licensed Software for access over the Internet.
1.3. “Supported Connections.” Internet browser(s) and VPN client software that are supported by ROYDAN for purposes of access and use of the Licensed Software on ROYDAN Enterprises’ Application Server. These supported connections may change from time to time. ROYDAN will notify Licensee in advance of any changes.
1.4. “Authorized Users.” The number of Licensee’s users who are authorized to access and use the Licensed Software on ROYDAN Enterprises’ Application Server, as specified in the applicable Online Quote(s). The parties may mutually agree to change the number and/or type of Authorized Users from time to time by accepting a Replacement or Supplemental Online Quote and entering into a new Agreement.
1.5. “Licensee Data.” Data (i) entered as input by Licensee for processing by the Licensed Software, and (ii) produced as output by the Licensed Software based on a specific query or execution initiated by Licensee.
1.6. “Online Quote.” An online document available at a web link provided to the Licensee that is mutually agreed upon and executed by the parties via online acceptance, and that defines the specific additional terms between the parties and incorporates the terms of this License Agreement.
1.7. “Proprietary Rights.” Any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, confidential and proprietary information protected under contract or otherwise under law, trade names, domain names, trade dress, logos, animated characters, trademarks, service marks, and other similar rights or interests in intellectual or industrial property.
1.8. “Support.” Time spent by ROYDAN answering any question or problem concerning the installation or use of the licensed software. Time is accumulated in tenth-hour increments.
1.9. “Data Breach” shall mean unauthorized disclosure or exposure of Licensee Data stored by or accessible through the services rendered pursuant to this Agreement.
1.10. “Infringement Claim” shall mean third party subpoenas, government investigations, or enforcement actions brought or threatened against Licensee by a third party and any damages, liabilities, losses, settlements, judgments, costs and expenses (including, without limitation, reasonable attorney’s fees and costs) related thereto alleging the use of the Provider Services as permitted hereunder infringes or misappropriates a third party copyright, trade secret, or patent.
1.11. “Provider(s)” means third party entity that provides services and products that enhance or operate with ROYDAN products. Those Provider Services and products are provided under contractual agreements with ROYDAN. When ROYDAN is a reseller of services then it is a Provider.
1.12. “Provider Services” shall mean programs, features, functions and report formats, and subsequent updates or upgrades of any of the foregoing made generally available by Provider and connectivity services, which include the interconnection capabilities embedded within the Provider Services that link the Provider Services to the telecommunications providers’ networks (including fixed-line, cellular, wireless, high-bandwidth, and/or fiber optic cable) via the Internet.
1.13. “Licensee Communication Data” consists of data and other information made available to Provider through the use of the Provider Services under these Terms, including, Licensee Communication Usage Data and Licensee Communication Content. Licensee Communication Data is not “Licensee Data” and thus is not subject to the Confidentiality provisions set forth herein.
1.14. “Licensee Communication Usage Data” shall mean communications metadata processed by Provider for the purposes of transmitting, distributing, or exchanging communications that are made available to Provider through the use of the Provider Services and include, without limitation, data used to trace and identify the source and destination of a communication, such as individual data subjects’ telephone numbers, data on the location of the device generated in the context of providing the Provider Services, and the date, time, duration, and type of communication.
1.15. “Licensee Communication Content” shall mean content exchanged by means of use of the Provider Services, such as text, message bodies, voice and video media, images, sound, and other content. The scope and cost of Licensee Communication Content may be adjusted or supplemented by the Online Quote.
1.16. “Beta Offering” shall mean a version of an application that is released in a limited format or to a limited number of customers for the purpose of testing the application in a real-world environment before it is made available for public sale or use.
2. Description of Services
2.1. NexTask™. A contact center platform that provides intelligent workflow management.
2.2. Bloodhound®. A customer relationship management platform for use by debt collection agencies.
2.3. Account Advantage. An online web portal that allows consumers to view and make payment on their accounts.
2.4. ClientConnect. An online web portal for collection agency clients to view their accounts.
2.5. Encore. A contact center platform designed to work with Bloodhound.
2.6. ViewPoint. A report writing and scheduling platform.
2.7. Custom Programming. If the licensee requires additional functionalities not currently included in the licensed software, these needs are usually determined during installation and training. Custom Program charges may be incurred if necessary to achieve the desired functionality. Custom Programs incur maintenance fees that will be added to the licensee’s monthly service fees and cover the cost of maintaining the licensee’s custom functionality as ROYDAN upgrades the Licensed Software.
2.8. ROYDAN may, from time to time, provide services that are deemed a “Beta Offering” as defined in section 1.16. Licensee may, at their sole discretion, choose to license these services. ROYDAN reserves the right to enhance a Beta Offering or to discontinue the Beta Offering at any time with 30 days’ notice. A service that is labeled by ROYDAN as a Beta Offering may be used in a commercial production environment; however, customer waives any SLA compliance related to any adverse effect or interruption of service regarding an issue with the Beta Offering.
2.9. For the provision of services, pursuant to this agreement, Licensee will be granted access to the services as detailed in the online quote.
2.10. Licensee will have access to documentation.
2.11. ROYDAN will make commercially reasonable efforts to use industry standards to ensure the software is working as expected. If applicable, ROYDAN will use trained and qualified individuals to provide support services when necessary.
2.12. ROYDAN is not responsible for any adverse effects on Licensee for changes to the service that are deemed necessary for security reasons, required by third-party providers, or required to comply with applicable laws or obligations.
2.13. ROYDAN instructs Provider to use and disclose Licensee Communication Data as necessary to (a) provide the Provider Services consistent with the Privacy Policy and this Section 2.13, including detecting, preventing, and investigating security incidents, fraud, spam, or unlawful use of the Provider Services; (b) respond to any technical problems or ROYDAN or Licensee queries and ensure the proper working of the Provider Services; (c) to protect ROYDAN, Provider, ROYDAN’s other licensees, Provider’s other licensees and the public from harm or illegal activities, or the Provider Services; (d) to respond to an emergency which Provider believes in, good faith, requires Provider to disclose Licensee Communication Data to assist in preventing a death or serious bodily injury; or (e) comply with any applicable law, regulation, legal process or government request.
2.14. If Licensee ever stops using Provider’s services, then Provider may keep Licensee’s metadata, subject to the confidentiality provisions herein.
2.15. Licensee has the ability to obtain a copy of and delete any communications content via Provider’s services, unless prohibited by law. Any stored communications content will be deleted within specific timeframes if these terms terminate, unless prohibited by law.
2.16. If Licensee requires assistance for the proper use and operation of the Licensed Software, ROYDAN shall provide such services at its then-current standard rates for time and materials.
2.17. Other. ROYDAN may provide other services not mentioned here that are defined in the Online Quote.
3. Services Regarding Licensed Software
During the term hereof and subject to the terms and conditions hereof, ROYDAN shall (i) install, operate, and maintain the Licensed Software on ROYDAN Enterprises’ Application Server, and (ii) provide to Licensee access to ROYDAN Enterprises’ Application Server for Licensee to exercise its subscription license rights granted above.
4. Services Regarding Access to ROYDAN Enterprises' Application Server
During the term hereof and subject to the terms and conditions hereof, ROYDAN shall undertake commercially reasonable efforts to provide Licensee with consistent service (i) insulated from changes in the Internet, and (ii) sufficient to access the Licensed Software on ROYDAN Enterprises’ Application Server through the Internet twenty-four (24) hours per day, seven (7) days per week, except for routine maintenance performed pursuant to notice to Licensee. ROYDAN shall monitor ROYDAN Enterprises’ Application Server and undertake commercially reasonable efforts to promptly restore service failures at no additional charge to Licensee. Licensee shall be solely responsible for (i) providing Internet devices and Supported Connections, and (ii) Internet connections, at Licensee’s sole cost and expense. The services described in this paragraph shall be provided only between the hours of 7:30 am to 5:00 pm CST, Monday through Friday, excluding holidays.
5. Restrictions Regarding Identification and Password Codes for Authorized Users
Licensee shall not: (i) transmit or share identification and/or password codes to persons other than the Authorized Users for whom such codes were generated; (ii) attempt or permit any person without valid identification and/or password codes to attempt to access ROYDAN Enterprises’ Application Server
6. Support Services
Payment in full of subscription license fees entitles Licensee to a total of 12 hours per year of Support in the form of responses to questions by email or telephone. If additional services are required for the proper use and operation of the Licensed Software, ROYDAN shall provide such services at its then-current standard rates for time and materials.
7. User Accounts
7.1. Subscription License Grant. Subject to the terms and conditions hereof, during the term hereof, ROYDAN hereby grants to Licensee, only to the extent of the number of Authorized Users, the non-exclusive right and license under the Proprietary Rights of ROYDAN and its licensors (i) to access and execute the Licensed Software on ROYDAN Enterprises’ Application Server only with Supported Connections through the Internet, and (ii) to transmit Licensee Data from the Licensed Software to Licensee only with Supported Connections through the Internet. Licensee shall use the Licensed Software only for Licensee’s own internal business operations.
7.2. Additional Authorized Users. Licensee may elect to add additional Authorized Users by purchasing additional user licenses from time to time in accord with the terms of this Agreement and the Online Quote. The addition of Authorized Users shall be governed by the terms and conditions provided in conjunction with the Replacement or Supplemental Online Quote. Pricing for additional Authorized Users shall be in accordance with ROYDAN’S pricing schedule. Licensee agrees that, absent ROYDAN Enterprises’ express written acceptance thereof, the terms and conditions contained in any Online Quote or other document issued by Licensee to ROYDAN for the purchase of additional Authorized Users, shall not be binding on ROYDAN with respect to the terms and conditions connected with this Online Quote as set forth in this Agreement, to the extent that such terms and conditions are additional to or inconsistent with those contained in this Agreement.
8. User Responsibilities
8.1. Licensee will be solely responsible for all use of the services and documentation.
8.2. Licensee is responsible to not transfer, resell, lease or license or otherwise make available the Services to third parties.
8.3. Licensee must use the services in accordance with local, state, and federal laws.
8.4. Licensee is responsible for all acts, omissions, and activities of its End Users, including the compliance with this agreement and Twilio’s terms of service which can be viewed here: https://www.twilio.com/en-us/legal/tos.
8.5. Licensee will use commercially reasonable efforts to prevent unauthorized access to or use of the services and notify ROYDAN promptly if this situation occurs.
8.6. Licensee will be required to cooperate if an information request is received from law enforcement, regulators, telecommunication providers, cloud storage facility or any other mutual third party request. In doing so, Licensee agrees to promptly notify ROYDAN and to comply with all the conditions of the ROYDAN TOS and the Agreement including Privacy Policy, the section on Intellectual Property, Use of Marks, Logos, and Provider’s Services, and the requirements of confidentiality.
8.7. In order to ensure that all ROYDAN customers have un-inhibited access to ROYDAN’s service, the licensee’s internal network address range must not conflict with any other customers’ internal networks. If a conflict is detected, ROYDAN will work with licensee to change the licensee’s network address to remove the conflict. If licensee is unable to change its internal network address, the purchase of an additional router will be required
9. Payments Terms
9.1. Billing. The subscription license fees and any billable support services will be invoiced monthly. License fees will be invoiced and debited on a monthly basis for the following month’s access. Monthly payments not made electronically will be subject to a service fee.
9.2. Taxes. Fees do not include taxes or duties. If ROYDAN Enterprises is required to pay or collect any federal, state, local, value added, tax or duty on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on ROYDAN Enterprises’ net income, then such taxes and/or duties shall be billed to and paid by Licensee immediately upon receipt of ROYDAN Enterprises’ invoice and supporting documentation for the taxes or duties charged.
9.3. Finance Charges. If Licensee does not make payment to ROYDAN Enterprises of any amount payable within 30 days, in addition to the remedies available to ROYDAN Enterprises at law or equity, ROYDAN Enterprises may collect interest on the sum then owing at the rate of 1.5% per month from the due date until payment by Licensee; provided, however, that in no event shall the aggregate interest charges exceed the maximum rate of interest which may be charged under applicable law. Licensee agrees to pay a $35.00 fee for any debits to their account that are not honored because of insufficient funds. ROYDAN Enterprises may cease providing services, refuse to deliver further support or additional users and/or render the software or any part thereof unusable until such breach is cured or payment is received by ROYDAN Enterprises, and ROYDAN Enterprises shall not be liable for any resulting loss suffered by Licensee due to inability to use the Software or access the data.
9.4. Rates. As needed, consulting services for Support are billed at an hourly rate of $140/hour (0.1 hour minimum) and custom software modifications (“Custom Programs”) to the Licensed Software,
including custom account upload programs, will be billed at $175/hour. Custom Programs incur maintenance fees that will be added to the licensee’s monthly service fees and cover the cost of maintaining the licensee’s custom functionality as ROYDAN upgrades the Licensed Software.
9.5. Payment Terms. Monthly Fees are due and will begin upon execution of this Agreement. Please note that any form of payment that has processing fees or other fees, such as a credit card payment or an ACH payment, will result in having an additional transaction fee added to the Monthly Fee.
9.6. Pricing changes. License fee pricing is guaranteed for a minimum of one full year following the execution of this agreement. ROYDAN will notify the Licensee at least 30 days in advance of any price increase. Note that Usage fee pricing is not License fee pricing and that Usage fee pricing may change upon 14-day notice.
9.7. Billing Disputes. If Licensee disputes a charge or charges, a communication must be sent to billing@roydan.com. The communication must include a clear description of the dispute, any evidence supporting the dispute claim, and any other supporting documentation to help substantiate the claim. ROYDAN will review the dispute within two business days and make a determination. If ROYDAN determines not to accept the dispute, ROYDAN will send proof to the contrary and enforce payment terms. If ROYDAN accepts the dispute or reduces the cost based on material fact, ROYDAN will apply a credit to the next month’s billing or allow the Licensee to reduce payment of the outstanding invoice(s). In the event a dispute needs additional investigation, the finance charges stated in 9.3 will be held in abeyance until the investigation is completed. However, whether or not interest will accrue will be at ROYDAN’s sole discretion while ROYDAN works with licensee.
10. Privacy Policy
Licensee acknowledges that it has read Provider’s Privacy Policy (“Privacy Policy” which may be accessed at https://roydan.com/privacy-policy/) and understands that it sets forth how Provider will collect, store, and use Licensee Communication Data. If Licensee does not agree with the Privacy Policy, then the Licensee must stop using the Provider Services immediately. The Privacy Policy will be updated from time to time and, while Licensor will do its best to timely notify Licensee of such updates, it is the Licensee’s duty to comply with the Privacy Policy at all times.
11. Intellectual Property, Use of Marks, Logos, and Provider’s Service
11.1. ROYDAN retains all rights, title and interest in and to all of its intellectual property rights, including those rights embodied in the licensed software, ROYDAN content, ROYDAN product logos, any and all ROYDAN services, and any content ROYDAN created or derived therefrom. There are no implied licenses under this Agreement, and any rights not expressly granted to you hereunder are reserved by ROYDAN or its authorized third party providers or vendors.
11.2. If Licensee uses Provider’s services, then Provider can use Licensee’s name, logos, and description of how it uses the services on its website, in earnings calls, and in marketing, promotional, or other materials available to the public in accordance with any of Licensee’s Usage Guidelines. Licensee can also use Provider’s name and logos and reference how Licensee uses Provider’s services as long as Licensee does so in accordance with the Usage Guidelines (“Usage Guidelines” may be found in the Provider and/or Twilio TOS). ROYDAN’S guidelines for the usage of its Intellectual Property are stated in the ROYDAN TOS (see, e.g., this Section 11).
11.3. Use of Marks. Subject to these Terms, each party (a “Licensor”) grants the other (a “Licensee”) the right to use and display Licensor’s name, logo, and its use case using the Provider Services (the “Licensor Marks”) on Licensee’s respective websites, in earnings calls, and in other promotional or publicly distributed materials solely in connection with its respective activities pursuant to these Terms. Licensee’s use of the Licensor Marks will be in accordance with the Licensor’s applicable usage guidelines and will inure to the benefit of Licensor. Licensee will not use, register, or take other action with respect to any of the Licensor Marks, except if permitted in writing by Licensor. Licensee will always use the then-current Licensor Marks and will not add to, delete from, or modify any of Licensor Marks. Licensee will not, at any time, misrepresent the relationship between Licensee and Licensor. Licensee will not present itself as an affiliate or other legal agent of the Licensor. Licensee’s right to use and display the Licensor Marks pursuant to this Section will end automatically in the event these Terms terminate.
12. Data Security and Retention
This section provides an overview of the security policies ROYDAN maintains to ensure the security of Licensee data. ROYDAN uses subservice organizations to provide private cloud services and cloud storage services. This description includes the security objectives and related controls of ROYDAN and also indicates certain security objectives that are achieved through the policies of the subservice organizations, which are monitored by ROYDAN on an annual basis.
12.1. Security Certifications and Attestations.
12.1.1. ROYDAN completes a SOC 1, Type 2 examination on an annual basis. Licensee may obtain a copy of the report by emailing support@roydan.com.
12.1.2. ISCorp, ROYDAN’s private cloud services provider, completes SOC 1 Type 2 and SOC 2 Type 2 examinations on an annual basis. Licensee may obtain a copy of these reports by emailing support@roydan.com.
12.1.3. Microsoft Azure, ROYDAN’s cloud storage provider, completes SOC 1 Type 2, SOC 2 Type 2, and SOC 3 examinations on an annual basis. Microsoft makes copies of these reports publicly available over the internet.
12.2. Physical Security. ROYDAN maintains several levels of physical security to prevent unauthorized access to the business premises and to ensure the protection of Licensee data.
12.2.1. Visitors must be granted access by a ROYDAN employee, sign in/out on a visitor log form, and be chaperoned while on the premises.
12.2.2. All employee access to both the building and the server room is logged with the use of an electronic keycard system. Employee access and keycards are revoked immediately upon employee termination.
12.2.3. Access to the server room is restricted to select company officers and system administrators. Building premises and server room access is reviewed semi-annually.
12.2.4. An alarm system and external CCTV is used to monitor entrances to the building premises. Arming/disarming of the alarm system can only be done by an employee and is tracked through unique employee access codes. Alarm activity is monitored by an external alarm monitoring service. These controls ensure that the building premises are secure when the building is unoccupied.
12.3. Access Controls.
12.3.1. ROYDAN ensures that logical access to applications and data are restricted and an approval process must be followed before access can be granted or modified.
12.3.2. Applications requiring logical access force the user to identify and authenticate themselves with a user ID and password. This helps prevent unauthorized access, use, or modification of data.
12.3.3. Password parameters have been configured to follow established policies. These parameters include minimum length, complexity, history, expiration, and account lockout.
12.4. Change Management.
12.4.1. ROYDAN uses a unified development methodology to develop its product suite. Changes to the product and the supporting software package are developed using the agile method, which may include multiple cycles of design, testing, and review before a release.
12.4.2. Once assigned a development task, the developer makes the necessary code changes and tests the functionality to the best of their ability. The developer is also responsible for creating or updating any internal documentation related to the functionality. After a developer has completed a piece of functionality, it is peer reviewed by another developer. Developers are not allowed to code review or test their own work. Any issues found are sent back to the initial developer to be corrected.
12.4.3. Following peer code review, a quality assurance review is completed to verify that new functionality or changes to existing functionality are working as specified. Any issues found are sent back to the initial developer to be corrected before the functionality can be included in a version release.
12.4.4. Prior to deploying a new version into production, the changes or new products included in the version are reviewed and tested to ensure all functionality is working as specified. This provides one final quality assurance review before new functionality is released to clients.
12.5. Vulnerability Management.
12.5.1. ISCorp uses real-time intrusion detection services (IDS) and monthly vulnerability scanning services. Security alerts identified are responded to and are tracked through closure. External vulnerability assessments are performed quarterly and ISCorp reviews the results and develops remediation plans to address high-risk vulnerabilities. Network access to systems and applications is restricted using multiple layers of firewalls creating a demilitarized zone (DMZ) and internal security zones.
12.6. Security Incident Management.
12.6.1. ROYDAN employees are obligated to immediately report any potential outage or data breach to ROYDAN management. Once a security incident is identified, a documented Incident Response Plan is followed to investigate, mitigate, and resolve any security incidents. Licensee will be notified as soon as possible at the onset of any outage or data breach and ROYDAN will continue to provide updates until the matter is resolved.
12.7. Third Party Vendor Management.
12.7.1. On an annual basis, ROYDAN contracts with its third party providers to obtain their SOC 1 and/or SOC 2 reports. For the obtained reports, ROYDAN reviews the SOC reports and evaluates any deficiencies noted to determine the impact to ROYDAN and their clients. In addition, ROYDAN monitors SLA compliance based on the occurrence of specific outcomes
stated within the contract. As contracts expire, ROYDAN enters into new SLAs with vendors to ensure that the services will continue to be provided.
12.8. Hosting Architecture and Data Segregation. ISCorp maintains multiple redundant high-speed fiber optic network connections, multiple fiber optic service providers, and multiple internet service providers. The architecture is peer reviewed and a pilot program is run within a separate test environment to test and benchmark the architecture before production deployment. Servers are built according to ISCorp’s system configuration and hardening standards. As part of the server setup process, setup checklists are used to validate that servers are setup according to pre-defined security guidelines.
12.9. Data Backups. ISCorp implements controls to help ensure that Licensee data is backed up regularly to permit recovery from incidents that may result in the loss or corruption of data. Nightly disk and tape backups have been implemented to provide secure offline storage of data for recovery. Licensee data is backed up on a daily basis and backup failures are tracked through resolution. All backups are encrypted before writing to tape. On a weekly basis, daily backup tapes are rotated offsite and stored in a secure facility for use in a disaster scenario. A chain of custody is maintained for all backup tapes.
A backup copy of Licensee’s data will be furnished upon request via secure electronic file transfer for a $30 charge, at a frequency of no more than once in a 30-day period.
12.10. Data Retention. ROYDAN retains a copy of Licensee data for the duration of the Licensee’s contract with ROYDAN. Upon termination of the Licensee’s contract with ROYDAN, Licensee will have 30 days to download a copy of their data. After 30 days, the Licensee’s data will be permanently deleted from ROYDAN’s servers.
13. Ownership and Confidentiality
13.1. “Confidential Information” means any information or data, regardless of whether it is in tangible form, disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential given the nature of the information and the circumstances surrounding disclosure. Confidential Information does not include any information which: (a) is publicly available through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person without violation of the disclosing party’s rights; or (d) is independently developed by the receiving party without use of or reference to the Confidential Information of the disclosing party.
13.2. The receiving party agrees that it will use the Confidential Information of the disclosing party solely in accordance with this Agreement and for no other purpose and it will not disclose such Confidential Information to any third party without the disclosing party’s prior written consent, except as otherwise permitted hereunder; provided, however, subject to the terms of the Privacy Policy (located at https://roydan.com/privacy-policy/), Provider may use and disclose Licensee’s Confidential Information as necessary to provide the Provider Services. The receiving party agrees to exercise due care in protecting Confidential Information of the disclosing party from unauthorized use and disclosure. The receiving party may disclose the Confidential Information of the disclosing party, in whole or in part to its employees, representatives, actual or potential investors and subcontractors who have a need to know and are legally bound to keep such information confidential consistent with
the terms of this Section 13 The receiving party may disclose the Confidential Information of the disclosing party as required by applicable law provided that, prior to any such compelled disclosure, the receiving party will, if permissible: (a) promptly notify the disclosing party in writing to allow the disclosing party a reasonable opportunity to resist such disclosure and/or seek a protective order, and (b) reasonably cooperate with the disclosing party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure. In the event that such protection against disclosure is not obtained, the receiving party will be entitled to disclose the Confidential Information of the disclosing party, but only as and to the extent necessary to legally comply with such compelled disclosure.
13.3. Confidentiality of Licensed Software and Software Installed on ROYDAN Enterprises’ Application Server. Licensee acknowledges that the Licensed Software, and other software installed on ROYDAN Enterprises’ Application Server embodies logic, design, and coding methodology which constitute valuable confidential information that is proprietary to ROYDAN and its licensors. Licensee shall safeguard the right to access the Licensed Software and other software installed on ROYDAN Enterprises’ Application Server using the same standard of care that Licensee uses for its similar confidential materials, but in no event less than reasonable care. Licensee agrees not to alter, reverse engineer, decompile, disclose, use for an unlicensed purpose, or copy any software installed on ROYDAN Enterprises’ Application Server and that any attempt to do so is a material breach of this Agreement.
13.4. Confidentiality of Licensee Data. All Licensee Data and/or information disclosed to ROYDAN in connection with the performance of this Agreement (“Licensee Confidential Information”) shall be held as confidential by ROYDAN and shall not, without the prior written consent of Licensee, be disclosed or be used for any purposes other than the performance of this Agreement. ROYDAN shall safeguard the confidentiality of such Licensee information using the same standard of care which ROYDAN uses for its similar confidential materials, but in no event less than reasonable care. Notwithstanding the forgoing, the term “Licensee Confidential Information” shall not be deemed to include information which: (i) is now, or hereafter becomes, through no act or failure to act on the part of ROYDAN, generally known or available; (ii) is known by ROYDAN at the time of receiving such information as evidenced by its written records; (iii) is hereafter furnished to ROYDAN by a third party, as a matter of right and without restriction on disclosure; (iv) is independently developed by ROYDAN as evidenced by its written and dated records and without any breach of this Agreement; or (v) is the subject of a written permission to disclose provided by Licensee. Further notwithstanding the forgoing, disclosure of Licensee Confidential Information shall not be precluded if such disclosure: (i) is in response to a valid order of a court or other governmental body of the United States; (ii) is otherwise required by law; or (iii) is otherwise necessary to establish rights or enforce obligations under this Agreement, but only to the extent that any such disclosure is necessary.
13.5. Mutual Confidentiality. The parties agree to treat all trade secrets and other information that is not generally known, is used or is useful in the conduct of the other party’s business, confers a competitive advantage, and derives independent economic value from not being generally known or readily ascertainable (“Confidential Information”) as secret and confidential, and not to use any trade secrets/Confidential Information other than in furtherance of this Agreement or to disclose any trade secrets/Confidential Information except to its employees on a confidentiality obligation, all such confidentiality and security obligations to continue in full force and effect upon termination of this Agreement.
13.6. Breach of Confidentiality. Any breach of these obligations shall entitle the non-breaching party to an injunction and/or any other remedies/damages, and the breaching party shall pay all costs and expenses, including attorneys’ fees, reasonably incurred by the non-breaching party.
13.7. The parties expressly acknowledge and agree that no adequate remedy may exist at law for an actual or threatened breach of the terms of Section 13 and that, in the event of an actual or threatened breach of the provisions of this Section 13, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Section 13.
13.8. General. As between Licensee and Provider, Provider exclusively owns and reserve all rights, title and interests in and to the Provider Services and its Confidential Information. As between Licensee and Provider, Licensee exclusively owns and reserve all rights, title and interests in and to each Licensee Application and its Confidential Information.
13.9. Suggestions and Licensee Contributions. Provider welcomes Licensee’s feedback about the Provider Services. By submitting suggestions or other feedback about the Provider Services (“Licensee Contributions”) Licensee agrees that:
13.10. Provider is not under any obligation of confidentiality with respect to any Licensee Contributions;
13.11. Provider may use or disclose (or choose not to use or disclose) Licensee’s Contributions for any purpose and in any way;
13.12. Licensee irrevocably, non-exclusively licenses to Provider rights to exploit the Licensee Contributions; and
13.13. Licensee is not entitled to any compensation or reimbursement of any kind from Provider under any circumstances for the Licensee Contributions.
14. Limitation of Liability
14.1. Limited Warranty. DURING THE TERM HEREOF, ROYDAN WARRANTS THAT (I) ROYDAN ENTERPRISES’ APPLICATION SERVER AND THE LICENSED SOFTWARE SHALL CONFORM TO AND OPERATE IN ACCORDANCE WITH ANY WRITTEN SPECIFICATIONS PROMULGATED BY ROYDAN, AND (II) THE LICENSED SOFTWARE SHALL BE ACCESSIBLE THROUGH THE INTERNET ON THE LICENSED SOFTWARE WEB SITE. LICENSEE’S SOLE AND EXCLUSIVE REMEDY AND ROYDAN’S SOLE AND EXCLUSIVE LIABILITY FOR BREACH OF THIS WARRANTY SHALL BE THE REPLACEMENT OF SERVICE FOR ANY TIME ROYDAN ENTERPRISES’ APPLICATION SERVER AND/OR THE LICENSED SOFTWARE DO NOT CONFORM TO THE WARRANTY. ROYDAN DOES NOT WARRANT THAT THE LICENSED SOFTWARE OR THAT ROYDAN ENTERPRISES’ APPLICATION SERVER WILL MEET LICENSEE’S REQUIREMENTS, THAT THE LICENSED SOFTWARE WILL OPERATE IN THE COMBINATIONS WHICH LICENSEE MAY SELECT FOR USE, THAT THE OPERATION OF ROYDAN’S APPLICATION SERVER, OR THE LICENSED SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE LICENSED SOFTWARE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED.
14.2. Warranty Disclaimers. WITHOUT LIMITING ROYDAN OR PROVIDER’S EXPRESS WARRANTIES AND OBLIGATIONS HEREUNDER, ROYDAN AND PROVIDER HEREBY DISCLAIM ANY AND ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES RELATED TO THIRD-PARTY EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE. EXCEPT FOR PROVIDER’S EXPRESS WARRANTIES SET FORTH IN THIS SECTION 14, THE PROVIDER’S SERVICES ARE PROVIDED “AS IS” TO THE FULLEST EXTENT PERMITTED BY LAW. TO THE EXTENT SUCH DISCLAIMER CONFLICTS WITH APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW. FURTHER, EXCEPT FOR THE LIMITED EXPRESS WARRANTY PROVIDED ABOVE, NEITHER ROYDAN NOR ANY OF ITS SUPPLIERS, PROVIDERS, OR RESELLERS MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND ROYDAN, PROVIDERS, RESELLERS, AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. LICENSEE ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS AGREEMENT HAVE BEEN MADE RESPECTING THE LICENSED SOFTWARE OR SERVICES TO BE PROVIDED HEREUNDER, AND THAT LICENSEE HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THIS AGREEMENT. FURTHER, LICENSEE ACKNOWLEDGES AND AGREES THAT THE INTERNET IS NOT ESTABLISHED OR MAINTAINED BY ROYDAN, THAT ROYDAN HAS NO CONTROL OVER THE INTERNET, AND THAT ROYDAN IS NOT LIABLE FOR THE DISCONTINUANCE OF OR REDUCTION IN THE OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE LICENSED SOFTWARE.
14.3. Proprietary Rights Warranty and Indemnification. ROYDAN represents and warrants that ROYDAN has the authority to license the rights to the Licensed Software that are granted herein. ROYDAN shall defend, indemnify, and hold Licensee harmless from claim or damage arising out of (i) the lack of right or authority to access the Licensed Software, or (ii) infringement of any U.S. copyright, trade secret, or patent known to ROYDAN as a result of the use of a current, unmodified copy of the Licensed Software; provided, however, that ROYDAN is promptly notified in writing of any such suit or claim, and further provided that Licensee permits ROYDAN to defend, compromise, or settle same, and provides all available information and reasonable assistance to enable ROYDAN to do so. The phrase “known to ROYDAN” means actual knowledge and not constructive notice or constructive knowledge. The foregoing is exclusive and states the entire liability of ROYDAN with respect to infringements or misappropriation of any proprietary rights by the Licensed Software.
14.4. Each party represents and warrants that it has the capacity to enter into this Agreement and perform the obligations contemplated herein and that this Agreement and its terms and obligations are not inconsistent with other obligations it may have.
15. Indemnification
15.1. Infringement Options. If Licensee’s use of the Provider Services has become, or in ROYDAN or Provider’s opinion is likely to become, the subject of any Infringement Claim, ROYDAN or Provider may at its option and expense: (a) procure for Licensee the right to continue using the Provider Services as set forth herein; (b) modify the Provider Services to make them non-infringing; or (c) if the foregoing options are not reasonably practicable, terminate these Terms.
15.2. Limitations. Provider and ROYDAN will have no liability or obligation with respect to any (a) Claim and any Losses related thereto arising out of Licensee’s use of the Provider Services in breach of these Terms or (b) Infringement Claim and any Losses related thereto arising out of the combination, operation, or use of the Provider Services with other applications, portions of applications, products, or services where the Provider Services would not by themselves, and without modification, be infringing.
15.3. Indemnification by Licensee. Licensee will defend, indemnify and hold ROYDAN and Provider, their officers, directors, employees, agents, stockholders, and affiliates (“Provider Indemnified Parties”) harmless from and against all Claims brought or threatened by a third party against a Provider Indemnified Party and any Losses related thereto alleging or arising out of (a) Licensee’s breach of these Terms; (b) Licensee’s or any of its End Users’ use of the Provider Services; or (c) Licensee’s acts or omissions in connection with the provision of each Licensee Application, including, without limitation, any intellectual property Claims relating to each Licensee Application.
15.4. Conditions of Indemnification. As a condition of the foregoing indemnification obligations: (a) the indemnified party (“Indemnified Party”) will promptly notify the indemnifying party (“Indemnifying Party”) of any Claim, provided, however, that the failure to give such notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent that the Indemnifying Party was actually and materially prejudiced by such failure; (b) the Indemnifying Party will have the sole and exclusive authority to defend or settle any such Claim (provided that, the Indemnifying Party will obtain the Indemnified Party’s consent in connection with any act or forbearance required by the Indemnified Party, which consent will not be unreasonably withheld); and (c) the Indemnified Party will reasonably cooperate with the Indemnifying Party in connection with the Indemnifying Party’s activities hereunder, at the Indemnifying Party’s expense. The Indemnified Party reserves the right, at its own expense, to participate in the defense of a Claim. The Indemnifying Party, in connection with a Claim, will pay all Losses following notice of the Claim, which shall be provided in accordance with this Section 15. Notwithstanding anything herein to the contrary, the Indemnifying Party will not settle any Claims for which it has an obligation to indemnify pursuant to this Section 15 admitting liability or fault on behalf of the Indemnified Party, nor create any obligation on behalf of the Indemnified Party without the Indemnified Party’s prior written consent.
16. Damages
16.1. INDIRECT DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST DATA, OR FOR ANY AND ALL OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAD BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES. THIS SECTION SHALL NOT LIMIT (A) EITHER PARTY’S LIABILITY ARISING FROM SUCH PARTY’S BREACH OF THE SECTIONS GOVERNING CONFIDENTIALITY; OR (B) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THESE TERMS.
16.2. DIRECT DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY DIRECT DAMAGES, COSTS OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID OR PAYABLE BY LICENSEE DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM. THIS SECTION SHALL NOT LIMIT (A) LICENSEE’S LIABILITY ARISING FROM LICENSEE’S BREACH OF THE SECTIONS GOVERNING RESTRICTIONS AND REQUIREMENTS OF THE MASTER SOFTWARE LICENSE AGREEMENT OR (B) EITHER PARTY’S LIABILITY ARISING FROM SUCH PARTY’S BREACH OF SECTIONS GOVERNING CONFIDENTIALITY; OR (C) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THESE TERMS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS PURSUANT TO THESE TERMS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE LIMITATIONS SET FORTH HEREIN IN DETERMINING WHETHER TO ENTER INTO THESE TERMS.
16.3. Liability. ROYDAN’S ENTIRE, CUMULATIVE LIABILITY FOR MONEY DAMAGES ARISING OUT OF THIS AGREEMENT AND/OR THE LICENSING OF THE LICENSED SOFTWARE SHALL BE LIMITED TO SUBSCRIPTION LICENSE FEES PAID BY LICENSEE UNDER THIS AGREEMENT FOR THE THREE MONTHS PRIOR TO ANY MATERIAL BREACH OF THIS AGREEMENT BY ROYDAN.
16.4. Disclaimer of Incidental and Consequential Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER UNDER ANY THEORY INCLUDING CONTRACT AND TORT (INCLUDING NEGLIGENCE AND STRICT PRODUCTS LIABILITY) FOR ANY INDIRECT, SPECIAL OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF THE PARTY CAUSING SUCH DAMAGES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
16.5. EMERGENCY SERVICES DISCLAIMER. THE PROVIDER SERVICES ARE NOT INTENDED TO SUPPORT OR CARRY EMERGENCY CALLS OR SMS MESSAGES TO ANY EMERGENCY SERVICES. NEITHER PROVIDER NOR ITS REPRESENTATIVES WILL BE LIABLE UNDER ANY LEGAL OR EQUITABLE THEORY FOR ANY CLAIM, DAMAGE, OR LOSS (AND LICENSEE WILL HOLD PROVIDER HARMLESS AGAINST ANY AND ALL SUCH CLAIMS) ARISING FROM OR RELATING TO THE INABILITY TO USE THE PROVIDER SERVICES TO CONTACT EMERGENCY SERVICES.
17. Changes to Terms
ROYDAN may revise these Terms from time to time. If ROYDAN does, those revised Terms will be provided to Licensee by ROYDAN and will supersede prior versions. Unless ROYDAN says otherwise, revisions will be effective upon the effective date indicated. ROYDAN will provide Licensee advance notice of any material revisions. Licensee’s continued access or use of the ROYDAN Services constitutes its acceptance of any revisions. If Licensee does not agree to the revisions, Licensee must stop using the ROYDAN Services.
18. Force Majeure
If ROYDAN is delayed, hindered, or otherwise prevented from providing services by reason of war, riot, sabotage, terrorist act, meteorological condition, radiological emergency, kinetic or astrophysical event, computer virus or worm, widespread interruption of the internet, denial of service attacks, governmental or quasi-governmental law, regulation, or court order, or any other cause of like nature beyond ROYDAN’s reasonable control, ROYDAN will be excused from providing services but will be obligated to make commercially reasonable efforts to resume services as soon as practical under such circumstances.
19. Miscellaneous
19.1. Notices By Personal Delivery, Postal Mail, And Electronic Mail. All notices given in writing shall be effective when either served by personal delivery or by certified or registered mail. All notices given electronically by electronic mail shall be effective upon an indication that the electronic mail has been delivered to the receiver’s inbox. A “read receipt” is not required but may be used to indicate delivery and receipt. All notices given electronically by facsimile transmission shall be effective if the sender maintains a log created at the time of transmission indicating receipt. Further, in order to be effective, all such notices shall be addressed to the contact persons of the parties at their respective addresses, electronic mail addresses, or facsimile numbers as set forth in the Online Quote, or to such other addresses or facsimile numbers as either party may later specify by written notice.
19.2. Assignment. Licensee shall not assign this Agreement or any right or interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, without ROYDAN’S prior written consent. Any attempted assignment or delegation in contravention of this Section shall be void and ineffective. ROYDAN may freely assign its rights or obligations under this Agreement upon providing written notice to Licensee of such assignment. Any assignee of ROYDAN shall enjoy the same rights and agree to be bound by the same obligations of ROYDAN under this Agreement.
19.3. Continuing Obligations. The following obligations shall survive the expiration or termination hereof and the distribution grace period provided above: (i) any and all warranty disclaimers, limitations of liability and indemnities granted by either party herein, (ii) any covenant granted herein for the purpose of determining ownership of, or protecting, the Proprietary Rights, including without limitation, the confidential information of either party, or any remedy for breach thereof, and (iii) the payment of taxes, duties, or any money to ROYDAN hereunder.
19.4. FDCPA Notice. The Licensed Software is intended to be compliant with the Fair Debt Collection Practices Act (FDCPA), as codified at U.S.C Section 1692. ROYDAN is not responsible for any changes, modifications or revisions to the Licensed Software or for any additional information or data that is created, uploaded and/or stored by the Licensee and/or the Licensee’s Authorized Users (including, but not limited to Licensee Data) that affects the FDCPA compliance of the Licensed Software in any manner.
19.5. Third Parties. ROYDAN is not responsible for use of its products and services with third parties or at third-party locations. A third party is defined as any party other than ROYDAN or the Licensee. Any time spent by ROYDAN to troubleshoot with a third party will be billable at ROYDAN’s standard rates.
19.6. Compliance with Laws. Both Licensee and Provider will comply with the applicable laws relating to each of their respective activities pursuant to these Terms.
19.7. Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of the State of Wisconsin. If any provision or term of this Agreement is determined to be invalid, void or unenforceable, that portion shall be considered to be removed from the Agreement and not affect the remainder of the Agreement. Each party is an independent contractor and not an agent or representative of the other. Licensee shall not assign or transfer any of its rights under this Agreement without ROYDAN’s written consent. This Agreement may be executed in one or more counterparts and by facsimile. The parties represent and warrant that the person executing this Agreement on its behalf is duly authorized with the power and authority to bind it to this Agreement.
20. Acceptance of Terms
20.1. Acceptance of the Online Quote is acceptance of the above Terms and Conditions of the Terms of Service, and constitutes execution of this Agreement.
20.2. Effective Date. These Terms of Service are effective as of the date of electronic acceptance of the Online Quote provided to Licensee by ROYDAN.
