1.1 Definitions. All capitalized terms not otherwise defined herein or elsewhere in the Agreement have the following meanings:
(a) Agreement means these General Terms and Conditions in combination with all agreements, service schedules, order forms, pricing schedules, pricing forms, enrollment forms and any other forms that (i) reference these General Terms and Conditions, and (ii) are executed by DHISCO and Customer.
(b) Affiliate means any entity that is controlled by or under common control with Customer with access to the Services.
(c) Customer means the entity executing the Agreement in order to receive Services from DHISCO.
2.1 Services. Pursuant to a mutually agreed plan and schedule of implementation, DHISCO will provide to Customer the services (“Services”) described in the Agreement. The Agreement is governed by these General Terms and Conditions.
2.2 Additional Services. If DHISCO provides any services to Customer pursuant to a work order, statement of work or similar document that is not a part of or incorporated into the Agreement, such services will be provided pursuant to these General Terms and Conditions and the contents of the governing work order, statement of work or similar document, provided that in the event of a conflict, these General Terms and Conditions will control.
3.0 GENERAL REQUIREMENTS
3.1 Cooperation; Infrastructure. Customer agrees (a) to reasonably cooperate with, and to cause each Affiliate to reasonably cooperate with, DHISCO with respect to the implementation, maintenance, performance and modification or enhancement of the Services; (b) at Customer’s sole expense, to procure, operate, maintain and manage (or cause its Affiliates to procure, operate, maintain and manage) such hardware, software, equipment and communications services and lines as may be reasonably necessary for Customer and each Affiliate to access and receive the Services (and, to the extent that the parties agree that DHISCO will provide such communications services and lines, to pay DHISCO for the same as agreed); and (c) at Customer’s sole expense, to operate and maintain a Customer test system and make such system available to DHISCO for its use upon DHISCO’s request consistent with the testing plan communicated by DHISCO.
3.2 Modifications and Enhancements. DHISCO reserves the right to modify or enhance the Services and related processes and procedures, provided that no such modification or enhancement affects the functionality of the Services in a material adverse manner.
3.3 Accuracy of Data. Customer will cause all Customer and Affiliate information provided by Customer or Affiliates to DHISCO to be complete, accurate, and current, and in the form and format reasonably required by DHISCO.
3.4 Outsourced Providers. Customer will provide to DHISCO a confidentiality agreement in a form reasonably satisfactory to DHISCO from each third-party engaged by Customer or an Affiliate to access the Services on its behalf (an “Outsourced Provider”) prior to DHISCO consulting with, or providing specifications or other DHISCO confidential information to, such Outsourced Provider as necessary for Customer or its Affiliates to receive the Services. Customer agrees to cause any Outsourced Provider to comply with the terms and provisions of the Agreement to the extent Customer’s performance pursuant to such terms and provisions requires such compliance. For the avoidance of doubt, Customer shall remain fully liable for (a) any breach of the terms and provisions of the Agreement resulting from an act or omission of an Outsourced Provider, and (b) any other act or omission of any Outsourced Provider as it relates to Customer’s access to the Services. In no event shall any Outsourced Provider have any right to receive the Services or any right of independent access to the Services pursuant to the Agreement.
3.5 Network Security. Each of DHISCO and Customer will, and Customer will cause its Affiliates to, maintain commercially reasonable security policies and procedures that are directed at (a) detecting, preventing and containing the infection of their systems by harmful or malicious code; (b) deterring the use of Customer’s and Affiliates’ connections to the Services by unauthorized personnel or for unauthorized purposes; and (c) deterring improper access to or use of, or loss of, data residing on DHISCO’s systems by means of Customer’s and Affiliates’ connections to the Services. In addition, DHISCO will comply with the requirements of the Payment Card Industry Data Security Standard (as published by the Payment Card Industry Security Standards Council from time to time) relating to the possession, storage, processing and transmission of cardholder data (as defined in the Payment Card Industry Data Security Standard) to the extent such requirements are applicable to DHISCO’s provision of Services to Customer. Customer will, upon DHISCO’s request, (i) identify the individuals given access by Customer and Affiliates to DHISCO’s networks and systems and notify DHISCO of any changes to such group; and (ii) complete a DHISCO-provided network security survey. DHISCO will have the right to deny access by Customer, an Affiliate or any individual to DHISCO’s networks and systems due to reasonable security concerns. Customer will cause each Outsourced Provider to comply with this section, and DHISCO will be entitled to exercise any of its rights under this section with respect to an Outsourced Provider.
3.6 Reservations Data Transmission. The transmission of Customer and Affiliate data between Customer’s and its Affiliates’ systems and DHISCO’s systems will occur by such means as are mutually agreed by Customer and DHISCO.
4.0 FEES AND COSTS
4.1 Fees and Costs. Customer agrees to pay the fees and costs for the Services as set forth in the Agreement.
4.2 Taxes. Customer will pay all sales, use, excise, value added and similar taxes and duties levied by any taxing authority in connection with DHISCO’s delivery of the Service other than taxes that are levied upon DHISCO’s net income or payroll (collectively, “Taxes”). Except as expressly stated otherwise in the Agreement, all fees and costs are exclusive of Taxes.
4.3 Payment of Fees and Costs.
(a) Except as expressly stated otherwise in the Agreement, all amounts payable hereunder (i) are due within thirty (30) days of the date of receipt of each billing statement therefor; (ii) will be paid in accordance with payment instructions communicated to Customer by DHISCO from time to time; and (iii) will be paid in U.S. Dollars, or such other currency as may be reflected in the subject billing statement by mutual agreement of the parties. DHISCO may deliver billing statements by delivery of paper copies or by delivery of electronic copies via e-mail. If any amount is past due hereunder, Customer agrees to pay interest on such amount at the rate of one percent (1%) per month, or the maximum rate allowed by law, whichever is lower. Customer will pay any collection costs, including reasonable attorneys’ fees, and other expenses incurred by DHISCO or any of its affiliates to collect any sums due under the Agreement.
(b) Customer will notify DHISCO in writing, within ten (10) business days of receipt of a billing statement, of any good faith dispute concerning such statement. Such notice will include reasonable details relating to the dispute, including the amount disputed by the Customer. Customer’s dispute of an amount due will not relieve Customer of its obligations to pay any undisputed amounts in accordance with the Agreement. The failure of Customer to dispute, in accordance with this section, an amount reflected as due on a billing statement will constitute a waiver by Customer of any objection to such amount.
(c) Customer will deliver all written communications regarding billing statements received from DHISCO, and any notice of a dispute concerning a billing statement received from DHISCO, by e-mail to firstname.lastname@example.org.
4.4 Outstanding Payables by Affiliates. DHISCO will not be obligated to provide any Services to an Affiliate of Customer that has an outstanding payable to DHISCO that is past due.
4.5 Third-Party Costs. Customer acknowledges that any third party costs charged by DHISCO as a separate line item on a billing statement (“Third Party Costs”) may not include discounts, rebates or credits received by DHISCO. Any increases in Third-Party Costs directly related to DHISCO’s delivery of the Services may be charged to Customer.
5.1 Termination Upon Breach. If a party to the Agreement materially breaches the Agreement, the non-breaching party may give written notice to the breaching party specifying the breach or breaches that have occurred. Except as expressly stated otherwise in the Agreement, the breaching party will be entitled to ten (10) days after receipt of such notice within which to cure any payment breach and thirty (30) days after receipt of such notice within which to cure any other breach. If the breaching party fails to cure such breach within the applicable cure period after receipt of written notice, the non-breaching party may terminate the Agreement by giving written notice to the breaching party within sixty (60) days of the expiration of the cure period.
5.2 Termination Upon Change in Financial Position. Either party may terminate the Agreement by giving written notice to the other party if the other party ceases to do business as a going concern; becomes insolvent, bankrupt or the subject of a receivership or administration; has a trustee or liquidator appointed for it; or has any substantial part of its property subjected to any levy, seizure, assignment or sale for or by any third party.
5.3 Force Majeure. A party’s failure to comply with the terms of the Agreement, other than Customer’s payment obligations, will not constitute a breach to the extent such failure results from events beyond the control of the non-compliant party, including without limitation government regulation; acts of God; terrorist acts; fire; war; civil unrest; power fluctuations or outages; or telecommunications outages or delays. If such non-compliance continues for more than thirty (30) consecutive days, either party may terminate the Agreement by giving written notice to the other party.
5.4 Agreed Damages Upon Early Termination. Subject to Section 5.3 above, if Customer takes action to terminate the Agreement before the end of its term for any reason other than DHISCO’s breach, or if DHISCO terminates the Agreement for Customer’s breach, Customer will pay to DHISCO any amounts described in the Agreement under the heading “Agreed Damages Upon Early Termination.” The parties agree that such amounts are liquidated damages payable to DHISCO for the termination of the Agreement and are not a penalty; that it would be difficult or impossible to ascertain DHISCO’s actual damages arising from such a termination of the Agreement, that the amount of such liquidated damages represents a reasonable and good faith estimate of such damages; and that such liquidated damages are not indirect, special, incidental or consequential damages for purposes of the Agreement. DHISCO’s rights under this section are in addition to any other rights that DHISCO may have hereunder.
5.5 Survival. Sections 5.4, 5.5, 6.1, 7.1, 7.2, the indemnification language of 7.3, 7.4, 8.1, 8.2, 8.3, 9.1, 9.2 and 9.11 hereof and any rights of DHISCO or Customer that may have accrued as of the termination of the Agreement or any element of the Agreement will survive such termination.
6.1 Confidentiality. “Confidential Information” means all information furnished by one party to the other in connection with DHISCO’s delivery of the Services that is designated or treated as confidential by the disclosing party and all information concerning the design, functionality and operation of the DHISCO systems used to provide the Services. Confidential Information does not include any information that (a) is already lawfully known by the receiving party when received as a matter of record; (b) is independently developed by the receiving party; (c) is now or hereafter becomes generally available to the public other than as a result of disclosure by the receiving party; (d) is received by the receiving party from a third party legally entitled to make such disclosure; or (e) is disclosed after the receiving party obtains prior written approval from the disclosing party for such disclosure. Neither party will use the other party’s Confidential Information for any purpose other than to fulfill its obligations arising under the Agreement. Each party will use reasonable efforts to keep confidential the other party’s Confidential Information and the terms and pricing contained in the Agreement and will not disclose such information to any person or entity other than its employees, agents, and affiliates who agree to comply with this section or other than as required to fulfill its obligations arising under the Agreement. Each party will be responsible for the breach of this section by its employees, agents, and affiliates. A party may disclose the other party’s Confidential Information to the extent required by law, regulation, judicial process or order of a governmental authority, provided that the disclosing party discloses only that Confidential Information necessary to comply with such requirement and that the disclosing party gives the other party prompt notice of such requirement following the disclosing party’s receipt of notice, or determination of the existence, of such requirement. After the termination of the Agreement, each party will promptly return to the other party or destroy and/or delete all of the other party’s Confidential Information furnished to it upon the written request of the other party, provided that DHISCO may retain in its physical and electronic records relating to its performance of the Services Customer’s Confidential Information that is incorporated into such records in the normal course of DHISCO’s business. Each party will confirm any such destruction and deletion in writing to the other party within thirty (30) days of receipt of such written request. Notwithstanding any provision of the Agreement, DHISCO may use and disclose data derived by DHISCO from its performance of the Services for purposes of reporting and analysis, provided that neither Customer nor any Affiliate, nor any customer or guest of Customer or any Affiliate, is identifiable from such reporting or analysis. DHISCO represents that it will not disclose any personally identifiable information or personal financial information of any customer or guest of Customer or its Affiliates in connection with any such reporting or analysis.
7.0 INTELLECTUAL PROPERTY RIGHTS; OWNERSHIP OF DATA
7.1 DHISCO Ownership. DHISCO and its licensors will retain exclusive ownership of all right, title and interest, including without limitation, all Intellectual Property Rights (as defined below), in and to the Services and the systems and software used by DHISCO to provide the Services; the design, functionality, operation and components of the same; all modifications, enhancements and upgrades to the same; and DHISCO’s business methods. No right, title or interest of any kind in the foregoing is granted to Customer or any Affiliate pursuant to the Agreement.
7.2 Customer Ownership. No right, title or interest of any kind is granted to DHISCO pursuant to the Agreement in or to the data or images furnished by Customer and its Affiliates to DHISCO during the term of the Agreement for use by DHISCO in providing the Services other than as necessary for DHISCO’s provision of the Services. Following Customer’s payment to DHISCO of all amounts due at the time of termination of the Agreement, DHISCO will deliver to Customer, in a format supported by the DHISCO systems used to provide the Services, one or more files containing the data and images previously furnished by Customer and its Affiliates to DHISCO that are stored on such systems as of the date of termination.
7.3 Use of Marks. Customer represents and warrants that it has the right to grant, and does hereby grant, to DHISCO a license to use, display, transmit, distribute and store on DHISCO’s systems, the trademarks, service marks, trade names, trade dress, logos, names, images and other media (collectively, “Marks”) provided by Customer and each Affiliate and by any agent of Customer or an Affiliate (including the Marks of any third party that are so provided) to DHISCO for use by DHISCO in providing the Services. Customer will indemnify, defend and hold harmless DHISCO and its affiliated entities from and against all suits, proceedings, claims, losses, liability, costs, damages, fines, and expenses (including reasonable attorneys’ fees) instituted against or incurred or suffered by them that arise out of or in connection with any asserted breach by Customer of the representation and warranty in the preceding sentence. Except as set forth in the first sentence of this section, DHISCO will not obtain any right, title or interest in or to the Marks of Customer or any Affiliate pursuant to the Agreement.
7.4 Definition. “Intellectual Property Rights” means any and all now known or hereafter known tangible and intangible (a) rights associated with works of authorship, including but not limited to copyrights and moral rights; (b) trademark, trade name and trade dress rights and similar rights; (c) trade secret rights; and (d) patents, designs, database rights, algorithms and other industrial property rights; all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated), whether arising by operation of law, contract, license or otherwise; and all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force.
8.0 DISCLAIMER OF WARRANTIES; LIMITATION OF LIABILITY
8.1 Disclaimer of Warranties. All warranties, express or implied, statutory or otherwise, including without limitation, any warranty of fitness for a particular purpose, merchantability, satisfactory quality, good and workmanlike service, reasonable skill and care or non-infringement, relating to the subject matter hereof are disclaimed by dhisco and waived by customer to the maximum extent permitted by law. Dhisco does not warrant that the provision of the services will be uninterrupted or error-free.
8.2 Limitation of Liability. Nothing in this or the following section excludes or limits the liability of either party for death or personal injury caused by its negligence or for its fraudulent misrepresentation. Subject to the preceding sentence, dhisco, its subsidiaries and affiliated entities will have no liability arising from or relating to (a) the failure of the services to operate or function due to applications, equipment, services, content or networks provided by customer or an affiliate, or by a third party not acting as dhisco’s agent; (b) interruptions of customer’s or any affiliate’s access to the services or lost or altered transmissions not caused by the acts or omissions of dhisco or a third party acting as dhisco’s agent; or (c) data provided or entered by customer or any affiliate, or by any third party (other than any error or omission in data caused by dhisco’s entry of that data). In no event will dhisco’s liability hereunder exceed the total fees and costs paid by customer for the services during the six (6) months immediately preceding the date of the cause of action or occurrence which is the basis of customer’s claim against dhisco.
8.3 No Consequential Damages. Subject to the first sentence of the preceding section, neither party will be liable to the other for any indirect, special, incidental, punitive or consequential damages, including lost profits, income or goodwill, regardless of whether or not such party has been advised of the possibility of such damages, caused by or resulting from any breach of the Agreement, and each party hereby expressly waives such damages, provided that amounts due to DHISCO pursuant to Section 4.0 of these General Terms and Conditions are not indirect, special, incidental, punitive or consequential damages for purposes of the Agreement.
9.1 Dispute Resolution.
(a) If Customer’s head or executive office is located in North, Central or South America or the Caribbean Sea (the “Americas”), any action or proceeding by either Customer or DHISCO against the other, or against any employee, officer, director, agent or assign of the other, arising from or relating to the Agreement (whether under statute, in contract, tort, or otherwise and whether for money damages or declaratory or equitable relief) (each, a “Claim”) will be tried by a judge sitting without a jury. Customer and DHISCO hereby waive any right to trial by jury of any Claim. Either Customer or DHISCO may file a copy of this section with any court as written evidence of the knowing, voluntary and bargained-for agreement between them to irrevocably waive trial by jury of any Claim.
(b) If Customer’s head or executive office is located outside the Americas, any Claim, other than injunctive relief sought by either party, including Claims regarding the applicability of this arbitration clause, will be resolved by binding arbitration. The parties agree that such arbitration will be governed by the rules of the International Chamber of Commerce, provided that any Claim will first be submitted to a mediator in accordance with such governing rules. Neither party may act as a class representative or participate as a member of a class of claimants with respect to any Claim. The parties agree that the results of any such arbitration or mediation, as well as information exchanged in connection with any arbitration or mediation, will be Confidential Information for purposes hereunder.
9.2 Law and Venue.
(a) If Customer’s head or executive office is located in the Americas, (i) the Agreement shall be governed by and interpreted pursuant to the laws of the State of Texas, USA, without reference to its conflicts of laws principles; (ii) exclusive venue for any suit, action, proceeding or dispute relating to the Agreement will be in Dallas County, Texas; and (iii) each party irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Dallas County, Texas with respect to the same.
(b) If Customer’s head or executive office is located outside the Americas, (i) the Agreement shall be governed by and interpreted pursuant to the laws of England and Wales without reference to its conflicts of laws principles; (ii) subject to any provisions of the Agreement mandating arbitration, each party agrees that the courts of England shall have exclusive jurisdiction to resolve any suit, cause of action or other dispute relating to the Agreement, and each party irrevocably submits to the exclusive jurisdiction of the English courts with respect to the same; and (iii) any arbitration or mediation in connection with the Agreement will be conducted in London, England.
(c) The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from the law governing the Agreement and shall not apply to the Agreement.
9.3 Compliance with Laws. Each of Customer and DHISCO will fully comply with all material laws, regulations and governmental orders applicable to their performance hereunder. DHISCO represents that it has on file with the United States Department of Commerce a certification that DHISCO adheres to the “privacy shield framework” developed by such Department in coordination with the European Commission with respect to the transfer of personal data to the United States. In no event will DHISCO or any of its affiliates be required to perform hereunder to the extent that DHISCO reasonably concludes that such performance may violate any applicable law, regulation or governmental order (including any trade sanctions or export controls imposed by the government of the United States).
9.4 Status of Parties. The Agreement does not constitute a partnership, joint venture, or similar arrangement between the parties. Neither party, nor any of their respective directors, officers, employees or agents, is authorized to bind the other party or otherwise act in the name of or on behalf of the other. Nothing herein shall be construed to give any person or entity other than DHISCO and Customer any legal or equitable right, remedy or claim in connection with or arising from either party’s performance hereunder. If the Agreement is governed by the laws of England, any person or entity that is not a party hereunder will have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
9.5 Assignment. The Agreement is not assignable by DHISCO or Customer without the prior written consent of the other party, and such consent may not be unreasonably conditioned, withheld or delayed. Notwithstanding the foregoing, either party may assign the Agreement without consent to a party engaged in a merger with, an acquisition of, or the purchase of all or substantially all of the assets of, the assigning party, provided the assignee unconditionally assumes the same in writing. DHISCO may assign the Agreement or any element thereof to any of its subsidiaries or affiliates without Customer’s consent. Any assignment in violation of this section is void and unenforceable.
9.6 Notices. All notices given pursuant to the Agreement must be in writing and, except as provided in Section 4.3(c) of these General Terms and Conditions, (a) personally delivered; (b) deposited in the mail, first-class, registered or certified mail, return receipt requested, or similar service with postage prepaid; or (c) sent by overnight courier service (for next business day delivery if within the country of the sender or second business day delivery if outside the country of the sender), shipping prepaid as follows (or to such other persons or addresses as either party may specify by notice duly given):
|If to DHISCO:||If to Customer:|
|RateGain Technologies, Inc.
d/b/a DHISCO – A RateGain Company
5430 LBJ Freeway, Suite 1100
Dallas, Texas 75240 USA
Attn: Contract Notices
|Notice will be sent to Customer’s most recent address on file with DHISCO|
|cc: Chief Financial Officer at the same address|
Except as otherwise specified herein, notices will be deemed given and received at the time of delivery or of refusal of delivery.
9.7 Entire Agreement; Controlling Language. The Agreement constitutes the entire agreement between DHISCO and Customer with respect to the subject matter thereof and supersedes and replaces any and all other agreements and representations, verbal or written, with respect thereto. There are no representations, warranties or agreements made or relied upon by either party with respect to the subject matter of the Agreement that are not set forth therein. The Agreement may not be amended or modified other than by a written agreement executed by Customer and DHISCO. In the event of any conflict between these General Terms and Conditions and the terms of any other element of the Agreement, these General Terms and Conditions will control. English is the controlling language with respect to the Agreement. Any translation of the Agreement into another language is for convenience only and no such translation will be binding against the parties hereto.
9.8 Successors and Assigns. The Agreement is binding upon and inures to the benefit of the legal representatives, successors and duly authorized assigns of each party.
9.9 Execution; Retention. Any element of the Agreement may be executed in counterparts, each of which when executed will be deemed to be an original and all of which taken together will constitute one and the same instrument. A signature delivered by facsimile or electronic transmission will be effective to bind the executing party. Any element of the Agreement may be retained or stored by either party solely in an electronic format, and any reproduction thereof by reliable means from an electronic format will be deemed an original.
9.10 Waiver. Except as otherwise provided in the Agreement, the failure of a party to exercise any of its rights or to enforce any of the provisions of the Agreement on any occasion will not be a waiver of such right or provision, nor affect the right of such party thereafter to enforce such right or provision.