Each Party represents and warrants that it has the right and authority to enter into this Agreement, and that by entering into this Agreement, it will not violate, conflict with or cause a material default under any other contract, agreement, indenture, decree, judgment, undertaking, conveyance, lien or encumbrance to which it is a party or by which it or any of its property is or may become subject or bound.
Each Party represents and warrants that no consent, approval or authorization of or designation, declaration or filing with any governmental authority is required in connection with the valid execution, delivery, and performance of this Agreement. Each Party shall, at its own expense, comply with all laws, regulations and other legal requirements that apply to it and this Agreement, including copyright, privacy and communications decency laws.
Customer is solely responsible for the content of any postings, data, or transmissions using the Services, or any other use of the Services by Customer or by any person or entity Customer permits to access the Services. Customer represents and warrants that it will: (a) not use the Services in a manner that: (i) is prohibited by any law or regulation, or to facilitate the violation of any law or regulation; or (ii) will disrupt a third parties’ similar use or Licensed Materials; (b) not violate or tamper with the security of any Seventy Two Pixels computer equipment or program; If Seventy Two Pixels has reasonable grounds to believe that Customer is utilizing the Services for any such illegal or disruptive purpose Seventy Two Pixels may suspend the Services immediately with or without notice to Customer. Seventy Two Pixels may terminate the Agreement as contemplated if Customer in fact fails to adhere to the foregoing acceptable use standards.
DISCLAIMER. THE WARRANTIES SET FORTH IN THIS SECTION 3 ARE THE ONLY WARRANTIES MADE BY SEVENTY TWO PIXELS. SEVENTY TWO PIXELS MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, ANY RELATED SERVICE OR SOFTWARE. SEVENTY TWO PIXELS HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR IMPLIED WARRANTIES ARISING FROM A COURSE OF DEALING OR COURSE OF PERFORMANCE. NO ORAL OR WRITTEN INFORMATION GIVEN BY SEVENTY TWO PIXELS, ITS EMPLOYEES, LICENSORS, OR THE LIKE WILL CREATE A WARRANTY.
Excluding the liability under the section entitled "NO INFRINGEMENT" below, UNDER NO CIRCUMSTANCES WILL SEVENTY TWO PIXELS OR ANYONE ELSE INVOLVED IN ADMINISTERING, DISTRIBUTING OR PROVIDING THE SERVICES, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OF OR INABILITY TO USE THE SERVICES, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR LOST PROFITS, OR DAMAGES THAT RESULT FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION, FAILURE OF PERFORMANCE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO SEVENTY TWO PIXELS' RECORDS, PROGRAMS OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT OF ANY BREACH BY SEVENTY TWO PIXELS OF THIS AGREEMENT, SEVENTY TWO PIXELS' LIABILITY TO CUSTOMER WILL NOT EXCEED THE AMOUNT PAID TO SEVENTY TWO PIXELS BY CUSTOMER DURING THE PREVIOUS TWO MONTHS.
NO INFRINGEMENT: Seventy Two Pixels warrants the Licensed Material will not infringe any patent, trademarks, copyright or any proprietary rights of a third party or constitute a misuse or misappropriation of a trade secret. Customer shall notify Seventy Two Pixels promptly in writing of any known action brought against Customer based on an allegation that Customer's use of any materials infringes any patent, trademark, copyright, or infringes any right of a third party, or constitutes misuse or misappropriation of a trade secret ("Infringement"). Seventy Two Pixels will defend, indemnify and hold Customer harmless from any such action at Seventy Two Pixels' sole expense, provided that Seventy Two Pixels shall have the sole control of the defense of any such action, all negotiations and/or its settlement, and Customer reasonably cooperates with Seventy Two Pixels in such defense. In the event that a final injunction is obtained against Customer’s use of the Services by reason of an Infringement or Customer is otherwise prohibited from using same, Seventy Two Pixels shall to the extent possible and at its expense, within sixty (60) days, either (a) procure for Customer the right to continue to use the Services that are infringing, or (b) replace or modify the Services to make its use non-infringing while being capable of performing the same function. If neither option is available to Seventy Two Pixels, then Customer, at Customer's option, may terminate this Agreement without penalty or further payment other than payment of fees for use of the Services prior to said termination.
For purposes of this Agreement "Confidential Information" shall mean information including, without limitation, all Customer data, computer programs, code, algorithms, names and expertise of employees and consultants, know-how, formulas, processes, ideas, inventions (whether patentable or not), schematics and other technical, business, financial and product development plans, forecasts, strategies and information marked "Confidential", or if disclosed verbally, is identified as confidential at the time of disclosure. In addition to the foregoing, Confidential Information shall include third party software, if any, that may be provided to Customer under this Agreement, including any related source or object codes, technical data, data output of such software, documentation, or correspondence owned by the applicable licensor. Confidential Information excludes information that: (i) was or becomes publicly known through no fault of the receiving Party; (ii) was rightfully known or becomes rightfully known to the receiving Party without confidential or proprietary restriction from a source other than the disclosing Party; (iii) is independently developed by the receiving Party without the participation of individuals who have had access to the Confidential Information; (iv) is approved by the disclosing Party for disclosure without restriction in a written document which is signed by a duly authorized officer of such disclosing Party; and (v) the receiving Party is legally compelled to disclose; provided, however, that prior to any such compelled disclosure, the receiving Party will (a) assert the privileged and confidential nature of the Confidential Information against the third party seeking disclosure and (b) cooperate fully with the disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of such disclosure and/or use of the Confidential Information. In the event that such protection against disclosure is not obtained, the receiving Party will be entitled to disclose the Confidential Information, but only as, and to the extent, necessary to legally comply with such compelled disclosure.
Each Party agrees to maintain all Confidential Information in confidence to the same extent that it protects its own similar Confidential Information, but in no event using less than reasonable care, and to use such Confidential Information only as permitted under this Agreement; Each Party agrees to only disclose the other Party’s Confidential Information to its employees: (a) with a need to know to further permitted uses of such information; and (b) who are informed of the nondisclosure/ non-use obligations imposed by this Section. Both parties shall take steps each determines appropriate to implement and enforce such non-disclosure/non-use obligations.
In the event of an actual or threatened breach of the above confidentiality provisions, the non-breaching Party will have no adequate remedy at law and will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
Customer is solely responsible for the content of communications transmitted by Customer using the Services, and shall defend, indemnify and hold harmless Seventy Two Pixels from and against all liabilities and costs (including reasonable attorneys’ fees) arising from any and all third-party claims by any person based upon the content of any such communications. Customer is not permitted to resell the Services. Customer shall use the Services only for lawful purposes. To the extent deemed necessary by Customer, Customer shall implement security procedures necessary to limit access to the Services to Customer’s authorized users and shall maintain a procedure external to the Services for reconstruction of lost or altered files, data or programs. Customer is responsible for establishing designated points of contact to interface with Seventy Two Pixels.
Seventy Two Pixels hereby grants to customer a personal, nonexclusive, nontransferable license during the term of this Agreement to use, in object code form, all software and related documentation provided by Seventy Two Pixels (“Licensed Material”), which may be furnished to Customer under this Agreement. Customer agrees to use commercially reasonable efforts to ensure that its employees and users of all Licensed Material hereunder comply with the terms and conditions set out in this Agreement. Customer also agrees to refrain from taking any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent to the Licensed Material. All Licensed Material furnished to Customer under this Agreement shall be used by Customer only for Customer’s internal business purposes, shall not be reproduced or copied in whole or in part, and shall not be removed from the United States.
All data is owned by Customer and is to be strictly held as confidential. All right, title and interest in and to the Licensed Material, and all copyrights, patents, trademarks, service marks or other intellectual property or proprietary rights relating thereto, belong exclusively to Seventy Two Pixels. Any modification to the Software performed by Customer directly or indirectly extending the current capabilities shall be the property of Seventy Two Pixels and all copyrights and other rights are hereby assigned to Seventy Two Pixels.
Seventy Two Pixels will devote as much productive time, energy, and ability to the performance of its duties hereunder as may be necessary to provide the required Services in a timely and productive manner.
If a Party fails to perform or observe any material term or condition of this Agreement and the failure continues unremedied for seven (7) days after receipt of written notice, (1) the other Party may terminate this agreement, or (2) where the failure is a nonpayment by Customer of any charge when due, Seventy Two Pixels, may, at its option, terminate or suspend Services with or without any notice.
This Agreement may be terminated immediately upon written notice by either Party if the other Party becomes insolvent or involved in a liquidation or termination of business, files a bankruptcy petition, has an involuntary bankruptcy petition filed against it (if not dismissed within thirty days of filing), becomes adjudicated bankrupt, or becomes involved in an assignment for the benefit of its creditors.
Customer shall be responsible for payment of all charges under a terminated Agreement incurred as of the effective date of termination.
(a) This Agreement, including any amendments and attachments hereto that are incorporated herein, constitute the entire agreement between the parties and shall be binding on the parties when accepted by Customer. No modification, termination or waiver of any provisions of this Agreement shall be binding upon a Party unless in writing signed by an authorized officer of the relevant Party(ies). No provision of any purchase order or other document issued by Customer, which purports to alter, vary, modify or add to the provisions of this Agreement, shall be binding upon Seventy Two Pixels or effective for any purpose, unless accepted by Seventy Two Pixels in writing It is further expressly understood and agreed that, there being no expectations to the contrary between the parties, no usage of trade or other regular practice or method of dealing either within the computer software industry, Seventy Two Pixels' industry or between the parties shall be used to modify, interpret, supplement, or alter in any manner the express terms of this Agreement or any part there of.
(b) Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, or employment relationship between the parties, nor shall either Party have the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other.
c) The Licensed Materials shall not be exported or re-exported in violation of any export provisions of the United States or any other applicable jurisdiction.
(d) This Agreement may not be assigned, sublicensed or transferred, in whole or in part, by Customer without the prior written consent of Seventy Two Pixels. Any attempted assignment, subletting or transfer shall be void.
(e) If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(f) No delay or failure of Seventy Two Pixels or Customer in exercising any right herein and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights herein. Any waiver by Seventy Two Pixels or Customer of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent or other breach.
(g) In the event that either Party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of god, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the affected Party or other causes beyond such Party’s reasonable control (a “Force Majeure Event”) the Party who has been so affected shall immediately give notice to the other Party and shall do everything possible to resume performance. Upon receipt of such notice, all obligations under this Agreement shall be immediately suspended. If the period of nonperformance exceeds seven (7) days from the receipt of notice of the Force Majeure Event, the Party whose ability to perform has not been so affected may by giving written notice immediately terminate this Agreement as provided in Section 10.
(h) On Seventy Two Pixels' request, no more frequently than annually, Customer shall furnish Seventy Two Pixels with a signed certification (i) verifying that the Licensed Material is being used pursuant to the terms of this Agreement and (ii) listing the locations where the Licensed Material is being used
(i) This Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, and each of which together shall constitute a single instrument.
(j) This Agreement shall be governed by and construed under the laws of the State of South Carolina applicable to contracts made in and wholly to be performed in the State of South Carolina without regard to conflicts of law.
The business of debt collections is highly regulated and subject to the jurisdiction of various state and federal bodies as well as varying demands from debt originators and owners. While SecureCRM is designed to aid compliance with certain of those requirements, it neither incorporates all rules nor is completely effective at preventing incorrect practices. By your use of SecureCRM you acknowledge that it is your responsibility to understand and comply with all applicable rules, and you agree that SecureCRM bears no liability for any violations committed by users of SecureCRM. Furthermore, you agree to indemnify SecureCRM for any damages that result from your users’ actions that violate law, regulation, or best industry practices.
Customer shall pay all fees and charges incurred at the rates in effect for the billing period in which such fees and charges are incurred, including but not limited to charges for any services offered through the Service or by any other vendor or service provider. All fees are exclusive of any taxes or legal fees imposed by taxing authorities. Customer is responsible for all such taxes and fees. Certain portions of the Service or the Service as a whole may require a prepaid fee ("Prepaid Fee”). The Prepaid Fee, and all taxes and other fees related thereto will be paid by the Customer in advance. In no event will the Customer receive any portions of the Service or the Service as a whole if a Prepaid Fee is required unless Seventy Two Pixels receives all fees and charges payable by the Customer, including the Prepaid Fee.
Service begins as soon as your initial payment is processed. Your subscription will continue without renewal notice until you cancel. The credit card provided will be charged the rate stated at the time of purchase, every month, or as indicated for the service selected, until you cancel. Because there’s no annual contract, your monthly rate is subject to change, but you will be notified of any change in your monthly rate with the option to cancel in accordance with these terms. Your payment is non-refundable and your service will continue until the end of that month’s billing period. Cancellations can be made any time by contacting Customer Support no less than five (7) days prior to your monthly billing date; otherwise, the cancellation will be effective from the next monthly billing date. Refunds will not be issued for cancellations not received at least 7 days prior to the billing date. Subscription payments not received within 15 days of the due date will result in suspension of service.
SecureCRM Maintenance Agreements.
Seventy Two Pixels will provide Customer with maintenance services including the following: portfolio imports/updates/exports, dialer integration/setup as it relates to the SecureCRM application, desk maintenance, account assignments, portfolio maintenance, report generation, settings updates, and other administrative functions within the Customers SecureCRM subscription as needed.
Customer will be billed based upon plan purchased and updates requested. Billing is month to month, automatically renewable unless cancelled by the customer.
Customer will provide reasonable lead time to complete any updates required. Updates will be performed within 24-48 hours of request being received from Customer unless otherwise communicated. Time spent on each update will be deducted from the purchased time, in 15 minute increments, and any additional time spent on the requested updates will be billed at the plan rate.
Agreement may be terminated by either party upon written notice to the other, if the other party breaches any material obligation provided hereunder and the breaching party fails to cure such breach within thirty (30) days of receipt of the notice. This Agreement may be terminated by Seventy Two Pixels (i) immediately if Customer fails to pay any fees hereunder; or (ii) if Customer fails to cooperate with Seventy Two Pixels or hinders it’s ability to perform the Maintenance Services hereunder.
Customer acknowledges the following:
- If changes are made by Seventy Two Pixels according to Customer’s information, and the changes are not correct, additional time to remedy the changes will be billed.
- Customer will be billed for plan chosen regardless of actual hours used. Unused hours do not roll over into the next month or cannot be pulled from future months. No refunds are issued for unused time.
- Seventy Two Pixels is not responsible for verifying the accuracy of provided data, making changes to data etc. unless requested by Customer.
- Customer warrants it has the authority to import/update all information provided.
- Seventy Two Pixels shall be deemed an independent contractor and in no way acting as an agent of the Customer in any respect.
- Services beyond the scope of the SecureCRM Maintenance Agreement and services provided will require a separate agreement.
All Web Plan services include the specific services listed. Some packages may include e-commerce capabilities.
TLDs. You acknowledge and agree that your website will be subject to any and all content (or other) restrictions specific to the top level domain (“TLD”) with which it is associated.
Obligation to Maintain Subscription. Provision of Services is dependent upon your active subscription to (and payment for the Web Plan subscription. Failure to maintain your subscription at any time will result in suspension of Services. Prior balances must be paid to in full to gain access. Recurring billing for your Web Plan Services will begin on the date of purchase. Fees paid for Services are not transferable to other websites other than the website initially associated with Services on the date of purchase.
Third Party Applications. You acknowledge that while building Your website, third party applications and plugins may be utilized. You also acknowledge that Seventy Two Pixels may be required to agree to the individual terms and conditions of each application or plugin. You acknowledge and give permission to Seventy Two Pixels to agree to all terms and conditions in connection with establishing your website and providing the necessary features and functionality requested by you. Upon delivery, you acknowledge and agree to accept the aforementioned terms and conditions of all applications and plugins and Seventy Two Pixels will not be bound by any such agreements.