Ask the Agent
Master Services Agreement
Last Updated: August 23, 2022
This Ask the Agent Master Services Agreement (this “Agreement”) is by and between you (“you” or “your”) and Ask the Agent, Inc., a Florida corporation with its principal place of business located at 2665 N. Atlantic Avenue, #401, Daytona Beach, Florida 32118 (“ATA”) and governs your ability to offer technical and operational support to your customers through “ATA Services” (as defined below). Individually each of you and ATA is a “Party” and together are collectively referred to as the “Parties.” This Agreement is effective as of the date you complete the online registration process, agree to the provisions of this Agreement by selecting the “Agree” checkbox, or commence use of ATA Services, which shall be the “Effective Date.”
IF YOU REGISTER FOR A TRIAL FOR ATA SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT TRIAL.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX OR BUTTON INDICATING YOUR ACCEPTANCE OR BY EXECUTING A SUBSCRIPTION AGREEMENT THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. USE OF ATA SERVICES CONSTITUTES ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. “YOU” OR “YOUR” MEANS YOURSELF, THE COMPANY OR OTHER LEGAL ENTITY FOR WHICH YOU ARE ACCEPTING THIS AGREEMENT, AND AFFILIATES OF THAT COMPANY OR ENTITY. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. “AFFILIATE” MEANS ANY ENTITY WHICH DIRECTLY OR INDIRECTLY CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH THE SUBJECT ENTITY. “CONTROL,” FOR PURPOSES OF THIS DEFINITION, MEANS DIRECT OR INDIRECT OWNERSHIP OR CONTROL OF MORE THAN 50% OF THE VOTING INTERESTS OF THE SUBJECT ENTITY.
PLEASE READ THESE TERMS CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST ATA ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
- “Customer” means a customer of your business.
- “Specialists” refers to the individuals carrying out the ATA Services on your behalf.
- “Incomplete” means a Customer inquiry that was not Resolved (as hereafter defined) to the Customer’s satisfaction (as determined by ATA).
- “Law” or “Laws” means all applicable laws and other legal obligations including, without limitation, local, state and federal directives, rules, assessments, regulations, filing requirements, ordinances, statutes, codes, judgments and civil or common law.
- “Personal Customer Data” means any and all personally identifiable information about Customer collected by you and provided to ATA, including, but not limited to, the Customer’s mailing addresses and/or email addresses.
- “Resolved” means a Customer inquiry that either (a) the Customer indicates as being completely addressed and that subsequently results in the Customer being sent a rating request from ATA or (b) ATA receives no response from the Customer within forty-eight (48) hours from the time ATA replies to the Customer.
- “ATA Services” shall include the support provided to your Customers by ATA via one or more of email, webchat, video chat, SMS and other message services.
- “ATA Product” means the Ask the Agent software platform used to provide the ATA Services, companion materials, and any related products, materials, training, services, and documentation (together with any updates to, or new releases of, the foregoing that are made available to you by ATA) licensed by ATA to you pursuant to this Agreement.
- “Term” means the term of this Agreement as defined in Section F below.
- “Web Portal” means the website located at www.asktheagent.com maintained by ATA or its agent, serving as a central repository for information related to the ATA Services.
- “Person” is to be broadly interpreted and includes an individual, a corporation, a partnership, a trust, an unincorporated organization, the government of a country or any political subdivision thereof, or any agency or department of any such government, and the executors, administrators or other legal representatives of an individual in such capacity.
- “Content” shall mean any information you upload or post to the ATA Services and any information provided by you to ATA in connection with the ATA Services, including, without limitation, Personal Customer Data, property listing photos, property listing videos and other property-related data.
B. LICENSE AND USE
1. License. The ATA Product is licensed, not sold. Subject to the terms and conditions set forth in this Agreement, ATA grants you a limited, revocable, non-exclusive, non-sublicensable license for you to use the ATA Product (“License”). For purposes of the preceding sentence, “use” of the ATA Product means access by your Customers to the functionality of the ATA Product. You acknowledge and agree that the License expressly does not extend to any parent companies, sister companies, or subsidiaries of you.
2. Internet & Systems Requirements. Continuous Internet access, connectivity, and certain minimum systems and technical requirements are required to access and use the ATA Product, which are not provide by ATA and are the sole responsibility of you and/or your Customers. Information regarding minimum systems and technical requirements for the ATA Product may be obtained by you from the Web Portal or ATA customer support.
4. Transfer. You may not, and may not permit others to, directly or indirectly, sell, rent, lease, loan, timeshare or sublicense the ATA Product or any part thereof.
5. Limitations on Use. You agree not to, and not to permit others to, directly or indirectly (a) reverse assemble, reverse compile, or otherwise reverse engineer or attempt to derive the source code of all or any part of the ATA Product (b) copy, modify, translate, alter, change or collect information that can be used to create derivative works of all or any part of the ATA Product, (c) download, copy or collect information that could be used to copy all or any part of the ATA Product, or (d) access or use all or any part of the ATA Product for any purpose other than for providing support to your Customers, or expressly authorized in writing by ATA. Any such information supplied by ATA may only be used by you for the purpose expressly authorized by ATA, and may not be disclosed to any third party, or used to create any software that is substantially similar to the ATA Product. You agree, upon request by ATA at any time, to exchange your current version of the ATA Product for an updated version and to discontinue use of the version that was replaced.
6. Non-Exclusivity and Competition. You acknowledge that this is not an exclusive agreement and that ATA may license the ATA Product and provide the ATA Services or any part thereof to other Persons that may be competing with you. Nothing in this Agreement shall limit ATA from entering into similar licensing, consulting or service agreements with third parties who are similar to or competitive with you.
7. Non-GA Services. From time to time ATA may invite you to try, at no charge, ATA products or services that are not generally available to ATA customers (“Non-GA Services“). You may accept or decline any such trial in your sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, nonproduction or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors, and may be subject to additional terms. NON-GA SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON- INFRINGEMENT. ATA may discontinue Non-GA Services at any time in ATA sole discretion or may never make them generally available.
C. OBLIGATIONS, REPRESENTATIONS & WARRANTIES, AND COVENANTS OF ATA
1. During the Term, ATA shall:
a) Perform the ATA Services on behalf of your Customers (subject to your obligation to provide adequate access and information to ATA as laid out in Section D below). ATA reserves the right to establish reasonable restrictions regarding its offering of ATA Services hereunder or such other services the Parties may mutually agree to from time to time.
b) Provide you with information describing the ATA Services.
c) Provide you with technical assistance regarding the Web Portal, including but not limited to, answering Customer tracking, invoicing, billing, and administration questions at times mutually agreed upon between you and ATA either through a designated email address at firstname.lastname@example.org or via a toll-free service number.
d) Provide customer service to you through a channel mutually agreed upon between you and ATA or via email at email@example.com.
e) Track each Customer inquiry and label them Resolved or Incomplete. ATA shall determine in accordance with this Agreement whether each inquiry is Resolved or Incomplete; however, you shall have the right to request any back-up documentation and to contest any classifications.
f) Represent, warrant and covenant that (i) ATA has the requisite corporate power and authority to execute, enter into, and perform its respective obligations under this Agreement; (ii) ATA will provide the ATA Services to you in a professional and workmanlike manner and in compliance with all applicable Laws; (iii) the ATA Services and your use thereof do not, to ATA’s knowledge, infringe upon or otherwise violate or misappropriate any copyright, patent, trade secret, trademark or other intellectual property right of any third party; (iv) the ATA Services will use commercially reasonable best practices be prevent any viruses, worms, Trojan horses or malicious code; and (v) ATA will secure and protect the data and information provided by you including the Personal Customer Data in a manner that meets generally accepted industry standards and complies with all Laws.
D. YOUR OBLIGATIONS, REPRESENTATIONS & WARRANTIES, AND COVENANTS:
1. During the Term you shall:
a) Ensure that all sales personnel, customer service personnel or other of your applicable personnel cooperate with ATA and the Specialists to ensure ATA and the Specialists have the adequate access to your systems and information necessary to perform the ATA Services. Without limiting the foregoing, in order to provide such access, you agree to grant ATA the requisite seat license(s) on your software subscriptions required for ATA to perform the ATA Services. Furthermore, you agree that you are responsible for maintaining the confidentiality of all login information for your software subscription accounts.
b) Be responsible for all activities that occur under your account under the Web Portal (when the Web Portal is accessed through your login information and password). You should, therefore, not share your login information with any third parties. Unless you notify ATA of any unauthorized use or suspicious activity in your account associated with the Web Portal, you are responsible for all activities that occur under your account.
2. You further covenant and agree with ATA that during the Term you will:
a) Comply with and act in accordance with any and all applicable Laws and cooperate with ATA to assure compliance by both ATA and you with all applicable Laws, including new laws or regulations implemented after the inception of this Agreement.
E. PAYMENTS, REFUNDS, AND SUBSCRIPTION CHANGES
1. You shall provide ATA with a valid credit card for payment of the applicable subscription fees in connection with the ATA Services. All subscription fees are exclusive of all federal, state, provincial, municipal, or other taxes which you agree to pay based on where you are located. Invoices will include (i) subscription fees and (ii) all applicable sales taxes, as amended from time to time, for the jurisdiction in which you are located. In the event of updated tax rates, ATA will apply the new tax rate without notice to you. In addition to any fees, you may still incur charges incidental to using the ATA Services, for example, charges for Internet access, data roaming, and other data transmission charges.
2. Your credit card will be charged for the applicable subscription fees upon the expiration of any applicable free trial period. Subscriptions cancelled prior to the expiration of any trial period, will not be charged. For monthly subscriptions, you will thereafter be automatically charged in advance each 30 days. For annual subscriptions, you will thereafter be automatically charged annually on the anniversary date of the initial subscription charge. All charges are final and non-refundable, including payments made for annual subscriptions, setup fees, and other professional services charges.
3. No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription, including, but not limited to, instances involving the termination of this Agreement.
4. There are no charges for cancelling a subscription and paying subscriptions cancelled prior to the end of their current billing cycle will not be charged again in the following cycle.
5. The amount charged on the next billing cycle will be automatically updated to reflect any changes to your subscription, including upgrades or downgrades. Adding subscription upgrades will trigger prorated charges in the current billing cycle. You authorize ATA to apply updated charge amounts. Subscription changes, including downgrades, may result in loss of access to Content, features, or an increase or reduction in the amount of available capacity for Content or features provided by the ATA Services.
6. If any amount owing by you under this or any other agreement for our services is thirty (30) or more days overdue, or ten (10) or more days overdue in the case of amounts you have authorized us to charge to your credit card, ATA may, without limiting our other rights and remedies, accelerate your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend our services to you until such amounts are paid in full. Other than for users paying by credit card or direct debit whose payment has been declined, ATA will give you at least ten (10) days’ prior notice that your account is overdue, in accordance with Section 5.5 (Notices) for billing notices, before suspending services to you. ATA will not exercise our rights under this Section if you are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
7. All prices are subject to change upon notice. Such notice may be provided by an email message to you, or in the form of an announcement through the Web Portal.
8. You are responsible for paying all taxes associated with the subscription to the ATA Services. If ATA has the legal obligation to pay or collect taxes for which you are responsible under this Section, the appropriate amount shall be charged to and paid by you, unless you provide ATA with a valid tax exemption certificate authorized by the appropriate taxing authority.
9. Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any taxes. If you are required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, ATA receives an amount equal to the sum it would have received had no such deduction or withholding been made.
F. TERM AND TERMINATION
1. This Agreement shall take effect on the Effective Date and shall continue automatically based upon your chosen subscription frequency.
2. ATA in its sole discretion has the right to suspend or discontinue providing the ATA Services to you without notice for actions that are (a) in material violation of this Agreement and/or (b) create a Security Emergency.
3. If (i) you or one of your Customers use the ATA Services to materially violate this Agreement in a way that does not create a Security Emergency; (ii) ATA provides you with commercially reasonable notice of this violation; (iii) ATA uses commercially reasonable efforts to discuss and resolve the violation with you; and (iv) despite the foregoing, the violation is not resolved to ATA’s reasonable satisfaction within thirty (30) days of such notice, then ATA reserves the right to suspend access to the ATA Services.
4. Either Party may terminate this Agreement immediately if the other Party is formally declared insolvent or in violation of any Laws.
5. Effect of Termination or Expiration.
a) Upon termination of this Agreement, you agree to stop using, remove from display and return promptly to ATA any and all property (including intellectual property) owned by ATA and in your possession.
b) Your and ATA’s obligations under this Agreement which by their nature would continue beyond the termination, cancellation or expiration of this Agreement shall survive termination, cancellation or expiration of this Agreement. Notwithstanding anything to the contrary, the following Sections of this Agreement shall survive the expiration or termination hereof: A (Definitions); G (Indemnification); H (Confidentiality); J (Intellectual Property); K (Limitation of Liability); and N (Miscellaneous).
1. You agree to indemnify and hold harmless ATA and its members, shareholders, directors, officers, employees, agents, contractors, representatives, parent company, affiliates and subsidiaries (together, the “Indemnified Parties”) from and against any losses, costs, charges, claims, damages, suits, liabilities, fines, expenses (including reasonable legal fees and expenses), actions, or judgments, made, brought, claimed, awarded, or recovered against the Indemnified Parties in connection with this Agreement and operation of the ATA Product or ATA Services, resulting from:
a) any action taken or permitted to be taken by any of the Indemnified Parties in good faith in reliance upon instructions, orders or information (including Confidential Information) received from you or your Customers as to anything arising in connection with ATA’s performance of its obligations under this Agreement;
b) physical harm to Persons or tangible personal property and real property caused by your or your Customers’ negligence;
c) any other negligent conduct or any fraudulent conduct of you or your directors, officers, agents or employees; or
d) any action taken by a Person using or relying upon any advice given or publication produced and distributed by you.
2. ATA shall indemnify, defend and hold you and your affiliates, officers, directors, employees, agents, successors and assigns harmless against any damages, losses, liabilities, claims, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to (i) any claim that alleges that any part of the ATA Product or ATA Services or deliverables created by ATA as part of the ATA Services infringes, violates or misappropriates a valid third party patent, copyright or other proprietary right; and (ii) the loss of or unauthorized access to or disclosure of your data (including, but not limited to, Personal Customer Data) due to the actions or omissions of ATA.
By virtue of this Agreement, each Party may have access to trade secrets and information that is confidential and/or proprietary to the other Party (collectively “Confidential Information”). The Party which owns and discloses to the other Party Confidential Information shall be referred to herein as the “Disclosing Party” and the Party to which the Disclosing Party discloses Confidential Information shall be referred to herein as the “Receiving Party.” Confidential Information shall include, but is not limited to, information regarding each other’s operations, data processing and procedures, billing and collection procedures, formulas, methods, know-how, processes, data, designs, new products, login account and passwords, developmental work, marketing requirements, marketing plans, the terms and pricing under this Agreement, and all information identified by the Disclosing Party at the time of disclosure as confidential or proprietary. Confidential Information shall not include information that (a) is or becomes a part of the public domain through no act or omission of the Receiving Party; (b) was in lawful possession prior to the disclosure and had not been obtained by the Receiving Party either directly or indirectly from the Disclosing Party; (c) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party. The Receiving Party agrees tom hold the Disclosing Party’s Confidential Information in confidence and not to disclose such Confidential Information. The Receiving Party agrees, unless required by law, not to make the Disclosing Party’s Confidential Information available in any form to any third party or to use the Disclosing Party’s Confidential Information for any purpose other than the implementation of this Agreement. Confidential Information may be shared with the Receiving Party’s employees, officers, directors, professional advisors, contractors, or agents (each a “Representative”) on a need-to-know basis only. The Receiving Party agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by such agents or employees in violation of the terms of this Agreement. If disclosure of any Confidential Information is compelled by court order, subpoena or other legal process, the Receiving Party shall give the Disclosing Party reasonable prior notice if possible, to enable the Disclosing Party to consent to such order or seek a protective order or other appropriate remedy. The Parties agree that any breach of obligations under this Section H will be a material breach of this Agreement and result in irreparable harm to the Disclosing Party, for which damages may be an inadequate remedy. In addition to the rights and remedies otherwise available at law, the Disclosing Party will be entitled to seek equitable relief, including injunction without the necessity of posting a bond, in the event of such breach and to recover its reasonable attorneys’ fees. The Receiving Party agrees to be responsible for any breach of this Section H by any Representative acting within its reasonable control, including the payment of court costs and legal fees. The obligations under this Section H shall survive for the expiration or earlier termination of the Agreement until such time as the Confidential Information becomes public knowledge.
1. Personal Customer Data
a) Customer Privacy. You shall communicate to Customers and any applicable third party (such operational third parties might include, by way of example, AWS and MongoDB) and obtain any applicable required rights and consents that Personal Customer Data will be provided to such third parties as needed, and will be available to other providers participating in providing ATA Services.
b) Use of Content. You hereby grant to ATA nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use the Content that ATA captures as part of performing the operations of the ATA Services. ATA agrees not to use any identifiable Personal Customer Data provided by you for any purpose other than performing its obligations under this Agreement.
2. Collecting Usage Data.
a) Definition. For the purposes of this Section, “Usage Data” means aggregated, encoded or anonymized data that ATA may collect about a group or category of services, features or users while you use the ATA Services, including analytics, and which does not contain Personal Customer Data, which is used to help understand trends in usage of the ATA Services.
b) Uses. In addition to collecting and using Usage Data, ATA may share Usage Data with third parties, including ATA subscribers, partners and service providers, for various purposes, including to help ATA better understand such subscribers’, partners’ and service providers’ needs and to improve the ATA Services. ATA may also use Usage Data to provide relevant information about the ATA Services and for purposes of marketing.
c) Aggregated Personal Customer Data that is not personally identifiable. ATA may anonymize the Personal Customer Data of your Customers so that they cannot be individually identified, and use this anonymized information, as segmented by industry, geography and other metrics to provide qualitative insight on customer support metrics and other relevant insights. ATA may also provide aggregate usage information to its affiliates for analytics purposes, who may use such information to help ATA understand how often and in what ways people use the ATA Services. However, ATA shall never disclose aggregate information to an affiliate in a manner that would identify your Customers personally, as an individual.
J. INTELLECTUAL PROPERTY.
1. ATA reserves all rights in the ATA Product not expressly granted to you in this Agreement. You acknowledge and agree that ATA owns all right, title and interest in and to the ATA Product, the ATA Services, the ASK THE AGENT trademark, and other trademarks owned by ATA and/or related to the ATA Product (collectively the “ATA Marks”), URLs that incorporate all or any portion of any ATA Marks, and the trade dress, and look and feel of the ATA Product and ATA Services, all of which are covered by various protections including, without limitation, copyright, trademark, and trade secrecy law. If you submit comments or ideas about the ATA Services, including ways to improve the ATA Services (“Ideas”), you agree that your submission is gratuitous, unsolicited and without restriction. It does not place ATA under any fiduciary or other obligation, and ATA is free to use the Ideas without compensation to you and/or to disclose the ideas to anyone on a non-confidential basis. You further acknowledge that ATA does not, by acceptance of your submission, waive any rights to use similar or related Ideas previously known to ATA, or developed by ATA’s employees or obtained from sources other than you. Neither Party to this Agreement obtains a right to use the other Party’s intellectual property rights or their trademarks beyond the Term of this Agreement, except as set forth in this Agreement. ATA reserves the right, in its sole discretion and without incurring any liability to you, to update, improve, replace, modify or alter the specifications for and functionality of all or any part of the ATA Product or ATA Services from time to time.
2. The materials provided by ATA through the Web Portal are protected by law, including, but not
limited to, United States copyright law. All rights to materials included within this Web Portal are reserved.
K. LIMITATION OF LIABILITY
1. EXCEPT AS SPECIFICALLY PROVIDED HEREIN, THE ATA PRODUCT IS NOT NECESSARILY ERROR-FREE AND IS BEING PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. ATA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE ATA PRODUCT AND ATA SERVICES AND ALL PARTS THEREOF INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. ATA MAKES NO WARRANTY OR REPRESENTATION REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE ATA PRODUCT AND ATA SERVICES, REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH USE OF THE ATA PRODUCT AND ATA SERVICES, OR THAT THE PROVISION OF THE ATA PRODUCT AND ATA SERVICES, ACCESS TO THE ATA PRODUCT AND ATA SERVICES AND TO YOUR AND YOUR CUSTOMERS’ DATA WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
2. ATA SHALL IN NO EVENT BE LIABLE FOR ANY LOSS OF DATA, PROFITS OR USE OF (OR INABILITY TO USE) THE ATA PRODUCT OR ATA SERVICES, OR RESULTING FROM LOSS OF, UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR OR YOUR CUSTOMERS’ TRANSMISSIONS OR DATA OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO SUCH DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE ATA PRODUCT OR ATA SERVICES, WITHOUT REGARD TO WHETHER ATA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, ATA’S AND ATA’S AFFILIATES' LIABILITY SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW. Software error can cause a significant loss of data. ATA shall not be responsible for any loss of data. It is your responsibility to have adequate backup procedures to protect you and your Customers from significant loss of valid data.
3. In no event will ATA, its parent company, subsidiaries, affiliates, members, shareholders, directors, officers, employees and representatives be liable to you or your Customers for any direct, indirect, incidental, special, consequential or punitive damages in connection with this Agreement or the ATA Product or ATA Services, including, but not limited to, payments, business interruption, loss of data, or loss of anticipated contracts, revenues, profits or savings, howsoever arising, whether directly or indirectly, from any contract breach, fundamental or otherwise, or from any acts or omissions (including negligence) of employees or those for whom ATA is in law responsible, even if ATA knew or should have known of the possibility of such damages. Without limiting the foregoing, ATA will have no liability to you or your Customers for anything done or omitted to be done, in accordance with the terms of this Agreement or instructions properly received from you pursuant hereto, if done in good faith and with reasonable care and without willful or wanton misconduct on ATA’s part.
4. You acknowledge that ATA’s ability to perform its obligations under this Agreement may be subject to government regulations and licensing of you and ATA in whatever jurisdiction ATA may choose to operate. ATA, its parent company, subsidiaries, affiliates, members, shareholders, directors, officers, employees and representatives shall not be held liable for any damages of any kind whatsoever that may result from changes in government legislation or policy.
5. ATA shall not be responsible for failure of performance of this Agreement due to causes beyond its control, including, but not limited to, work stoppages, fires, civil disobedience, riots, rebellions, acts of God, pandemics, and similar occurrences. You acknowledge that from time to time, as a result of hardware failure, supplier failures, or acts of God, the ATA Product or ATA Services provided under this Agreement by ATA can be temporarily disrupted. You acknowledge and agrees that neither ATA nor any of its members, parent company, subsidiaries, affiliates, shareholders, directors, officers, employees or representatives will be liable to you or your Customers for any special, indirect, consequential, punitive or exemplary damages, or damages for loss of profits or savings, in connection with these temporary disruptions.
6. The entire liability of ATA, its parent company, subsidiaries, affiliates, members, shareholders, directors, officers, employees and representatives to you or your Customers for damages relating to this Agreement and the ATA Product and ATA Services, regardless of the form of action or theory of liability (including breach of contract, even if a fundamental breach, or tort, including but not limited to negligence or misrepresentation), will be limited to an aggregate amount of the lesser of the actual amount of loss or damage suffered or the amount of your fees payable to ATA for the six months prior to the loss.
7. No action, regardless of form, arising out of any transaction under this Agreement may be brought by either party more than one year after the cause of action has accrued.
L. ENFORCEMENT AND ACTIONS
1. ATA reserves the right and has absolute discretion to restrict or remove from its servers any content that violates this Agreement or related policies or guidelines, or is otherwise objectionable or potentially infringing on any third party's rights or potentially in violation of any laws. If ATA becomes aware of any possible violation by you or your Customers of this Agreement, any related policies or guidelines, third party rights, or laws, ATA may, without penalty, immediately take corrective action, including, but not limited to: (a) issuing warnings; (b) suspending or terminating your use of the ATA Product or ATA Services; (c) restricting or prohibiting any and all uses of content hosted on ATA’s systems; and/or (d) disabling or removing any hypertext links to third party websites, any of your or your Customers’ Content distributed or made available for distribution via the ATA Product or ATA Services, or other content not supplied by ATA that, in ATA’s sole discretion, may violate or infringe any law or third-party rights or that otherwise exposes or potentially exposes ATA to civil or criminal liability or public ridicule. It is ATA’s policy to terminate repeat infringers. ATA’s right to take corrective action, however, does not obligate it to monitor or exert editorial control over the information made available for distribution via the ATA Product or ATA Services. If ATA takes corrective action due to such possible violation, it shall not be obligated to refund to you any subscription fees paid in advance of such corrective action.
2. To comply with applicable laws and lawful governmental requests, to protect ATA’s systems and clients, or to ensure the integrity and operation of ATA’s business and systems, ATA may access and disclose any information it considers necessary or appropriate, including, without limitation, your information or your Customers’ Personal Customer Data, Internet Protocol addressing and traffic information, usage history, and content residing on ATA’s servers and systems. ATA also reserves the right to report any activity that it suspects violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties.
3. If some or all of the ATA Product or ATA Services provided by ATA for use by you and your Customers is held by a court of competent jurisdiction to infringe a registered copyright, trademark or patent of a third party, then ATA will have the option, at its expense, to:
a) modify the ATA Product or ATA Services to be non-infringing;
b) replace the infringing ATA Product or ATA Services;
c) obtain for you a license to continue using the infringing ATA Product or ATA Services; or
d) terminate this Agreement upon thirty (30) days’ written notice.
4. Section L(3) states ATA’s entire liability and your exclusive remedy for any claim of trademark, patent or copyright infringement.
M. ELECTRONIC SIGNATURES AND CONTRACTS
1. Electronic Agreements. Your use of the Web Portal (upon its activation) includes the ability to enter into agreements or to make transactions electronically. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by and to pay for such agreements and transactions. Your agreement and intent to be bound by electronic submissions applies to all records relating to all transactions you enter into on this website, including, but not limited to, notices of cancellation, policies, contracts, and applications. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.
1. The laws of the State of Florida (without giving effect to its conflict of laws principles) govern all matters arising out of or relating to this Agreement and the transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement.
2. Additional Terms may be amended only in writing that is signed by an authorized representative of each Party. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the remaining provisions of this Agreement will remain in full force, if the essential terms and conditions of this Agreement for each Party remain valid, binding, and enforceable.
3. The Parties can waive terms of this Agreement only by a writing executed by the Party against whom the waiver is sought to be enforced. No failure or delay in exercising any right or remedy, or in requiring the satisfaction of any condition under this Agreement, and no act, omission or course of dealing between the Parties, operates as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated; it does not constitute a waiver for any future occasion or against any other person.
4. ATA may send you a notice with respect to ATA Services by sending an email message to the email address in your contact information, by sending a letter via postal mail to the contact address listed in your contact information, or by a posting on the Web Portal. Notice shall become effective immediately.
5. This Agreement shall be binding upon and shall inure to the benefit of each Party and its respective successors and permitted assigns. Neither Party shall, directly or indirectly, assign this Agreement without the prior written consent of the other Party unless such assignment is (i) to an affiliate of such Party or (ii) in connection with any merger or change of control or the sale of all or substantially all of its assets provided that any such successor agrees to fulfill its obligations pursuant to this Agreement. Any assignment not made in compliance with this paragraph shall be deemed null, void and of no effect.
6. This Agreement supersedes any other agreement, written or oral, that may have been made or entered into by the Parties hereto (or by any director, officer or representative of any such Party) relating to the matters contemplated hereby. This Agreement may be subsequently amended by “click through” or another electronic signature. This Agreement constitutes the entire agreement by and among the Parties with respect to the subject matter hereof and there are no agreements or commitments except as expressly set forth herein.
7. Titles and headings to articles and sections herein are inserted for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
8. In the exercise of its rights and the performance of its obligations hereunder, each Party will act solely as an independent contractor, and nothing contained herein shall be construed to create a relationship of agency, partnership or joint venture between any of the Parties. Each of the Parties covenants and agrees that it shall not have or hold itself out as having any right, authority or agency to act on behalf of any other Party in any capacity or in any manner except as specifically authorized in this Agreement, and none of the Parties shall become liable to any person by reason of any representation, action or omission contrary to this provision.
9. Most of your concerns about the ATA Services can be addressed by contacting ATA at firstname.lastname@example.org. In the event ATA cannot resolve any dispute with you, the Parties agree that any dispute or disagreement arising out of or relating to this Agreement shall be settled by binding and confidential arbitration. The arbitration shall be governed by the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), including, if applicable, the Procedures for Large, Complex Commercial Disputes (the “Rules”), subject to the provisions of this Section. Upon application by one or more of the Parties, the arbitrators shall decide if any inconsistency exists between the Rules and this Section. If any inconsistency exists, the provisions of this Section control and supersede the Rules. The Parties agree that any dispute or disagreement arising out of or relating to this Agreement shall not be consolidated with any other dispute or disagreement between the Parties, without the written consent of all the Parties hereto.
9.1 Location. The Parties agree that arbitration proceedings shall be conducted in Volusia County, Florida.
9.2 Arbitrators. The arbitration shall be conducted by a panel of three arbitrators. The arbitrators shall be disinterested active or former officers of insurance or reinsurance companies or third-party administration service contract companies, with at least ten (10) years of experience within the insurance and service contract industry, or active or retired judges or attorneys. Each Party shall appoint its arbitrator within thirty (30) days after service of the notice. The two arbitrators shall then choose a third arbitrator as umpire within thirty (30) days after appointment of the first two arbitrators. If the two arbitrators fail to agree upon the umpire within the thirty (30) day period, AAA shall choose an umpire possessing the qualifications set forth above.
9.3 Limitation of Damages. The arbitrators shall have no authority to award punitive, exemplary or statutory damages, and the Parties hereby agree to waive any right to recover such damages in any dispute resolved by arbitration.
9.4 Arbitration Award. Any arbitration award or portion thereof, whether preliminary or final, shall be in a writing signed by a majority of the arbitrators. Unless previously agreed in writing by the Parties, the award shall not state the reasons or the factual and legal bases upon which it or any portion of it is based. A judgment on the arbitration award may be entered in any court having jurisdiction thereof.
9.5 Costs and Expenses. The costs and expenses of the arbitration proceedings, including the fees and expenses of the umpire, shall be borne by the Parties in equal shares. Each Party shall otherwise bear its own costs and expenses in such regard.
9.6 Confidentiality. Except as may be required by law or required to secure a judgment on the arbitration award, neither the Parties nor the arbitrators shall disclose the existence, content or results of any arbitration conducted hereunder without the prior written consent of the Parties.
9.7 Governing Law. The validity and enforcement of any arbitration conducted hereunder shall be governed by the laws of the State of Florida without regard to conflicts of laws principles.
9.8 Rights Not Limited. Any Party may, without waiving any right or remedy under this Section, seek any interim, preliminary or injunctive relief that is necessary to protect the rights or property of that Party, pending an arbitration award by the arbitrators. The Parties agree that the exclusive venue and jurisdiction for any court action or other legal proceeding seeking such relief will be in the state or federal district courts located in Volusia County, Florida, and the Parties hereby waive any defenses or objections to such venue or jurisdiction that might otherwise be available.
10. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any person other than the Parties any rights or remedies under or by reason of this Agreement or any transaction contemplated hereby, except the permitted assigns of the Parties.
11. Where the terms of this Agreement require approval by either Party, approval requests shall be considered timely and in good faith, and approvals shall not be unreasonably withheld. A duly authorized representative of your company has executed this Services Agreement as of the date set forth above.
12. If You are under 13 years of age, you are not authorized to use the ATA Services, with or without registering. In addition, if you are under 18 years old, you may use the ATA Services, with or without registering, only with the approval of your parent or guardian.