YATCO SaaS
End User Agreement
– version 1.0 (updated 01/20/2022)
IMPORTANT
NOTICE: DISPUTES ABOUT THIS AGREEMENT AND THE SERVICES PROVIDED BY YATCO ARE
SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED
IN THE “MANDATORY ARBITRATION AND CLASS ACTION WAIVER” SECTION BELOW.
This Agreement (the “Agreement”)
is between YATCO, LLC (“YATCO”) and the individual accepting these terms (“User”).
This Agreement controls User’s access to YATCO’s technology platform and services
and its associated applications, portals, and website, etc. (the “Service”).
By clicking “I Agree,” or by
accessing or using the Service and its associated or affiliated, products, applications,
portals, reporting, and websites, etc., as a User, you agree that in
consideration of the mutual covenants, terms, and conditions set forth herein,
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, you have read, understand, and agree to accept and
be bound by the terms of this YATCO SaaS End User Agreement, YATCO’s Website Terms of Use, and YATCO’s Privacy Policy, (together the “User Terms of Use” or “Terms” or “Agreement”) current copies of
which can be found at www.YATCO.com and/or at www.YATCOBOSS.com and
that the foregoing creates a legal agreement between you and YATCO.
To use the Services, you must be,
and represent and warrant, that you are competent to agree to these User Terms
of Use. If you are agreeing to these User Terms of Use on behalf of an
organization or entity, you represent and warrant that you are authorized to
agree to these User Terms of Use on that organization or entity’s behalf and
bind them to these User Terms of Use (in which case, the references to “you”
and “your” in these User Terms of Use, except for in this sentence, refer to
that organization or entity). If YATCO has previously prohibited you from
accessing or using the Services, you are not permitted to access or use the
Services.
IF USERS REGISTER FOR A FREE TRIAL, OR
ARE OTHERWISE GIVEN EVALUATION ACCESS OF YATCO’s SERVICES, THIS AGREEMENT WILL ALSO APPLY.
If you do not agree to these User
Terms of Use, then you have no right to access or use the Services, and any
such unauthorized use shall be deemed a breach of these Terms. In the event of a conflict between the terms
of this YATCO SaaS End User Agreement and the YATCO User Agreement, Web Terms
of Use, or the Privacy Policy, the terms of this YATCO SaaS End User Agreement
shall govern and prevail.
Organizations
or other third parties that have paid for a subscription to Yatco for use by
their teams and clients (“Subscriber”) must separately submit a Yatco Boss
Purchase Order and accept the terms of Yatco SAAS Subscriber
Agreement and Yatco’s
Website Terms of Use, and Yatco’s Privacy Policy (together
the “Subscriber Agreement”). That
Subscriber Agreement permits Subscriber’s to create and configure teams and
clients and invite other users of the Service under Subscriber’s account
(“Users”) to join. If you have been invited to a team created by a Subscriber
or as a client of a Subscriber, you acknowledge and agree that the Subscriber
owns all content/information that you submit or enter into the Services and
controls your use of the Services in accordance with applicable local laws,
including but not limited to adding or removing you from a team or as a client,
enabling or disabling third-party integrations, managing permissions, and
accessing, modifying, or removing content that you submit or upload to the
Services.
YATCO may, from time to time, modify these User Terms of Use. Please
check this page periodically for updates. If you do not agree to, or cannot
comply with, the modified User Terms of Use, you must stop using the Services.
The updated User Terms of Use will take effect upon their posting and will
apply on a go-forward basis, unless otherwise provided in a notice to you, and
except as provided in the Mandatory Arbitration and Class Action Waiver section
of these User Terms of Use. Your continued use of the Services after any
such update constitutes your binding acceptance of such changes.
This
Agreement commences on the date User first accepts it (“Effective Date”) and,
unless terminated earlier pursuant any of the Agreement's express provisions,
will continue on as stated in the relevant
YATCO Boss Purchase Order (the "Term") unless earlier terminated pursuant to this Agreement's
express provisions or either party gives the other party ninety (90) days written notice of non-renewal in keeping with the terms of
this Agreement.
"Documentation" means any manuals, instructions, or other documents or
materials that the YATCO provides or makes available to User in any form or
medium and which describe the functionality, components, features, or
requirements of the Services or YATCO Materials, including any aspect of the
installation, configuration, integration, operation, use, support, or
maintenance thereof.
"Harmful Code" means any software,
hardware, or other technology, device, or means, including any virus, worm,
malware, or other malicious computer code, the purpose or effect of which is to
(a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or
otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or
(ii) any application or function of any of the foregoing or the security,
integrity, confidentiality, or use of any data Processed thereby; or (b)
prevent User from accessing or using the Services or YATCO Systems as intended
by this Agreement. Harmful Code does not include any YATCO Disabling Device.
"Intellectual Property Rights"
means any
and all registered and unregistered rights granted, applied for, or
otherwise now or hereafter in existence under or related to any patent,
copyright, trademark, trade secret, database protection, or other intellectual
property rights laws, and all similar or equivalent rights or forms of
protection, in any part of the world.
"Losses" means any and all
losses, damages, deficiencies, claims, actions, judgments, settlements,
interest, awards, penalties, fines, costs, or expenses of whatever kind,
including reasonable attorneys' fees and the costs of enforcing any right to
indemnification hereunder and the cost of pursuing any insurance providers.
"Personal Information" means
information that User provides or for which User provides access to YATCO, or
information which YATCO creates or obtains on behalf of User, in accordance
with this Agreement that: (i) directly or indirectly identifies an individual (including, for
example, names, signatures, addresses, telephone numbers, email addresses, and
other unique identifiers); or (ii) can be used to authenticate an individual
(including, without limitation, employee identification numbers,
government-issued identification numbers, passwords or PINs, user
identification and account access credentials or passwords, financial account numbers,
credit report information, student information, biometric, genetic, health, or
health insurance data, answers to security questions, and other personal
identifiers). User’s business contact information is not by itself Personal
Information.
"Process" means to take any action
or perform any operation or set of operations that the SaaS Services are
capable of taking or performing on any data, information, or other content,
including to collect, receive, input, upload, download, record, reproduce, store,
organize, compile, combine, log, catalog, cross-reference, manage, maintain,
copy, adapt, alter, translate, or make other derivative works or improvements,
process, retrieve, output, consult, use, perform, display, disseminate,
transmit, submit, post, transfer, disclose, or otherwise provide or make
available, or block, erase, or destroy. "Processing" and "Processed"
have correlative meanings.
"Resultant Data" means data and information related
to User's use of the Services that is used by YATCO in an
aggregate and anonymized manner, including to compile statistical and
performance information related to the provision and operation of the Services.
"Specifications" means the specifications for the Services set
forth in the Documentation and the YATCO
Boss Purchase Order.
"Third-Party
Materials" means materials and information, in any form or medium,
including any open-source or other software, documents, data, content,
specifications, products, equipment, or components of or relating to the Services
that are not proprietary to YATCO.
"User" means an authorized User for
whom access to the Services has been purchased hereunder.
""User Data"
means information, data, and other content, in any form or medium, that is
collected, downloaded, uploaded, or otherwise received, directly or indirectly
from User by or through the Services and/or that incorporates or is derived
from the Processing of such information, data, or content by or through the
Services. For the avoidance of doubt, User
Data does not include Resultant Data or any other information reflecting
the access or use of the Services by or on behalf of any User.
"User Systems" means the User's
information technology infrastructure, including computers, software, hardware,
databases, electronic systems (including database management systems), and
networks, whether operated directly by User or through the use of
third-party services.
"YATCO Systems" means the
information technology infrastructure used by or on behalf of YATCO in
performing the Services, including all computers, software, hardware,
databases, electronic systems (including database management systems), and
networks, whether operated directly by YATCO or through the use of
third-party services.
2.
Intellectual Property Rights.
2.1
User
Data.
As between User and YATCO, User is and will remain the sole and exclusive owner
of all right, title, and interest in and to all User Data, including all
Intellectual Property Rights relating to the same, subject to the rights and
permissions granted in Section 2.2.
2.2
Consent
to Use User Data.
User hereby irrevocably grants all such rights and permissions in or relating
to User Data as are necessary or useful to YATCO, its Subcontractors, and the
YATCO Personnel to enforce this Agreement and exercise YATCO’s, its
Subcontractors, and the YATCO Personnel's rights and perform YATCO’s, its
Subcontractors', and the YATCO Personnel's obligations hereunder.
2.3
Consent
to Use User Data to Offer Additional Opportunities. User hereby irrevocably grant all such
rights and permissions in or relating to User Data for YATCO, and for those
third parties that YATCO, in its sole discretion, deems potentially of interest
to Users, to
enable the offering and provision of additional services or opportunities
(including third (3) party services and/or opportunities) to User. This Section shall not be subject to Section
15.
2.4
YATCO
Materials.
All right, title, and interest in and to the YATCO Materials, including all
Intellectual Property Rights therein, are and will remain with YATCO and, with
respect to Third-Party Materials, the applicable third-party providers own all
right, title, and interest, including all Intellectual Property Rights, in and
to the Third-Party Materials. YATCO does not grant any right, license, or
authorization with respect to any of the YATCO Materials except as expressly
set forth in Section 4 or the applicable third-party license, in each case
subject to Section 5.1. All other rights in and to the YATCO Materials are expressly
reserved by YATCO. In furtherance of the foregoing, User hereby unconditionally
and irrevocably grants to YATCO an assignment of all right, title, and interest
in and to the Resultant Data, including all Intellectual Property Rights
relating thereto.
3.1
Confidential
Information. In connection with this Agreement each party (as the "Disclosing Party") may disclose or
make available Confidential Information to the other party (as the "Receiving Party"). Subject to
Section3.2, "Confidential
Information" means information in any form or medium (whether oral,
written, electronic, or other) that the Disclosing Party considers confidential
or proprietary, including information consisting of or relating to the
Disclosing Party's technology, trade secrets, know-how, business operations,
plans, strategies, customers, users, and pricing, and information with respect
to which the Disclosing Party has contractual or other confidentiality
obligations, in each case whether or not marked, designated, or otherwise
identified as "confidential". Without limiting the foregoing: all YATCO
Materials are the Confidential Information of YATCO and the terms and existence
of this Agreement are the Confidential Information of YATCO.
3.2
Exclusions.
Confidential Information does not include information that the Receiving Party
can demonstrate by written or other documentary records: (a) was rightfully
known to the Receiving Party without restriction on use or disclosure prior to
such information's being disclosed or made available to the Receiving Party in
connection with this Agreement; (b) was or becomes generally known by the
public other than by the Receiving Party's or any of its Representatives'
noncompliance with this Agreement; (c) was or is received by the Receiving
Party on a non-confidential basis from a third party that, to the Receiving
Party's knowledge, was not or is not, at the time of such receipt, under any
obligation to maintain its confidentiality; or (d) the Receiving Party can
demonstrate by written or other documentary records was or is independently
developed by the Receiving Party without reference to or use of any
Confidential Information.
3.3
Protection
of Confidential Information. As a
condition to being provided with any disclosure of or access to Confidential
Information, the Receiving Party shall for three (3) years:
(b)
except as may be permitted by and subject to its compliance with
Section 3.4, not disclose or permit access to Confidential Information other
than to its Representatives who: (i) need to know such Confidential Information for purposes of the
Receiving Party's exercise of its rights or performance of its obligations
under and in accordance with this Agreement; (ii) have been informed of the
confidential nature of the Confidential Information and the Receiving Party's
obligations under this Section 3.3; and (iii) are bound by written
confidentiality and restricted use obligations at least as protective of the
Confidential Information as the terms set forth in this Section 3;
(f)
Notwithstanding any other provisions of this Agreement, the
Receiving Party's obligations under this Section 3 with respect to any
Confidential Information that constitutes a trade secret under any applicable
Law will continue until such time, if ever, as such Confidential Information
ceases to qualify for trade secret protection under one or more such applicable
Laws other than as
a result of any act or omission of the Receiving Party or any of its
Representatives.
3.4
Compelled
Disclosures. If the Receiving Party or any of its Representatives is
compelled by a court or applicable Law to disclose any Confidential Information
then, to the extent permitted by applicable Law, the Receiving Party shall: (a)
promptly, and prior to such disclosure, notify the Disclosing Party in writing
of such requirement so that the Disclosing Party can seek a protective order or
other remedy or waive its rights under Section 3.3; and (b) provide reasonable
assistance to the Disclosing Party in opposing such disclosure or seeking a
protective order or other limitations on disclosure. If the Disclosing Party
waives compliance or, after providing the notice and assistance required under
this Section 3.4, the Receiving Party remains required by Law to disclose any
Confidential Information, the Receiving Party shall disclose only that portion
of the Confidential Information that, on the advice of the Receiving Party's
legal counsel, the Receiving Party is legally required to disclose and, on the
Disclosing Party's request, shall use commercially reasonable efforts to obtain
assurances from the applicable court or other presiding authority that such
Confidential Information will be afforded confidential treatment.
4.1
Administration
of User’s Account. User is responsible for: (i)
maintaining the confidentiality of passwords and accounts; (ii) managing access
to User’s accounts; and (iii) ensuring that User’s use of the Service complies
with this Agreement. YATCO shall not be held liable for any actions on the part
of User. User shall also be responsible
for the creation of user and administrator accounts.
4.2
User
Conduct; Compliance. User
is responsible for use of the Service and for their compliance with YATCO’s User
Terms of Use. User access credentials are for use only by the specific
individuals to whom the credentials are issued.
As such, Users are strictly prohibited from sharing their access
credentials with others. Users shall use
best efforts to not prevent their access credentials from being shared or used
by others.
User is also
responsible for providing any notice and obtaining any consents and
authorizations necessary: (i) to allow User to
access, monitor, use, and disclose the content posted by the Users on the
Service; and (ii) to allow YATCO to provide access to such User content. The
Service is not authorized for use by persons under the age of 18 or the age of majority as that is defined in their
jurisdiction, whichever is older, and
User will ensure that it does not allow any person under 18 years of age or the age of majority as that is defined in their
jurisdiction, whichever is older, to
use the Service.
User
will promptly notify YATCO if it becomes aware of any unauthorized access to User’s
account or the Service. User is also responsible and liable for ensuring that
it: obtains the relevant permissions required by law to text or email anyone
via the Service; does not use misleading header information; clearly and
conspicuously identify texts and emails as an advertisement if such is the
case; includes a valid postal address for their business in their text and
email campaigns; include a legally compliant method for recipients to opt-out
of receiving future texts and emails; honor any such opt-request promptly and
efficiently but no later than 10 business days within receipt of such (or
earlier if required by law); remain fully liable for the texts and email
campaigns even if they are sending it out on behalf of someone else.
4.3
Access
and Use.
Subject to and conditioned on User’s ongoing compliance with the terms and
conditions of this Agreement, YATCO hereby grants authorized Users a
non-exclusive, non-transferable (except in compliance with Section 16.9) right to access and use the Services during the term, solely for
use by Users and strictly in accordance with the terms and conditions herein.
Such use is limited to User's internal use. The term of
this Agreement shall begin on the date User accepts these terms and accesses
the Service and end upon termination pursuant to this Agreement.
4.4
Documentation
License.
YATCO hereby grants to User a non-exclusive, non-sublicensable,
non-transferable (except in compliance with Section 16.9) license to use the Documentation during the Term solely for User's
internal business purposes in connection with its use of the Services.
4.5
Service
and System Control.
Except as otherwise expressly provided in this Agreement, as between the
parties:
(b)
Unless otherwise agreed in separate signed writing, User has and
will retain sole control over the operation, maintenance, and management of,
and all access to and use of, the User Systems, and sole responsibility for all
access to and use of the YATCO Materials by any Person by or through the User
Systems or any other means controlled by User, including any: (i) information, instructions, or materials provided by any of them
to the Services or YATCO; (ii) results obtained from any use of the Services or
YATCO Materials; and (iii) conclusions, decisions, or actions based on such
use.
4.6
Reservation
of Rights.
Nothing in this Agreement grants any right, title, or interest in or to
(including any license under) any Intellectual Property Rights in or relating
to, the Services, YATCO Materials, or Third-Party Materials, whether expressly,
by implication, estoppel, or otherwise. All right, title, and interest in and
to the Services, the YATCO Materials, and the Third-Party Materials are and
will remain with YATCO and the respective rights holders in the Third-Party
Materials.
4.7
Changes. YATCO reserves the right, in its sole discretion, to make any
changes to the Services and YATCO Materials that it deems necessary or useful
to: (a) maintain or enhance: (i) the quality or
delivery of YATCO’s services to its customers; (ii) the competitive strength of
or market for YATCO’s services; or (iii) the Services' cost efficiency or
performance; or (b) to comply with applicable Law.
4.8
Subcontractors. Unless otherwise specifically agreed to in signed writing, YATCO
may from time to time in its discretion engage third parties to perform
Services (each, a "Subcontractor").
4.9
Suspension
or Termination of Services. YATCO may, directly or indirectly, and by use of a YATCO
Disabling Device or any other lawful means, suspend, terminate, or otherwise
deny any User's, or any other Person's access to or use of all or any part of
the Services or YATCO Materials, without incurring any resulting obligation or
liability, if: (a) YATCO receives a judicial order, subpoena, or law
enforcement request that expressly or by reasonable implication requires YATCO
to do so; or (b) YATCO believes, in its good faith and sole discretion, that: (i) any User has failed to comply with any material term of
this Agreement, or accessed or used the Services beyond the scope of the rights
granted or for a purpose not authorized under this Agreement or in any manner
that does not comply with any material instruction or requirement of the specifications;
(ii) any User is, has been, or is likely to be involved in any fraudulent,
misleading, or unlawful activities; or (iii) this Agreement expires or is
terminated. This Section 4.9 does not limit any of YATCO’s other rights or
remedies, whether at law, in equity, or under this Agreement.
5.
Use Restrictions; Service Usage and Data
Storage.
5.1
Use
Restrictions.
User, and others Person who obtain authorized or unauthorized access to the
Service, shall not, and shall not permit any other Person to, access or use the
Services or YATCO Materials except as expressly permitted by this Agreement
and, in the case of Third-Party Materials, the applicable third-party license
agreement. For purposes of clarity and without limiting the generality of the foregoing , User, and any others Person who obtain
authorized or unauthorized access to the Service, shall not, except as this
Agreement expressly permits:
(b)
rent, lease, lend, sell, sublicense, assign, distribute, publish,
transfer, or otherwise make available any Services or YATCO Materials, or any
other materials or content accessed via the Service, to any Person, including on or in connection with the internet or
any time-sharing, service bureau, software as a service, cloud, or other
technology or service;
(d)
bypass or breach any security device or protection used by the
Services or YATCO Materials or access or use the Services or YATCO Materials
other than by an User through the use of his or her own then valid Access
Credentials;
(i)
access or use the Services or YATCO Materials ,
or any other materials or content accessed via the Service, for purposes of
competitive analysis of the Services or YATCO Materials, the development,
provision, or use of a competing software service or product or any other
purpose that is to the YATCO’s detriment or commercial disadvantage;
6.1
Systems and Cooperation. User
shall at all times during the Term: (a) set up, maintain, and operate in good
repair and in accordance with the specifications all User Systems on or through which the
Services are accessed or used; (b) provide YATCO Personnel with such access to User's
Data and User Systems as is necessary for YATCO to implement and perform the
Services in accordance with the Services
to be provided and the selections on the YATCO Boss Purchase Order; (c) provide all
cooperation and assistance as YATCO may reasonably request to enable YATCO to
exercise its rights and perform its obligations under and in connection with
this Agreement, and (d) abide by all relevant rules governing the use of Data.
6.2
Effect
of User Failure or Delay.
YATCO is not responsible or liable for any delay, consequence, or failure of
performance caused in whole or in part by User's delay in performing, performance,
or failure to perform, any of its obligations under this Agreement (each, a
"User Failure").
6.3
Corrective
Action and Notice.
If User becomes aware of any actual or threatened activity prohibited by
Section 3.1, User shall, and shall immediately: (a) take all reasonable and
lawful measures within their respective control that are necessary to stop the
activity or threatened activity and to mitigate its effects (including, where
applicable, by discontinuing and preventing any unauthorized access to the
Services and YATCO Materials and permanently erasing from their systems and
destroying any data to which any of them have gained unauthorized access); and
(b) immediately notify YATCO of any such actual or threatened activity.
6.4
Non-Solicitation. During the Term and for two years after, User shall not, and
shall not assist any other Person to, directly or indirectly recruit or solicit
(other than by general advertisement not directed specifically to any Person or
Persons) for employment or engagement as an independent contractor any Person
then or within the prior 12 months employed or engaged by YATCO or any
Subcontractor and involved in any respect with the Services or the performance
of this Agreement. In the event of a violation of this Section 6.4, YATCO will
be entitled to liquidated damages equal to the compensation paid by YATCO to
the applicable employee or contractor during the prior 18 months.
7.1
Service
Levels.
Subject
to the terms and conditions of this Agreement, and the availability of third
party services used by YATCO, YATCO will use reasonable efforts to make the
Services Available at least ninety-nine and one half percent (99.5% of the time as measured over the course of each calendar
month during the Term (each such calendar month, a "Service Period"),
excluding unavailability as a result of any of the Exceptions described below
in this Section 7.1 (the "Availability
Requirement"). "Service
Level Failure" means a material failure of the Services to meet the
Availability Requirement. "Available"
means the Services are available for access and use by User over the Internet
and operating in material accordance with the Specifications. For purposes of
calculating the Availability Requirement, the following are "Exceptions" to the Availability
Requirement, and neither the Services will be considered un-Available nor any
Service Level Failure be deemed to occur in connection with any failure to meet
the Availability Requirement or impaired ability of User to access or use the
Services that is due, in whole or in part, to any: (a) access to or use of the
Services by User, or using User's Access Credentials, that does not strictly
comply with this Agreement and the specifications; (b) User Failure; (c) User's
Internet connectivity; (d) Force Majeure Event or the failure of the Service is
due to the acts of third (3) parties; (e) failure, interruption, outage, or
other problem with any software, hardware, system, network, facility, or other
matter not supplied by YATCO pursuant to this Agreement; (f) Scheduled Downtime
or when User is provided with advance notice by YATCO; or (g) disabling,
suspension, or termination of the Services pursuant to Section 4.10.
7.2
Service
Level Failures and Remedies. In the event of a Service Level Failure, User must notify YATCO
of the occurrence of such via email at info@YATCO.com within five (5) days of the occurrence of such.
7.3
Scheduled
Downtime.
YATCO explicitly reserves the sole right to: (a) schedule downtime for routine
maintenance of the Services in a standard maintenance window daily between the
hours of 8 p.m. and 8 a.m., GMT; (b) provide emergency fixes, as defined and deemed necessary in YATCO’s sole discretion; and
(c) give at least 24 hours prior notice of all other scheduled outages of the
Services ("Scheduled Downtime")
outside of the standard maintenance window.
7.4
Service
Request and Response Procedures, Severity Classifications
and Issue Escalation. If User encounters an Issue with
the Services, User's Support Contact will engage Provider User Support Services
and submit service requests via the Help Desk / Client Portal, or Provider's
designated company phone number, or info@YATCO.com email address. Provider will
respond to service requests during Hours of Operation. User shall work closely
with Provider to provide reproducible results for any such Issues
reported.
Provider's
ability to assist with Issues will depend, in some cases, on the ability of the
Support Contact to provide accurate and detailed information, and to conduct
diagnostics and testing. Provider will
use commercially reasonable efforts to provide an initial response to User's
support request, and follow-up response to Users concerning Issues, in
accordance with the response times specified in User's Support Option. Provider reserves the right to use any
resolution delivery method (“Resolution”) available to resolve an Issue.
Resolution of any Issue(s) which Provider provides in the form of a release of
Services will address Issue(s) only with respect to the most current release of
the Services and, in Provider's sole discretion, the most recent previous
sequential release.
Upon
receipt of a properly submitted service request, Provider will assign each
request for User Support Services a case number, and prioritize and assign each
Issue with a severity level (“Severity Level”) per the guidelines below:
(a)
“Severity 1 (S1)” -- A severity one (1) issue is a catastrophic production
problem within the Services which severely impacts the User's production
systems, or in which User's production systems are down or not functioning;
loss of production data and no work around exists.
(b)
“Severity 2 (S2)” -- A severity two (2) issue is a problem within
the Services where the User's system is functioning but in a severely reduced
capacity. The situation is causing significant impact to portions of the User's
business operations and productivity. The system is exposed to potential loss
or interruption of service. Issues existing in a non-production environment
that would otherwise qualify as a severity one (1) issue qualify as a severity
two (2) issue.
(c)
“Severity 3 (S3)” -- A severity three (3) issue is a medium-to-low
impact problem which involves partial non-critical functionality loss -- i.e.,
one which impairs some operations but allows the User to continue to function.
This may be a minor issue with limited loss or no loss of functionality or
impact to the User's operation and issues in which there is an easy
circumvention or avoidance by the end user.
(d)
“Severity 4 (S4)” -- A severity four (4) issue is for a general
usage question or issue that may be cosmetic in nature or documentation
related. Services works without any functional limitation.
(e)
“Enhancement Request (ER)” -- An enhancement request is a
recommendation for future product enhancement or modification to add official
support and documentation for unsupported, undocumented, or features that do
not exist in the Services. Provider will take ERs into consideration in the
product management process but has no obligation to deliver enhancements based
on any ER.
In
the event that User
reasonably believes that it has an S1 Issue, the Principal Support Contact will
notify User Support within an appropriate timeframe so as to not delay
Provider's ability to work to provide a Resolution. The Principal Support
Contact will use all reasonable efforts to provide User Support Services with
all necessary personnel and information to accurately troubleshoot the Issue.
Provider
will use continuous efforts during Hours of Operation to provide a Resolution
for any Severity 1 Issue. Provider will escalate unresolved Issues to the
appropriate level in its corporate organization in accordance with the
following time frames. (Elapsed time begins at customer notification that the
request has been received by Provider. Escalation times are contingent upon User's
technical staff availability and will only accrue during efforts made by
Provider within its Hours of Operation).
7.5
LIMITATIONS. THE FOLLOWING ARE NOT INCLUDED IN THE SCOPE OF USERUSER
SUPPORT SERVICES:
(a)
Assistance in the development or debugging of a User
system. User Support Services do not include assistance in developing or
debugging User's operating system or system tools.
(b)
Information and assistance on technical issues related to the
installation, administration, and use of enabling technologies such as
databases, computer networks, and communications. Provider does not provide
these services.
(c)
Assistance with the installation and configuration of hardware
including, but not limited to computers, hard disks, networks, printers.
Provider does not provide these services.
(d)
Depending upon the nature and complexity of any Issue, the User
may be referred to Provider Professional Services, and Provider may, in its
discretion, agree to provide such assistance for a fee consistent with
Provider's then-current pricing for such services.
8.
Data
Backup.
The
YATCO Systems are programmed to perform routine data backups as set out in YATCO’s
backup policy in effect from time to time. In the event of any loss,
destruction, damage, or corruption of User Data caused by the YATCO Systems or
Services, YATCO will, as its sole obligation and liability and as User's sole
remedy, use commercially reasonable efforts to restore the User Data from YATCO’s
then most current backup of such User Data in accordance with the then current backup
policy.
9.1
YATCO
Systems, Accessibility, and Security Obligations.
YATCO will employ measures in accordance with YATCO’s data privacy,
accessibility, and security policy as may be amended from time to time.
User shall strictly comply with any such measures and requirements as
established in the sole and absolute discretion of YATCO.
9.2
Data
Breach Procedures.
YATCO maintains a data breach plan and shall implement
the procedures required under such data breach plan on the occurrence of a data
breach.
9.3
Prohibited
Data.
User acknowledges that the Services are not designed with security and access
management for Processing the following categories of information: (a) data
that is classified and or used on the U.S. Munitions list, including software
and technical data; (b) articles, services, and related technical data
designated as defense articles or defense services; and (c) ITAR (International
Traffic in Arms Regulations) related data, (each of the foregoing, "Prohibited Data"). User shall not,
and shall not permit, any User or other Person to,
provide any Prohibited Data to, or Process any Prohibited Data through, the
Services, the YATCO Systems, or any YATCO Personnel. User is solely responsible
for reviewing all User Data and shall ensure that no User Data constitutes or contains
any Prohibited Data.
9.4
User
Control and Responsibility.
User has and will retain sole responsibility for: (a) all User Data,
including its content and use; (b) all information, instructions, and materials
provided by or on behalf of User in connection with the Services; (c) User's
information technology infrastructure, including computers, software,
databases, electronic systems (including database management systems), and
networks, whether operated directly by User or through the use of third-party
services ("User Systems"); (d) the security and use of User’s Access
Credentials; and (e) all access to and use of the Services and YATCO Materials
directly or indirectly by or through the User Systems or User’s Access
Credentials, with or without User's knowledge or consent, including all results
obtained from, and all conclusions, decisions, and actions based on, such
access or use.
9.5
Access
and Security.
User shall employ all physical, administrative, and technical controls,
screening, and security procedures and other safeguards necessary to: (a)
securely administer the distribution and use of all Access Credentials and
protect against any unauthorized access to or use of the Services; and (b)
control the content and use of User Data, including the uploading or other
provision of User Data for Processing by the Services.
10.1
Fees.
Subscriber shall pay YATCO the fees as set forth in the relevant YATCO Boss Purchase Order.
10.2
Late
Payment.
YATCO
may suspend performance of the Services until all past due amounts and interest
thereon have been paid, without incurring any obligation or liability to User
or any other Person by reason of such suspension. For purposes of this Section,
notice shall be deemed sufficient is such is in the form of an email or message
notification through the Service, e.g. a message on
the screen of the User.
(a)
Audit Procedure. YATCO or its nominee (including its accountants and auditors) may,
in YATCO’s sole discretion, inspect and audit User's use of the Services under
this Agreement at any time during the Term and for 5 years following the
termination or earlier expiration of this Agreement. All audits will be
conducted during regular business hours, and no more frequently than once in
any 12 month period, and in a manner that does not
unreasonably interfere with User's business operations. User shall make
available all such books, records, equipment, information, and personnel, and
provide all such cooperation and assistance, as may be requested by or on
behalf of YATCO with respect to such audit. YATCO shall only examine
information directly related to User's use of the Software.
11.
Beta Testing. From time to time, Beta versions of Services or a portion
thereof may be made available. If and
the extent such Beta versions are offered, they will be marked as “Beta” and
will be provided without warranty of any kind to User and on an AS IS
basis. Uses of Beta Services are
entirely voluntarily, and unless otherwise specified in writing, are free of
charge. YATCO provides Beta versions of
Services to variously assist YATCO with testing functionality, determining
their utility, and gathering general feedback on certain features of the
Services. However, by their nature User
understands that Beta Services are highly likely to contain defects, and that
should User elect to work with Beta Services, that they may encounter serious
performance problems and/or loss of data.
YATCO may discontinue Beta Services at any time in our sole
discretion. We will have no liability
for any harm or damage arising out of or in connection with use of a Beta
Service.
12.
Representations and Warranties.
12.1
Mutual
Representations and Warranties. Each party represents and warrants to the other party that:
12.2
Additional
YATCO Representations, Warranties, and Covenants. YATCO represents, warrants, and covenants to User that YATCO
will perform the Services using personnel of required skill, experience, and
qualifications and in a professional and workmanlike manner in accordance with
generally recognized industry standards for similar services and will devote
adequate resources to meet its obligations under this Agreement.
12.3
Additional
User Representations, Warranties, and Covenants. User represents, warrants, and covenants to YATCO that User owns
or otherwise has and will have the necessary rights and consents in and
relating to the User Data so that, as received by YATCO and Processed in
accordance with this Agreement, they do not and will not infringe,
misappropriate, or otherwise violate any Intellectual Property Rights, or any
privacy or other rights of any third party or violate any applicable Law.
12.4
DISCLAIMER
OF WARRANTIES.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 12.1 AND SECTION 12.2, ALL SERVICES AND YATCO MATERIALS ARE PROVIDED "AS IS."
YATCO SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES
ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE
FOREGOING, YATCO MAKES NO WARRANTY OF ANY KIND THAT THE LISTING INFORMATION,
BOAT SPECIFICATIONS, USER PROVIDED DATA, SERVICES, REPORTING, OR YATCO
MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET USER OR ANY
OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED
RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR
BE SECURE, RELIABLE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL
THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR
WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN USERUSER
AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
13.1
YATCO
Indemnification.
YATCO shall indemnify, defend, and hold harmless User and User's officers,
directors, employees, agents, permitted successors, and permitted assigns
(each, a "User Indemnitee")
from and against any and all Losses incurred by User/User Indemnitee resulting
from any Action by a third party (other than an Affiliate of User) that User's
use of the Services (excluding User Data and Third-Party Materials) in
accordance with this Agreement (including the Specifications) infringes or
misappropriates such third party's US patents, copyrights, or trade secrets.
The foregoing obligation does not apply to the extent that the alleged
infringement arises from:
(a)
Third-Party Materials or User Data;
(c)
modification of the YATCO Materials other than: (i) by or on behalf of YATCO; or (ii) with YATCO’s written approval
in accordance with YATCO’s written specification;
(e)
act, omission, or other matter described in Section 13.2(a), Section 13.2(b), Section 13.2(c), or Section 13.2(d), whether or not the same results in any Action against or Losses
by any YATCO Indemnitee.
13.2
User
Indemnification.
User shall indemnify, defend, and hold harmless YATCO and its Subcontractors
and Affiliates, and each of its and their respective officers, directors,
employees, agents, successors, and assigns (each, a "YATCO Indemnitee") from and against any and all Losses
incurred by such YATCO Indemnitee resulting from any Action by a third party
(other than an Affiliate of a YATCO Indemnitee) to the extent that such Losses
arise out of or result from, or are alleged to arise out of or result from:
13.3
Indemnification
Procedure.
Each party shall promptly notify the other party in writing of any Action for
which such party believes it is entitled to be indemnified pursuant to Section 13.1 or Section 13.2, as the case may be. The party seeking indemnification (the
"Indemnitee") shall
cooperate with the other party (the "Indemnitor")
at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume
control of the defense and shall employ counsel of its choice to handle and
defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may
participate in and observe the proceedings at its own cost and expense with
counsel of its own choosing. The Indemnitor shall not settle any Action on any
terms or in any manner that adversely affects the rights of any Indemnitee
without the Indemnitee's prior written consent, which shall not be unreasonably
withheld or delayed. If the Indemnitor fails or refuses to assume control of
the defense of such Action, the Indemnitee shall have the right, but no
obligation, to defend against such Action, including settling such Action after
giving notice to the Indemnitor, in each case in such manner and on such terms
as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any
obligations under this Section 13.3 will not relieve the Indemnitor of its
obligations under this Section 13, except to the extent that the Indemnitor can demonstrate that
it has been materially prejudiced as a result of such
failure.
13.4
Mitigation. If any of the Services or YATCO Materials are, or in YATCO’s
opinion are likely to be, claimed to infringe, misappropriate, or otherwise
violate any third-party Intellectual Property Right, or if User's use of the
Services or YATCO Materials is enjoined or threatened to be enjoined, YATCO
may, at its option and sole cost and expense:
13.5
Sole Remedy. THIS SECTION 13 SETS FORTH USERUSER'S SOLE REMEDIES AND YATCO’s
SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS
THAT THE SERVICES AND YATCO MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT
INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY
RIGHTS OF ANY THIRD PARTY.
14.1
EXCLUSION
OF DAMAGES.
IN NO EVENT WILL YATCO OR ANY OF ITS AFFILIATES, SUBSIDIARIES, LICENSORS, SERVICE
PROVIDERS, OR
SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT
MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF
PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b)
IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES,
OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE FEE REDUCTION PURSUANT TO
SECTION 7; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA
OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF
GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY,
SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE
ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES
WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR
OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14.2
CAP
ON MONETARY LIABILITY.
IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF YATCO AND ITS AFFILIATES,
SUBSIDIARIES, LICENSORS, AND SERVICE
PROVIDERS,
ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED
TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY
OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO LICENSOR
UNDER THIS AGREEMENT IN THE SIX MONTH PERIOD PRECEDING
THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY
REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
14.3
Mandatory Binding Arbitration and Class Action Waiver. PLEASE
READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT
TO FILE A LAWSUIT IN COURT. This Agreement is governed by and construed in
accordance with the internal laws of the State of Florida without giving effect
to any choice or conflict of law provision or rule that would require or permit
the application of the laws of any jurisdiction other than those of the State
of Florida. The application of the United Nations Convention on Contracts for
the International Sale of Goods is expressly excluded.
Claims relating to this Agreement or the
Service will be resolved through final and binding arbitration, except as set
forth below. The parties agree that the Agreement affects interstate commerce
and that the Federal Arbitration Act governs the interpretation and enforcement
of these arbitration provisions. Initial Dispute Resolution: The parties agree
that most disputes can be resolved without resort to litigation. The parties
agree to use their best efforts to settle any dispute, claim, question, or
disagreement directly through consultation with each other, and good faith
negotiations shall be a condition to either party initiating a lawsuit or
arbitration. Accordingly, before initiating a lawsuit or arbitration, User
Agrees to contact YATCO to attempt to resolve the dispute in good faith.
Binding Arbitration & Class
Action Waiver: If the parties do not reach an agreed-upon solution within a
period of thirty (30) days from the time the informal dispute resolution is
initiated under the Initial Dispute Resolution provision above, then either
party may initiate binding arbitration as the sole means to resolve claims,
subject to the terms set forth below. Specifically, all claims arising out of
or relating to the Agreement (including its formation, performance
and breach), the parties’ relationship with each other and/or your use of the
Services shall be finally settled by binding arbitration administered by the
American Arbitration Association under its Commercial Arbitration Rules,
excluding any rules or procedures governing or permitting class actions.
Filing a Demand. To start an
arbitration, you must do the following: (a) Write a Demand for Arbitration
(“Demand”) that (i) briefly explains the dispute,
(ii) lists your and YATCO’s names and addresses, (iii) specify the amount of
money in dispute, if applicable, (iv) identify the requested location for a
hearing if an in-person hearing is requested, and (v) state what you want in
the dispute; (b) Send one copy of the Demand to the AAA, along with a copy of
these Terms and the filing fee required by the AAA; and (c) Send one copy of
the Demand for Arbitration to us at info@YATCO.com.
The parties understand that,
absent this mandatory arbitration provision, they would have the right to sue
in court and have a jury trial. They further understand that, in some
instances, the costs of arbitration could exceed the costs of litigation and the
right to discovery may be more limited in arbitration than in court. If you are
a resident of the United States, arbitration may take place in the county where
you reside at the time of filing, unless you and we both agree to another
location or telephonic arbitration. For individuals residing outside the United
States, arbitration shall be initiated in Broward County, Florida, United
States, and you and YATCO agree to submit to the personal jurisdiction of any
federal or state court in Broward County, Florida, United States, in order to compel arbitration, stay proceedings pending
arbitration, or to confirm, modify, vacate, or enter judgment on the award
entered by the arbitrator.
THE PARTIES AGREE THAT EACH MAY
BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A
PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
If any court or arbitrator determines that the class action waiver set forth in
this paragraph is void or unenforceable for any reason or that arbitration can
proceed on a class basis, then the disputes, claims or controversies will not
be subject to arbitration and must be litigated in state or federal court
located in Broward County, Florida. The arbitrator, and not any federal, state or local court or agency, shall have exclusive
authority to resolve all disputes arising out of or relating to the
interpretation, applicability, enforceability or formation of the Agreement,
including, but not limited to any claim that all or any part of the Agreement
is void or voidable, or whether a claim is subject to arbitration. The
arbitrator shall be empowered to grant whatever relief would be available in a
court under law or in equity. The arbitrator’s award shall be written, and
binding on the Parties and judgment on the award rendered by the arbitrator(s)
may be entered in any court having jurisdiction thereof. Arbitration will be
held in Broward County, Florida. If any court or arbitrator determines that
this arbitration provision is void or unenforceable for any reason or that the
parties are not bound to arbitrate their claims, then the disputes, claims or
controversies deemed not to be subject to arbitration must be litigated in
state or federal court located in Broward County, Florida. Exception: Litigation
of Intellectual Property Claims: Notwithstanding the foregoing, disputes,
claims, or controversies concerning (1) either party’s patents, copyrights,
moral rights, trademarks, and trade secrets or (2) claims of piracy or
unauthorized use of the Services (collectively, “IP Claims”) shall not be
subject to arbitration.
15.1
Termination. In addition to any other
express termination right set forth elsewhere in this Agreement:
(a)
YATCO
may, in its sole and absolute discretion, terminate this Agreement and lock User out of the Service and stop providing support
services, effective on written notice to User, if User: (i) fails to pay any amount when due hereunder, and such
failure continues more than fifteen
(15) days after YATCO’s delivery of written notice thereof; or immediately
if User breaches any of its obligations under this Agreement;
(b)
YATCO may
terminate this Agreement, effective immediately upon written notice, if User: (i)
becomes insolvent or is generally unable to pay, or fails to pay, its debts as
they become due; (ii) files or has filed against it, a petition for voluntary
or involuntary bankruptcy or otherwise becomes subject, voluntarily or
involuntarily, to any proceeding under any domestic or foreign bankruptcy or
insolvency Law; (iii) makes or seeks to make a general assignment for the
benefit of its creditors; or (iv) applies for or has appointed a receiver,
trustee, custodian, or similar agent appointed by order of any court of
competent jurisdiction to take charge of or sell any material portion of its
property or business.
(c)
YATCO may
terminate this Agreement, effective immediately upon written notice to the
other party, for any or no reason.
(d)
User
may terminte this Agreement and prevent automatic
annual renewal by providing YATCO with at least ninety (90) days notification
prior to the then current annual contract end date. Cancellation of an existing subscription may
be requested otherwise and may be granted by YATCO on an emercency
basis if YATCO deems that extenuating circumstances support the same. Any such
decision shall be in the sole and absolute discretion of YATCO and shall be
final and binding.
15.2
Effect of Termination or Expiration. Upon
any expiration or termination of this Agreement, except as expressly otherwise
provided in this Agreement:
(c)
User
shall immediately cease all use of any Services or YATCO Materials and (i)
promptly return to YATCO, or at YATCO’s written request destroy, all documents
and tangible materials containing, reflecting, incorporating, or based on any YATCO
Materials or YATCO’s Confidential Information; and (ii) permanently erase all YATCO
Materials and YATCO’s Confidential Information from all systems User directly
or indirectly controls; and (iii) certify to YATCO in a signed written
instrument that it has complied with the requirements of this Section 15.2(c);
(d)
Notwithstanding
anything to the contrary in this Agreement, with respect to information and
materials then in its possession or control: (i) the
Receiving Party may retain the Disclosing Party's Confidential Information; and
(ii) YATCO may retain User Data; (iii) User may retain YATCO Materials, in the
case of each of subclause (i) and (ii) and (iii), in
its then current state and solely to the extent and for so long as required by
applicable Law; (iv) YATCO may also retain User Data in its backups, archives,
and disaster recovery systems until such User Data is deleted in the ordinary
course; and (v) all information and materials described in this Section 15.2(d)
will remain subject to all confidentiality, security, and other applicable requirements
of this Agreement; and
(e)
YATCO
may disable all User access to the YATCO Materials.
15.3
Surviving
Terms.
The provisions set forth in the following sections, and any other right or
obligation of the parties in this Agreement that, by its nature, should survive
termination or expiration of this Agreement, will survive any expiration or
termination of this Agreement: Section 5.1, Section 3, Section 12, Section 15, and Section 16.
16.1
Hosting of the Service; Export
Restrictions.
The Service is controlled and operated from facilities in the United States. YATCO
makes no representations that the Service is appropriate or available for use
in other locations. Users who access or use the Service from other
jurisdictions do so of their own volition and are responsible for compliance
with all applicable United States and local laws and regulations, including but
not limited to export and import regulations. If User is located outside of the
United States, User agrees that YATCO may transfer, store and process User Data
in locations other than User’s country. The export and re-export of content via
the Service may be controlled by the United States Export Administration
Regulations or other applicable export restrictions or embargo. The Service may
not be used in any country that is subject to an embargo by the United States
and User may not use the Service in violation of any export restriction or
embargo by the United States or any other applicable jurisdiction. In addition,
User must ensure that the Service is not made available for use by persons or
entities blocked or denied by the United States government.
16.2
Further
Assurances.
On a party's reasonable request, the other party shall, at the requesting party's
sole cost and expense, execute and deliver all such documents and instruments,
and take all such further actions, as may be necessary to give full effect to
this Agreement.
16.3
Relationship
of the Parties.
The relationship between the parties is that of independent contractors.
Nothing contained in this Agreement shall be construed as creating any agency,
partnership, joint venture, or other form of joint enterprise, employment, or
fiduciary relationship between the parties, and neither party shall have authority
to contract for or bind the other party in any manner whatsoever.
16.4
Public
Announcements.
Neither party shall issue or release any announcement, statement, press
release, or other publicity or marketing materials relating to this Agreement
or, unless expressly permitted under this Agreement, otherwise use the other
party's trademarks, service marks, trade names, logos, domain names, or other
indicia of source, association, or sponsorship, in each case, without the prior
written consent of the other party, which consent shall not be unreasonably
withheld, provided, however, that YATCO may, without User's consent, include User's
name and other indicia in its lists of YATCO’s current or former customers of YATCO
in promotional and marketing materials.
16.5
Notices. Any notice, request, consent, claim, demand, waiver, or other
communications under this Agreement have legal effect only if in writing and
addressed to each party as provided in the relevant YATCO Boss Purchase Order (or
to such other address or such other person that such party may designate from
time to time in accordance with this Section 16.5).
Notices
sent in accordance with this Section 16.4 will be deemed effectively given: (a)
when received, if delivered by hand, with signed confirmation of receipt; (b)
when received, if sent by a nationally recognized overnight courier, signature
required; (c) when sent, if by facsimile or email, (in each case, with
confirmation of transmission), if sent during the addressee's normal business
hours, and on the next business day, if sent after the addressee's normal
business hours; and (d) on the fifth (5th) business day after the
date mailed by certified or registered mail, return receipt requested, postage
prepaid.
16.6
Interpretation. For purposes of this Agreement: (a) the words
"include," "includes," and "including" are deemed
to be followed by the words "without limitation"; (b) the word
"or" is not exclusive; (c) the words "herein,"
"hereof," "hereby," "hereto," and
"hereunder" refer to this Agreement as a whole; (d) words denoting
the singular have a comparable meaning when used in the plural, and vice-versa;
and (e) words denoting any gender include all genders. Unless the context
otherwise requires, references in this Agreement: (x) to sections, exhibits,
schedules, attachments, and appendices mean the sections of, and exhibits,
schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement,
instrument, or other document means such agreement, instrument, or other
document as amended, supplemented, and modified from time to time to the extent
permitted by the provisions thereof; and (z) to a statute means such statute as
amended from time to time and includes any successor legislation thereto and
any regulations promulgated thereunder. The parties intend this Agreement to be
construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting an instrument or causing any
instrument to be drafted. The exhibits, schedules, attachments, and appendices
referred to herein are an integral part of this Agreement to the same extent as
if they were set forth verbatim herein.
16.7
Headings. The headings in this Agreement are for reference only and do not
affect the interpretation of this Agreement.
16.8
Entire
Agreement.
This Agreement, together with the YATCO Boss Purchase Order, constitutes the
sole and entire agreement of the parties with respect to the subject matter of
this Agreement and supersedes all prior and contemporaneous understandings,
agreements, representations, and warranties, both written and oral, with
respect to such subject matter. In the event of any inconsistency between the
statements made in the body of this Agreement, the related exhibits, schedules,
attachments, and appendices (other than an exception expressly set forth as
such therein), the following order of precedence governs: (a) first, this
Agreement, excluding its exhibits, schedules, attachments, and appendices; (b)
second, the exhibits, schedules, attachments, and appendices to this Agreement
as of the Effective Date; and (c) third, any other documents incorporated
herein by reference.
16.9
Assignment. User shall not assign or otherwise transfer any of its rights,
or delegate or otherwise transfer any of its obligations or performance under
this Agreement, in each case whether voluntarily, involuntarily, by operation
of law, or otherwise, without YATCO’s prior written consent, which consent
shall not be unreasonably withheld, conditioned, or delayed. For purposes of
the preceding sentence, and without limiting its generality, any merger,
consolidation, or reorganization involving User (regardless of whether User is
a surviving or disappearing entity) will be deemed to be a transfer of rights,
obligations, or performance under this Agreement for which YATCO’s prior
written consent is required. No assignment, delegation, or transfer will
relieve User of any of its obligations or performance under this Agreement. Any
purported assignment, delegation, or transfer in violation of this Section 16.9
is void. This Agreement is binding upon and inures to the benefit of the
parties hereto and their respective successors and permitted assigns.
(a)
No
Breach or Default.
In no event will either party be liable or responsible to the other party, or
be deemed to have defaulted under or breached this Agreement, for any failure
or delay in fulfilling or performing any term of this Agreement, (except for
any obligations to make payments), when and to the extent such failure or delay
is caused by any circumstances beyond such party's reasonable control (a "Force Majeure Event"), including
acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, pandemics,
riot or other civil unrest, embargoes or blockades in effect on or after the
date of this Agreement, national or regional emergency, strikes, labor stoppages
or slowdowns or other industrial disturbances, passage of Law or any action
taken by a governmental or public authority, including imposing an embargo,
export or import restriction, quota, or other restriction or prohibition or any
complete or partial government shutdown, or national or regional shortage of
adequate power or telecommunications or transportation. Either party may
terminate this Agreement if a Force Majeure Event affecting the other party
continues substantially uninterrupted for a period of 60 days or more.
(b)
Affected
Party Obligations.
In the event of any failure or delay caused by a Force Majeure Event, the
affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and
use commercially reasonable efforts to end the failure or delay and minimize
the effects of such Force Majeure Event.
16.11
No
Third-Party Beneficiaries.
This Agreement is for the sole benefit of the parties hereto and their
respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any
other Person any legal or equitable right, benefit, or remedy of any nature
whatsoever under or by reason of this Agreement.
16.12
Amendment
and Modification; Waiver.
No amendment to or modification of or rescission, termination, or discharge of
this Agreement is effective unless it is in writing, identified as an amendment
to or rescission, termination, or discharge of this Agreement and signed by an
authorized representative of each party. No waiver by any party of any of the
provisions hereof shall be effective unless explicitly set forth in writing and
signed by the party so waiving. Except as otherwise set forth in this
Agreement, no failure to exercise, or delay in exercising, any rights, remedy,
power, or privilege arising from this Agreement will operate or be construed as
a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power, or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power, or privilege.
16.13
Severability. If any term or provision of this Agreement is invalid, illegal,
or unenforceable in any jurisdiction, such invalidity, illegality, or
unenforceability shall not affect any other term or provision of this Agreement
or invalidate or render unenforceable such term or provision in any other
jurisdiction. Upon such determination that any term or other provision is
invalid, illegal, or unenforceable, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in a mutually acceptable
manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the greatest extent possible.
16.14
Submission
to Jurisdiction.
Any legal suit, action, or proceeding arising out of or related to this
Agreement or the licenses granted hereunder will be instituted exclusively in
the federal courts of the United States or the courts of the State of Florida
in each case located in Broward County, and each party irrevocably submits to
the exclusive jurisdiction of such courts in any such suit, action, or
proceeding. Service of process, summons, notice, or other document by mail to
such party's address set forth herein shall be effective service of process for
any suit, action, or other proceeding brought in any such court.
16.15
Waiver
of Jury Trial.
Each party irrevocably and unconditionally waives any right it may have to a
trial by jury in respect of any legal action arising out of or relating to this
Agreement or the transactions contemplated hereby.
16.16
Equitable
Relief.
User acknowledges and agrees that a breach or threatened breach by User of any
of its obligations under Section 3, Section 5.1, Section 6, or Section 9, would cause YATCO irreparable harm for which monetary damages
would not be an adequate remedy and that, in the event of such breach or
threatened breach, YATCO will be entitled to equitable relief, including a
restraining order, an injunction, specific performance, and any other relief
that may be available from any court, without any requirement to post a bond or
other security, or to prove actual damages or that monetary damages are not an
adequate remedy. Such remedies are not exclusive and are in addition to all
other remedies that may be available at law, in equity, or otherwise.
16.17
Attorneys'
Fees.
In the event that any action, suit, or other legal or
administrative proceeding is instituted or commenced by either party against
the other party arising out of or related to this Agreement, the prevailing
party is entitled to recover its actual attorneys' fees and court costs from
the non-prevailing party. In any disputes between Subscriber, User and/or a
prospective buyer, where YATCO is not a party to the suit, you agree to pay
$10,000.00 in damages and costs for YATCO having to respond to any subpoena
regarding the dispute.