1. System Access/Your Data. In exchange for paying ATCO the applicable fees (“Fees”), You may access the System for your own internal purposes only and subject to the terms and conditions of this Agreement. ATCO reserves the right to terminate your access and use of the System in the event of Your or any of your representatives’ violation of this Agreement.
All right, title and interest in and to any Customer data and information shall remain solely in You, however, You hereby grant to ATCO an perpetual, non-exclusive, nontransferable (except in connection with the assignment of this Agreement), worldwide right to: (a) use, copy, transmit and display Your data and information to the extent necessary to provide the System-related services, and (b) include Customer data and information in ATCO’s collection and use of aggregate data, which ATCO may use for any lawful purpose.
2. System Ownership. All right, title and interest in and to the System and any enhancements or derivative works thereof and all related intellectual property rights hereby vest and shall remain solely in ATCO and its licensors. Except as specifically authorized in writing by ATCO, You may not, nor allow others to, copy or otherwise reproduce the System in whole or in part or attempt to unlock, download, reverse assemble, reverse compile, or disrupt operation of the System. You agree not to: (1) provide access to the System to any third party or person who is not an authorized user employed by You; (2) directly, or through any third party, sell, license, barter, trade, transfer, or otherwise make or allow access to the System to any third party without ATCO’s prior written consent; (3) allow any further processing or analysis of the System through any outsourced service or application competitive with ATCO or the System.
3. Fees. You shall pay ATCO the Fees in US dollars. Fees shall be due and payable monthly. If Your account is active any day during the month, the You will be charged for services. Fees do not include taxes, materials, or travel and living expenses. You will pay and bear the liability for any taxes associated with the delivery of the System, including sales, use, excise and VAT, but excluding all taxes on ATCO’s income, capital or gross receipts. Payments made after their due date will incur a daily simple interest from the original invoice due date at a rate equal to 1.0% per month or the maximum rate permitted by applicable law, whichever is lower. ATCO may adjust its fees upon at least thirty (30) days written notice to You.
4. Warranties and Remedies. Each party represents and warrants that it shall perform its obligations in compliance with laws applicable to such party’s performance of its obligations under this Agreement.
ATCO represents and warrants that, to the best of its knowledge, the System will not materially: (i) violate any applicable law, (ii) infringe any intellectual property rights of any third party; or (iii) contain any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.
You, on behalf of itself and each authorized user, represents and warrants that any of Your data or information will not materially: (i) violate any applicable law, (ii) infringe any intellectual property rights or privacy rights of any third party; (iii) contain any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (iv) in any way violate or infringe upon any third party’s privacy right, right of publicity or any other right of any person or entity; (v) be false, inaccurate, obscene or misleading; or (vi) contain any material which is unlawful, hateful, obscene, libelous, threatening or defamatory.
ATCO AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SYSTEM, OR ANY OTHER SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS OR SUFFICIENCY FOR YOUR PARTICULAR PURPOSE, OR ARISING FROM THE COURSE OF DEALING BETWEEN THE PARTIES OR USAGE OF TRADE. ATCO DOES NOT WARRANT THAT THE SYSTEM OR ANY SERVICES WILL BE PROVIDED WITHOUT DEFECT, ERROR OR INTERRUPTION.
5. Indemnification. ATCO at its own expense, shall defend You and its officers, directors, employees and contractors against any third-party action based upon a claim that Your lawful use of the System in accordance with this Agreement infringes a valid U.S. patent or copyright in effect as of the date of this Agreement, and shall pay all settlements entered into and damages awarded against You (including reasonable attorneys’ fees) to the extent based on such action and all costs associated with complying with any court order or discovery. As a condition to such indemnification, You shall: (a) provide ATCO with prompt written notice of any claim; (b) permit ATCO to assume and control the defense of any action; (c) not enter into any settlement or compromise of any claim without ATCO’s prior written consent; and (d) provide ATCO with reasonable assistance in its defense and settlement. The foregoing states the sole and exclusive indemnification liability of ATCO under this Agreement.
You at its own expense, shall defend ATCO and its officers, directors, employees and contractors against any action based upon (a) ATCO’s use of Your data or information as permitted in this Agreement or (b) Your breach of any of its obligations under this Agreement, and You shall pay all settlements entered into and damages awarded against ATCO (including reasonable attorneys’ fees) to the extent based on such action, and all costs of ATCO associated with complying with any court order or discovery. As a condition to such indemnification, ATCO shall: (i) provide You with prompt written notice of any claim; (ii) permit You to assume and control the defense of any action; (iii) not enter into any settlement or compromise of any claim without Your prior written consent; and (iv) provide You with reasonable assistance in its defense and settlement.
6. Limitation of Liability. ATCO, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SHALL NOT BE LIABLE TO YOU OR ANY OTHER INDIVIDUAL OR ENTITY, FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, IN ANY WAY ARISING OUT OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. ATCO’S TOTAL LIABILITY UNDER THIS AGREEMENT OR BREACH HEREOF SHALL BE LIMITED TO THE FEES ACTUALLY RECEIVED BY ATCO FROM YOU DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING ANY CLAIM. THE LIMITATION IN THIS SECTION 6 SHALL NOT APPLY TO LIABILITIES TO THIRD PARTIES FOR INDEMNIFICATION CLAIMS UNDER SECTION 5 OF THIS AGREEMENT.
7. Confidentiality. You may receive ATCO’s confidential and proprietary information when using the System. You may not disclose the other ATCO’s confidential information to any third party, except as may be required: (a) to implement, perform and enforce this Agreement; (b) by law; or (c) under appropriate nondisclosure terms to an existing or potential investor, acquiring company, bank or other financial institution in connection with a merger, acquisition, financing, loan or similar corporate transaction. You acknowledge and agree that the System and all components thereof are the confidential information of ATCO.
Except as otherwise expressly provided in this Agreement, You may not disclose Confidential Information to any third party without the prior written consent of ATCO, except to the receiving party’s own employees, consultants or agents to whom disclosure is necessary to fulfill the purposes set forth in this Agreement and who are advised about, and agree to be bound by, this confidentiality provision and the confidential nature of the information.
This Agreement imposes no obligation on the receiving party with respect to information that the receiving party can establish: (a) was in the possession of or was known by the receiving party prior to its receipt from the disclosing party without an obligation to maintain its confidentiality; (b) is or becomes generally known to the public without violation of this Agreement; (c) is obtained by the receiving party from a third party without an obligation to keep such information confidential; or (d) is independently developed or created by the receiving party.
8. ATCO shall provide reasonable security for the System.
As part of ATCO’s security measures, it will assign You and its authorized representatives, one or more user IDs, passwords and/or security authentication measures that will enable You and the authorized representatives to access and use the System. You shall be solely responsible for the use of all Your user IDs, passwords and/or security authentication measures by its authorized representatives and shall restrict the disclosure and disbursement of such user IDs, passwords and/or security authentication measures to You on a need-to-know/have basis. You shall take all reasonable precautions to protect against the theft, loss or fraudulent use of such user IDs, passwords and/or security authentication measures. You shall immediately notify ATCO of any suspected theft, loss or fraudulent use of such user IDs, passwords and/or security authentication measures. You agree to comply with the reasonable procedures specified by ATCO from time to time regarding obtaining and updating user IDs, passwords and security authentication measures to the System and System-related services. User IDs, passwords and/or security authentication measures are subject to cancellation or suspension by ATCO upon any misuse by You or an authorized user.
You shall be solely responsible for maintaining adequate controls over its processing and data transmissions; for monitoring the input and output of such processing and transmissions; and for notifying ATCO of any non-conforming processing and/or transmissions.
You agree, and will ensure, that you and your authorized representatives comply with and adhere to all technical specifications, security procedures, rules of operation, terms and conditions of use and other procedures and protocols established by ATCO relating to the System.
9. General Provisions. This Agreement shall inure to the benefit of and be binding on the parties and their respective successors and assigns, but may not be assigned by either party without the prior written consent of the other, except that each party may assign its rights and obligations without prior written consent in connection with any acquisition that results in a change of control of the majority of shares of the party. ATCO may utilize subcontractors or sub-servicers to fulfill any of its responsibilities under this Agreement.
Each party is independent of the other, and nothing contained herein shall be deemed or construed to create any partnership, joint venture, agency, fiduciary or other similar relationship.
All legal notices, requests, consents and other communications which are required or permitted hereunder shall be in writing, and shall be delivered personally or by courier (effective upon receipt), by registered U.S. mail, postage prepaid (effective three (3) business days after mailing), or sent by facsimile or electronic mail (effective upon receipt, as evidenced by acknowledgement or confirmation of receipt), to the party’s primary business address.
Each party consents to litigation and trial without a jury in the United States District Court for the Eastern District of Michigan and/or the appropriate Michigan state court in Macomb County. Each party acknowledges that this provision constitutes a material inducement upon which the other party has relied in entering into this Agreement. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Michigan, without regard to its conflicts of laws principles. If a suit, action, arbitration or other proceeding of any nature whatsoever is instituted in connection with any controversy arising out of this Agreement or to interpret or enforce any rights under this Agreement, the prevailing party may recover its reasonable attorney’s fees.
Neither party shall be liable for failure to perform or delay in performing any obligation under this Agreement (except any payment obligations) if such failure or delay is due to acts of God, natural disaster, fire, flood, strike, war (declared or undeclared), terrorism, embargo, blockade, legal prohibition, governmental action, riot, insurrection, or non-ATCO-specific network or telecommunications failure or congestion that affects the System, or any other cause beyond the reasonable control of such party.
If any provision(s) or portion(s) of this Agreement is determined to be invalid or unenforceable, the other provisions will remain in full force and effect and the parties agree to promptly substitute, for the invalid or unenforceable provision(s), new provision(s) which are enforceable and which most closely approximate the intent and economic effect of the invalid provision(s).