YATCO SaaS Subscriber Agreement – version 1.0 (updated 01/18/2023)
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 entity accepting these terms (“Subscriber”). This Agreement controls Subscriber’s access to YATCO’s technology platform and services and its associated applications, portals, and website, etc. (the “Service”).
IF SUBSCRIBERS OR USERS REGISTER FOR A FREE TRIAL, OR ARE OTHERWISE GIVEN EVALUATION ACCESS OF YATCO’s SERVICES, THIS AGREEMENT WILL ALSO APPLY.
This Agreement commences on the date Subscriber and/or 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.
“Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person.
“”Subscriber 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, Subscriber 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.
“Subscriber 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.
“Documentation” means any manuals, instructions, or other documents or materials that the YATCO provides or makes available to Subscriber 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 Subscriber or any 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.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“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.
“Permitted Use” means any use of the Services by a User for the benefit of Subscriber in the ordinary course of its internal business operations.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Information” means information that Subscriber provides or for which Subscriber provides access to YATCO, or information which YATCO creates or obtains on behalf of Subscriber, 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). Subscriber’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.
“YATCO Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by YATCO or its designee to disable Subscriber’s or any User’s access to or use of the Services automatically with the passage of time or under the positive control of YATCO or its designee.
“YATCO Materials” means the Services, specifications, reporting, Documentation, and YATCO Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by YATCO or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or YATCO Systems. For the avoidance of doubt, YATCO Materials include Resultant Data and any information, data, or other content derived from YATCO’s monitoring of Subscriber’s access to or use of the Services, but do not include Subscriber Data.
“YATCO Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of YATCO or any Subcontractor.
“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.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
“Resultant Data” means data and information related to Subscriber’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.
“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.
“Specifications” means the specifications for the Services set forth in the Documentation and the YATCO Boss Purchase Order.
“User” or “User” means Subscriber’s employees, consultants, contractors, and agents (a) who are authorized by Subscriber to access and use the Services under the rights granted to Subscriber pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
2.Intellectual Property Rights.
2.1.Subscriber Data. As between Subscriber and YATCO, Subscriber is and will remain the sole and exclusive owner of all right, title, and interest in and to all Subscriber Data, including all Intellectual Property Rights relating to the same, subject to the rights and permissions granted in Section 2.2. (LETS BOLD THIS PARAGRAPH)
2.2.Consent to Use Subscriber Data. Subscriber hereby irrevocably grants all such rights and permissions in or relating to Subscriber 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 Subscriber Data to Offer Additional Opportunities. Subscriber hereby irrevocably grant all such rights and permissions in or relating to Subscriber Data for YATCO, and for those third parties that YATCO, in its sole discretion, deems potentially of interest to Subscriber and/or Users, to enable the offering and provision of additional services or opportunities (including third (3) party services and/or opportunities) to Subscriber and/or Users. 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. Subscriber has no 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, Subscriber 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:
(a)not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(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;
(c)safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
(d)promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and use commercially reasonable efforts to prevent further unauthorized use or disclosure; and
(e) ensure its Representatives’ compliance with, and be responsible and liable for, any of its Representatives’ non-compliance with, the terms of 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 Subscriber’s Account. Subscriber shall specify one or more administrators (each an “Administrator”) to make decisions relating to its account. Administrators can access, monitor, use, export and disclose all content posted by Users in accordance with applicable local laws. Subscriber is responsible for: (i) the selection of its Administrator(s); (ii) maintaining the confidentiality of passwords and Administrator accounts; (iii) managing access to Administrator accounts; (iv) obtaining approval from Users prior to uploading User’s information to the Service; and (v) ensuring that each Administrator’s use of the Service complies with this Agreement. YATCO shall not be held liable for any actions on the part of Subscriber’s Administrator(s). Subscriber shall also be responsible for the creation of user and administrator accounts.
Subscriber is also responsible for providing any notice and obtaining any consents and authorizations necessary: (i) to allow the Administrator to access, monitor, use, and disclose the content posted by the Users on the Service; and (ii) to allow YATCO to provide the Administrator with 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 Subscriber 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.
Subscriber will promptly notify YATCO if it becomes aware of any unauthorized access to Subscriber’s account or the Service. Subscriber 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 Subscriber’s and its Users’ ongoing compliance with the terms and conditions of this Agreement, YATCO hereby grants Subscriber 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 in accordance with the terms and conditions herein. Such use is limited to Subscriber’s internal use. YATCO shall provide to Subscriber the Access Credentials within a reasonable time following the Effective Date. The term of this Agreement shall begin on the date Subscriber’s YATCO Boss Purchase Order is submitted to YATCO and end upon termination pursuant to this Agreement.
4.4. Documentation License. YATCO hereby grants to Subscriber a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 16.9) license to use the Documentation during the Term solely for Subscriber’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:
(a) YATCO has and will retain sole control over the operation, provision, maintenance, and management of the YATCO Materials; and
(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 Subscriber Systems, and sole responsibility for all access to and use of the YATCO Materials by any Person by or through the Subscriber Systems or any other means controlled by Subscriber or any 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. Administrators. Subscriber shall, throughout the Term, maintain within its organization at least one administrator to serve as such party’s primary point of contact regarding this Agreement. Each such administrator shall be responsible for providing all day-to-day consents and approvals on behalf of Subscriber under this Agreement. Subscriber shall ensure its administrators has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity.
4.8. Changes. YATCO reserves the right, in its sole discretion, to make any change
s 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.
4.9. 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”).
4.10. 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 Subscriber’s, 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) Subscriber or 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) Subscriber or 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 4.10 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. Subscriber 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 , Subscriber shall not, except as this Agreement expressly permits:
(a) copy, modify, or create derivative works or improvements of the Services or YATCO Materials;
(b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or YATCO Materials 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;
(c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or YATCO Materials, in whole or in part;
(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;
(e) input, upload, transmit, or otherwise provide to or through the Services or YATCO Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
(f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, YATCO Systems, or YATCO’s provision of services to any third party, in whole or in part;
(g) remove, delete, alter, or obscure any trademarks, specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or YATCO Materials, including any copy thereof;
(h) access or use the Services or YATCO Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other YATCO customer), or that violates any applicable Law;
(i) access or use the Services or YATCO Materials 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;
(j) access or use the Services or YATCO Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
(k) otherwise access or use the Services or YATCO Materials beyond the scope of the authorization granted under this Section 5.1.
6. Subscriber Obligations.
6.1. Systems and Cooperation. Subscriber shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the specifications all Subscriber Systems on or through which the Services are accessed or used; (b) provide YATCO Personnel with such access to Subscriber’s Data and Subscriber 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 Subscriber Failure or Delay. YATCO is not responsible or liable for any delay, consequence, or failure of performance caused in whole or in part by Subscriber’s delay in performing, performance, or failure to perform, any of its obligations under this Agreement (each, a “Subscriber Failure”).
6.3. Corrective Action and Notice. If Subscriber becomes aware of any actual or threatened activity prohibited by Section 5.1, Subscriber shall, and shall cause its Users to, 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, Subscriber 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.
6.5. For actively listed vessels over 50’, YATCO requires that the signed Central Agent of the vessel must be listed with a valid user account.
6.6 A house account can only be assigned to a vessel when a listing is a new build, custom build vessel or trade. A “Trade” shall refer to a boat owned by a dealer or brokerage being offered for sale.
7. Service Levels.
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 Subscriber and its Users 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 Subscriber or its Users 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 Subscriber or any User, or using Subscriber’s or a User’s Access Credentials, that does not strictly comply with this Agreement and the specifications; (b) Subscriber Failure; (c) Subscriber’s or its 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 4.1010.
7.2. Service Level Failures and Remedies. In the event of a Service Level Failure, Subscriber must notify YATCO of the occurrence of such via email at [email protected] 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 Subscriber encounters an Issue with the Services, Subscriber’s Support Contact will engage Provider Subscriber Support Services and submit service requests via the Help Desk / Client Portal, or Provider’s designated company phone number, or [email protected] email address. Provider will respond to service requests during Hours of Operation. Subscriber 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 Subscriber’s support request, and follow-up response to Subscribers concerning Issues, in accordance with the response times specified in Subscriber’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 Subscriber 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 Subscriber’s production systems, or in which Subscriber’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 Subscriber’s system is functioning but in a severely reduced capacity. The situation is causing significant impact to portions of the Subscriber’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 Subscriber to continue to function. This may be a minor issue with limited loss or no loss of functionality or impact to the Subscriber’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 Subscriber reasonably believes that it has an S1 Issue, the Principal Support Contact will notify Subscriber 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 Subscriber 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 Subscriber’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 SUBSCRIBER SUPPORT SERVICES:
(a) Assistance in the development or debugging of a User system. Subscriber Support Services do not include assistance in developing or debugging Subscriber’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 Subscriber 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 Subscriber Data caused by the YATCO Systems or Services, YATCO will, as its sole obligation and liability and as Subscriber’s sole remedy, use commercially reasonable efforts to restore the Subscriber Data from YATCO’s then most current backup of such Subscriber 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. Subscriber 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. Subscriber 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”). Subscriber 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. Subscriber is solely responsible for reviewing all Subscriber Data and shall ensure that no Subscriber Data constitutes or contains any Prohibited Data.
9.4 Subscriber Control and Responsibility. Subscriber has and will retain sole responsibility for: (a) all Subscriber Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Subscriber or any User in connection with the Services; (c) Subscriber’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Subscriber or through the use of third-party services (“Subscriber Systems”); (d) the security and use of Subscriber’s and its Users’ Access Credentials; and (e) all access to and use of the Services and YATCO Materials directly or indirectly by or through the Subscriber Systems or its or its Users’ Access Credentials, with or without Subscriber’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. Subscriber 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 Subscriber Data, including the uploading or other provision of Subscriber Data for Processing by the Services.
10. Fees and Payment.
10.1. Fees. Subscriber shall pay YATCO the fees as set forth in the relevant YATCO Boss Purchase Order. All Fees and other amounts payable by Subscriber under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Subscriber is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Subscriber hereunder, other than any taxes imposed on YATCO’s income.
10.2. Late Payment. If Subscriber’s credit card declines or otherwise fails, Subscriber shall promptly make any payment when due, and in addition to all other remedies that may be available:
(a) YATCO may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
(b) Subscriber shall reimburse YATCO for all reasonable costs incurred by YATCO in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
(c) if such failure continues for fifteen (15) days following written notice thereof, 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 Subscriber or 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.
10.3. No Deductions or Setoffs. All amounts payable to YATCO under this Agreement shall be paid by Subscriber to YATCO in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason.
10.4. Fee Increases. Unless otherwise indicated in the YATCO Boss Purchase Order, YATCO Fees increase on an annual basis and YATCO may additionally increase Fees, by providing written notice to Subscriber at least 60 calendar days prior to the commencement of that contract year, and the relevant YATCO Boss Purchase Order and related documents will be deemed amended accordingly. 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 Subscriber’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 Subscriber’s business operations. Subscriber 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 Subscriber’s use of the Software.
(b) Cost and Results of Audit. If the audit determines that Subscriber’s use of the Services exceeded the usage permitted by this Agreement by more than 5%, Subscriber shall pay to YATCO all amounts due for such excess use of the Software, plus interest on such amounts, as calculated pursuant to Section 10.4 If the audit determines that such excess use equals or exceeds 10% of Subscriber’s permitted level of use, Subscriber shall also pay to YATCO all costs incurred by YATCO in conducting the audit. Subscriber shall make all payments required under this Section 10.5 within 30 days of the date of written notification of the audit results.
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’s Users 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:
(a) it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
12.2. Additional YATCO Representations, Warranties, and Covenants. YATCO represents, warrants, and covenants to Subscriber 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 Subscriber Representations, Warranties, and Covenants. Subscriber represents, warrants, and covenants to YATCO that Subscriber owns or otherwise has and will have the necessary rights and consents in and relating to the Subscriber 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, SUBSCRIBER OR USER PROVIDED DATA, SERVICES, REPORTING, OR YATCO MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET SUBSCRIBER OR 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 SUBSCRIBER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
13.1. YATCO Indemnification. YATCO shall indemnify, defend, and hold harmless Subscriber and Subscriber’s officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Subscriber Indemnitee”) from and against any and all Losses incurred by Subscriber/Subscriber Indemnitee resulting from any Action by a third party (other than an Affiliate of Subscriber) that Subscriber’s or an User’s use of the Services (excluding Subscriber 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 Subscriber Data;
(b) access to or use of the YATCO Materials in combination with any hardware, system, software, network, or other materials or service not provided by YATCO or specified for Subscriber’s use in the Documentation;
(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;
(d) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Subscriber by or on behalf of YATCO; or
(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. Subscriber Indemnification. Subscriber 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:
(a) Subscriber Data, including any Processing of Subscriber Data by or on behalf of YATCO in accordance with this Agreement;
(b) any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Subscriber or any User, including YATCO’s compliance with any specifications or directions provided by or on behalf of Subscriber or any User to the extent prepared without any contribution by YATCO;
(c) allegation of facts that, if true, would constitute Subscriber’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by Subscriber, any User, or any third party on behalf of Subscriber or any User, in connection with this Agreement.
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 133, 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 Subscriber’s or any 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:
(a) obtain the right for Subscriber to continue to use the Services and YATCO Materials materially as contemplated by this Agreement;
(b) modify or replace the Services and YATCO Materials, in whole or in part, to seek to make the Services and YATCO Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and YATCO Materials, as applicable, under this Agreement; or
(c) by written notice to Subscriber, terminate this Agreement with respect to all or part of the Services and YATCO Materials, and require Subscriber to immediately cease any use of the Services and YATCO Materials or any specified part or feature thereof.
13.5. Sole Remedy. THIS SECTION 13 SETS FORTH SUBSCRIBER’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. Limitations of Liability.
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, SERVICE PROVIDERS, AND SUPPLIERS 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, Subscriber 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 [email protected].
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 and Subscriber out of the Service and stop providing support services, effective on written notice to Subscriber, if Subscriber: (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 Subscriber breaches any of its obligations under this Agreement;
(b YATCO may terminate this Agreement, effective immediately upon written notice, if Subscriber: (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) Subscriber 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:
(a) Other than as specifically stated in this Agreement, all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
(b) Except as otherwise permitted in this Agreement, YATCO shall have the right to permanently erase all Subscriber Data and Subscriber’s Confidential Information from all systems YATCO directly or indirectly controls, provided that, for clarity, YATCO’s obligations under this Section 15.2(b) do not apply to any Resultant Data;
(c) Subscriber 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 Subscriber 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 Subscriber Data; (iii) Subscriber 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 Subscriber Data in its backups, archives, and disaster recovery systems until such Subscriber 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 Subscriber and 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 13, Section 145, and Section 166.
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. Subscribers who access or use the Service from other jurisdictions (or who allow their Users to do so) 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 Subscriber is located outside of the United States, Subscriber agrees that YATCO may transfer, store and process Subscriber Data in locations other than Subscriber’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 Subscriber may not use the Service in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Subscriber 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 Subscriber’s consent, include Subscriber’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. Subscriber 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 Subscriber (regardless of whether Subscriber 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 Subscriber 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.
16.10. Force Majeure.
(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. Subscriber acknowledges and agrees that a breach or threatened breach by Subscriber 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.
16.18.Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.