- APPLICABILITY OF THESE TERMS AND CONDITIONS
ACCESS agrees to provide Software Services to CLIENT in accordance with the terms and conditions below (the “Terms and Conditions”). As used herein, (i) “Software Services” shall mean electronic records storage services and solutions; (ii) “Software” shall mean any and all software, program, algorithm, library, utility, tool, visual interface, graphic, design, compilation, or other computer or program code in any form, as well as related documentation, provided by ACCESS to CLIENT in connection with the Software Services, or accessed by CLIENT through the internet or other remote means, such as websites, portals and “cloud based” solutions; and (iii) “Services” shall mean Software Services, as well as any other services provided under the Agreement. The purchase of Software Services from Access shall be solely for CLIENT’s own internal use and not for resale. CLIENT agrees to pay ACCESS the fee(s) for Software Services in accordance with its then current Price Schedule.
The request of any Software Services by the CLIENT to ACCESS and/or the actual provision of Software Services by ACCESS and/or the payment by CLIENT for any such Software Services, shall constitute acceptance by CLIENT of all of these Terms and Conditions. If CLIENT issues a purchase order, memorandum or any other instrument purporting to cover Services that is not accepted in writing by an authorized officer of ACCESS, then such purchase order, memorandum or other instrument shall be for CLIENT’s internal purposes only, and is not binding upon ACCESS whether communicated before or after commencement of Services. Any currently enforceable agreement between CLIENT and ACCESS regarding Software Services shall supersede these Terms and Conditions. For purposes of these Terms and Conditions, “ACCESS” means that particular subsidiary or affiliate of Access CIG, LLC that is providing the Software Services to CLIENT.
- SOFTWARE SERVICES: ACCESS shall provide Software Services in connection with CLIENT’s Records. If the term Records is not defined in the Agreement, then “Records” shall mean CLIENT’s documents, data, media, electronic or digital images and records, and other deposit items. Software Services shall begin at the request for same by CLIENT. CLIENT shall not control the manner, means or methods by which ACCESS performs the Software Services.
- OWNERSHIP RIGHTS:
- ACCESS. The Software and Software Services are the exclusive property of ACCESS or the third parties from whom ACCESS has secured the right to use and distribute such. ACCESS and such third parties shall retain their respective right and title to all proprietary rights in the Software or the Software Services, and to any other intellectual property owned or otherwise provided by ACCESS. Solely to the extent necessary to utilize the Software Services in accordance with the Terms and Conditions, ACCESS grants CLIENT a limited, personal, revocable, non-exclusive, non-transferable, and non-sublicensable license to access and use the Software Services (“License”). CLIENT’s License shall end coterminous with termination of the underlying agreement pursuant to which ACCESS provided Software Services. CLIENT shall not challenge, or assist any other person or entity in challenging, ACCESS’ right, title, and/or interest in the Software or Software Services
- CLIENT RECORDS PROPERTY OF CLIENT. All CLIENT electronic data, images and information (“Records”) shall remain the exclusive property of CLIENT. ACCESS shall not copy, scan, transfer, sell, disclose, license, alter or otherwise use the CLIENT Records for any purpose other than in relation to or arising out of provision of the Services.
- SOFTWARE SERVICES AVAILABILITY AND SUPPORT: ACCESS shall provide 24 hours a day and seven days a week, monitoring of the computing, operating and network infrastructure to detect and correct abnormalities. This includes environmental monitoring, network monitoring, load balance monitoring, web server and database monitoring, firewall monitoring and intrusion detection. Software Services shall not be available during scheduled maintenance (presently from 9am to 9pm eastern time on the second Saturday of every month and subject to change at ACCESS’ discretion) or as otherwise scheduled by ACCESS with reasonable notice to CLIENT. ACCESS does not control and does not guarantee connectivity to the Software Services. ACCESS shall have the right to block any and all access to the Software or the Software Services as ACCESS may, in its reasonable discretion, deem prudent to preserve the security or integrity of the Software or the Software Services. CLIENT shall cause only its authorized users to use the Software Services in a secure manner, and strictly in accordance with the Terms and Conditions of the Agreement and any other directions of ACCESS. ACCESS shall provide CLIENT with such support as ACCESS reasonably determines is necessary for the provision and use of the Software Services from 8am to 8pm eastern time, provided, however, that if ACCESS reasonably determines that support is required as a result of any reason other than the fault of ACCESS, CLIENT agrees to pay ACCESS for such support on a time and material basis.
- SERVICE AND USE TERMS:
- LIMITS ON USE OF SOFTWARE SERVICES. CLIENT shall not, directly or indirectly, take any of the following actions, and shall prevent any and all of its users from taking or attempting to take any of the following actions: (i) using the Software or Software Services to operate a service bureau or otherwise support the document scanning, storage, indexing, coding, and retention processes of third parties; (ii) creating or enabling the creation of derivative works, modifications, or adaptations to the Software or Software Services; (iii) decompiling, reverse engineering or disassembling the Software or Software Services; (iv) distributing or disclosing the Software or Software Services to third parties; (v) removing or modifying any proprietary marking or restrictive legends placed on the Software or Software Services; (vi) using any robot, spider, other automatic device, program, or manual process to copy or delete images, or to monitor, copy, or reproduce the Software or Software Services; (vii) performing automated load testing or penetration testing against the Software or Software Services without being scheduled and approved by ACCESS; (viii) modifying the Software or Software Services, or interfering with the proper operation of the Software or Software Services; (ix) allowing the use of the Software or Software Services by any third party; or (x) using the Software or Software Services in violation of any applicable local, state, national or international law or regulation.
- NECESSARY COMPUTER CONFIGURATION. CLIENT and any and all of its users shall maintain minimum configurations for accessing the Software Services which meet the recommended system requirements defined in the product technical specifications on the ACCESS website (https://www.accesscorp.com/carta-recommended-system-requirements/). ACCESS reserves the right to modify these minimum configurations as may be required to accommodate upgrades to the Software or Software Services.
- NETWORK/DIGITAL DATA SECURITY, PASSWORDS, ETC.CLIENT shall be responsible for processes and procedures to secure its network, and access through its network, to the Software Services against unauthorized access, including, but not limited to preventing the misuse or misappropriation of passwords issued to CLIENT or any of its users. CLIENT shall maintain the confidentiality and security of its passwords. In addition, if CLIENT transfers electronic Records, CLIENT shall do so securely by SFTP or HTTPS connection, or will encrypt any electronic Records prior to its delivery to ACCESS so as to render such Records unusable, unreadable and/or indecipherable by any unauthorized person. In the event of any misuse or misappropriation of passwords, or any failure to transfer Records securely as stated herein, CLIENT will be solely responsible for, and hereby releases and will indemnify and hold harmless ACCESS from, any liability, damages or costs, including reasonable legal fees, (collectively, “Costs”) arising therefrom. ACCESS shall have no liability whatsoever for any damages suffered by CLIENT or by any third party due to any breach of CLIENT’s network/digital data security, including, for example, any misuse or misappropriation of passwords issued to CLIENT or any and all users.
- LIMITED WARRANTY: ACCESS warrants that its security practices and policies will be no less than the usual and customary practices and policies currently used in the industry to safeguard software comparable to the Software against physical intrusion and the intrusion of any computer code that has the ability to destroy, interrupt or otherwise materially and adversely affect the normal operations of the Software Services. EXCEPT AS PROVIDED IN THIS PARAGRAPH, ACCESS MAKES NO OTHER REPRESENTATION, COVENANT OR WARRANTY OF ANY KIND, NATURE OR DESCRIPTION, EXPRESS OR IMPLIED, WITH RESPECT TO ITS SOFTWARE SERVICES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SOFTWARE SERVICES, ITS COMPONENTS, INTERFACES, ANY RELATED EQUIPMENT, ANY DOCUMENTATION, AND OTHER MATERIALS, ARE PROVIDED STRICTLY ON AN “AS IS” BASIS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER ACCESS NOR ANY ACCESS ENTITY OR AFFILIATE MAKES ANY REPRESENTATION OR WARRANTY AS TO THE SOFTWARE SERVICES OR AS TO THE RESULTS TO BE ATTAINED FROM THE SOFTWARE SERVICES OR FROM ACCESS. NEITHER ACCESS NOR ANY ACCESS ENTITY OR AFFILIATE MAKES ANY WARRANTY OR REPRESENTATION THAT ACCESS TO THE SOFTWARE SERVICES WILL BE UNINTERRUPTED, SECURE, COMPLETE, ACCURATE, RELIABLE, OR ERROR FREE.
- RATES AND PAYMENT: CLIENT agrees to pay to ACCESS charges for Software Services as set forth in the attached Price Schedule(s) and any applicable SOW(s), all of which are incorporated herein by reference. Time is of the essence for all payments. ACCESS may amend pricing and Software Services in the Price Schedule from time to time in its discretion 30 days after notice of any change is sent to CLIENT. Notice under this Paragraph may be sent by email, fax or first class mail to an employee or representative of CLIENT. Software subscription fees are billed annually in advance. All other Software Services shall be billed monthly in arrears unless otherwise specified in the Price Schedule. Charges are not pro-rated. Payment for all charges is due in full within 30 days from the date of each ACCESS invoice.
- TERM: The Software Services shall begin upon the request for Software Services and terminate or expire in accordance with the terms and conditions of the Agreement. Upon the expiration or other termination of the Terms and Conditions for any reason, electronic Records will be (a) extracted and delivered to CLIENT or otherwise made available for pick-up by CLIENT, or (b) destroyed or deleted, as CLIENT may request, provided that any and all charges due to ACCESS under the Agreement and the Terms and Conditions, including but not limited to extraction, delivery or destruction charges, must be paid in full in good funds prior to extraction, and delivery or destruction of any Records. Notwithstanding any expiration or other termination of the Terms and Conditions for any reason, (A) all terms of the Terms and Conditions and the Agreement, including charges for Software Services, will continue to apply after such expiration or other termination until CLIENT’s account is closed and all CLIENT’s Records are removed from ACCESS’ facilities and/or systems; (B) all express indemnification obligations and limitations on liability provided herein shall survive; and (C) a Party’s liability for breach occurring prior to such expiration, termination, or later removal of Records and property, shall survive.
- ACCESS shall defend and indemnify CLIENT and its employees, officers, directors, and agents (collectively “Representatives”) against a third party claim or action brought against CLIENT or its Representatives, to the extent that such claim or action is based on an allegation that the Software Services, when used as authorized under the Terms and Conditions, infringe or misappropriate that third party’s United States patent, registered copyright, or other intellectual property rights (“Indemnified Claims”), and ACCESS will indemnify CLIENT and its Representatives against any Costs finally awarded by a court of competent jurisdiction attributable to such an Indemnified Claim or agreed to settlement by ACCESS. If any portion of the Software Services becomes, or in ACCESS’ opinion, is likely to become, the subject of an Indemnified Claim, then ACCESS may at its option: (i) obtain the right: (a) for CLIENT to continue using such Services, or (b) to allow ACCESS to continue performing the Services; (ii) modify such Software Services to make them non-infringing; (iii) replace such Software Services with a non-infringing equivalent; or (iv) terminate the Software Services and refund any pre-paid fees on a pro rata basis for the remaining Term. Upon such termination, CLIENT will immediately cease all access and use to the Software Services. Notwithstanding the foregoing, ACCESS shall have no obligation under this Paragraph, or otherwise, for any claim resulting or arising from: (1) modifications of the Software Services that were not performed by or on behalf of ACCESS; (2) the combination, operation, or use of the Software Services in connection with a third-party product or services not supplied by ACCESS (the combination of which causes an Indemnified Claim); (3) ACCESS’ compliance with CLIENT’s written specifications or directions, including the incorporation of any software, materials, or processes provided by or requested by CLIENT; or (4) any use of the Software Services by CLIENT not in accordance with the Terms and Conditions. This Paragraph states CLIENT’s exclusive remedies for any Indemnified Claims, and nothing in the Agreement or the Terms and Conditions or elsewhere will obligate ACCESS to provide any greater indemnity to CLIENT.
- CLIENT shall defend, indemnify, and hold harmless ACCESS and ACCESS Affiliates and their respective Representatives against any third-party claim or action arising out of or relating to: (i) CLIENT’s failure to obtain any appropriate license, intellectual property rights, or other permissions, regulatory certifications, or approvals associated with Records, technology, or data provided by CLIENT, or components directed or requested by CLIENT to be installed or integrated into the Software Services; (ii) CLIENT’s breach of ACCESS’ proprietary rights as stated in the Terms and Conditions; and (iii) any inaccurate representation regarding the existence of an export license or any allegation made against ACCESS due to CLIENT’s violation or alleged violation of applicable export laws, regulations, or orders.
- Indemnification Procedure. The indemnified Party will: (i) promptly notify the indemnifying Party in writing of any such claim(s); (ii) grant the indemnifying Party sole control of the defense and resolution of such claim(s); and (iii) cooperate with the indemnifying Party, at the indemnifying Party’s expense, in defending and resolving the claim(s).