This Web Service Agreement (the “Agreement”) is effective and dated upon your pushing the “ACCEPT” button to accept this Agreement (the “Effective Date”) by and between your company, as credentialed by you (the “Client”) and CTA Technologies, Inc., an Illinois corporation (“CTA”) for the use, as a software as a service (SaaS) under the trade name of CTAfiler.com®.
CTA intends to provide their patented pending services to Client, using sophisticated software, know-how, tools, algorithms, and other intellectual property technology owned or licensed by CTA and used by it in the performance of the CTA services, to provide a seamless use experience for the Client. If Client desires any additional custom services, they will be provided by CTA (or certified 3rd party providers) as mutually agreed under separate accord. The terms of our Agreement are as follows:
1.Services. Subject to the terms and conditions of this Agreement, and during the Term, defined as possessing a valid Log-in credential and a licensed user of the CTA Software, CTA will use commercially reasonable efforts to provide, and Client agrees to pay CTA for, the CTA services and such additional Custom Services (the “Services”) as selected by Client.
2.Ownership of Client Data. Client solely owns any and all data and information created and stored by Client for use on the Client’s Website area (“Client Area”), including all data generated by the Client’s service activities and stored on CTA’s hosting equipment, (i.e., models, documents, information, and other data).
3.Ownership of CTA Software. Client acknowledges that the CTA technology, (as well as all derivative works including, but not limited to ZZZÒ and other Services), are and shall continue to be, solely owned by CTA or its licensor(s). CTA logo(s) and other trademarks, service marks, graphics, and logos used in connection with the CTA Service are trademarks or registered trademarks owned or licensed to CTA, Inc. in the U.S. and/or other countries. Other trademarks, service marks, graphics, and logos used in connection with the CTA service may be the trademarks of their respective owners. Client is granted no right or license with respect to any of the aforesaid trademarks and any use of such trademarks.
4.Left empty for expansion.
5.Fees. Payment of Fees. In consideration for the provision of the Services by CTA Inc., Client will pay CTA the fees selected and acknowledged by Client at sign-up, via credit card.
CTA’s Warranties & Disclaimers. CTA warrants that the Client’s subscribed services will be accessible to the Client at all times except during periods of maintenance or unforeseen failure. CTA will conduct regularly scheduled maintenance during non-business hours according to a schedule available to the Client, and CTA will attempt to notify Client twenty-four (24) hours in advance of any emergency maintenance and will make commercially reasonable efforts to conduct such maintenance during non-business hours. If any errors in the CTA services are discovered, Client shall promptly notify CTA in writing (through CTA’s support ticketing system) of such error and provide CTA a meaningful description of the how the error occurred, whereupon CTA shall use commercially reasonable efforts to replicate the error and correct such error within a reasonable time thereafter. CTA further represents and warrants to the Client that it has the right to enter into this Agreement and that it possesses the ownership and intellectual property rights in and to the CTA technology necessary to offer the services.
In the event that Client notifies CTA that the Client’s Website Area or Services are inaccessible to Client for any reason other than maintenance, CTA will take all commercially reasonable efforts to determine the source of and correct the problem causing such unavailability. If CTA reasonably determines that the source of the problem is within the primary control of CTA, (i.e., the remedy to such unavailability is not dependent on any third party), and Website Area or Services remains unavailable for four consecutive hours (an “Unavailability Event”), Client will receive one (1) Service Credit. A “Service Credit” equals one-thirtieth (1/30) of the Subscription Fee and may be redeemed against future payment of Fees. The aggregate maximum number of Service Credits that Client can receive from CTA in one calendar month shall not exceed seven.
Client acknowledges that, in the event of a termination of this Agreement, Client’s ability to access the Services and Client Website Area will be disabled and Client will be responsible for providing alternative capabilities. Accordingly, Client agrees that it will be solely responsible for covering for the consequences of such disablement, and for taking all necessary precautions to prevent or minimize the damages resulting from such disablement, including without limitation retaining copies of all Client information stored in the Client Website Area. Client acknowledges that CTA shall not be liable for any action or inaction of any third party, including without limitation customers or suppliers of Client, software vendors, website hosting providers, or Internet service providers.
Limited Warranty. THE WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THE WARRANTIES OF CLIENTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES GRANTED TO CLIENT UNDER THIS SECTION CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF CLIENT AGAINST CTA FOR BREACH OF WARRANTY, EXPRESS OR IMPLIED, OR FOR ANY ERRORS OR DEFECTS IN THE CTA TECHNOLOGY OR ANY DISRUPTIONS IN THE PROVISION OF SERVICES OR ACCESS TO CLIENT’S WEBSITE AREA.
6.Indemnification.
Client’s Indemnification of CTA. Client agrees to indemnify CTA against all liability and expense, including reasonable attorneys’ fees, arising from or out of any breach or alleged breach of Client’s representations, warranties and obligations or as a result of any claim arising from Client’s activities, including any misrepresentation or unauthorized commitment, action, or promise made to any of Client’s customers or prospective customers by Client, its employees or agents with respect to CTA, the Client Website Area, the CTA technology or any other product or service marketed by Client. Client agrees they will not reveal their Account information to any third party. Client is solely responsible for maintaining the confidentiality and security of their Account and for all activities that occur on or through their Account, and Client agrees to immediately notify CTA of any security breach of the Account. CTA shall not be responsible for any losses arising out of the unauthorized use of Client Account.
7.Limitation on Liability.
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR THE OTHER PARTY’S CUSTOMERS FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES, OR LOST PROFITS OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, INCLUDING THROUGH THE USE OF THE CLIENT AREA OR THE CTA TECHNOLOGY OR THE PROVISION OF THE SERVICES, WHETHER FOR BREACH OF WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CTA’S AGGREGATE LIABILITY TO CLIENT ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AGGREGATE SUBSCRIPTION FEES OR SERVICE FEE, AS APPLICABLE, PAID BY CLIENT TO CTA DURING THE ONE-YEAR PERIOD IN WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED.
8.Term and Termination.
Term. This Agreement shall take effect on the Effective Date set forth at sign-up. Client may terminate this Subscription Agreement at any time upon 30 days prior written notice.
Termination by CTA. CTA will have the right to terminate or suspend this Agreement, effective immediately upon notice to Client, in the event that CTA believes that Client has materially breached any of its obligations or duties under this Agreement or the Service Conditions. Any suspension by CTA of the services under this paragraph shall not excuse you from your obligation to make payment(s) under the agreement.
Effect of Termination. In the event of any such termination by CTA, Client will pay to CTA the following amounts: (i) the sum of the Subscription Fees due from Client to CTA under this Agreement through the end of the current Term; and (ii) the unpaid amounts of all other Fees due under this Agreement. Upon the termination of this Agreement for any reason whatsoever, CTA shall be released from all obligations to provide to Client Services or provide Client access to the Client’s Website Area. Each party will be released from all obligations and liabilities to the other party occurring or arising after the date upon which such termination becomes effective, except that any termination of this Agreement will not relieve either party of any liability arising from any prior breach of this Agreement. Client Information contained within the Client Website Area will be available to Client (in a file format of CTA choosing) within thirty (30) days following receipt by CTA of a written request from Client for such information and upon payment of the Fees specified in Section 6 and Section 2. Commercially reasonable efforts will be made by CTA to back-up all client data, however the client remains responsible for backing up their data. Exports from CTA will be in PDF format for its Decision Platform.
9.Modifying Subscription and Use Rights. CTA reserves the right to modify its terms of Subscription at any time. Client agrees not to violate, circumvent, reverse-engineer, decompile, disassemble, or otherwise tamper with any of the CTA technology for any reason, or to attempt or assist another person to do so. Subscription and content may be controlled and monitored by CTA for compliance purposes, and CTA reserves the right to enforce this Web Services Agreement without notice to you.
CTA reserves the right to modify, suspend, or discontinue the Service (or any part or content thereof) at any time with or without notice to you, and CTA will not be liable to you or to any third party should it exercise such rights.
10.Miscellaneous
Survival. The provisions of Sections 1, 3, 6.2, 7, 8 and 10 will survive termination of this Agreement. Notices. All notices, requests, demands or other communications required to be given pursuant to the Agreement shall be in writing and shall be deemed to have been given, if sent by U.S. mail, registered, or certified mail, return receipt requested, postage prepaid, or by national carrier guaranteeing overnight delivery, addressed to the parties at their place of business or to such other address as the parties direct in writing.
Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of their obligations (other than monetary payments) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials, labor or supplies, or any other causes beyond the control of such party, provided that such party gives the other written notice thereof properly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay (“Force Majeure”). In the event of such Force Majeure, the time of performance or cure shall be extended for a period equal to the duration of the Force Majeure but in no event shall exceed three (3) months.
Entire Agreement; Amendment. This Agreement and the associated Service Conditions constitutes the entire understanding and agreement, and supersedes any and all prior or contemporaneous representations, understandings, and agreements, between the parties with respect to the subject matter of this Agreement. This Agreement shall not be altered, amended or supplemental without the prior written consent of the parties.
Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective legal representatives, successors and permitted assigns.
Severability. The invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity, legality, or enforceability of the remainder hereof in such jurisdiction or the validity, legality, or enforceability hereof, including any such provision, in any other jurisdiction, it being intended that all rights and obligations of the parties hereunder shall be enforceable to the fullest extent permitted by law.
Attorney’s Fees. If a nondefaulting party requires the services of an attorney to enforce any provision of this Agreement, the nondefaulting party shall be entitled to attorneys’ fees, together with expenses and costs incurred in connection with such enforcement.
Waiver. No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
Independent Contractors. The relationship of the parties shall be that of independent contractors, and nothing in this Agreement shall be deemed to create a partnership, joint venture, franchise, representative, agency or employment relationship between said parties. Neither party to this Agreement shall have authority, express or implied, to act for or bind or otherwise obligate the other in any manner whatsoever. Persons retained by a party as employees or agents shall not be deemed to be employees or agents of the other party.
Choice of Law; Jurisdiction and Venue. This Agreement shall be governed and interpreted in accordance with the substantive law of the State of Illinois without regard to its conflict of law provisions. All disputes and claims arising out of or relating to this Agreement, or the breach hereof, that are not resolved pursuant to an agreement of the parties shall be arbitrated in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA), and judgment upon any arbitration award may be entered in any Court or other tribunal having proper jurisdiction thereof. The parties hereby further consenting to the jurisdiction of such courts for this purpose. The discovery provisions of the Federal Rules of Civil procedure in effect at the time of arbitration shall be deemed incorporated herein for the purpose of such arbitration proceedings. If the parties herein cannot agree upon an arbitrator, one shall be appointed by the AAA. The arbitrator’s award shall be in writing. The parties shall share the procedural cost of arbitration equally unless the arbitrator decides otherwise. Each party shall pay its own attorney’s fees and other costs incurred by it in connection with the arbitration. All arbitration proceedings shall be conducted in Chicago, Illinois.
Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.
Data Use. It is further acknowledged that CTA may, in the course of its performance of the Services hereunder, maintain and have access to certain Client Data. CTA keeps a record of its database data (“Statistical Data”) in a log file within the CTA proprietary technology. This information is useful to CTA in creating new features, marketing, and other statistical uses, and CTA reserves the right to use this Statistical Data for its own business purposes, including without limitation, for marketing purposes; provided, however, that CTA will never disclose customer specific information or the identity of any customer. Subject to the rights granted to CTA in Statistical Data herein,
Data Protections. CTA agrees to make all commercially reasonable efforts to use commercially available products and services to protect all Data and prevent the unauthorized disclosure of such information and Data to third parties. CTA, however, does not warranty and cannot guarantee that unauthorized disclosure will not occur. Accordingly, CTA disclaims all liability related to such event.
Limitation of Liability. CTA is provided on an “AS IS” basis and may contain errors or inaccuracies that could cause failures, corruption, or loss of data and/or information.
You expressly acknowledge and agree that all use of CTA is at your sole risk. To the extent permitted by law, CTA shall have no liability with respect to your use of the CTA software, including the inability to access, enter, or uploaded content.
Cancellation And Refunds. If a CTA service becomes unavailable, your sole remedy is a refund. If technical problems prevent or unreasonably delay delivery of your CTA service, your exclusive and sole remedy is either replacement or refund of the price You paid, as determined by CTA. You may cancel at any time. Upon cancelation, unused balances are not refundable and unused balances are not transferable at any time.
Use Restrictions. The rights granted to You under this Agreement are conditioned upon and You agree that You will not:
- Remove or modify any program markings or any notice of CTA’s or its licensors’ proprietary rights;
- Make the programs or materials resulting from the services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the services you have acquired);
- Modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to CTA;
- Disclose results of any services or program benchmark tests without CTA’s prior written consent; and
- License, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, CTA programs or materials available to any third party other than, as expressly permitted under the terms of the Agreement.
Your Responsible for Safeguarding Account Access
Don’t reveal your Account information to anyone else. You are solely responsible for maintaining the confidentiality and security of your Account and for all activities that occur on or through your Account, and you agree to immediately notify CTA of any security breach of your Account. CTA shall not be responsible for any losses arising out of the unauthorized use of your Account.
