Terms of Service
TERMS OF SERVICE (“TERMS”)
by DATABANK (a KYOCERA COMPANY)
TERMS OF SERVICE (“TERMS”)
by DATABANK (a KYOCERA COMPANY)
DataBank is in the business of providing services around the creation, capture, management and storage of electronic content. For purposes of this agreement these offerings have been packaged into offerings like ScanDirect™/Kuumo to provide more affordable options for our customers.
The DATABANK SERVICE includes packaged services that are offered from time to time referencing this Agreement and covered by the Terms contained herein. The DataBank Terms are subject to cancellation or modification at any time at DataBank’s discretion, including by information notification or publication of revised Terms.
PLEASE READ CAREFULLY THIS TERMS OF SERVICE (“AGREEMENT”) FOR THE SERVICES OFFERINGS (“SERVICE”) PROVIDED BY DATABANK IMX – A KYOCERA GROUP COMPANY (“DATABANK”).
This AGREEMENT is between the user of the Service (“CUSTOMER”) and DATABANK. By using the SERVICE, CUSTOMER represents and acknowledges to have read, understood and agrees to be bound by these TERMS OF SERVICE. DATABANK and CUSTOMER may be referred to each individually as “Party” or together as “Parties” in this Agreement.
1. INFORMATION AND ASSUMPTIONS.
The SERVICE will be provided based upon information the CUSTOMER provides to DATABANK. CUSTOMER acknowledges that if the information provided by CUSTOMER is incomplete or inaccurate, DATABANK’s ability to provide the SERVICE or meet the performance schedule may be adversely affected. ANY MATERIALS SENT TO DATABANK THAT CANNOT BE PROCESSED WILL BE RETURNED UNPROCESSED AND CUSTOMER RETAINS ITS FINANCIAL OBLIGATIONS FOR THE SERVICE.
2. CUSTOMER’S OBLIGATIONS.
(a) Assistance and Obligations. CUSTOMER agrees that it will cooperate with and assist DATABANK in the performance of Services; will provide the resources specified; and will perform or fulfill all obligations required to be performed or fulfilled by CUSTOMER under the guidelines of the SERVICE. CUSTOMER acknowledges that if it fails to perform or fulfill its obligations in accordance with the SERVICE guidelines, DATABANK’s ability to provide Services may be adversely affected.
(b) Protection of CUSTOMER’s Systems. CUSTOMER UNDERSTANDS THAT IT IS RESPONSIBLE TO TAKE APPROPRIATE MEASURES TO ISOLATE AND BACKUP OR OTHERWISE ARCHIVE ITS COMPUTER SYSTEMS, INCLUDING ITS COMPUTER PROGRAMS, DATA AND FILES. DATABANK DISCLAIMS RESPONSIBILITY FOR ANY LOST, DAMAGED OR DESTROYED SOFTWARE PROGRAM, DATA OR OTHER INFORMATION STORED OR RESIDING ON ANY MEDIA OR ANY PART OF CUSTOMER’S ENVIRONMENT, INCLUDING, WITHOUT LIMITATION, DELETION OR ALTERATION OF ANY CONTENTS OF ANY DATA STORAGE MEDIA WHICH MAY OCCUR IN THE COURSE OF THE SERVICES.
3. PAYMENT AND PRICING
CUSTOMER is responsible for all SERVICE fees. CUSTOMER agrees to pay SERVICE fee amounts plus any amounts equal to any applicable value added tax, provincial, municipal, or local sales, use, excise, privilege or other taxes or assessments, however designated or levied, relating to any amounts payable for SERVICE pursuant to any applicable law, rule, regulation or other requirements of law.
3.1 U.S. DOLLARS
All fees, costs and expenses under this Agreement shall be determined and all payments required to be made in connection with this Agreement, shall be made in U.S. dollars.
4. LOCATION OF SERVICE
DATABANK operates in and SERVICE availability is limited to the United States.
5. MUTUAL NONDISCLOSURE
Both parties agree that any information provided by DATABANK is deemed confidential and proprietary to DATABANK. This includes but is not limited to: (i) any information relating to its information security program including policies and procedures, (ii) written attestations, responses, and evidence relating to CUSTOMER, vendor, or regulatory inquiries and audits, (iii) any professional, industry, or regulatory certifications held by the organization, (iv) trade secrets, (v) intellectual property and (vi) any other confidential information.
The recipient of this information agrees to hold this information confidential during and after the term of this Agreement entered into hereunder.
5.2 DISCLOSURE AND USE RESTRICTIONS
The receiving Party will not use or disclose any Confidential Information without the disclosing Party’s prior written consent, except to the receiving Party’s employees or consultants on a need-to-know basis, provided that such employees or consultants have executed written agreements restricting use or disclosure of such Confidential Information that are at least as restrictive as the receiving Party’s obligations hereunder. In addition to the foregoing nondisclosure obligations, the receiving Party agrees to use at least the same care and precaution in protecting such Confidential Information as the receiving Party uses to protect the receiving Party’s own confidential and proprietary information and trade secrets, and in no event less than reasonable care. The receiving Party shall return or destroy all Confidential Information promptly upon the request of the disclosing Party or upon termination of this Agreement.
5.3 NOTIFICATION AND REPORTING OF INFORMATION SECURITY INCIDENTS
In the event that an information security incident occurs within a CUSTOMER’s internal network, where an established network connection exists between DATABANK and CUSTOMER, CUSTOMER shall notify DATABANK within a reasonable timeframe to avoid prolonged exposure of DATABANK’s network.
5.4 RETURN OF CONFIDENTIAL INFORMATION
Upon request from the disclosing Party, the receiving Party shall immediately return to the disclosing Party all Confidential Information and copies thereof, or if directed by disclosing Party, shall immediately destroy or de-install such Confidential Information and all copies, and shall furnish proof of their destruction to the disclosing Party.
5.5 EXEMPTING PROVISIONS
Neither Party shall be bound by the obligations restricting disclosure and use set forth in this Agreement with respect to Confidential Information, or any part thereof, which: (a) was known by the receiving Party prior to disclosure, as evidenced by its business records; (b) was lawfully in the public domain prior to its disclosure, or becomes publicly available other than through a breach of this Agreement; (c) was disclosed to the receiving Party by a third party provided such third party or any other party from whom such third party receives such information is not in breach of any confidentiality obligation in respect of such information; (d) is independently developed by the receiving Party without use of the Confidential Information, as evidenced by its business records; or (e) is disclosed when such disclosure is compelled pursuant to legal, judicial, or administrative proceeding, or otherwise required by law, subject to the receiving Party giving all reasonable prior notice to the disclosing Party to allow it to seek protective or other court orders.
5.6 PROPRIETARY RIGHTS
No license of any patent right, copyright, or any other right in respect of the Confidential Information, other than as necessary to ensure the rights specifically granted herein, is granted to the receiving Party under this Agreement by implication or otherwise. This Agreement shall not constitute any representation, warranty, or guarantee to the receiving Party by the disclosing Party that Confidential Information does not infringe patents, copyrights, or any other rights of third parties.
5.7 PERMITTED USE OF CONFIDENTIAL INFORMATION
CUSTOMER is permitted to use Confidential Information only for purposes of receiving the Services and Products under this Agreement.
THE DISCLOSING PARTY MAKES NO REPRESENTATIONS, DOES NOT WARRANT, AND SHALL HAVE NO LIABILITY WHATSOEVER IN RESPECT OF ANY INFORMATION DISCLOSED BY IT PURSUANT TO THIS AGREEMENT.
5.9 DURATION OF CONFIDENTIAL INFORMATION
Non-Disclosure of Confidential Information shall apply for the duration and extend three (3) years from the termination date of this Agreement entered into hereunder, whichever is later.
5.10 EQUITABLE REMEDY
Each Party acknowledges that due to the unique nature of the other Party’s Confidential Information, the disclosing Party will not have an adequate remedy in money or damages in the event of any unauthorized use or disclosure of its Confidential Information. In addition to any other remedies that may be available in law, in equity or otherwise, the disclosing Party shall be entitled to seek injunctive relief to prevent such unauthorized use or disclosure.
6. CLASSIFICATION OF DATA AND HANDLING RESPONSIBILITIES
DATABANK considers all data being transferred between DATABANK and CUSTOMER to be confidential by default. As such, all confidential data must be adequately protected while being transferred between DATABANK and CUSTOMER’s internal network(s), as well as when being stored, processed, or transmitted within either Party’s internal network(s).
6.1 MINIMUM TECHNICAL SECURITY STANDARDS FOR PACKAGING AND TRANSMISSION
All transmissions and transfers of data shall be secured using industry standard secure protocols and/or technologies. Secure protocols and/or technologies shall include the following controls where applicable: (i) cryptography for data being transferred over open, public networks, (ii) procedures to ensure traceability and non-repudiation, (iii) the ability to maintain chain of custody while in transit, and (iv) acceptable levels of access control.
6.2 USE OF INSECURE TRANSMISSION/TRANSFER PROTOCOLS
Any CUSTOMER that wishes to use insecure data transmission/transfer protocols must sign a waiver acknowledging and accepting the risks that are introduced via the usage of insecure protocols and/or technologies. DATABANK cannot make exceptions to transmit sensitive information in an insecure manner. Additionally, approval for an exception to DATABANK’s transfer procedures must be granted by DATABANK’s Vice President of Information Technology.
6.3 INFORMATION SECURITY INCIDENT RESPONSIBILITIES
In order to provide security and compliance, DATABANK may need (i) to facilitate system, procedural, protocol or operational changes to address regulatory and/or legal changes or (ii) respond to an imminent information security threat. CUSTOMER agrees to allow DATABANK to do so.
6.4 COURIER IDENTIFICATION STANDARDS
In the event that a physical courier is required, a courier approved by DATABANK shall be used. DATABANK does not have any liability relating to the transportation of documents related to the Service. ANY LOST OR DAMAGED ITEMS IS THE RESPONSIBILITY OF THE CUSTOMER AND THE COURIER.
7. INTELLECTUAL PROPERTY RIGHTS
Intellectual Property and Work Product created, made, originated, purchased or licensed by DATABANK for the purpose of performing the SERVICE shall be the sole and exclusive property of DATABANK except as DATABANK may voluntarily choose to transfer such property, in full or in part. DATABANK will not provide specific demonstration, manuals or training which covers the creation or use of any Intellectual Property or Work Product used to complete the described services. CUSTOMER will not copy the technology or process used to perform the SERVICE except as specifically allowed by the technology license agreement, or without the expressed written consent of DATABANK. Any unauthorized duplication or use of the technology, or its corresponding documentation is forbidden. To the extent any Intellectual Property for any reason is determined not to be owned by DATABANK, CUSTOMER hereby irrevocably assigns and conveys to DATABANK all of its patent, copyright, trade secret, know-how and other proprietary and associated rights in that Work Product or Intellectual Property.
Documentation created by DATABANK about the SERVICE shall remain the property of DATABANK. The CUSTOMER shall be permitted to use any documentation or reporting for internal instructional, educational, and administrative purposes.
This Agreement does not provide the CUSTOMER with rights of any kind nor access to DATABANK created and owned Intellectual Property and Work Product which exists as a licensed software product. Purchasing and licensing of DATABANK products and the associated rights are governed by a separate End User License Agreement.
Intellectual Property and Work Product created for the CUSTOMER as a Service at the request of the CUSTOMER shall be provided with licensing rights necessary for the use and implementation of any program or data created by DATABANK within the CUSTOMER’s internal environment. This will include the right to receive and analyze source code for security purposes and to retain the code internally. The CUSTOMER will not be licensed for the sale or re-distribution of custom developed intellectual property. DATABANK shall retain exclusive property ownership including, without limitation, intellectual property rights, all drawings, reports and other documents, source code and other information and materials (whether in tangible or intangible form) created by DATABANK as a result of performing the Service of custom code and custom solution development.
This Section of this Agreement shall survive until the Intellectual Property no longer qualifies as a trade secret or until DATABANK sends the CUSTOMER written notice releasing the CUSTOMER from this Agreement or specific Intellectual Property, whichever occurs first.
8. LIMITS OF LIABILITY
SENDING CONTENT (IN PAPER OR ELECTRONIC FORMAT) BY COURIER IS AT THE RISK OF THE CUSTOMER. IN NO EVENT SHALL EITHER PARTY OR, IN THE CASE OF DATABANK, ITS SUPPLIERS, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS, LOSS OR DESTRUCTION OF ITEMS IN TRANSIT, LOST SAVINGS, BUSINESS INTERRUPTION DAMAGES OR EXPENSES, THE COSTS OF SUBSTITUTE SOFTWARE, WORK PRODUCTS OR SERVICES, LOSSES RESULTING FROM ERASURE, DAMAGE, DESTRUCTION OR OTHER LOSS OF FILES, DATA OR PROGRAMS OR THE COST OF RECOVERING SUCH INFORMATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
DATABANK AND ITS SUPPLIERS’ LIABILITY FOR ANY CLAIMS, LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE PERFORMANCE OR NON-PERFORMANCE OF THE SERVICE SHALL IN NO EVENT EXCEED TWO (2) TIMES THE COST OF THE SERVICE ACTUALLY PAID FOR THE PARTICULAR WORK IN DISPUTE.
DATABANK shall defend, indemnify and hold CUSTOMER and its affiliates and their respective officers, directors, employees, agents, successors and assigns, harmless from and against any and all claims, suits or proceedings, demands, losses, damages, liabilities and costs and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or resulting from (i) DATABANK’s or its Employee’s violation of applicable law, negligence, willful misconduct or breach of this Agreement hereunder, or any undertaking, covenant, representation or warranty contained therein or (ii) the actual or alleged infringement of any patent, trademark, copyright, trade secret or other intellectual property right in connection with any Intellectual Property, including any Deliverable, or the use thereof by CUSTOMER. DATABANK agrees to defend any indemnified party, at CUSTOMER’s request, against any such claim, demand or suit.
CUSTOMER shall defend, indemnify and hold DATABANK and its affiliates and respective officers, directors, employees, agents, successors and assigns, harmless from and against any and all claims, suits or proceedings, demands, losses, damages, liabilities and costs and expenses (including, without limitation, reasonable attorneys’ fees) arising out of or resulting from (i) CUSTOMER’s violation of applicable law, negligence, willful misconduct or breach of this Agreement hereunder, or any undertaking, covenant, representation or warranty contained therein or (ii) the actual or alleged infringement of any patent, trademark, copyright, trade secret or other intellectual property right in connection with any CUSTOMER intellectual property furnished to DATABANK by CUSTOMER pursuant to the use thereof by DATABANK. CUSTOMER agrees to defend any indemnified Party, at DATABANK’s request, against any such claim, demand or suit.
Where indemnification is sought by a Party (the “Claiming Party”), (a) it shall notify the other Party (the “Indemnifying Party”) promptly of any claim or litigation or threatened claim to which the indemnification relates, provided, however, failure to provide prompt notification will only relieve the Indemnifying Party of its indemnity obligations to the extent of actual prejudice, if any; (b) upon the Indemnifying Party’s written acknowledgement of its obligation to indemnify in such instance, in form and substance satisfactory to the Claiming Party, the Claiming Party shall afford the Indemnifying Party an opportunity to participate in and, at the option and expense of the Indemnifying Party, control, compromise, settle, defend or otherwise resolve the claim or litigation, provided that the Indemnifying Party shall not enter into any non-monetary settlement without the Claiming Party’s prior written consent and the Claiming Party shall not affect any such compromise or settlement without prior consent of the Indemnifying Party, which shall not be unreasonably withheld; and (c) the Claiming Party shall reasonably cooperate with the Indemnifying Party at no cost to itself in any such compromise, settlement, defense or resolution of such claim or litigation. If the Indemnifying Party does not so acknowledge its indemnification responsibility, the Claiming Party may proceed directly to enforce its indemnification rights.
10.1 DISCLAIMER OF OTHER WARRANTIES.
DATABANK warrants to CUSTOMER that the Service provided hereunder shall be performed in a competent, timely and workmanlike manner and consistent with generally accepted industry standards, and each of DATABANK’s Employees assigned to perform the Service shall have the training, background and skills reasonably commensurate with the level of performance required under this Agreement.
(a) EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, DATABANK MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING ANY SOFTWARE, WORK PRODUCTS, INNOVATIONS, INFORMATION OR SERVICES PROVIDED UNDER THIS AGREEMENT. DATABANK DISCLAIMS AND EXCLUDES ANY AND ALL OTHER EXPRESS, IMPLIED AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES THAT MAY ARISE OR BE DEEMED TO ARISE FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. DATABANK DOES NOT WARRANT THAT ANY SERVICES, SOFTWARE OR WORK PRODUCTS PROVIDED WILL SATISFY CUSTOMER’S REQUIREMENTS OR ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY SOFTWARE OR ANY WORK PRODUCTS PROVIDED UNDER THIS AGREEMENT WILL BE UNINTERRUPTED. DATABANK DOES NOT ASSUME ANY LIABILITY WHATSOEVER WITH RESPECT TO ANY THIRD PARTY HARDWARE, FIRMWARE, SOFTWARE OR SERVICES.
(b) CUSTOMER SPECIFICALLY ASSUMES RESPONSIBILITY FOR THE SELECTION OF THE SERVICE TO ACHIEVE ITS BUSINESS OBJECTIVES.
(C) NO ORAL OR WRITTEN INFORMATION GIVEN BY DATABANK OR EMPLOYEES SHALL CREATE ANY ADDITIONAL WARRANTY. NO MODIFICATION OR ADDITION TO THE LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT IS AUTHORIZED UNLESS IT IS SET FORTH IN WRITING, REFERENCES THIS AGREEMENT, AND IS SIGNED ON BEHALF OF DATABANK BY A CORPORATE OFFICER.
(d) DATABANK TAKES COMMERCIALLY REASONABLE STEPS TO DESIGN ITS SOFTWARE TO PROTECT THE SECURITY OF DATA SUBMITTED BY USERS, BUT IT DOES NOT AND CANNOT GUARANTEE THAT ITS SOFTWARE IS 100% SECURE FROM HACKING OR UNAUTHORIZED ACCESS. FURTHER, DATABANK DOES NOT CONTROL THE SERVERS ON WHICH ITS PORTAL WILL BE HOSTED, OR THE COMPUTERS, DEVICES, OR THE INTERNET OVER WHICH USERS MAY CHOOSE TO ENTER CONFIDENTIAL OR PERSONAL INFORMATION. DATABANK THEREFORE CANNOT PREVENT INTERCEPTIONS OR COMPROMISES TO USER DATA WHILE IN TRANSIT TO PROVIDER, NOR CAN DATABANK PREVENT ALL UNAUTHORIZED ACCESS TO CUSTOMER’S COMPUTER NETWORKS OR THE DATA STORED ON CUSTOMER’S COMPUTER NETWORKS. DATABANK MAKES NO GUARANTEE AS TO THE SECURITY, INTEGRITY, OR CONFIDENTIALITY OF ANY INFORMATION TRANSMITTED BY MEANS OF DATABANK’S SOFTWARE OR PORTAL. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT IT IS RESPONSIBLE FOR MAINTAINING THE SECURITY OF ITS COMPUTER NETWORKS, AND IT AGREES TO DEFEND AND INDEMNIFY DATABANK AGAINST ANY THIRD PARTY CLAIM BROUGHT AGAINST DATABANK THAT ARISES FROM OR RELATES TO HACKING, A BREACH OF SECURITY, OR OTHER UNAUTHORIZED ACCESS TO DATA SUBMITTED THROUGH DATABANK’S SOFTWARE OR PORTAL.
10.2 FORCE MAJEURE
No failure, delay or default in performance of any obligation of a Party to this Agreement (except the payment of money) shall constitute a default or breach to the extent that such failure to perform, delay or default arises out of a cause, existing or future, beyond the control (including, but not limited to: action or inaction of governmental, civil or military authority; fire; strike, lockout or other labor dispute; flood; war; riot; theft; earthquake; natural disaster or acts of God; national emergencies; unavailability of materials or utilities; sabotage; disease; viruses; pandemic, or the act, negligence or default of the other Party) and without negligence or willful misconduct of the Party otherwise chargeable with failure, delay or default. Either Party desiring to rely upon any of the foregoing as an excuse for failure, default or delay in performance shall, when the cause arises, give to the other Party prompt notice in writing of the facts which constitute such cause; and, when the cause ceases to exist, give prompt notice of that fact to the other Party. This Section 11.2 shall in no way limit the right of either Party to make any claim against third parties for any damages suffered due to said causes. If any performance date by a Party under this Agreement is postponed or extended pursuant to this Section for longer than ninety (90) calendar days, the other Party, by written notice given during the postponement or extension, and at least thirty (30) days prior to the effective date of termination, may terminate this Agreement.
This Agreement will be binding upon and inure to the benefit of each of the Parties, their successors and assigns. Neither Party may assign this Agreement hereunder or assign its rights or delegate its duties hereunder, without the prior written consent of the other Party (except in connection with a merger, sale of all or substantially all of a Party’s assets or other form of corporate reorganization of that Party, provided that the assigning Party shall provide written notice to the other Party) and any purported assignment in violation of this Section will be without force or effect.
Except for a claim for injunctive relief which can be brought in any Court of competent jurisdiction, if there is a dispute, claim, or disagreement arising from or relating to this Agreement or the breach thereof, the parties shall use their best efforts to settle the matter. To this effect, they shall consult and negotiate with each other in good faith and, recognizing their mutual interests, attempt to reach a just and equitable solution satisfactory to both parties. If they do not reach such solution within a period of 30 days (or within such additional time as the parties agree), then, upon notice by either Party to the other the matter shall be settled by arbitration in accordance with the Rules of the American Arbitration Association, and judgment upon the award rendered by the Arbitrator may be entered in any court having jurisdiction. The Arbitrator shall not have the authority to add to, or modify this provision, or to award punitive damages to any injured Party. If the CUSTOMER is the Party making the claim, the arbitration proceeding shall be conducted in the State where the principal amount of work or Services were, or are being, performed. If DATABANK is the Party making the claim, the arbitration proceeding shall be conducted in Northern New Jersey. Alternatively, the Parties may agree on another mutually agreeable location. The arbitration proceeding shall be conducted by a single Arbitrator selected under the Rules of the American Arbitration Association. Costs and fees of the Arbitration shall be borne equally between the Parties and each Party shall responsible for its own attorney’s fees.
The failure of a Party to enforce any provision of this Agreement hereunder shall not constitute a waiver of such provision or the right of such Party to enforce such provision and every other provision.
Any legal notices or consents pursuant to this Agreement shall be in writing and shall be sent to DATABANK at the following physical address and shall be deemed to have been duly given on the date delivered in person, or sent overnight delivery service, courier service, electronic mail, or on the date of the third business day after deposit, postage prepaid, in the United States Mail via Certified Mail, return receipt requested:
If to DATABANK: DATABANK
620 Freedom Business Center
King of Prussia, PA 19406
ATTN: Office of the CFO (Contract Compliance Administrator)
10.7 Governing Law
This Agreement and any claim, proceeding or dispute arising out of this Agreement shall in all respects be governed by, and interpreted in accordance with, the substantive laws of the State of Delaware.
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior communications, written or oral, with respect thereto.
If any part of this Agreement shall be held by a court of competent jurisdiction to be invalid, illegal, unenforceable or overly broad as to particular provisions, this Agreement shall remain in full force and effect as to the remaining provisions.
The headings used in this Agreement are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof. All defined terms in this Agreement shall be deemed to refer to the masculine, feminine, neuter, singular or plural, in each instance as the context or particular facts may require. Use of the terms “hereunder,” “herein,” “hereby” and similar terms refer to this Agreement.
10.11 Third Parties
Nothing herein expressed or implied is intended or shall be construed to confer upon or give to any person or entity, other than the parties hereto, any rights or remedies by reason of this Agreement.
Each Party utilizing the Service represents and warrants that he/she is duly authorized to execute and deliver this Agreement (as applicable) on behalf of said Party and that this Agreement hereunder is binding upon said Party in accordance with this Agreement’s terms.
No waiver of any right or remedy on one occasion by either Party shall be deemed a waiver of such right or remedy on any other occasion.
Shall mean information or material that is confidential and proprietary to the disclosing Party, whether disclosed in writing or orally. Confidential information includes, but is not limited to, the following types of information and other information of a similar nature: products, pricing, systems, plans, CUSTOMER documents, marketing and business plans, financial information, CUSTOMER lists, and other similar information that is proprietary to and confidential information of the disclosing Party. Confidential Information may be in the form of, but is not limited to, documents, lists, designs, software, computer files, digital and electronic media, and shall remain the property of the disclosing Party.
Elements of the SERVICE to be delivered to CUSTOMER.
All employees, agents (including, without limitation, employees of such agents) and contractors (including, without limitation, employees of such contractors) of DATABANK.
Means patents, rights to apply for patents, trademarks, trade names, service marks, domain names, copyrights and all applications and registration of such worldwide, schematics, industrial models, inventions, know-how, trade secrets, computer software programs, source codes, and other intangible proprietary and confidential information of the disclosing Party.
“Third Party Intellectual Property”
Intellectual property rights which belong to an individual or entity not a Party to this Agreement.