These Terms & Conditions (the “Agreement”) is a contract between Evidencity, Inc. (“Evidencity”) and you (“Customer”). By accessing and using this website and any mobile applications of Evidencity, Inc. or its affiliates, including without limitation, https://marketplace.evidencity.com (collectively, the “Sites”) you agree to be bound by this Agreement. Evidencity may revise and updated this Agreement from time to time without prior notice to you and will post the updated Agreement to the Sites. Any changes to this Agreement will apply immediately upon posting to the Sites. By using or otherwise accessing the Sites, or downloading Content (defined below) or any other information from the Sites, you hereby agree to, and shall be subject to, this Agreement and any change to it. You agree to periodically review this Agreement for such changes.
1.1. This Agreement governs Customer’s use of the Evidencity website and the Evidencity data marketplace service that allows Customer to purchase access to documents, records and reports from various countries (collectively referred to as the “Service”).
The Service includes all data, text, images, sounds, videos, surveys, reports, and other content made available through this website, or developed via Customer’s use of the Service (collectively, “Content”).
3.1. Subject to the terms and conditions of this Agreement, Evidencity hereby grants Customer a non-exclusive, non-transferable limited license to access and use the Service and the Content and any documents, records or reports ordered through the Service solely for personal or internal business use.
Subject only to Customer’s limited right to access and use the Service and Content as expressly granted to Customer here, all rights, title and interest in and to the Service and their components, including all related intellectual property rights, will remain with and belong exclusively to Evidencity and its third-party vendors.
3.2. Customer agrees not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as expressly permitted by this Agreement; (b) modify, adapt or “hack” the Service to falsely imply any sponsorship or association with Evidencity, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; (c) use the Service in any unlawful manner, including but not limited to violation of any person’s privacy rights, infringing any person’s intellectual property rights, or sending spam or otherwise duplicative or unsolicited messages in violation of applicable law, (d) use the Service in any manner that interferes with or disrupts the integrity or performance of the Service and its components; (e) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Service; (f) use the Service to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; or (g) try to use, or use the Service in violation of this Agreement.
3.3. Providers, clients and the Evidencity case manager for an order may correspond with each other through the Service regarding the order. The Evidencity case manager monitors and approves such messages before any messages can be viewed by the provider and/or client, as applicable. These messages are not publicly viewable through the Service.
Customer is responsible for all information, data, text, messages or other materials that Customer transmit via the Service on Customer’s behalf. Customer hereby grants to Evidencity a non-exclusive license to use Customer’s data, including any personally identifiable data that Customer provide, as necessary to provide Customer with the Service. Customer retains ownership of Customer’s data. Customer is responsible for maintaining the confidentiality of Customer’s login and account, if any, and are fully responsible for any and all activities that occur under Customer’s login or account. Customer agrees that Customer has provided any necessary notices to, and obtained any necessary consents from, individuals whose personally identifiable information Customer provides to Evidencity.
3.4. Evidencity’s failure to enforce at any time any provision of this Agreement does not constitute a waiver of that provision or of any other provision of this Agreement.
3.5. Payment and Electronic Communications
Customer will place an order in a form determined by Evidencity for any purchases made through the Service. The fees in connection with Customer’s purchase of a document, record and/or report (“Charges”) are as set forth on each country card and will be confirmed in the order form. Charges will be billed to the credit card account or the ACH bank account information Customer provides in accordance with the billing terms in effect at the time the Charges are due and payable. If payment is not received or cannot be charged to Customer’s credit card account or bank account for any reason, Evidencity reserves the right to either suspend or terminate Customer’s order and Customer’s access to the Service. All purchases are non-cancellable and all charges are non-refundable except as expressly set forth herein: (a) if Evidencity charges an order, and such order is subsequently cancelled by Evidencity, then the full amount of the Charge for such order will be credited to the Customer for its next order, (b) if Evidencity charges and delivers an order to Customer, but Customer is dissatisfied with the deliverable, then Evidencity will credit 75% of the Charges for such order to the Customer for its next order, and (c) if Evidence charges an order and Evidencity provides a summary of the work done and delivers a “No Finding” result, then Evidencity will credit 50% of the Charges for such order to the Customer for its next order.
By using the Service, Customer consents to receiving electronic communications from Evidencity. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to the Service. These electronic communications are part of Customer’s relationship with Evidencity and Customer receives them as part of Customer’s purchase. Customer agrees that any notices, agreements, disclosures or other communications that Evidencity sends Customer electronically will satisfy any legal communication requirements, including that such communications be in writing.
4.1. In providing the Service, Evidencity maintains administrative, physical and technical safeguards that are reasonably designed to protect the security, confidentiality and integrity of Customer’s data. The Service, however, is not intended for data storage or retention and Customer agrees and acknowledges that Evidencity has no obligation to retain Customer’s data or Customer’s ordered documents, records or reports, and may delete Customer’s data or Customer’s ordered documents, records or reports from the Evidencity Service at any time. Customer is responsible for backing up Customer’s own data and documents, records and reports.
Evidencity retains all rights, title and interest in and to all of its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to Customer to use the Service under this Agreement do not convey any additional rights in the Service or in any Intellectual Property Rights associated therewith.
Evidencity shall have, and Customer hereby grants to Evidencity, a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Service or otherwise use any suggestions, enhancement requests, recommendations or other feedback Evidencity receives from Customer.
The Service may contain links to, or otherwise may allow Customer to connect to and use certain third party products, services or software under separate terms and conditions (collectively, “Other Services”) in conjunction with Evidencity’s Service. If Customer decides to access and use such Other Services, Customer’s use is governed solely by the terms and conditions of such Other Services, and Evidencity does not endorse, is not responsible for, and make no representations as to such Other Services, their content or the manner in which they handle Customer’s data. Evidencity is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s access or use of any such Other Services, or Customer’s reliance on the privacy practices or other policies of such Other Services.
THE SERVICE, INCLUDING THE WEBSITE AND CONTENT, AND ANY DOCUMENTS OR RECORDS THAT CUSTOMER ORDERs THROUGH THE SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW. EVIDENCITY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGEs THAT EVIDENCITY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE. NO INFORMATION OR ADVICE OR DOCUMENTS OR RECORDS OBTAINED BY CUSTOMER FROM EVIDENCITY OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. Customer acknowledges that Evidencity obtains public records from various record repositories in various nations at Customer’s request. While Evidencity believes that these records are accurate and that the records obtained are in fact the records that are maintained in the various public repositories, Customer acknowledges and agrees that Evidencity is not a guarantor of the accuracy or the authenticity of such records. Customer assumes all risks of using any documents, records or reports obtained through the Service. Evidencity makes no representation that the information provided in a record, document or report pursuant to Evidencity’s consultants’ research is factual or correct. Though Evidencity and its agents take commercially reasonable measures to source the most qualified individuals in the local country environment to obtain information, reports are based upon information obtained from such country sources and, in some cases, the information provided from these sources is subjective in nature. As such, Evidencity has no liability arising out of the inaccuracy of the information provided from these various country sources.
8.1. NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS AGREEMENT, OR SUCH PARTY’S AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS HEREUNDER.
8.2. LIMITS ON MONETARY DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EVIDENCITY’S (INCLUDING ANY OF ITS AFFILIATES) AGGREGATE LIABILITY, FOR DAMAGES (MONETARY OR OTHERWISE) UNDER THIS AGREEMENT CLAIMED BY CUSTOMER OR ANY THIRD PARTY ARISING FROM THE SERVICE SHALL BE LIMITED TO THE LESSER OF (I) ACTUAL DAMAGES INCURRED, OR (II) ANY PAYMENTS (IF ANY) MADE BY CUSTOMER HEREUNDER AND ON THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 8.2 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, IF ANY, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF EVIDENCITY WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS AGREEMENT.
8.3. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to Customer. IN THESE STATES, EVIDENCITY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
Customer agrees to defend, indemnify, and hold harmless Evidencity from and against any claims, actions or demands, including, without limitation, reasonable legal and professional services fees, arising or resulting from Customer’s breach of this Agreement, or Customer’s and Customer’s end users’ access to, use, misuse or illegal use of the Service or the documents, records or reports or arising from Customer’s data or any actions Customer takes or does not take in response to documents, records or reports received through the Service or based on the documents, records or reports being inaccurate. Evidencity will provide Customer notice of any such claim, suit, or proceeding. Evidencity reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section, in which case Customer agrees to cooperate with any reasonable requests to assist Evidencity’s defense of such matter.
Customer shall not assign this Agreement to any third party except upon Evidencity’s prior written consent. Any purported assignment in violation of this section shall be void. Subject to the foregoing, this Agreement and each and all of the provisions hereof bind and benefit the parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.
This Agreement is the entire agreement between the parties on its subject matter and supersedes all prior and contemporaneous agreements.
If any provision in this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
Certain Content, the software components of the Service may be subject to U.S. export control and economic sanctions laws. If Customer is subject to U.S. laws, Customer agrees to comply with all such laws and regulations as they relate to the software and Content, and access and use of the Service. Customer shall not access or use the Service if Customer is located in a country in which the U.S. Department of Commerce, Bureau of Industry and Security, has prohibited certain exports. A list of such prohibited jurisdictions can be found its website at http://www.bis.doc.gov/index.php/regulations/export-administration-regulations-ear. Customer shall also not provide access to the Service to any government, entity or individual located in such prohibited jurisdictions.
Customer acknowledges that Evidencity has advised its various employees and various subcontractors of the provisions of the U.S. Foreign Corrupt Practices Act and the U.K. Anti Bribery Act, and that these various employees and subcontractors of Evidencity have agreed in writing to comply with their respective provisions. However, Customer acknowledges that Evidencity is not a guarantor that its various subcontractors and employees will comply with these provisions. Customer agrees to hold harmless Evidencity from any violations of these statutes because Evidencity has taken reasonable efforts to have its various subcontractors and employees comply with these laws. Evidencity uses reasonable efforts to comply with industry standards in the investigation and vetting of its various employees and subcontractors.
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.
Customer may terminate this Agreement at any time by ceasing use of the Service but Customer will not receive any refund of prepaid fees for submitted order forms. Evidencity may terminate this Agreement at any time. On any termination of this Agreement Customer will cease using the Service and Evidencity may delete all of Customer’s data and/or documents, records and reports that Customer has ordered.
Section 3.2, Section 5 (Intellectual Property Rights), the disclaimers in Section 7, and Sections 8 (Limitation of Liability) through 20 (Headings) will survive any termination of this Agreement.
This Agreement shall be governed by the internal law of the State of Maryland, without regard to conflict of law principles that would result in the application of any law other than the law of the State of Maryland.
The parties (a) irrevocably and unconditionally submit to the jurisdiction of the state courts of the State of Maryland and to the jurisdiction of the United States District Court for the District of Maryland (Northern Division) for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (b) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in the state courts of Maryland or the United States District Court for the District of Maryland (Northern Division), and (c) waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court.
EACH PARTY HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE OTHER TRANSACTION DOCUMENTS, THE SECURITIES OR THE SUBJECT MATTER HEREOF OR THEREOF. THE SCOPE OF THIS WAIVER IS INTENDED TO BE ALL-ENCOMPASSING OF ANY AND ALL DISPUTES THAT MAY BE FILED IN ANY COURT AND THAT RELATE TO THE SUBJECT MATTER OF THIS TRANSACTION, INCLUDING, WITHOUT LIMITATION, CONTRACT CLAIMS, TORT CLAIMS (INCLUDING NEGLIGENCE), BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW AND STATUTORY CLAIMS. THIS SECTION HAS BEEN FULLY DISCUSSED BY EACH OF THE PARTIES HERETO AND THESE PROVISIONS WILL NOT BE SUBJECT TO ANY EXCEPTIONS. EACH PARTY HERETO HEREBY FURTHER WARRANTS AND REPRESENTS THAT SUCH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL, AND THAT SUCH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
All notices which are required to be in writing will be effective when received, and will be delivered personally, via fax with transmission confirmation, by overnight courier, or by certified U.S. mail, return receipt requested, to the parties at the addresses listed above. Any notice of change of address will be effective only upon receipt.
The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity or enforceability of any other provision.
Section headings have been included for convenience and reference. They are not to be considered part of, or to be used in interpreting the Agreement.