This agreement (“Agreement“) is entered into, to be effective upon payment by and between Customer (“Subscriber”) and DeepBD®, Inc., (“Service Provider”).

  1. The Services

    This Agreement sets forth the terms and conditions under which the Service Provider will provide the Software and Data for use by the Subscriber for the Term of this Agreement. The Services consist of access to DeepBD®.

    1. Acknowledgment of Retrievable Subscriber Data

      Service Provider acknowledges and agrees that the Services shall include archiving all Subscriber information in the Service Provider’s Database to allow the Subscriber to create and access views. The Subscriber Data will only be accessible by the Service Provider.

    2. Acknowledgment of Web Browsers

      Service Provider shall assure that the Subscriber and other Users will be able to access the Subscriber Database and generate displays through Edge (Current Version); Internet Explorer (Current Version); Chrome (Current Version); Safari (Current Version); or Firefox (Current Version) Browsers.

    3. Acknowledgment of Cloud Storage

      Service Provider will use Amazon Web Services.

    4. Software License:
      1. Grant of Software License to New Software

        Subject to the terms of this Agreement, Service Provider grants the Subscriber a paid-up, nonexclusive, irrevocable, worldwide license in such copyrighted computer software to display publicly (but not to distribute copies to the public) by or on behalf of the Subscriber.

      2. Grant of Software License to Preexisting Software

        Subject to the terms of this Agreement, Service Provider grants the Subscriber a limited duration, non-exclusive, non-transferable license up to the license capacity purchased to use the Preexisting Software to access the Service Provider Data contained within the Service Provider Database for the purpose of creating and accessing views.

      3. Restrictions

        Except as otherwise permitted by this Agreement, neither the Subscriber nor any User may:

        1. Transfer assign, sub-license, rent, or create derivative works of the Software, or use it in any type of service provider or commercial environment;
        2. Reverse engineer, decompile, disassemble, or translate the Software; or
        3. Evaluate or use the Software for the purpose of competing with Service Provider.
    5. Rights to Data

      All Service Provider Data shall constitute restricted rights data to include any derivate data created by Subscriber.

    6. Rights to Computer Software

      All Software that is made available for use by the Service Provider shall be deemed restricted computer software and the Subscriber will acquire only the restricted rights license to the Computer Software. The Subscriber and other Users shall have only the right to use the Software through a web Browser to access and view the Service Provider Data.

    7. Quantity of Users

      The maximum number of Users (including the Subscriber) will not exceed the number of Users allocated per paid license.

    8. Control and Location of Services

      The method and means of providing the Software and Service Provider Data shall be under the exclusive control, management, and supervision of Service Provider, giving due consideration to the requests of Subscriber. The Software and Service Provider Data shall be provided solely from within the continental United States and on computing and data storage devices residing therein.

    9. Reservation of Rights

      Service Provider retains all rights, and does not grant or license the Subscriber or other Users any rights in: (i) any database in which any data is stored; (ii) any software used by the Service Provider to capture data that is initially stored in the Service Provider Databases.

    10. Changes in Functionality

      Service Provider shall maintain the rights to reduce or eliminate or increase the functionality in the Software. Where Service Provider has introduced like functionality in other commercial software such functionality shall maintain the right to include the functionality in the Software that have been granted to the Subscriber under this Agreement with the same rights, obligations, and limitations. Where Service Provider increases functionality in the Software, such functionality shall be offered to Subscriber with an increase in the price of the license if the Service Provider deems a price increase is necessary.

  2. Maintenance and Support
    1. Technical Support

      Service Provider shall provide the Technical Support for the Software.

    2. Maintenance

      Service Provider shall provide bug fixes, corrections, modifications, enhancements, upgrades, and new releases to the Software to ensure: (a) the functionality of the Software is available to the Subscriber and other Users; (b) the functionality of the Software in accordance with the representations and warranties set forth herein, including but not limited to, the Software; (c) the Software works with the current version of Edge, Internet Explorer, Mozilla Firefox, and Google Chrome Internet browsers.

      1. Required Notice of Maintenance

        Unless as otherwise agreed to by Subscriber on a case-by-case basis, Service Provider shall provide no less than seven (7) calendar day’s prior written notice to Subscriber of all non-emergency maintenance to be performed on the Software, such written notice including a detailed description of all maintenance to be performed. For emergency maintenance, Service Provider shall provide as much prior notice as commercially practicable to Subscriber and shall provide a detailed description of all maintenance performed no greater than one (1) calendar day following the implementation of the emergency maintenance.

      2. Acceptance of Non-Emergency Maintenance

        Unless as otherwise agreed to by Service Provider on a case-by-case basis, for non-emergency maintenance, Subscriber shall have a two (2) business day period to notify the Service Provider such maintenance will adversely affect their operations. The Service Provider shall reserve the right not introduce such rejected maintenance changes into production. At the end of the Maintenance Acceptance Period, if Subscriber has not notified the Service Provider the maintenance changes shall be deemed to be accepted by Subscriber and Service Provider shall be entitled to introduce the maintenance changes into production.

  3. Warranty and Disclaimer of Warranties

    The Service Provider warrants and implies that the items delivered hereunder are merchantable and fit for use for the particular purpose described in this agreement. SERVICE PROVIDER DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES. CUSTOMER UNDERSTANDS THAT THE SOFTWARE AND SERVICES MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.

  4. Audit Rights of Service Provider

    Service Provider shall have a right to conduct an on-premises audit of Subscriber’s compliance with the use of the Software. No more than once annually, Service Provider shall have the right to request from Subscriber its certification of compliance with the permitted number of Users. Where the actual number of users exceeds the permitted number of Users, Subscriber, at Subscriber’s sole election shall: (a) reduce the actual number of users so as to be in compliance with the permitted number of Users; or, (b) provide the Subscriber the option of acquiring an appropriate number of additional licenses at the specified rate so as to be in compliance with the increased number of Users.

  5. Representations and Warranties

    Service Provider represent and warrant that:

    1. it is a business duly incorporated, validly existing, and in good standing under the laws of its state of incorporation;
    2. it has all requisite corporate power, financial capacity, and authority to execute, deliver, and perform its obligations under this Agreement;
    3. the execution, delivery, and performance of this Agreement has been duly authorized by it and this Agreement constitutes the legal, valid, and binding agreement of it and is enforceable against it in accordance with its terms, except as the enforceability thereof may be limited by bankruptcy, insolvency, reorganizations, moratoriums, and similar laws affecting creditors’ rights generally and by general equitable principles;
    4. it shall comply with all applicable federal, state, local, or other laws applicable to the performance by it of its obligations under this Agreement and shall obtain all applicable permits and licenses required of it in connection with its obligations under this Agreement;
    5. it is the lawful licensee of the any software that is used to provide the Software and has all the necessary rights in the Software to grant the use of the Software to Subscriber;
    6. the Software and any other Services or work performed by Service Provider hereunder shall not infringe upon any United States or foreign copyright, patent, trade secret, or other proprietary right, or misappropriate any trade secret, of any third-party, and that it has neither assigned nor otherwise entered into an agreement by which it purports to assign or transfer any right, title, or interest to any technology or intellectual property right that would conflict with its obligations under this Agreement;
    7. it has the expertise to perform the Services in a competent, workmanlike, and professional manner and in accordance with the highest professional standards;
    8. the Software is free of any mechanism which may disable the Software and Service Provider warrants that no loss of access to the Subscriber Data will result from such items if present in the Software;
    9. The Software and Subscriber Database will conform in all material respects to the specifications, functions, descriptions, standards, and criteria set forth in its advertising.
  6. Non-Disclosure of Confidential Information.

    The parties acknowledge that each party may be exposed to or acquire communication or Subscriber Data of the other party that is confidential, privileged communication not intended to be disclosed to third parties.

    The provisions of this Section shall survive the termination of this Agreement.

    1. Meaning of Confidential Information

      For the purposes of this Agreement, the term “Confidential Information” shall mean all information and documentation of a party that: (a) has been marked “confidential” or with words of similar meaning, at the time of disclosure by such party; (b) if disclosed orally or not marked “confidential” or with words of similar meaning, was subsequently summarized in writing by the disclosing party and marked “confidential” or with words of similar meaning; and, (c) should reasonably be recognized as confidential information of the disclosing party. The term “Confidential Information” does not include any information or documentation that was: (a) already in the possession of the receiving party without an obligation of confidentiality; (b) developed independently by the receiving party, as demonstrated by the receiving party, without violating the disclosing party’s proprietary rights; (c) obtained from a source other than the disclosing party without an obligation of confidentiality; or, (d) publicly available when received, or thereafter became publicly available (other than through any unauthorized disclosure by, through, or on behalf of, the receiving party). For purposes of this Agreement, in all cases and for all matters, the displays shall be deemed to be Confidential Information.

    2. Obligation of Confidentiality

      The parties agree to hold all Confidential Information in strict confidence and not to copy, reproduce, sell, transfer, or otherwise dispose of, give or disclose such Confidential Information to third parties other Users who have a need to know in connection with this Agreement or to use such Confidential Information for any purposes whatsoever other than the performance of this Agreement. The parties agree to advise and require their respective employees, agents, and subcontractors of their obligations to keep all Confidential Information confidential.

    3. Cooperation to Prevent Disclosure of Confidential Information

      Each party shall use its best efforts to assist the other party in identifying and preventing any unauthorized use or disclosure of any Confidential Information. Without limiting the foregoing, each party shall advise the other party immediately in the event either party learns or has reason to believe that any person who has had access to Confidential Information has violated or intends to violate the terms of this Agreement and each party will cooperate with the other party in seeking injunctive or other equitable relief against any such person.

    4. Remedies for Breach of Obligation of Confidentiality

      Each party acknowledges that breach of its obligation of confidentiality may give rise to irreparable injury to the other party, which damage may be inadequately compensable in the form of monetary damages. Accordingly, a party may seek and obtain injunctive relief against the breach or threatened breach of the foregoing undertakings, in addition to any other legal remedies which may be available, to include, in the case of Subscriber, at the sole election of Service Provider, the immediate termination, without liability to Subscriber, of this Agreement corresponding to the breach or threatened breach.

    5. Surrender of Confidential Information upon Completion

      Upon completion of this Agreement, in whole or in part, each party shall, within five (5) calendar days from the date of completion, return to the other party any and all Confidential Information received from the other party, or created or received by a party on behalf of the other party, which are in such party’s possession, custody, or control; provided. Should Service Provider or Subscriber determine that the return of any non-Subscriber Data Confidential Information is not feasible, such party shall destroy the non-Subscriber Data Confidential Information and shall certify the same in writing within five (5) calendar days from the date of termination to the other party.

  7. Data Privacy and Information Security
    1. Undertaking by Service Provider

      Without limiting Service Provider’s obligation of confidentiality as further described herein, Service Provider shall be responsible for establishing and maintaining a data privacy and information security program, including physical, technical, administrative, and organizational safeguards, that is designed to: (a) ensure the security and confidentiality of the Subscriber Data; (b) protect against any anticipated threats or hazards to the security of the Subscriber Data; (c) protect against unauthorized disclosure, access to, or use of the Subscriber Data; (d) ensure the proper disposal of Subscriber Data; and, (e) ensure that all employees, agents, and subcontractors of Service Provider, if any, comply with all of the foregoing.

  8. Proprietary Rights
    1. Proprietary Rights in Software

      The Software is proprietary property of the Service Provider and/or its subsidiaries, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with the Service Provider and/or its subsidiaries. The Software is protected by applicable copyright and other intellectual property laws. Neither the Subscriber nor any User may remove any product identification, copyright, trademark or other notice from the Software. Subscriber and its subsidiaries reserve all rights not expressly granted under this Agreement. Subscriber further acknowledges that the Service Provider and/or its subsidiaries will continue to enhance, modify and improve the Software, and that the Software, and all such enhancements, modifications and improvements, shall remain the sole and exclusive property of Service Provider.

    2. Ownership

      Neither this Agreement, or the use of the Software or Services, shall operate to grant the Subscriber with any rights of any nature to any software that may be used by Service Provider that is not accessible or usable by the Subscriber.

    3. The provisions of this Section shall survive the termination or expiration of this Agreement.
  9. Billing:

    The Subscriber agrees to a month to month billing cycle based on the date of this Agreement. For example, a billing cycle may start on the 1st day of the month and end on the 30th day of the month. Or, it may go from the 15th of one month to the 14th of the next month.

  10. Subscription Fees:

    Subscription fee is set on the date of this Agreement as advertised on the DeepBD® Website. DeepBD® reserves the right to increase or decrease subscription fees.

  11. Termination.

    The Subscriber may terminate this Agreement by canceling their Subscription. Termination will occur at the end of the billing cycle. The Subscriber may also terminate this Agreement by not paying their license fee due to determination that such termination is in the best interest of the Subscriber. Service Provider will submit a claim to the Subscriber if it believes the Subscriber to be in breach. Notwithstanding any termination of this Agreement by the Service Provider, the Subscriber shall not have the right to continued use of this Agreement prior to completed adjudication of the claim. Service provider may terminate this Agreement for non-payment.

  12. General
    1. Relationship between Subscriber and Service Provider

      Service Provider represents and that it is a commercial service provider with authority to provide a license to Subscriber. Under no circumstances shall Service Provider, or any of its staff, if any, hold itself out as or be considered an agent employee, joint venture, or partner of Subscriber.

    2. Governing Law

      Depending on the cause of action (e.g., tort, breach of contract, infringement of copyright or patent), both venue and the statute of limitations are usually mandated by applicable Federal law (e.g., the Federal Tort Claims Act, 28 USC 1346(b); the Contract Disputes Act, 41 USC 7101 et seq; the Tucker Act, 28 USC 1346(a)(1). Where U.S. Districts have concurrent jurisdiction with the U.S. Court of Federal Claims (generally for claims under $10,000), it is acceptable to agree to venue in the U.S. District Court located in the state of Service Provider incorporation.

    3. Cooperation

      Where agreement, approval, acceptance, consent or similar action by either party hereto is required by any provision of this Agreement, such action shall not be unreasonably delayed or withheld. Each party will cooperate with the other by, among other things, making available, as reasonably requested by the other, management decisions, information, approvals, and acceptances in order that each party may properly accomplish its obligations and responsibilities hereunder. Service Provider will cooperate with any Subscriber supplier performing services, and all parties supplying hardware, software, communication services, and other services and products to Subscriber, including, without limitation, the Successor Service Provider. Service Provider agrees to cooperate with such suppliers, and shall not commit or permit any act which may interfere with the performance of services by any such supplier.

    4. Force Majeure; Excused Performance

      Neither party shall be liable for delays or any failure to perform the Services or this Agreement due to causes beyond its reasonable control. Such delays include, but are not limited to, fire, explosion, flood or other natural catastrophe, governmental legislation, acts, orders, or regulation, strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse for delay shall last only as long as the event remains beyond the reasonable control of the delayed party. However, the delayed party shall use its best efforts to minimize the delays caused by any such event beyond its reasonable control.

    5. No Waiver

      The failure of either party at any time to require performance by the other party of any provision of this Agreement shall in no way affect that party’s right to enforce such provisions, nor shall the waiver by either party of any breach of any provision of this Agreement be taken or held to be a waiver of any further breach of the same provision

    6. Entire Agreement

      This Agreement constitute the entire agreement between the parties as to the Services hereof. This Agreement may only be amended by an instrument in writing signed by the parties. Any ambiguity shall not be interpreted against either party and shall, instead, be resolved in accordance with other interpretation of agreements.