RealValidation – Master Services Agreement
In order to use any of the Service Offerings (individually a “Service Offering” and collectively defined as any RealValidation Applications Programming Interface (individually and collectively the “RealValidation API”), access the information contained on any RealValidation website (individually and collectively the “Website”), make use of the services provided by RealValidation (individually and collectively the “Services”), make use of a variety of software, data and other content and printed and electronic documentation we may make available to you, for your installation, copying and/or use in connection with the Services from time to time (the “RealValidation Properties”), and all technology, software, functions, content, images, materials and other data or information provided by us or any of our affiliates, suppliers, or licensors in connection therewith). You must first read this Agreement and accept it. You may not avail yourself of any of the Service Offerings if you do not accept this Agreement and the terms therein. You accept the terms of this Agreement by clicking to accept, by agreeing to the terms of this Agreement in the user interface for any Service Offering, or by using any of the Service Offerings. In the latter case, you understand and agree that we will treat your use of any of the Service Offerings as acceptance of the terms from that point onwards. BY USING ANY OF THE SERVICE OFFERINGS YOU CONSENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT PLEASE DO NOT USE ANY OF THE SERVICE OFFERINGS.
By utilizing Service Offerings, you represent that you have read and agree to the terms and conditions of this Agreement. The terms and conditions of this Agreement will remain in effect throughout your use of any of the Service Offerings and continue after this Agreement expires, cancels or is terminated. These terms and conditions are legally binding should you choose to register for the Service. You may not use any of the Service Offerings and may not accept the terms of this Agreement if (a) you are not of legal age to form a binding contract with us, or (b) you are a person barred from accessing or receiving any of the Service Offerings under the laws of the United States or other countries including the country in which you are resident or from which you access or use any Service Offering. You agree to incorporate these RealValidation policies into your own products and policies and ensure that your customers adhere to RealValidation policies.
We reserve the right to change this Agreement from time to time without notice by posting those changes to the Website. When we do, we will also revise the “last update” date of this Agreement. Your continued use of any of the Service Offerings after such posting will constitute acceptance by you of such amendments.
1. PROVISION OF SERVICES
1.1 Services. Subject to the terms and conditions of this Agreement, and effective upon the Effective Date of a Client Order, RealValidation shall make the Services available to the Client and shall grant to Client a revocable, limited, non-transferable and non-exclusive subscription to use those Services set forth on such Client Order(s), during the Term of this Agreement. Such Services may be provided by application(s) and programming interfaces to enable Client’s access to such Services (“RealValidation API”). Client shall maintain the confidentiality of Client’s username and password utilized to access the Services. Client bears the sole responsibility for any requests sent from their account and any and all usage of its Client ID and Authentication ID. Accordingly, Client is solely responsible for payment of all charges and fees for requests submitted from Client’s account. Client agrees to access and use Licensed Data for allowed uses only, such as to obtain data solely for information purposes or to confirm the accuracy of data already in the possession of Client. Client shall not be permitted to retain and use Licensed Data to avoid paying RealValidation for transactional charges that would have been incurred had Client not retained Licensed Data. For the purpose of clarity, Licensed Data is provided for the one-time use only by Client and Client is not permitted to cache results from Services if such results will be reused by Client.
1.2 Term. This Agreement will enter into force on the Effective Date and will continue for a period of time set forth on the Client Order (“Initial Term”), unless earlier terminated by either Party as provided in this Agreement. This Agreement will automatically renew for successive periods, each of the same length of time as the Initial Term (each a “Renewal Term” and collectively with the Initial Term, the “Term”), unless either Party provides the other Party with written notice of non-renewal, given not less than sixty (60) days prior to the end of the Initial Term or any Renewal Term. RealValidation reserves the right to temporarily suspend or discontinue the Services, with advance notice if practicable, at any time should such action be required, or should RealValidation reasonably believe that such action is required, to avoid an imminent material threat of harm to RealValidation, its affiliates, Clients, Users, or any third party.
1.3 Ownership. RealValidation warrants and represents that it owns the Services and has the authority to grant the rights subject to the terms and conditions set forth herein. The Client agrees and acknowledges that the Services, the rights to access and use the Services, and the hardware and software that is utilized for the access and use of the Services, including without limitation any upgrades, updates, or modifications thereof or otherwise, are and shall be owned and/or controlled exclusively by RealValidation. Client shall not reverse engineer, decompile, disassemble, translate, attempt to learn the source code of, or attempt to derive the composition or underlying information, structure or basis of any of RealValidation’s products and software applications, and shall not attempt to copy any of RealValidation’s source code(s). Unless expressly set forth herein, Client may not use, copy, modify, create derivative works of, distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare, deliver, or otherwise transfer, directly or indirectly, any rights in the Services. Client may not remove from the Services, or alter or add, any Marks or copyright notices or other proprietary rights markings. “Intellectual Property Rights” as described herein shall mean all trade secrets, patents and patent applications, trademarks, services marks, trade names, internet domain names, copyrights (including copyrights in computer software), moral rights, rights in knowhow and any renewals or extensions of the foregoing, and all other proprietary rights, and all other equivalent or similar rights which may subsist anywhere in the world, including any renewals or extensions thereof. The Services are licensed, not sold, solely for use by Client under the terms of this Agreement. Except as specifically set forth herein, RealValidation retains all right, title, and interest, including all Intellectual Property Rights, relating to or embodied in the Services, including without limitation all technology, hardware, software, systems and copies of the foregoing relating to the Services. All graphics, logos, service marks, and trade names, including third-party names, product names, and brand names (collectively, the “Marks”) relating to the Services are the trademarks of RealValidation. Client is prohibited from using any Marks to the extent they are owned by RealValidation without the prior written permission, which shall be at the sole and exclusive discretion of RealValidation. RealValidation reserves all rights and interests not expressly granted in this Agreement, and no direct or indirect ownership interest or license right in or to the RealValidation Marks, the Services, or any other RealValidation intellectual property or Intellectual Property Rights is granted to Client or created by implication in this Agreement. For the avoidance of doubt, all Intellectual Property Rights in the Services shall remain the sole and exclusive property of RealValidation. This paragraph shall survive the termination of this Agreement.
1.4 Fees. All payments by Client hereunder shall be made only in United States Dollars. RealValidation reserves the right to change the Fees by notifying Client at least sixty (60) days in advance of any such change(s). The invoice is due net Thirty (30) from invoice date. Client shall be deemed to be in default hereunder if payment of a RealValidation invoice is not received by RealValidation within thirty (30) days of the invoice date and, in addition to its other remedies, RealValidation may charge Client interest at that rate equal to the lesser of one and one half percent (1½ %) per month or the maximum amount permitted by law on all sums that remain unpaid at the expiration of such period. All payments required under a Client Order are exclusive of any tax levied by any duly constituted taxing authority including, without limitation, any sales, gross receipts, value-added taxes, tax surcharges, direct or indirect government assessment fees or any other tax imposition on the Service, which Client agrees to pay to RealValidation if and when such tax is presented for payment on an invoice issued by RealValidation to Client or directly to the appropriate taxing authority when such tax in connection with the provisions of the Service is assessed against the Client.
2. USE OF SERVICES
2.1 Use Guidelines. Client shall not use the Services, in part or in whole, for any purpose, or in any way not expressly allowed by the terms or conditions of this Agreement. Client shall not use the Services, in part or in whole, for any purpose, or in any way, prohibited by any applicable local, state, national or international laws, regulations, or orders (collectively, “Laws”). Additionally, Client agrees not to knowingly use the Services in any manner that may disable, impair, damage or interfere with any of RealValidation’s products, hardware, software applications, Intellectual Property Rights, or the Services. Client agrees that Client shall not attempt to access and shall not access or use in any unauthorized or illegal manner any of RealValidation’s software, hardware, applications, Services, other accounts, servers, computer systems or networks or any information or materials except as expressly authorized by the terms and conditions of this Agreement. Client shall not reproduce, copy, sell, exploit, share, timeshare, grant a security interest or transfer the Services, any portion of the Services, or the rights granted to Client by RealValidation to use or access the Services. Client shall not use the Services, in part or in whole, in conjunction with any data mining or to create or store in electronic or hard copy form any library or archive of information, including without limitation phone numbers. Except as otherwise expressly permitted under this Agreement, Client agrees not to: (i) copy, distribute, transfer, grant sublicenses to, or otherwise make available the Licensed Data (or any portion thereof) to third parties, including, but not limited to, making such Licensed Data available to an application service provider, service bureau or rental source; (ii) use or transmit the Licensed Data in violation of any applicable law, rule or regulation, including any export/import laws. Client shall not alter, modify, revise or adapt the Services, in part or in whole; create any derivative works from the Services or any portion thereof or reverse engineer, disassemble or decompile the Services or any data or software contained therein. Client shall not use the Services to construct products or services that may compete with the Services.
2.2 Client Content. Client agrees to cooperate fully with RealValidation and must provide data or information necessary to perform the Services. Client will not use the Services, or permit the Services to be used, to transmit Inappropriate Content. For purposes of this Agreement, Content means any and all information and data, regardless of the file format or file contents transmitted by or for Client in connection with Client’s use of the Services. For purposes of this Agreement, Inappropriate Content means any content which (a) is unsolicited, including without limitation, unauthorized “bulk” messages; (b) contains or introduces “viruses”, “worms”, “Trojan Horses”, “e-mail bombs”, “cancel bots” or other similar computer programming routines; (c) is in any way unlawful; (d) infringes the intellectual property or privacy rights of any person, including without limitation the Intellectual Property Rights of RealValidation; or (e) executes, initiates or causes ”phishing” or social engineering activities. RealValidation does not claim ownership of any Content. Client is the Content Owner. Except as otherwise provided in this Agreement, as between Client and RealValidation, Client retains all right, title, and interest in and to the Content. Notwithstanding the foregoing, RealValidation retains the right to 1) use Content to provide the Services; (2) use Transactional Information in the Content for the purposes of capacity planning, vendor selection, routing, troubleshooting, detection of emerging and evolving fraud threats, new Services development, and improvement of Services. The definitions of “Services, “Transaction” (and “Transactional”) for purposes of this Agreement are set forth in the Client Order.
3.1 Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that (a) if disclosed orally is designated as confidential at the time of disclosure, (b) if disclosed in writing is marked as “Confidential” and/or “Proprietary”, or (c) reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including, the terms and conditions of this Agreement (including pricing and other terms reflected in all Client Orders) and/or of provision of the Services, screen shots of the Services, pricing in proposals, business and marketing materials, technology and technical information, product designs, and business processes. Notwithstanding the foregoing, each party may disclose the existence and terms of this Agreement, in confidence, to a potential purchaser of or successor to any portion of such party’s business resulting from the reorganization, spin-off, or sale of all or a portion of all of the assets of any business, division, or group of such party. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party, which can be demonstrated with clear and convincing evidence; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
3.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s prior written permission. Notwithstanding the foregoing, the Receiving Party may disclose such Confidential Information to those of its employees and contractors who need to know such information for purposes of performing or receiving the Services and certifies that such employees and contractors have agreed, either as a condition of employment or in order to obtain the Confidential Information, to be bound by terms and conditions substantially similar to those in this Agreement. The Receiving Party shall use the same degree of care to protect the Confidential Information as it uses to protect its own information of a confidential and proprietary nature, but in no event shall it use less than a commercially reasonable degree of care.
3.3 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
3.4 Survival. This Section 3 shall survive the termination of this Agreement.
4. LIABILITY AND REMEDIES
4.1 Indemnification Requirements. Client shall indemnify, defend and hold RealValidation, its parents and affiliates, and their respective officers, directors, agents and employees harmless against any and all claims, losses, liabilities, penalties, awards, judgments, costs, and expenses (including but not limited to reasonable fees, costs, and other expenses of attorneys and expert witnesses) made by any third party related to or arising from (i) any actual or alleged infringement or violation (by Client or any User or third party accessing or using the Services using Client’s password or access key with or without Client’s permission) of any intellectual property or privacy or other right of any person or entity; (ii) Client’s use of the Services (including without limitation, any User or third party using or accessing of the Services using Client’s password or access key with or without Client’s permission) and/or (iii) any actual or alleged violation of this Agreement or applicable law (by Client or any User or third party accessing or using the Services using Client’s password or access key with or without Client’s permission).
In the event that the Services are found to violate the Intellectual Property Rights of a third party, then RealValidation’s only liability is to either (a) procure for Client the right to continue using the Services; or (b) replace or modify the same so that it no longer infringes such Intellectual Property Rights, so long as the utility or performance of the Services is not adversely affected by such replacement or modification; or (c) where (a) or (b) are not practicable, to terminate this Agreement and stop rendering the Services hereunder.
4.2 Disclaimers of Warranty. EXCEPT AS PROVIDED FOR HEREIN, THE SERVICES ARE SUBSCRIBED TO CLIENT “AS IS” AND WITH ALL FAULTS. EXCEPT AS PROVIDED FOR HEREIN, IF AT ALL, NEITHER REALVALIDATION, NOR ANY OWNER, MEMBER, MANAGER, EMPLOYEE, OR AGENT, MAKES ANY REPRESENTATION AND/OR WARRANTY OF ANY KIND WHATSOEVER, EITHER EXPRESS OR IMPLIED, IN CONNECTION WITH THE SERVICES, OR THE HARDWARE OR SOFTWARE UTILIZED OR ACCESSED IN CONNECTION WITH THE SERVICES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR ANY WARRANTY THAT PROVISION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR F R E E. CLIENT ACKNOWLEDGES THAT REALVALIDATION SECURES INFORMATION FROM THIRD PARTY SOURCES AND NEITHER REALVALIDATION NOR ANY OF ITS THIRD PARTY SOURCES WARRANT THAT THE INFORMATION WILL BE ACCURATE OR ERROR F R E E. REALVALIDATION FURTHER DISCLAIMS ALL WARRANTIES NOT EXPRESSLY SET FORTH HEREIN. REALVALIDATION DOES NOT WARRANT THE SERVICES OR THAT ANY OR ALL ERRORS IN THE SERVICES WILL BE CORRECTED. IN FURTHERANCE HEREOF AND WITHOUT LIMITATION, USE OF THE HARDWARE AND SOFTWARE UTILIZED OR ACCESSED IN CONNECTION WITH THE SERVICES IS AT CLIENT’S SOLE RISK AND REALVALIDATION SHALL HAVE NO LIABILITY WHATSOEVER WITH RESPECT THERETO. CLIENT AGREES THAT REALVALIDATION WILL NOT BE LIABLE FOR ANY CONTENT, INCLUDING BUT NOT LIMITED TO CONTENT THAT IS SENT, RECEIVED, HELD, RELEASED OR OTHERWISE CONNECTED IN ANY RESPECT TO THE SERVICES, CONTENT THAT IS SENT BUT NOT RECEIVED, AND CONTENT SENT USING AND/OR INCLUDED IN THE SERVICES, INCLUDING WITHOUT LIMITATION ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGAL CONTENT; ANY ACCESS TO OR ALTERATION OF CONTENT; OR ANY INFRINGEMENT OF ANOTHER’S RIGHTS, INCLUDING PRIVACY, INTELLECTUAL PROPERTY, OR DATA PROTECTION RIGHTS.
4.3 Limitation of Liability. IN NO EVENT SHALL REALVALIDATION BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST INCOME, LOST PROFITS, PRESENT AND FUTURE, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, EXPRESS OR IMPLIED, ACTIVE OR PASSIVE NEGLIGENCE, INTENTIONAL OR UNINTENTIONAL TORT, STRICT LIABILITY, VIOLATION OF STATUTE, ORDINANCE OR REGULATION, FAILURE OF CONSIDERATION, OR OTHER BASIS, ARISING OUT OF THE PROVISION OF THE SERVICES HEREUNDER. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, REALVALIDATION’S AGGREGATE LIABILITY TO THE CLIENT ARISING FROM OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, UNDER ANY LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE), WILL IN NO EVENT EXCEED THE TOTAL OF ALL AMOUNTS PAID BY CLIENT TO REALVALIDATION FOR THE THREE (3) MONTHS PERIOD IMMEDIATELY PRECEEDING THE MONTH IN WHICH THE FIRST CLAIM AROSE.
4.4 Termination. RealValidation may terminate Client’s access to any part or all of the Services at any time, with or without notice, effective immediately, for any breach, or reasonably suspected breach, of this Agreement. The termination of this Agreement shall not release Client from its obligations and liability to RealValidation with respect to any Transaction Fees or Monthly Minimums (each as described in the Client Order) that became due and owing prior to such termination. Notwithstanding the forgoing, either party may terminate this Agreement for any or no cause with ninety (90) days prior written notice.
5. MISCELLANEOUS PROVISIONS
5.1 Force Majeure. Neither party shall be liable for any delay or failure in performance due to Force Majeure, which shall mean acts of God, earthquake, labor disputes, changes in law, regulation or government policy, riots, war, fire, flood, insurrection, sabotage, embargo, epidemics, acts or omissions of vendors or suppliers, transportation difficulties, unavailability of interruption or delay in telecommunications or third party Services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed.
5.2 Assignment. This Agreement may not be transferred or assigned, in whole or in part, by any party without the prior written authorization of the other party, which shall not be unreasonably withheld. Notwithstanding the foregoing sentence, either party may assign this Agreement to a successor in interest in the event of a reorganization, merger, consolidation or sale of all of such party’s assets or stock, except that neither party may assign this Agreement to any entity that competes, directly or indirectly, with the non-assigning party without the non-assigning Party’s written prior consent. A Party properly assigning this Agreement will provide notice of such assignment within sixty (60) days of the effective day of the assignment.
5.3 Use of Name for Marketing Purpose. Client agrees that RealValidation shall be allowed to print, transmit and/or publicize details of its relationship with Client, or this Agreement including advertising or promoting its services by means of reference to its provision of the Services to Client.
5.4 Waiver and Amendments. No waiver, amendment, or modification of any provision of this Agreement shall be effective unless agreed to by both parties in writing. No failure or delay by either party in exercising any rights, power, or remedy under this Agreement shall operate as a waiver of any such right, power, or remedy.
5.5 Severability. Should any term of this Agreement be finally determined by a court of competent jurisdiction to be invalid, unenforceable or otherwise contrary to law and equity, the parties agree that such provision shall be construed, limited, modified or, if necessary, severed, to the extent necessary to eliminate its invalidity or unenforceability, and that the other provisions of this Agreement shall remain unaffected. If any part of this Agreement are determined to be invalid or unenforceable pursuant to applicable law then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement shall continue in effect.
5.6 Third Party Beneficiaries. The provisions of this Agreement are solely for the benefit of the parties hereto and not for the benefit of any third parties.
5.7 Governing Law; Forum. The laws of the State of Florida shall exclusively govern this Agreement without regard to any contrary conflicts of laws principles. In event of a dispute arising under this Agreement, each Party shall make reasonable, good-faith effort to resolve such dispute informally, including participation in non-binding mediation with a paid mediator, with each Party to bear one-half of such mediator costs and to bear its own attorney’s fees and costs, such mediation to take place in Clearwater, Florida. The parties agree to waive jury trial as to any claim, controversy or dispute arising under or related to this Agreement. All legal disputes arising from this Agreement and not resolved by non-binding mediation shall be resolved in the Federal and/or State Courts of the County of Pinellas, Florida.
5.8 Headings; Attachments. Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent. The Exhibits and Attachments attached hereto are incorporated and made a part of this Agreement by this reference.
5.9 Independent Contractor. Each Party is an independent contractor as to each other and no partnership, joint venture or any legal relationship other than that of independent contractor is established by this Agreement.
5.10 Entire Agreement. This Agreement represents the entire Agreement between the parties and supersedes all prior and contemporaneous Agreements and understandings, both oral and written in nature, between the parties relating to the matters contained and set forth within the terms and conditions of this Agreement.
5.11 Export Restrictions. Client acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Services. Without limiting the foregoing, Client acknowledges that the Services are or may be subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. Client agrees not to export or re-export the Services in any form in violation of the export laws of the United States or any foreign jurisdiction. Client will defend, indemnify, and hold RealValidation harmless from and against any violation of such laws or regulations.
5.12 Notices. Notices shall be in writing and shall be personally delivered or delivered via overnight courier or via certified mail, return receipt requested, to the other party at the address set forth below, or such new address as may from time to time be designated in writing by a party, and to the attention of the individuals listed below.