TERMS OF SERVICE
These Terms were last updated on May 12, 2017 and are effective between You (meaning the company or other legal entity for which You are accepting these Terms) and Comergence.
- Services. We will make our Services available to You in accordance with these Terms and any additional terms that may be provided with applicable Services to which You subscribe. In order to access and use the Comergence system, You must first establish an account (with a unique user name and password). You may only use the Services to which You subscribe, subject to any applicable use limitations, and only for Your internal business use. You will be responsible for all information accessed, used, and/or disclosed through Your account. There are no implied licenses under these Terms so any rights not expressly granted to You are reserved by Comergence and its licencors.
- Comergence Data Services:
If You Are a Subscriber. If You subscribe to receive a data Service from Us, We will use reasonable efforts to compile information gathered from selected public records and other sources We use. However, You acknowledge that third party sources may or may not be completely thorough and accurate, and therefore any data licensed from Us will be provided "AS IS" under our applicable intellectual property rights and licenses.
If You Are a Participant. If You enter your information or authorize us to enter your information to participate in a data Service with Us (e.g., to be part of the data pool for the data Service), (i) You may only enter or authorize us to enter information which You own or otherwise have the right to enter into the Service, and (ii) You consent to Us combining such information with information already in our Service databases and that We obtain from other sources, and compiling the information to populate the Service databases. You acknowledge and consent to Our sharing of the Service databases with other subscribers and users to provide the Service or otherwise in accordance with their subscription or license rights.We may also disseminate to the general public information stored in our databases that is not restricted from disclosure by law or by the these Terms.
Subscriber’s Control of Information. Information submitted to a subscriber will be considered to be under that subscriber’s control. Information submitted by a participant to more than one subscriber will be considered to be under the control of each subscriber to which it is submitted, individually.Once information is transmitted to a subscriber, as designated by the participant, the information will be the subscriber’s responsibility and is subject to any subscriber-administered privacy policies and any public information laws. Comergence is not responsible for any such information. Comergence will create a unique identifier associated with each subscriber and participant who uses the Comergence system. The unique identifier is confidential and proprietary to Comergence. Comergence may, in its sole discretion, make this unique identifier public.
Integrated Third Party Websites. We may provide for integration of select social networking websites, such as Facebook, and other websites (“Integrated Third Party Websites”) with our Services in order to allow, among other things, streamlined registration for our Services, the transfer of certain user information between Us and the Integrated Third Party Websites, and the collection of certain user information by Us to perform our Services. You understand and acknowledge that the integration with an Integrated Third Party Website may involve transfer to or collection by Us of your personal identification information maintained by that Integrated Third Party Website, that We will thereafter use, retain and maintain such personal identification information subject to these Terms, and You hereby authorize and agree to such transfer, collection, use, retention and maintenance. If You participate in a data Service with Us and authorize the Service to access your “private” or “invitation only” type accounts or pages with the Integrated Third Party Websites, You must “friend”, “link in”, “accept” or otherwise grant Usaccess to such accounts or pages in order for Us to populate the Service databases with information from such accounts or pages. Integrated Third Party Websites have their own privacy and data collection policies and practices, over which We have no control. We are not responsible for the actions, policies and practices (including without limitation actions, policies and practices involving user data collection, privacy, etc.) of any such Integrated Third Party Websites.
- Your Documents. If You subscribe to a Service from Us that permits You to upload Your documents to the Service, You grant Us a license to host, copy, transmit and display documents You upload to the Service, but only as necessary to provide the Services in accordance with these Terms. You only grant this limited license, and We acquire no right, title or interest from You in or to Your documents under these Terms. You may only input Your documents into the Service if You own the documents or otherwise have any necessary licenses or permissions to use the documents and to grant Us the license in this Section 3 to use the documents to provide the Services to You.
- Compliance with Law and Protection of Data. We and You each agree to comply with all applicable federal, state, and local privacy laws, rules, regulations, and ordinances, keeping in mind that the Services are to be used by Comergence’s commercial clients (i.e., business entities such as corporations, partnerships, limited liability entities and sole proprietorships) for business purposes, as opposed to being used by individuals for personal, family or household purposes. We will maintain administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Your documents and Our databases. Those safeguards will include measures for preventing access, use, modification or disclosure of such items by our personnel except (a) to provide the Services, (b) to prevent or address service or technical problems, (c) as compelled by law, or (d) as permitted by these Terms or as You expressly permit in writing. We also require that third parties to whom we disclose non-public personal identification information adhere to this and establish their own information security procedures. When You purchase a product and include non-public personal identification information, specifically credit card information, You may elect to transmit the information through a secure Internet connection.The Comergence website is protected with a variety of security measures such as change control procedures, passwords, and physical access controls. We also employ a variety of other mechanisms to protect data from being lost, misused, or altered inappropriately. These controls include data confidentiality policies and regular database backups.To the extent any applicable privacy laws, rules, regulations, or ordinances require additional or modified security, privacy, or confidentiality agreements between parties, You agree to execute such additional or modified agreements as We request from time to time in order to continue Your use of an applicable Service.
- Restrictions on Use. You shall not, and shall ensure that Your employees, agents and contractors do not: share their passwords or share the Services with any other third party; disclose, disseminate, reproduce or publish any portion of the Services; use the Services to create, enhance or structure any derivatives or competing database or service for internal use or for resale or distribution; disassemble, decompile, manipulate or reverse engineer the Services or any of its constituent parts; or use the Services in violation of these Terms or any law or regulation. The Services are business-to-business services and, if You elect to license data from Us, You acknowledge that the data Services are not an individual employment or consumer service. You shall not use the Service (a) as a factor in establishing an individual's eligibility for credit, insurance or employment, (b) in connection with a determination of an individual's eligibility for a license or other benefit granted by a governmental authority, (c) in connection with underwriting individual insurance, or (d) in any way that would cause the Service to constitute a "consumer report" under the Fair Credit Reporting Act [15 U.S.C. 1681, et seq.] or similar statute, or by any other authority having jurisdiction over You and Us.
- Fees. You shall pay the fees for Services You Order in accordance with our Product Price list(s) (the "Fees").
- Payment by Credit Card. Prior to ordering any Services, You must provide credit card information to Us. You authorize Us to charge the credit card (i) for the Services You order if You elect to pay for those Services by credit card, and (ii) for Fees you fail to pay when due. You agree to keep Your credit card information updated to Us.
- Invoicing and Payment. Any set-up fees are due and payable in advance upon subscribing to the applicable Service. Fees for Services and any applicable monthly minimum fees are billed monthly in arrears, and are due and payable within thirty (30) days from the invoice date. Fees begin to accrue on the date You subscribe to a Service, so please do not accept a Service subscription until You are ready to begin the Service.All Fees and charges incurred are non-refundable.
- Accommodation to Collect Your Third Party Users' Fees. If applicable to a Service, at Your option and as an accommodation only with Your permission, We may seek to collect certain third-party user Fees set forth in an applicable schedule for that Service from Your third parties for their use of the Service, provided that You remain liable for such payment obligations and that if any payment to be made by Your third party is not received by Us when due for any reason (or is made and then dishonored, charged-back, subject to processing error or otherwise withheld for any reason, or is subject to a refund for a coupon code that You approved), then We may invoice You for such Fees with a processing charge of $20 for each instance and such amounts shall be immediately due and payable by You.
- Late Payments. We may suspend access or use of the Services until all payments are brought current. In addition, any invoice not paid when due will be deemed a breach of these Terms and will also be subject to a finance charge of one and one-half percent (1-1/2%) per month for the unpaid balance of the invoice.
- Taxes. You are responsible for all taxes levied on these Terms and Your use of the Services, except taxes based on our net income.
- Modifications. From time to time in the course of our business We may modify the Services, including the Services' databases and/or these Terms, and will provide not less than thirty (30) days' advance notice of any change to these Terms. In addition, You acknowledge that We obtain data through third parties, the cost of which may change from time to time, and agree that We may increase or decrease the Fees upon not less than thirty (30) days' advance notice to You. However, You may terminate these Terms in accordance with Section 8 within thirty (30) days after such modification if You do not agree with the Fee change or if the Service or modification of these Terms degrades or impairs the Service or Your rights to use the Service in any material respect. Our notifications of any such modifications may be made by e-mail and/or electronic posting. Subject to Your termination rights in Section 8, Your continued use of the Service(s) after the effective date of any modification to the Service, Fee or Terms constitutes Your acceptance of such modification.
- Term and Termination.
- Term. These Terms govern Your use of the Services until all subscriptions here under have expired or been terminated. Unless otherwise stated for a particular Service, the term for each Service is on an annual basis from the initial subscription date, and will automatically renew for one (1) year periods unless either party provides written notice of termination to the other at least thirty (30) days in advance of the end of the then-current term.
- Your Termination Rights. You may terminate an applicable Service upon thirty (30) days' advance written notice to Us (i) if You do not accept any Fee increase for such Service made by Us or if We makes a modification to the Service or these Terms that degrades or impairs the Service or Your rights to use the Service in any material respect, in accordance with Section 7, or (ii) if You are regulated by a federal or state regulatory agency and are required by such agency to stop using such Service pursuant to the issuance of a rule, regulation, order, interpretation or similar pronouncement that would render it unlawful for You to continue using the Service as set forth in Section 12 below.
- Mutual Termination Rights. Either party may terminate these Terms upon thirty (30) days' advance written notice to the other if the other party is in breach of these Terms and has not cured the breach within such thirty (30) day cure period after written notice from the non-breaching party.
- Effect of Termination. Upon termination, You will no longer be entitled to access or use the Services, and We may delete all files and information related to Your account, so prior to such termination please make sure to export any data You wish to retain. In addition, upon termination You must pay, or you authorize Us to charge Your credit card, for any outstanding Fees due for Services You ordered. Sections 6, 8.4, 9, 10, 11 and 15 survive any termination of these Terms.
Confidential Information. We and You shall each maintain in strict confidence and shall use and disclose only as authorized by the other, all information that it receives under these Terms which is of a confidential nature (including, without limitation, the Services, Comergence software, Comergence databases and data, and the specifications and materials delivered here under or contemplated hereby and similar information of Comergence's third party licencors) either before or after Your acceptance of these Terms, concerning the other party or it's business operations, employees, vendors or customers ("Confidential Information"). Information shall not be deemed Confidential Information if it is or becomes generally available to the public without breach of these Terms or is independently developed by the non-disclosing party or its personnel without reliance in any way on Confidential Information of the disclosing party, except that the Service databases are always the Confidential Information of Comergence. You shall not remove any confidentiality markings on any of Comergence's Confidential Information. You shall maintain the confidentiality of any usernames and passwords issued by Us, if any, necessary to use the Services.
Notwithstanding the above, We may disclose our Service databases in accordance with these Terms and We may disclose aggregated information relating to usage of the Service that does not identify You or any of Your third parties. We may also disclose information stored in our Service databases if We believe it is required to do so by law; to protectUs or the rights of another user; to reduce risk of credit or other kind of fraud; or to comply with a court order or other legal, regulatory, self-regulatory, or governmental mandated policy, procedure, or process. We may also use information You provide or We collect: (i) to verify the identify of anyone using the Services; and (ii) to conduct surveys of our customers, to respond to suggestions, and to contact users for other reasons related to offering and improving our services. Comergence uses third-party service providers to help manage the Comergence system, its websites, and databases, to collect and analyze information, and to collect fees. These companies are required to maintain such information as confidential. Comergence, however, is not responsible for the unauthorized access, use, or disclosure of any non-public personal identification information or confidential information by a third party. If our company assets are acquired by another company, that company will assume responsibility for the personal identification information collected and it will assume the rights and obligations regarding that information, as described in these Terms and by law.We may also use and share information, subject to applicable law, with other companies that wish to offer products and services in which our customers may be interested.
- Ownership. The Services, their constituent parts, including their databases and data, and Comergence's and its licensors' marks and logos, and any derivatives thereof, are proprietary to Comergence or its applicable licencors and are protected by copyrights, trademarks, service marks, patents, trade secret or other proprietary rights and laws and, as between Us and You, are the sole and exclusive property of Comergence or its applicable licencors. You own Your marks and logos. Notwithstanding the above, We may include Your name and logo on our listing of clients found on the website portal for the Service.
- Representations, Warranties, Limitations of Liability and Indemnification.
- Representations. Each party represents that it has validly entered into these Terms and has the legal power to do so. You represent that You have the authority to enter into these Terms on behalf of Your organization and bind Your organization to these Terms.
- Warranties. We warrant that (i) the software Services will perform materially in conformance with their applicable on-line documentation on the Comergence website, (ii) any non-software Services will be performed in a professional manner conforming to generally accepted standards and practices in our industry, and (iii) any third party data Services licensed from Us will correctly reflect the data available from the third party on the date the data is obtained from the third party. Your exclusive remedy and our sole liability for a breach of any of the foregoing warranties is for Us to re-perform such Services so that they conform to the warranty.
- Disclaimer; Limitation on Liability. EXCEPT AS SET FORTH IN SECTION 11.2, THE SERVICES ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, AND WE DISCLAIM ALL OTHER WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU ARE SOLELY RESPONSIBLE FOR YOUR USE OF THE SERVICES. YOUR EXCLUSIVE REMEDY AND COMERGENCE'S AND ITS LICENSORS' ENTIRE LIABILITY FOR ANY AND ALL CLAIMS RELATED TO THE SUBJECT MATTER OF THESE TERMS, WHETHER IN CONTRACT, WARRANTY, TORT, OR ANY OTHER LEGAL THEORY, SHALL BE LIMITED TO THE TOTAL AMOUNT OF ALL RECURRING FEES YOU PAID TO US UNDER THESE TERMS DURING THE TWELVE MONTHS PRIOR TO WHEN THE FIRST CLAIM AROSE. WE WILL NOT BE LIABLE FOR ANY (i) INTERRUPTION OF BUSINESS, (ii) ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SERVICES, (iii) ACTIONS OR INACTIONS OF THIRD PARTIES, OR (iv) EVENTS BEYOND OUR REASONABLE CONTROL.
- No Consequential Damages. IN NO EVENT SHALL WE OR OUR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUE, OR FAILURE TO REALIZE EXPECTED RESULTS, ARISING UNDER THESE TERMS OR RELATING TO THE SERVICES, EVEN IF WE OR OUR LICENSORS HAVE BEEN ADVISED OF OR COULD HAVE REASONABLY FORESEEN THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF LIABILITY IN THESE TERMS SHALL APPLY EVEN IF A REMEDY IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. YOU ACKNOWLEDGE THAT YOUR ACCEPTANCE OF SECTION 11 HAS MATERIALLY INDUCED US TO ENTER INTO THESE TERMS AND PERMIT THE USE OF THE SERVICES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
- Indemnification by Comergence. We will defend You against any claim (including any suit) made or brought against You by a third party alleging that a Service, as furnished hereunder and used as contemplated by these Terms, infringes the third party's registered United States patent, copyright or trademark, and will indemnify You from all damages, attorneys' fees and court costs finally awarded against You as a result of the claim, or for amounts paid by You under a court approved settlement of the claim, provided that You give Us prompt written notice of the claim, reasonable assistance and sole authority to defend and settle the claim (except that We may not settle the claim unless the settlement unconditionally releases You of all liability). Notwithstanding the above, We shall have no liability or obligation to indemnify You for any claim of infringement based upon the combination, operation, or use of a Service with hardware, software or data not furnished by Us, if such infringement would have been avoided by the use of the Service without such other hardware, software or data. In the defense or settlement of a claim hereunder (or if We reasonably believe a Service or any portion thereof does or may infringe the rights of a third party), We shall have the option at our expense to (i) modify the Service to become non-infringing, or (ii) obtain the right for You to continue using the Service, or if We determine in our discretion that (i) or (ii) is not reasonably commercially available, then (iii) terminate Your use of the Service and, notwithstanding Section 6.3, refund any prepaid fees covering the remainder of the term of the terminated Service subscription.
- Indemnification by You. You will defend Us against any claim (including any suit) made or brought against Us by a third party alleging that Your documents, data, or Your use of any Service in violation of these Terms, infringes or misappropriates the third party's rights or violates applicable law, and will indemnify Us from all damages, attorneys' fees and court costs finally awarded against Us as a result of the claim, or for amounts paid by Us under a court approved settlement of the claim, provided that We give You prompt written notice of the claim, reasonable assistance and sole authority to defend and settle the claim (except that You may not settle the claim unless the settlement unconditionally releases Us of all liability).
- Regulatory Oversight. We agree that, if You are regulated by a federal or state regulatory agency, upon reasonable advance written notice, any such regulatory agency having jurisdiction over You (the "Regulator") shall have authority, in accordance with applicable laws and regulations and at Your expense, to reasonably examine our provision of the applicable Service(s), to evaluate safety and soundness risks, financial and operational viability to fulfill our contractual obligations hereunder, and compliance with other applicable laws. In addition to the other termination rights contained in these Terms, We agree that You may, effective upon thirty (30) days prior written notice, terminate any Service(s) in the event the Regulator requires You to terminate these Terms or Your use of the Service(s) pursuant to the issuance of a rule, regulation, order, interpretation or similar pronouncement by the Regulator that would render it unlawful for You to continue operating under these Terms.
- U.S. Government Licensing. If You are an agency or instrumentality of the U.S. Government, You acknowledge and agree that the Services and their underlying computer software and constituent parts (i) were developed entirely at private expense, (ii) in all respects are proprietary data belonging solely to Comergence and its licensors, (iii) are not in the public domain, and (iv) are "commercial components", as that term is defined in 48 C.F.R. 2.101 (Oct. 2000), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government entities acquire usage rights only as set forth in these Terms. To the extent that Services performed hereunder involve the delivery of technical data to a U.S. Government licensee, such licensee's rights with respect to such technical data shall be ascertained in accordance with these Terms, provided that such rights shall not, in any event, exceed Limited Rights as defined in 48 C.F.R. 52.227-14, Rights in Data - General (June 1987). The manufacturer is Comergence Compliance Monitoring, LLC, 25910 Acero, Suite 260, Mission Viejo, California 92691.
- Export Restrictions. You shall comply with all U.S. Export Administration Regulations and all other U.S. and foreign laws and regulations relating to exports or imports.
- Miscellaneous. These Terms, including applicable additional terms and schedules that may be provided with particular Services, constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes any previous and contemporaneous agreements and understandings with respect to the subject matter hereof. These Terms may only be amended by a writing executed by an authorized officer of both parties or by Us in accordance with Section 7 above. Notices sent to either party shall be given in writing and shall be deemed effective on the date of delivery when delivered in person or transmitted by e-mail with confirmation sent by overnight courier (if delivered on a non-business day or after 5:00 p.m. recipient's local time, then effective the next business day), or one (1) business day after being sent by major commercial overnight courier to the party: to You, at the most recent postal or e-mail address You provided to Us, or to Comergence, at its postal or e–mail address set forth at its website or such other addressas a party may give notice in the same manner set forth herein. The parties are independent contractors. These Terms do not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between the parties. You may not assign these Terms without our prior written consent. These Terms are for the sole benefit of the parties hereto and do not create any third party beneficiaries, whether intended or incidental. The failure of a party to exercise or enforce any right or provision of these Terms does not constitute a waiver of such right or provision. These Terms are governed by the laws of the State of California without regard to its conflict of law provisions. The parties agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Orange, California. The prevailing party in any action to interpret or enforce these Terms shall be entitled to its reasonable attorneys' fees as well as all other remedies available to it. If any provision of these Terms is found to be legally unenforceable, that provision shall be enforced to the maximum extent possible and any such unenforceability shall not prevent enforcement of any other provision of these Terms. Any claim or cause of action by You arising out of or related to use of a Service or these Terms must be filed by You within one (1) year after such claim or cause of action arose or be forever barred.