Terms and Conditions

1. Grant of Licenses; Scope of License; Restrictions.
   • Grant of Licenses. 
2. Right to Use the Services. Subject to the Terms of the Agreement(s), including without limitation these Terms hereunder, DerbySoft grants to Customer, during the Term specified in the Agreement(s) or the limited time period specified for the Demo Account, a non-exclusive, non-transferable, revocable, limited license, without right of sublicense, to access and use the Services.
3. Content. Customer hereby grants DerbySoft a worldwide, royalty-free, non-exclusive, transferable (solely to DerbySoft’s Agents and Suppliers) license to perform such acts with respect to the Content solely as are reasonable in connection with provisioning the Services including, without limitation, the right to: (i) secure, transcode, encode, reproduce, host, cache, route, reformat and analyze the Content and create algorithms and reports based on access to and use of the Content by Users; (ii) use, exhibit, broadcast, deliver, publish, publicly display, publicly perform, distribute, promote, copy, store, and/or reproduce (in any form) the Content on or through the Services; and (iii) utilize Content to test DerbySoft’s internal technologies and processes.
   1. Scope of Use. 
4. Responsibility for Content.  Customer is solely responsible for all matters arising out of or in connection with the Content including, without limitation, ensuring that the Content does not include Prohibited Content defined below.
5. Content. Customer is responsible for all Content (regardless of whether provided by Customer and/or by third parties) including without limitation for any damages that may result from errors or omissions, false or defamatory material, and/or material that is offensive, indecent, objectionable, infringing, and/or illegal. Under no circumstances will DerbySoft, its Agents or its Suppliers be liable in any way for Content, or for any loss or damage of any kind incurred by Customer or any third party as a result of the use or publication of any Content posted, delivered, streamed, or otherwise transmitted via in or connection with the Services. Without limiting the foregoing, Customer acknowledges that neither DerbySoft nor its Agents or Suppliers will be responsible for preventing or identifying infringement of intellectual property rights or other violations associated with the Content, and that DerbySoft, its Agents and its Suppliers assume no responsibility to edit, review, or oversee Content submitted, uploaded, distributed, retrieved, or viewed in connection with use of the Services, and shall not be responsible for screening or monitoring for possible (i) infringement or enforcing Customer’s rights or third party rights with respect to Content, (ii) unlawful, inappropriate or unpermitted use, (iii) libel, falsehoods, errors or omissions contained in Content, or (iv) noncompliance with FCC or other governmental laws and/or regulations. For any infringement or suspected infringement of intellectual property rights, Customer must immediately remove the applicable Content from the Services.
6. Prohibited Content and Activities.

Customer agrees to use the Services in accordance with the Terms and all applicable laws, regulations and ordinances. Customer further agrees that it will not use any of the Services for any other purpose, including unlawful or fraudulent activities including the storage or transmission of information, data, files, or links to content that violate any applicable local, state, national, or international law. (“Prohibited Content”). Prohibited Content includes, but is not limited to, (i) pirated software, copyrighted data or links thereto, (ii) the propagation of computer worms or viruses, (iii) the use of false identities, or attempts to gain unauthorized entry to any network, (iv) Pornography and sex-related merchandising including sites that may infer or link to sexual content, (v) spamming sites and sites selling or promoting bulk email software, services, or addresses are also prohibited, and (vi) engaging in unauthorized spidering, scraping, or harvesting of content or information, or use any other unauthorized automated means to compile information.  Customer further agrees not to use the Services to (i) use the Services to store or distribute any information, that is harassing, infringing, or which violates the privacy or intellectual property rights of any third party; (ii) access or use the Services by DerbySoft for products/services that competes directly against DerbySoft;  (iii) access or use the Services for any benchmarking or competitive purposes; (iv) interfere with the integrity or performance of the Services or third-party data contained therein; (v) modify, disassemble, or reverse engineer the Services or any component thereof, or (vi) use the Service in any manner that would breach any obligations towards any third parties.  

• Third Party Services. Any third party products, content, services and/or links displayed on or through the Services are not referrals or endorsements of any product, service or provider; any and all such offerings are displayed solely for convenience only. The Services may in some cases be permitted for use with third party components or services (“Third Party Services”) that may be subject to their own, separate license agreements or special pass-through terms, and Customer assumes all risks and liabilities associated with the use of any such third party offerings. For clarity, nothing in this Section 1.2(d) diminishes DerbySoft’s obligations to Customer under these Terms hereunder with respect to DerbySoft’s (or its Suppliers’) technology that is expressly stated as included within the “Services” in the Agreement(s) (the “DerbySoft IP”), but instead relates to any access and/or use of third party products and/or services that Customer elects to utilize in connection with the DerbySoft IP (regardless of whether DerbySoft provides integration or other services at Customer’s request in connection with enabling or utilizing third party products and/or services with the Services). In no event will DerbySoft be responsible or liable for any failure or inability to access Third Party Services, including without limitation that which is caused by changes to Third Party Services (or portions thereof) that affect the integration with or use of the DerbySoft IP or otherwise.
• Customer acknowledges and agrees that the technical processing and transmission of the Services and/or Content may involve transmissions over various networks and changes by Customer may be required to conform and adapt to technical requirements of connecting networks or devices. 

Content Preservation and Disclosure. 

Customer expressly acknowledges and agrees that DerbySoft may, but is not required to, preserve Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonable or necessary to: (i) comply with legal process; (ii) enforce an Agreement, including without limitation these Terms hereof; (iii) respond to claims that any Content violates the rights of third parties; and/or (iv) protect the rights, property, or personal safety of DerbySoft, its Suppliers, users and/or the public.

• Automatic Updates/Features. 

The Services consist of the most current versions thereof, including without limitation automatic general release updates such as bug fixes, patches, enhanced functions, and/or security related patches.  Customer agrees to accept and/or migrate (as applicable) to any and all new versions of Services, or any portion thereof, that DerbySoft may implement and/or otherwise provide to Customer, and DerbySoft shall have no obligation to provide or support any prior versions of the Services or portions thereof.  Without substantially changing or degrading the existing features, Customer acknowledges that DerbySoft may modify , enhance and/or expand the features and functionality of the Services.

• Fees/Taxes. 
  • Fees; Payment Terms.

DerbySoft will issue to Customer an invoice for the Service Fees and other fees as detailed in the applicable Agreements.  In consideration of Customer’s rights under the Agreement(s), Customer shall timely pay DerbySoft in U.S. dollars the Fees designated in the Agreement(s). Customer agrees to purchase the Services indicated in each applicable Agreement for the Initial Term stated therein and any renewal terms. All recurring Fees (including without limitation, as applicable to the Agreement(s): platform fees, support fees, and bundled use allotment fees (e.g. for transcoding, streaming, delivery, processed content, storage, etc.)) are due and payable in advance, all usage-based fees (e.g., for transcoding, streaming, delivery, processed content, storage, etc. in lieu of or in excess of the prepaid allotments, as applicable) are due and payable monthly in arrears, and all non-recurring Fees (e.g. pursuant to statement(s) of work or Order Form) are due and payable on the effective date of the order unless otherwise stated in a particular statement of work. Any unused portions of included and/or bundled use allotments that may be stated in the Agreement(s) (including without limitation use allotments relating to streams, transcoding, processed content, and/or delivery) will expire at the end of each time increment stated in the Agreement(s) and will not rollover to subsequent timeframes or time increments.

• Taxes.

Customer is solely responsible for all applicable sales, use, import or export taxes, duties, fees, value-added taxes (VAT), surcharges, tariffs or other amounts attributable to the Services and exploitation of the Content under the Agreement(s) and any withholdings of the same required by DerbySoft will be invoiced back to Customer.

• If Customer fails to dispute an invoice within forty-five (45) days of receipt, Customer will be deemed to have accepted such invoice and waives any right to dispute such invoice.  Fees not paid when due shall be subject to a late fee equal to the lesser of one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. DerbySoft may, with or without notice, suspend access to the Services and/or terminate the Agreement(s) if Customer is delinquent in paying all or any portion of the Fees. In the event that a Agreement is terminated prior to the end of the Term for any reason other than an uncured material breach by DerbySoft, all committed fees for the Term shall become immediately due and owing in full.  In addition, Customer will be liable for any collection costs (including without limitation attorneys fees and other legal fees and expenses, collection agency fees and expenses, court costs, collection bonds, and reasonable staff costs at standard billing rates for time spent in efforts to collect) incurred by DerbySoft and/or its Agents to collect sums due and owing under the Agreement(s).  After the Initial Term of an Agreement or renewal thereof (as applicable), the Fees shall be subject to DerbySoft’s standard pricing changes.
• Term and Termination.

The term of all other Agreements shall be the initial committed term indicated in the Agreement(s) (the “Initial Term”) and all renewals (collectively referred to herein as the “Term”). Each Agreement will automatically renew for consecutive twelve (12) month terms unless either party terminates the applicable Agreement effective as of the end of the then-current term by notifying the other party in writing or email at least ninety (90) days prior to the end of then-current term. Upon the termination of the Agreement for any reason, Customer shall immediately discontinue all use of the Services and DerbySoft is not obligated to provide Customer with any Services. Customer may terminate an Agreement if DerbySoft materially breaches a term or condition of the Agreement and such breach has not been cured within thirty (30) days of written notice by providing DerbySoft with written notice of such suspension or termination, provided however that all Fees that were incurred prior to the date of termination shall be immediately due and payable upon termination and provided further that nothing herein shall be deemed a waiver of any claims that DerbySoft may have against Customer. DerbySoft may in its sole discretion suspend Customer’s access to the Services (or any portion thereof) and/or terminate the Agreement(s): (a) should Customer fail to comply with a term or condition of the Agreement(s), including without limitation these Terms hereunder; (b) based on any conduct that DerbySoft believes is or may be directly or indirectly harmful to other users, to DerbySoft or its suppliers (including their respective systems and/or the Services); (c) based on any conduct that DerbySoft reasonably believes may be a violation of law, third party rights, and/or DerbySoft’s Prohibited Activities or restrictions on Prohibited Content set forth in Section 2.2 (c) hereof, or repeated breaches thereof; and/or (d) in the event of any legal restriction imposed on Customer, DerbySoft, and/or its Suppliers with respect to provision of the Services. DerbySoft’s right to suspend or terminate Services as set forth in this Section shall not absolve Customer of any payment or indemnification obligations described herein or diminish any other right or remedy available to DerbySoft and/or its Suppliers. All terms and conditions set forth herein that should by their nature survive termination (including without limitation all provisions relating to payment, intellectual property, ownership, and indemnification) in order to be given full effect shall continue in full force and effect after any expiration or termination of the Agreement(s).

• Title and Ownership.

As between Customer and DerbySoft, Customer and its suppliers and licensors own all right, title and interest in and to Content (excluding any content that might be provided by DerbySoft and/or its Suppliers) including associated intellectual property rights under copyright, trademark and/or other applicable domestic and international laws. DerbySoft and its Suppliers own all right, title and interest in and to the Services (including any content that might be provided by DerbySoft and/or its Suppliers) including associated intellectual property rights under copyright, trade secret, patent, trademark and/or other applicable domestic and international laws. In no event shall the Services (or any portion thereof) or any content (including without limitation advertisements) that might be provided by DerbySoft and/or its Suppliers be deemed sold or assigned to Customer.  Any and all rights not expressly granted by DerbySoft are reserved to DerbySoft and its Suppliers. DerbySoft is not required to accept unsolicited feedback. If Customer provides feedback about the Services to DerbySoft, DerbySoft shall own all rights in and to such feedback and any derivative technologies, methodologies, compilations and/or any other resultant uses based on or developed through or by using such feedback and Customer shall take all necessary actions that may be requested by DerbySoft to perfect DerbySoft’s rights in and to such feedback.

• Warranties. 

Customer represents and warrants that Customer is solely responsible and liable for: (a) obtaining all necessary consents, permissions, licenses and waivers from copyright owners, artist(s), actors, directors, performers, writers, producers, or any other individuals who appear in the Content or the results and proceeds of whose services are utilized in the Content; (b) obtaining any required synchronization and master use licenses from the owners of the musical compositions and sound recordings embodied in the Content (or their designated representatives); (c) complying with all laws, rules and applicable regulations; (d) any Prohibited Content and Activities; and (e) abiding by these Terms of Service.

• Disclaimer of Warranties. 

DERBYSOFT MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE OF THE SUITABILITY OF THE SERVICES (OR ANY CONTENT INCLUDING WITHOUT LIMITATION ADVERTISEMENTS, THAT IT OR ITS SUPPLIERS MAY PROVIDE TO CUSTOMER) FOR CUSTOMER’S PURPOSES, THAT THE USE OF THE SERVICES SHALL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES SHALL FUNCTION PROPERLY IN COMBINATION WITH ANY THIRD PARTY SERVICES, TECHNOLOGY, HARDWARE, SOFTWARE, SYSTEMS OR DATA. THE SERVICES, AND ANY CONTENT PROVIDED BY DERBYSOFT AND/OR ITS SUPPLIERS, ARE PROVIDED “AS IS” AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE SERVICES MAY BE SUBJECT TO INTERRUPTION, LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF INTERNET APPLICATIONS AND ELECTRONIC COMMUNICATIONS AND DERBYSOFT AND ITS SUPPLIERS ARE NOT RESPONSIBLE FOR ANY SUCH DELAYS, MISDELIVERY, UNTIMELY DELIVERY, DELIVERY FAILURES, OR ANY DAMAGES RESULTING THEREFROM AND/OR FROM EVENTS BEYOND DERBYSOFT’S REASONABLE CONTROL. THIS SECTION 9 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.

• Indemnification.
  • Indemnification by DerbySoft. 

Subject to Section 8.3 below, DerbySoft will, at DerbySoft’s own expense, defend Customer (including its directors, officers, employees, and agents and their respective successors in interest) and its permitted successors in interest from and against any damages, losses and reasonable expenses finally awarded (including reasonable attorney’s fees) relating to or arising out of any claim that the Services infringe or misappropriate third-party intellectual property rights, including patent, copyright, trademark, and trade secret rights, except to the extent such claim arises from (i) Customer’s modification of the Services (if such modification was made by Customer and not made by or at the written direction of DerbySoft and if such infringement would have been avoided by the use of the unmodified version of the Services) or (ii) by use, operation, or combination of the Services with programs, data, equipment, or materials not provided by DerbySoft (if such infringement would otherwise have been avoided).  Should the Services become, or in DerbySoft’s opinion be likely to become, the subject of any such claim of infringement, then DerbySoft may, at its sole option and expense, procure for Customer the right to continue using the Services or modify or replace the Services, or any portion thereof, to avoid claims of infringement.  This section states DerbySoft’s entire liability for infringement.

• Indemnification by Customer.

Subject to Section 8.3 below, Customer will, at Customer’s own expense, defend DerbySoft (including its directors, officers, employees, and agents, parents, subsidiaries, affiliates and its successors in interest); business partners and Suppliers, and their respective successors in interest from and against any damages, losses and reasonable expenses finally awarded (including reasonable attorney’s fees) relating to or arising out of any claim (i) that the Content infringes or misappropriates or treads upon any third-party patent, copyright, trademark, trade secret, or other third party right including without limitation the right of publicity, right of privacy, and/or right of name or likeness, and/or is libelous, slanderous, or otherwise defamatory, or (ii) based on Customer’s use of the Services in violation a third party license or use terms or other agreement between Customer and such third party, or (iii) based on Customer’s modification of the Services (if such modification was made by Customer and not made by or at the written direction of DerbySoft and if such infringement would have been avoided by the use of the unmodified version of the Services), or (iv) based on Customer’s use, operation, or combination of the Services with programs, data, equipment, or materials not provided by DerbySoft (if such infringement would otherwise have been avoided).  This section states Customer’s entire liability for infringement.

• Indemnification Conditions. 

A party’s obligation to indemnify (“Indemnifier”) the other party (“Claimant”) pursuant to this Section 9 shall only arise if: (i) the Claimant promptly notifies the Indemnifier in writing of the claim; (ii) the Indemnifier has sole control of the defense and of any negotiations for its settlement; and (iii) the Claimant provides the Indemnifier with reasonable assistance, information, and authority necessary to perform the above. 

• Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT WITH RESPECT TO BREACHES OF THE RESTRICTIONS SET FORTH IN SECTION 1.2 HEREOF (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, GOODWILL, USE, DATA OR OTHER INTANGIBLE OR OTHER PECUNIARY LOSS) ARISING OUT OF THE AGREEMENT AND/OR THESE TERMS OF SERVICE OR THE USE OF OR INABILITY TO USE THE SERVICES OR RETRIEVE THE CONTENT BY OR THROUGH THE SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (ii) EXCEPT WITH RESPECT TO PAYMENT OBLIGATIONS UNDER SECTION 4 ABOVE, INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 8 (“INDEMNIFICATION”) ABOVE AND BREACHES OF USE RESTRICTIONS SET FORTH IN SECTION 1.2 HEREOF, EACH PARTY’S EXCLUSIVE REMEDY AND THE OTHER PARTY’S TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS COMBINED RELATING TO, ARISING OUT OF, IN CONNECTION WITH, OR INCIDENTAL TO THE SERVICES, THE AGREEMENT(S) INCLUDING WITHOUT LIMITATION THESE TERMS OF SERVICE FOR ANY REASON SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED UP TO THE DERBYSOFT FEES PAID FOR USE OF THE SERVICES UNDER THE APPLICABLE AGREEMENT IN THE THREE (3) MONTH PERIOD PRECEDING THE FIRST SUCH CLAIM. SUCH LIMITATION SHALL APPLY, WITHOUT LIMITATION, TO THE COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, OR LOST DATA. CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT UNDER NO CIRCUMSTANCES SHALL DERBYSOFT OR ITS SUPPLIERS, RESELLERS, PARTNERS, OR LICENSORS OR ANY OF THEIR SUCCESSORS IN INTEREST (COLLECTIVELY HEREIN, “DERBYSOFT”) BE LIABLE TO CUSTOMER OR ANY USER BASED ON CUSTOMER’S OR ITS USERS’ MISUSE OF AND/OR RELIANCE ON THE SERVICES.

1. General Compliance. 

The Services are protected by copyright laws and international treaty provisions.  Customer agrees that the Services, and any technical information and/or documentations, are subject to applicable export control laws and regulations. Customer agrees not  permit the use of the Services without first obtaining all required authorizations from the U.S. Government (i) in Cuba, Iran, North Korea, Syria, restricted regions of Ukraine or any other U.S. embargoed region or (ii) by any party subject to U.S. sanctions or otherwise included on a U.S. list of trade-restricted parties, such as the Entity List, Specially Designated Nationals List, or Cuba Prohibited Accommodations List, among others, and to export or re-export the Services, directly or indirectly, to any countries that are subject to applicable export restrictions. Furthermore, Customer agrees to comply with all applicable laws, rules and regulations relating to its use of the Services and activities relating to this Agreement, including but not limited to applicable trade and investment sanctions, export controls, anti-terrorism, anti-boycott, anti-money laundering and anti-bribery laws, rules and regulations, and all applicable laws governing the collection, storage, use and processing of personal information.  In the event DerbySoft or its Agents Process any Personal Data on behalf of Customer, the Parties agree that the terms and conditions of the Data Protection and Privacy Addendum linked hereto [Please implement the hyperlink that links our updated DPA.], which is incorporated herein by this reference, shall apply.  For avoidance of doubt, except where expressly agreed by the parties in writing, where DerbySoft is acting as an intermediary between Customer and a third party, DerbySoft shall only be deemed to Process information on behalf of Customer to the extent such information is received by DerbySoft from Customer and not received from such third party.     

1. Confidentiality.                  
   1. Definition. 

“Confidential Information” means all nonpublic information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that is designated as confidential or that, given the nature of the information or the circumstances surrounding its disclosure, reasonably should be considered as confidential.  Confidential Information includes, without limitation, (i) nonpublic information relating to the Disclosing Party’s technology, Customer/Distributors, business plans, promotional and marketing activities, finances and other business affairs, (ii) third-party information that the Disclosing Party is obligated to keep confidential, and (iii) the existence of this Agreement and any discussions or negotiations between the parties.  Confidential Information shall not include information where the Receiving Party can demonstrate with competent evidence that such information: (a) was in the public domain at the time it was disclosed to the Receiving Party, (b) entered the public domain subsequent to the time it was disclosed to the Receiving Party, through no fault of the Receiving Party, (c) was in the Receiving Party’s possession free of any obligation of confidence at the time it was disclosed to Receiving Party, (d) was rightfully communicated to the Receiving Party free of any obligation of confidence subsequent to the time it was disclosed to the Receiving Party, (e) was developed by employees or agents of the Receiving Party independently of and without reference to any information communicated to the Recipient by the other party, or (f) it was communicated by the Disclosing Party to an unaffiliated third party free of any obligation of confidence.

• Requirements.

Receiving Party will not disclose to any third party, and shall not use the Disclosing Party’s Confidential Information, except to the extent such disclosure or use is required to fulfill its obligations under this Agreement or is expressly provided for in this Agreement.  The Receiving Party shall only permit access to Confidential Information of the Disclosing Party to those of Receiving Party’s employees or authorized representatives having a need to know and who have signed confidentiality agreements or are otherwise bound by confidentiality obligations at least as restrictive as those contained herein.  The Receiving Party will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature.  The Receiving Party shall promptly notify the Disclosing Party upon discovery of any loss or unauthorized disclosure of the Confidential Information of the Disclosing Party.  Upon termination or expiration of the Agreement, or upon written request of the other Disclosing Party, Receiving Party shall promptly return to the other or destroy all documents and other tangible materials representing the Disclosing Party’s Confidential Information and all copies thereof.  Notwithstanding the foregoing, Receiving Party shall be permitted to retain a copy of such Confidential Information as is required by law or to comply with the Receiving Party’s own internal recordkeeping policies and procedures

• Required Disclosures. 

Receiving Party may disclose certain Confidential Information of the Disclosing Party, to the extent the disclosure is required by a valid order of a court or other governmental body having jurisdiction, provided that the Receiving Party provides the Disclosing Party with reasonable prior written notice of such disclosure and makes a reasonable effort to obtain, or to assist the Disclosing Party in obtaining, a protective order preventing or limiting the disclosure. . 

• Remedies. 

In the event of actual or threatened breach of the provisions of this Section 7, both parties agree that the non-breaching party may have no adequate remedy at law and is therefore entitled to seek injunctive and other equitable relief, without bond and without the necessity of showing actual money damages; provided, however, that it is understood and agreed that the seeking or obtaining of any such relief shall not prevent the seeking or obtaining of any other relief, including the remedy of damages.

1. Publicity and Marketing. 

DerbySoft shall be permitted to use Customer’s standard logo for Customer’s promotional and marketing use during the Term.

1. Trademark Information; Copyrights.

DerbySoft’s trade nameand DerbySoft’s logos and product and service names are trademarks of DerbySoft, Inc. (collectively, the “DerbySoft Marks”). Unless otherwise provided in the Order Form, Customer agrees not to remove any DerbySoft Marks or any copyright notices that are contained within and/or affixed to the Services (or any portion thereof). Except with respect to the foregoing, Customer agrees not to display or use in any manner the DerbySoft Marks without DerbySoft’s prior written permission.

1. Governing Law; Dispute Resolution. 

Customer understands and agrees that the Agreement(s), including without limitation these Terms of Service, shall be governed by the laws of the State of Texas, without regard to conflict of law provisions. Any action or proceeding arising from or relating to the Agreement(s), including without limitation these Terms hereunder, may only be brought in the State and Federal courts located in Dallas, Texas and each party irrevocably submits to such exclusive jurisdiction and venue.

1. General Provisions.

The Agreement(s), including the Order Form, these Terms and all URLs incorporated herein, constitute the complete and exclusive agreements between Customer and DerbySoft with respect to its subject matter and supersedes any and all prior written or oral agreement or understanding relating to the same subject matter. In the event of any conflict between or among any documents executed by both Customer and DerbySoft and these Terms under this Agreement shall control to the extent of such conflict and all other terms and conditions of each shall continue to remain in full force and effect.  In the event of a conflict between the Terms and additional provisions set forth in the Order Form hereto, the terms of the Order Form shall control with respect to the subject matter thereof.   If any provision of the Agreement, including without limitation these Terms hereof is held unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. Notwithstanding anything to the contrary these Terms, if Customer procures the Services through one of DerbySoft’s Agents instead of directly from DerbySoft, then DerbySoft has no direct or indirect liability to Customer in connection with the Services or otherwise regardless of whether DerbySoft hosts the Services. Customer and DerbySoft are independent contractors and no joint venture, partnership, employment, agency or exclusive relationship exists between Customer and DerbySoft as a result of the Agreement(s) and/or Customer’s use of the Services as authorized thereunder. Any written notice required hereunder may be transmitted via email to the primary email contacts provided or other official email contacts available to a party if such email contacts are no longer relevant due to employee departure or otherwise. The Agreement between the Parties may only be modified by written amendment signed by authorized representatives of both Customer and DerbySoft. All waivers must be made in writing and the failure of Customer or DerbySoft to enforce any right or provision in a document or in these Terms shall not constitute a waiver of such right or provision. Any waiver on one occasion shall not imply or constitute a waiver on any other occasion. DerbySoft shall not be responsible for any failure to perform, or delay in performing any of its obligations under this Agreement or these Terms hereunder to the extent that such a failure or delay results from force majeure causes beyond its control, such as acts of God or of the public enemy, acts of the government in its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, freight embargoes, strikes, civil commotion, or the like. Customer may not transfer or assign these Terms or any rights or obligations hereunder, directly or indirectly, by operation of law or otherwise, without the prior written consent of DerbySoft and any such assignment shall be null and void from the beginning. The Agreement(s), including without limitation these Terms shall inure to the benefit of and be binding upon DerbySoft’s or Customer’s respective permitted successors and assigns.

1. Definitions. 

For purposes of this Agreement (including the recitals hereof), the aforementioned terms have the following meanings, and capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the Order Form or the  Agreement.

1. “Account(s)” means an account issued to Customer under a Agreement that contains a profile created by Customer in connection with Customer’s access to and use of the Services. 
   1. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement, where “control” means direct or indirect ownership or control of more than 50% of the voting interests of the applicable party.
   1. “Agent(s)” means, individually and collectively, DerbySoft’s business partners. 
   1. “Agreement” means an DerbySoft “Services Agreement and Order Form”, statement(s) of work, and/or similar written agreement(s) executed by and between Customer and DerbySoft and/or an online agreement to which Customer has agreed by way of clicking to accept and/or a statement of work and/or other written agreement between Customer and DerbySoft for the Services and any supplements, addenda, exhibits, schedules, URLs that cross-reference and/or are cross-referenced in any of the foregoing (including without limitation these Terms of Service, the Privacy Policy and security measures, and any amendments and/or renewals to any of the foregoing. 
   1. “ARI Data” shall mean hotel room rates and inventory information and data.
   1. “Connectivity Service” means the Service provided by DerbySoft that enables use of the DPlatform by Distributor and Suppliers for the purpose of exchanging ARI Data and booking Reservations.
   1. “Content” means any and all static images, audio and/or video materials including, without limitation, text, images, logos, artwork, graphics, pictures, sound, ads and any intellectual property contained in any such materials uploaded or otherwise provided by Customer, Customer’s agents, Users and/or Customer’s End Users in connection with the Services.
   1. “CRS” means a Supplier’s central reservation system, or other applicable reservation system used by a Supplier.
   1. “Customer Data” means all data and information submitted, transmitted, generated or stored by Customer in connection with use of the Services under this Agreement.  
   1. “Distributor” means the Customer/Distributor entering into this Service Order which markets and distributes hotel room inventory online.
   1. “DPlatform” means DerbySoft’s proprietary, web-based platform used to deliver Connectivity Services and to support and enable the Content Services hereunder, including any website(s), APIs (including the Content API), tools, code, software, specifications, documentation and hardware technology used for that purpose.
   1. “Fees” means all fees relating to or arising out of the Services including, without limitation, all fees set forth in the Agreement(s). 
   1. “Inventory Supplier” means a Supplier that sells hotel or ticket inventory (for itself or for third parties) and has entered into an agreement with DerbySoft under which such hotel room supplier has established an interface with the DPlatform
   1. “Inventory Supplier Connection” means a connection, via Distributor’s interface with the DPlatform, between Distributor and a specific Inventory Supplier to facilitate the exchange of ARI Data and the booking of Reservations between Inventory Suppliers and one or more Distributors.
   1. “Net Reservations” means the number of Reservations made in such calendar month, less the number of Reservations cancelled in such calendar month. 
   1. Order Form” (also known as a formerly Service Order) means any Order signed by DerbySoft and Customer as part of this Agreement.
   1. “Personal Data” information relating to an identified or identifiable natural person, household or device.
   1. “Process” and its variants means, without limitation, access, collect, record, organize, use, store, adapt, alter, retrieve, consult, transfer, disclose or destroy.
   1. “Reservation” means a hotel room or ticket reservation made through Distributor using the Connectivity Service, and accepted by an Inventory Supplier.
   1. “Services” means all other products and/or services provided to Customer by or through DerbySoft pursuant to a Agreement that may include technical support, engineering work, and/or any other professional services. 
   1. “Suppliers” means third party licensors, subcontractors and/or vendors that supply some or all portions of the Services licensed to Customer pursuant to the Agreement (but excluding third parties that may provision Customer with products and/or services that integrate with the Services or are otherwise used by Customer in connection with the Services but which are not actually provided to Customer by DerbySoft). 
   1. “Term” and “Initial Term” have the meanings set forth in Section 4 of these Terms. 
   1. “TPS” means the number of multi-availability requests sent from Distributor’s system to DerbySoft through the multi-availability endpoint in one second.  Live Check will be limited to one transaction per second used for validating before booking confirmation.
   1. “User(s)” means individuals or entities who are authorized to access Accounts on behalf of Customer.