Please read these General Terms and Conditions carefully. These General Terms and Conditions are a legal agreement between you, the “Client” entity, identified in the Subscription Order (“Subscription Order” or “SO”) or otherwise subscribing to or using the applicable services, software, modules, websites, or offerings (“Services”) of Genius Ventures, Inc., (“PTO Genius”). References to this “Agreement” include that SO (and any related attachments) and these General Terms and Conditions. By accessing or using the Services or entering into a SO, Client agrees to be bound to this Agreement, including without limitation these General Terms and Conditions. If there is a direct conflict between these General Terms and Conditions and a SO, the SO takes precedence. Client and PTO Genius are each a “Party” and collectively, the “Parties”, as applicable.
Subscription. Subject to the other provisions of this Agreement, PTO Genius will make available to Client on a non-exclusive and non-transferable basis the Services in accordance with PTO Genius’s published documentation for the Services and the SO during the term. Client will (a) be responsible for connecting to and using the Services made available to it in accordance with this Agreement, (b) be responsible for its and its employees’ and users’ use and decisions relating to the Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify PTO Genius promptly of any such unauthorized access or use, and (d) use the Services and provide data only in accordance with applicable laws and regulations.
Restrictions. Client will not (and will not permit any of its employees or users to): (a) make the Services available to any third party other than as contemplated by this Agreement (e.g., employees), (b) resell, lease, distribute, transfer or otherwise make available the Services on a time-sharing or service bureau basis, (c) use or access the Services in any way that threatens the integrity, performance, or availability of the Services or other clients or users, (d) attempt to gain unauthorized access to the Services, including any data stored or processed therein, (e) decompile, disassemble, or reverse engineer the Services, in whole or in part, or (f) use or reference the Services to develop, have developed, or offer a competing service or product.
Ownership. Except for Client’s limited right to access and use the Services as expressly described in this Agreement, PTO Genius owns and reserves all other rights, title, and interest in and to the Services. The Services are being made available on a strictly confidential and limited use basis. This Agreement is not an agreement of sale, and no ownership rights to any Service or portion thereof are transferred to Client. Any derivative works, modifications, or enhancements relating to the Services or any component thereof (whether created alone or jointly) will be solely and exclusively owned by PTO Genius. Client hereby assigns and agrees to assign to PTO Genius any rights, title and interest in and to any feedback, suggestions, ideas, derivative works, modifications, enhancements, or improvements to the Services that Client or its employees, users, or other representatives provide or develop. Client will execute and deliver (or cause its employees, users, or other representatives to execute and deliver) any additional documents deemed reasonably necessary or appropriate to perfect, maintain, protect, or enforce PTO Genius’s rights described above and the intent of this Section.
General. Client acknowledges and understands that use of the Services will permit or require Client to provide certain Client data, content, materials, and other information (“Client Data”) to PTO Genius for purposes of processing or storage in connection with the Services and as permitted under the Agreement. All Client Data will be considered proprietary to Client.
Data Safeguards. PTO Genius will maintain reasonable and appropriate data safeguards and procedures designed to prevent the unauthorized use or disclosure of Client Data in PTO Genius’s possession or control (“Data Safeguards”). Data Safeguards include the applicable data security requirements identified in the SO. PTO Genius will periodically maintain archives and back-ups of Client Data in accordance with PTO Genius’s generally applicable disaster recovery and business continuity procedures and industry standards. Client Data may be stored on media or hardware containing other Client data both during and after the term, provided such media and hardware are subject to the Data Safeguards.
Cloud Processing.PTO Genius may use nationally recognized third party cloud service providers, such as Amazon Web Services or Microsoft Azure, to store and process Client Data in accordance with industry standards. Upon Client’s reasonable request, PTO Genius will make available to Client any audits reports or certifications that its subcontractor(s) providing hosting services generally make available to PTO Genius and its other client’s, subject to Client’s agreement to comply with any confidentiality or other terms or conditions required by such subcontractor or its auditors.
End of Term; Data Transfer. Upon the termination or expiration of the Agreement, PTO Genius will transfer a copy of Client Data in PTO Genius’s possession or control to Client within thirty (30) days following any termination or expiration (or otherwise upon Client’s reasonable request). PTO Genius is not obligated to store any Client Data for more than 30 days following the termination or expiration.
All confidential information will be held in confidence, and the receiving Party will take all steps reasonably necessary to preserve the confidentiality of the confidential information of the other Party. The disclosing Party's confidential information will not be used or disclosed by the receiving Party for any purpose except (a) as necessary to exercise rights or perform obligations under this Agreement, or (b) as required by law, provided that the other Party is given a reasonable opportunity to obtain a protective order. The receiving Party will limit its use of and access to the disclosing Party's confidential information to only those of its employees or representatives whose responsibilities require such use or access. The receiving Party will advise all such employees and representatives, before they receive access to or possession of any of the disclosing Party's confidential information, of the confidential nature of the confidential information and require them to abide by the terms of this Section. Either Party may disclose this Agreement to its actual or potential investors, creditors, professional advisors, or attorneys who are subject to a duty of confidentiality. PTO Genius’s confidential information includes the Services (and the data that is provided as part of the Services, but not any Client Data) and the pricing under this Agreement.
In consideration for the rights granted, Client will pay to PTO Genius, without offset or deduction, the undisputed fees and expenses described in the SO or otherwise published by PTO Genius if not otherwise stated. Unless otherwise provided in the SO, all fees will be due and payable immediately after an invoice is issued by PTO Genius, and subscription fees may be invoiced in advance. Unless otherwise provided in the SO, fees may increase after the initial subscription term and each renewal period thereafter. Fee increases must be mutually agreed upon during any Subscription Term or Renewal Term. The fees and other amounts payable by Client to PTO Genius do not include any taxes of any jurisdiction that may be assessed or imposed upon the Services, excluding only taxes based upon PTO Genius's net income. Client will directly pay any such taxes assessed. Client will promptly reimburse PTO Genius for any taxes payable or collectable by PTO Genius (other than taxes based upon PTO Genius’s net income). All fees and other amounts paid or payable by Client under this Agreement are non-refundable and non-cancellable, except as otherwise expressly provided. In the event that Client’s account is overdue, PTO Genius will have the right, in addition to its remedies under this Agreement or pursuant to applicable law, to suspend Client’s access to and use of the Services, without further notice to Client, until Client has paid the full balance owed, plus any interest due at the rate of 18% per annum.
DISCLAIMERS AND LIMITATIONS
Disclaimer. Client is solely responsible for the results obtained from the use of the Services and its Employee-Employer or other relationships with its employees or other users. the Services are provided "as is" and PTO Genius makes no representations or warranties, oral or written, express or implied, arising from course of dealing, course of performance, usage of trade, or otherwise, including implied warranties of merchantability, fitness for a particular purpose, non-interference, accuracy, or non-infringement. PTO Genius makes no representations or warranties, nor will PTO Genius have any liability with respect to, the accuracy of any data or recommendations provided in connection with the Services.
Damage Limitation. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION ANY LOSS OF OPPORTUNITIES, REVENUE OR SAVINGS) ARISING IN CONNECTION WITH THIS AGREEMENT OR THE USE OF ANY SERVICES BASED ON ANY THEORY OF CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PTO GENIUS’S TOTAL LIABILITY UNDER THIS AGREEMENT OR RELATING TO THE SERVICES WILL UNDER NO CIRCUMSTANCES EXCEED THE FEES ACTUALLY PAID BY THE CLIENT TO PTO GENIUS DURING THE PRIOR TWELVE (12) MONTHS UNDER THIS AGREEMENT (OR $100 IF NOT FEES ARE APPLICABLE DURING SUCH PERIOD). THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO A PARTY’S WILLFUL MISCONDUCT, PTO GENIUS’S INDEMNIFICATION OBLIGATIONS FOR INFRINGEMENT OF THE SERVICES, OR CLIENT’S INDEMNIFICATION OBLIGATIONS, OR UNAUTHORIZED USE OR DISCLOSURE OF THE SERVICES OR ANY RELATED CONFIDENTIAL INFORMATION, OR UNAUTHORIZED USE OR DISCLOSURE OF CLIENT DATA OR ANY RELATED CONFIDENTIAL INFORMATION.
PTO Genius will defend, indemnify, and hold Client harmless against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any third party claim that any use of, or access to, the Services by Client as expressly authorized under this Agreement infringes or misappropriates, as applicable, any patent issued as of the Effective Date or any copyrights or trade secrets, provided that Client gives PTO Genius (a) prompt written notice of such claim; (b) authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as PTO Genius may reasonably request, at PTO Genius’ expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, PTO Genius will have no obligation or liability to the extent that the alleged infringement or misappropriation arises from (1) the combination, operation, or use of the Services with Client Data or products, services, deliverables, materials, technologies, business methods or processes not furnished by PTO Genius; (2) modifications which were not made by PTO Genius; (3) Client’s breach of this Agreement or use of the Services other than in accordance with this Agreement (collectively, “IP Exclusions”). Upon the occurrence of any claim for which indemnification is or may be due under this Section, or in the event that PTO Genius believes that such a claim is likely, PTO Genius may, at its option (i) modify the Services so that it becomes non-infringing, or substitute functionally similar services, platforms, deliverables, or documentation; (ii) obtain a license to the applicable third-party intellectual property; or (iii) terminate on written notice to Client and refund to Client any pre-paid fees for Services not provided. The obligations set forth in this Section will constitute PTO Genius’s entire liability and Client’s sole remedy for any infringement or misappropriation. Client will indemnify, hold harmless, and, at PTO Genius’s option, defend PTO Genius from and against all costs and reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities arising out of any third party claim resulting from or relating to the IP Exclusions, Client Data (e.g., if Client lacks adequate rights in or to Client Data or such Client Data is libelous, defamatory, or infringing), or Client’s employee-employer relationships. PTO Genius agrees to give Client: (a) prompt written notice of such claim; (b) authority to control and direct the defense and/or settlement of such claim; and (c) such information and assistance as Client may reasonably request, at Client’s expense, in connection with such defense and/or settlement. Notwithstanding the foregoing, Client will not settle any third-party claim, unless such settlement completely and forever releases PTO Genius with respect thereto or unless PTO Genius provides its prior written consent to such settlement. In any action for which Client provides defense on behalf of PTO Genius, PTO Genius may participate in such defense at its own expense by counsel of its choice.
TERM AND TERMINATION
The Services will be made available during any evaluation trial period and/or initial subscription term identified in this Agreement and any renewals thereto, except as otherwise provided below. The subscription term will automatically renew for the duration of the initial term, unless a Party provides the other Party at least 60 days’ written notice of non-renewal or if otherwise provided in this Agreement. Either Party may terminate for the uncured material breach of the other Party or as expressly provided otherwise in this Agreement. Any terms and conditions, including without limitation disclaimers and limitations of liability, will continue to apply after termination or expiration as necessary to give effect to the intent of this Agreement. Upon termination or expiration, Client will cease using or access the Services and each Party will return or destroy the other Party’s confidential information in its possession or control. Client will remain responsible for paying the fees for the then current subscription term, unless Client is terminating for PTO Genius’s uncured material breach or as expressly provided otherwise.
The relationship between the Parties under this Agreement is that of independent contractors and not partners, joint venturers, or agents. There are no third-party beneficiaries to this Agreement. Client may not assign this Agreement or its rights without the prior written approval of PTO Genius. This Agreement (including the SO) states the entire understanding between the Parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement. No waiver of any breach of this Agreement, will be effective unless in writing and signed by an authorized representative of both Parties. This Agreement may not be modified or amended without written agreement of the Parties; however, PTO Genius may reasonably modify or amend these General Terms and Condition or the Services for all of its then current similarly situated clients to address changes in laws or regulations or its business generally, provided that PTO Genius provides at least 30 days’ notice thereof (by email is sufficient), and if that change has or could have a material adverse impact on Client, then Client may terminate during such notice period or within 60 days thereafter upon notice to PTO Genius and without penalty. If any portion of any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, then such unenforceable portion of the provision will be deemed severed from this Agreement, the validity and enforceability of the remaining portion of the provision and the other provisions of this Agreement will not be affected or impaired, and this Agreement will be amended in order to effect, to the maximum extent allowable by law, the original intent of such provision. This Agreement will be construed and enforced in accordance with the laws of Delaware, excluding choice of law and disputes will be resolved exclusively in the federal or state courts located in Delaware. Except with respect to Client’s payment obligations, neither Party will be liable for, nor will either Party be considered in breach of this Agreement due to any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including any act of God or a public enemy, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the Internet or other networked environment), power or other utility, labor problem, unavailability of data or supplies or any other cause which could not have been prevented by the non-performing Party with reasonable care. Client authorizes PTO Genius to use Client’s name in any routine list of PTO Genius clients and as a reference; however, PTO Genius may not use Client’s name in any advertising or press release without the prior written consent of Client. This Agreement (or any SO) may be executed electronically or in one or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument.