TERMS OF SERVICE
These Terms of Service constitute an agreement (this “Agreement”) by and between Disability Data Manager, a Limited Liability Corporation whose principal place of business is 104 South May Avenue Oklahoma City, OK 74107 (“Vendor”) and you (“Customer”). THIS AGREEMENT IS EFFECTIVE AS OF THE DATE YOU CHECKED THAT YOU HAVE READ AND AGREED WITH THESE TERMS OF SERVICE (the “Effective Date”). Customer’s use of and Vendor’s provision of Vendor’s System (as defined below in Section 1.3) are governed by this Agreement.
EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON WHO CHECKS THAT THEY HAVE “READ AND AGREE WITH THE TERMS OF SERVICE” HAS BEEN AUTHORIZED TO DO SO. THE PERSON WHO CHECKS THAT THEY HAVE “READ AND AGREE WITH THE TERMS OF SERVICE” REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT YOU MUST NOT CHECK THAT YOU HAVE “READ AND AGREE WITH THE TERMS OF SERVICE”.
- DEFINITIONS:The following capitalized terms will have the following meanings whenever used in this Agreement.
- “Customer” is the person or business entity who has read and agreed with these Terms of Service.
- “Customer Data” means data in electronic form input or collected through the System by or from Customer, including without limitation by Customer’s Users.
- “System” means Vendor’s Disability Data Manager cloud service subscription.
- “Term” is defined in Section 11.1 below.
- “User” means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.
- THE SYSTEM:
2.1. Use of the System. During the Term, Customer may access and use the System pursuant to and subject to the terms of this Agreement. Customer agrees that it is solely responsible for the content of its account, and further acknowledges that Vendor acts as a passive conduit for the storage of data.
3.1. Subscription Fee. System is offered as a prepaid hosted service subscription. Customer agrees to make timely payments. There are no sign-up fees and no cancellation fees. Customer may cancel its subscription at any time. Vendor will not be required to refund the Subscription Fee under any circumstances. Vendor reserves the rights to suspend your service if no payment has been received and no payment arrangements were made. Customer shall pay Vendor on the date they subscribed to the System and every month thereafter on the same day of the month $30 per user per month (Subscription Fee). Customer’s Subscription Fee will be renewed automatically each month unless Vendor is informed 5 business days prior to the renewal date that Customer does not want to renew the subscription. Unless so informed it is presumed that Customer has authorized Vendor to charge the Subscription Fee to the credit card last used by Customer.
3.2. Vendor reserves the right to change the Subscription Fee provided notice is given to Customer at least 90 days prior to the change.
3.3. Service Fees. Vendor agrees to provide Customer with 10 hours of data conversion and/or database customization free of charge (contingent on Vendor having access to your database as an administrator user). Data conversion and/or database customization will be limited to System allowances. Time needed for data conversion and/or database customization above and beyond the initial 10 hours can be purchased in increments of 15 minutes for $18.75 ($75 per hour). Support for issues other than data conversion and/or database customization is free of charge.
- CUSTOMER DATA, PRIVACY, & SECURITY:
4.1. Use of Customer Data. Unless it receives Customer’s prior written consent, Vendor: (a) shall not access, process, or otherwise use Customer Data, and (b) shall not grant any third– party access to Customer Data. Notwithstanding the foregoing, Vendor will not hand over to law enforcement unless required by a court order. We will reject data requests from local and federal law enforcement without a court order. And, unless we are legally prevented from it, we will always inform you when we receive such requests.
(a) Personal identifiable information. When a user registers a new account with Vendor, the system asks for first and last name, e-mail address, password, locale and time zone information. Name helps to personalize your experience. E-mail address is used as a unique user identifier and for communication with the user. Locale and time zone information is used by the system to present numbers and dates in an appropriate format. Due to various data integrity constraints user account cannot be deleted, but it can be cleared from any personally identifiable information upon request.
(b) Sharing personally identifiable information. We will never pass your personal information to third parties and we will not use your name in marketing statements without your permission.
(c) Cookies. Cookies are used for authentication, keeping certain user preferences, and tracking user movements around the site. No cookies, however, contain personally identifiable information.
4.3. Data Accuracy. Vendor will have no responsibility or liability for the accuracy of data uploaded to the System by Customer, including without limitation Customer Data and any other data uploaded by Users.
4.4. Data Retention & Deletion
(a) Data Retention. Customers are responsible for understanding and implementing their data retention and deletion requirements related to the data they upload to System.
(b) Data Deletion. Customers may delete their data at any time and primary instances of their data in production systems will be erased immediately, however, since backups are kept for 6 months, it may take up to 6 months for their data to be completely purged from the backup systems after it has been deleted.
(c) Deleted Records. Deleted Records are moved to the Recycle Bin, kept there for 30 days and then purged automatically. Records may be purged from the Recycle Bin manually at any time.
(d) Expired databases. A database is considered ‘expired’ when the subscription is cancelled. Access will be blocked to expired databases. Expired paid databases are securely kept in locked stage until being deleted by a database owner or administrator. Database administrators are provided with all the means to delete a database at any time, before or after its expiration.
(e) Deleted Databases. Databases that are deleted by their owners or administrators will disappear from users’ reach immediately and will be physically deleted from the global databased within 30 days.
(f) Backups. All types of data deleted from online databases (from individual records to whole databases) will reside in system backups for 6 months. It will not be restored back to production systems, except for certain rare instances such as the need to recover from a natural disaster or serious security breach. In such cases, some of deleted data instances may be restored from backups, but Vendor will immediately take all necessary steps to honor the initial request to delete and erase the primary instance of the data again.
(a) Infrastructure. Customer Data is stored and processed with SteadFast Networks Data Center Colocation in Chicago IL, United States with appropriate, technological, and administrative controls enacted to ensure appropriate access of Customer Data.
(b) Data Encryption. Data is encrypted over a wire via 256-bit (SHA2) TLS certificate, TLS 1.0, 1.1 and 1.2 Databased is encrypted via AES256. File attachments are also encrypted via AES256.
(c) Personnel Access. A small team of operations personnel have administrative access to the infrastructure where System is hosted. Additionally, developers occasionally require a read-only access to the database metadata to troubleshoot problems. Support personnel does not have access to customer databases unless they are invited or authorized by Customer. All employees sign confidentiality agreements before gaining access to the code and data. Everyone is trained and made aware of security concerns and best practices for their systems. Remote access to serves is established via company VPN and limited to workers who need access for their day-to-day work. All access events are logged for all accounts by IP address.
(d) Incident Response. Once Vendor becomes aware of any suspected or confirmed data breach, Vendor will notify all affected customers via e-mail within 72 hours.
- CUSTOMER’S RESPONSIBILITIES & RESTRICTIONS:
5.1. Acceptable Use. Customer shall not: (a) use the System for service bureau or time-sharing purposes or in any other way allow third parties to exploit the System; (b) provide System passwords or other log-in information to any third party; (c) share non-public System features or content with any third party; (d) access the System in order to build, or allow others to build, a competitive product or service, to build a product using similar ideas, features, data, functions or graphics of the System, or to copy any ideas, features, data, functions or graphics of the System; or (e) engage in web scraping or data scraping on or related to the System, including without limitation collection of information through any software that simulates human activity or any bot or web crawler. Specifically, the information in the Dictionary of Occupational Titles and Selected Characteristics of Occupations tables shall not be copied or downloaded except as needed in the capacity of representing a client’s disability case. In the event that it suspects any breach of the requirements of this Section 5.1, including without limitation by Users, Vendor may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Vendor may have.
5.2. Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. Customer shall notify Vendor immediately of any known or suspected unauthorized use of the System or breach of its security and shall use best efforts to stop said breach.
5.3. Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.
5.4. Users & System Access. Customer is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized.
- IP & FEEDBACK:
6.1. IP Rights to the System. Vendor retains all right, title, and interest in and to the System, including without limitation all graphics, user interfaces, and logos reproduced through the System. This Agreement does not grant Customer any intellectual property license or rights in or to the System or any of its components.
6.2. Feedback. Vendor has not agreed to and does not agree to treat as confidential any Feedback (as defined below) Customer or Users provide to Vendor, and nothing in this Agreement or in the parties’ dealings arising out of or related to this Agreement will restrict Vendor’s right to use, profit from, disclose, publish, keep secret, or otherwise exploit Feedback, without compensating or crediting Customer or the User in question. Notwithstanding the provisions of Article 7 below, Feedback will not be considered Confidential Information. (“Feedback” refers to any suggestion or idea for improving or otherwise modifying any of Vendor’s products or services.)
- REPRESENTATIONS & WARRANTIES:
7.1. From Vendor. Vendor represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is an entity authorized to do business pursuant to applicable law.
7.2. From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.
7.3. Warranty Disclaimers. CUSTOMER ACCEPTS THE SYSTEM “AS IS” AND AS AVAILABLE, WITH NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (a) VENDOR HAS NO OBLIGATION TO INDEMNIFY OR DEFEND CUSTOMER OR USERS AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY; (b) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (c) VENDOR DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE. THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. IN THE VERY UNLIKELY EVENT OF SERVICE INTERRUPTION THE PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. LIMITATION OF LIABILITY. YOU AGREE YOUR SOLE REMEDY UNDER THE TERMS AND CONDITIONS OF THIS AGREEMENT IS CANCELLATION OF THE SERVICE.
- INDEMNIFICATION:Customer shall defend, indemnify, and hold harmless Vendor and the Vendor Associates (as defined below) against any “Indemnified Claim,” meaning any third–party claim, suit, or proceeding arising out of or related to Customer’s alleged or actual use of, misuse of, or failure to use the System. Customer’s obligations set forth in this Article 8 include retention and payment of attorneys and payment of court costs, as well as settlement at Customer’s expense and payment of judgments. Vendor will have the right, not to be exercised unreasonably, to reject any settlement or compromise that requires that it admit wrongdoing or liability or subjects it to any ongoing affirmative obligations. (The “Vendor Associates” are Vendor’s officers, directors, shareholders, parents, subsidiaries, agents, successors, and assigns.)
- LIMITATION OF LIABILITY:
9.1. Excluded Damages. Except with regard to breaches of Article 7, IN NO EVENT WILL VENDOR BE LIABLE FOR LOST PROFITS OR LOSS OF BUSINESS OR FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT.
9.2. Clarifications & Disclaimers. THE LIABILITIES LIMITED BY THIS ARTICLE 9 APPLY: (a) TO LIABILITY FOR NEGLIGENCE; (b) REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT PRODUCT LIABILITY, OR OTHERWISE; (c) EVEN IF VENDOR IS ADVISED IN ADVANCE OF THE POSSIBILITY OF THE DAMAGES IN QUESTION AND EVEN IF SUCH DAMAGES WERE FORESEEABLE; AND (d) EVEN IF CUSTOMER’S REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. If applicable law limits the application of the provisions of this Article 9, Vendor’s liability will be limited to the maximum extent permissible. For the avoidance of doubt, Vendor’s liability limits and other rights set forth in this Article 9 apply likewise to Vendor’s affiliates, licensors, suppliers, advertisers, agents, sponsors, directors, officers, employees, consultants, and other representatives.
- TERM & TERMINATION:
10.1. Term. The term of this Agreement (the “Term”) will commence on the Effective Date.
10.2. Effects of Termination. Upon termination of the use of the System, Customer shall cease all use of the System. The following provisions shall survive termination of the use of the System: (a) any obligation of Customer to pay fees incurred before termination; (b) Articles and Sections 6 (IP & Feedback), 7 (Confidential Information), 8.3(Warranty Disclaimers), 9 (Indemnification), and 10 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.
11.1. Independent Contractors. The parties are independent contractors and shall so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf.
11.2. Notices. Vendor may send notices pursuant to this Agreement, via email, to Customer’s email contact points provided by Customer and such notices will be deemed received 24 hours after they are sent. Customer may send notices pursuant to this Agreement, via email, to firstname.lastname@example.org and such notices will be deemed received 24 hours after they are sent.
11.3. Force Majeure. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, health pandemics, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing party’s reasonable control.
11.4. Assignment & Successors. Customer may not assign this Agreement or any of its rights or obligations hereunder without Vendor’s express written consent. Except to the extent forbidden in this Section 11.4, this Agreement will be binding upon and inure to the benefit of the parties’ respective successors and assigns.
11.5. Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
11.6. No Waiver. Neither party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.
11.7. Choice of Law & Jurisdiction: If a dispute arises from or relates to this contract or the breach thereof, and if the dispute cannot be settled through direct discussions, the parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The parties further agree that any unresolved controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
The place of arbitration shall be Oklahoma City, Oklahoma if video conferencing is not available. The arbitration shall be governed by the laws of the State of Oklahoma. The language used shall be English. The arbitrator(s) will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. Each party shall bear its own costs and expenses and an equal share of the arbitrator’s and administrative fees of arbitration. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness. In such event, the other party shall be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above.
This Section 11.7 governs all claims arising out of or related to this Agreement.
11.8. Conflicts. In the event of any conflict between this Agreement and any of Vendor policies posted online the terms of this Agreement will govern.
11.9. Technology Export. Customer shall not permit any third party to access or use the System without the written consent of Vendor or in violation of any U.S. law or regulation.
11.10. Entire Agreement. This Agreement sets forth the entire agreement of the parties and supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Neither party has relied upon any such prior or contemporaneous communications.
11.11. Amendment. Vendor may amend this Agreement from time to time by sending Customer written notice thereof. Such amendment will be deemed accepted and become effective 30 days after such notice (the “Proposed Amendment Date”). Customer’s continued use of the Service following the effective date of an amendment will confirm Customer’s consent thereto. This Agreement may not be amended in any other way except through a written agreement by authorized representatives of each party.