Software, Data and Web Application Agreement
Version 1.0, Published 11/10/21
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE SOFTWARE, DATA OR WEB APPLICATION.
BY USING THE SOFTWARE, DATA OR WEB APPLICATION, CLICKING AGREE OR OTHER FORM OF ASSENT, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER OR A THIRD PARTY, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON THEIR BEHALF. IF YOU DO NOT WANT TO AGREE TO THIS AGREEMENT, CLICK “I DO NOT ACCEPT.” IF YOU REJECT THE AGREEMENT, YOU CANNOT USE THE PRODUCTS OR SERVICES PURCHASED AND CONTACT VALUSOURCE OR YOUR AUTHORIZED RESELLER REGARDING A REFUND ANYTIME WITHIN 30 DAYS OF THE ORDER DATE. AFTER 30 DAYS OF THE ORDER DATE, NO REFUND WILL BE PROVIDED IF YOU REJECT THE AGREEMENT.
This agreement is between ValuSource, LLC, a Delaware limited liability company (ValuSource), and the Customer and its Affiliates (defined below) agreeing to these terms (Customer).
This agreement describes the licensing of Software (defined below), web-based data application service (Data) and a web software application service (for example, OBV, BES or Damages Advocate) (Web Application), and Support, as provided to Customer under an order. If Customer is provided with any access to ValuSource Software, Data, Web Application or website, it is governed by the terms of this agreement.
- Definition of Software. The ValuSource software, modification enhancements, embedded formulas, technical documentation, Excel and Word files and reports, provided to Customer (Software), are licensed and are not sold.
- Free Version. If Customer access or uses the Software, Data or Web Application without a fee or a fee-based order, Customer may access the Software, Data or Web Application only until it is cancelled by ValuSource (without cause) upon notice sent via email (using its email address in the Software, Data or Web Application) or without notice and without cause, or by Customer. These products, services and technologies are provided AS IS, with no warranty. All Customer information may be deleted after termination by ValuSource.
2. SOFTWARE LICENSE AND RESTRICTIONS.
Single User Software License means that the Software is licensed per individual Software user with unique access credentials. More information regarding user licensing is located at our www.nacva.valusource.com/licfaq.
Software License. Subject to the other terms of this agreement, ValuSource grants Customer, under an order, for the duration specified in the order, a term-based for no longer than 1 year (unless otherwise expressly provided on the order), non-exclusive, non-transferable license up to the license capacity purchased to use the Software only for Customer’s internal business operations.
- Integrated Web Service. Included with the Software will be a web data service that interoperates with the Software and requires access to the Internet to function properly, which web service is solely governed by this agreement.
- Trial. Any free or trial use of the Software are provided AS IS. ValuSource may terminate any free or trial use at any time.
Restrictions. Customer may not: (i) use any automated means to access or use the Software or any embedded formulas; (ii) transfer, assign, sublicense, rent the Software, create derivative works of the Software, or use it in any type of service-provider environment; (iv) attempt reverse engineer, decompile, disassemble, or translate the Software; (v) use the Software, reports, data or embedded formulas to compete with ValuSource or its products, services or technology; (vi) operate the Software other than in accordance with its technical documentation and applicable law; or (v) use any files (for example, any Word or Excel files), portions of files or formulas from any files, after the license to the Software expires or is terminated.
3. DATA LICENSE AND RESTRICTIONS.
Data Access License.
Single User Data Access License means that the Data is licensed per individual user with unique access credentials. More information regarding user licensing is located at our www.nacva.valusource.com/licfaq.
- The Data or access credentials may not be shared (except only for clerical or administrative users that are using it only for data input purpose).
Multi User Data Access License has the same meaning as a Single User Data License, except that the Data may be shared with other individuals at the same Customer physical location (if that physical location changes, please email firstname.lastname@example.org).
Data Rights Grant (Use and Distribution).
- Grant. ValuSource grants to Customer a non-exclusive license, without the right to sublicense, for the duration of the order to:
- use the Data as part of the creation of Work Product (defined below), and
- distribute the Work Product to a single client.
Clarification: Creating Work Products for Clients. Customer may incorporate or use as a reference ‘the minimum amount necessary’ (i.e., as necessary to support the work product) of Data purchased from ValuSource under an order (or a portion of such Data), in or with a valuation report, business plan, comparative report, consultative engagement document and similar publication, prepared by it directly for the benefit of a client (Work Product).
- Customer may not download or export a substantial portion of Data from any database provided under this agreement.
- Customer may not re-sell, rent, share, market, make available or distribute the Data, other than as embedded in a Work Product that is provided directly to a single client.
- Customer may not copy the Data or authorize any copy, except as is necessary for the use of the Data in the Work Product in accordance with this Agreement.
- With respect to ValuSource Market Comps, ValuSource M&A Comps, Bizcomps, Guideline Public Company (or any successor) Data sets, no more than 20 SIC/NAICS codes may be included in any Work Product, without the prior electronic consent of ValuSource (email email@example.com with any such requests, which requests are subject to the sole discretion of ValuSource).
- Any use or access to Data without a data access license is prohibited.
- More information is located here at our nacva.valusource.com/licfaq.
4. WEB APPLICATION AND RESTRICTIONS.
Web Application. As specified on the order, ValuSource will provide access to the Web Application on a subscription basis.
Customer Owned Data. All data uploaded by Customer to the Service remains the property of Customer, as between ValuSource and Customer (Customer Data). Customer represents and warrants to ValuSource that Customer has provided all required notices and has obtained all required licenses, permissions, and consents regarding Customer Data for use within the Service under this agreement. Customer grants ValuSource the right to use the Customer Data solely for purposes of performing under this agreement, including, but not limited to access for tech support, technology improvement and compliance purposes.
Statistical Information. Valusource may compile statistical information related to the performance of the Web Application and may make such information publicly available so long as such information is aggregated and anonymized and provides no means to identify or re-identify Customer, any individual or any Confidential Information, including any Customer Data. Valusource retains all intellectual property rights in such information.
Restrictions. Customer may not: (i) use any automated means to access or use the Web Application or any embedded formulas; (ii) transfer, assign, sublicense, rent the Web Application, or use it in any type of service-provider environment; (iv) attempt to reverse engineer, decompile, disassemble, or translate the Web Application; (v) use the Web Application, reports, data or embedded formulas to compete with ValuSource or its products, services or technology; (vi) operate the Web Application other than in accordance with its technical documentation and applicable law; or (v) use any files (for example, any Word or Excel files), portions of files or formulas from any files, after the subscription to the Web Application expires or is terminated.
More information regarding Web Application subscriptions is located at our nacva.valusource.com/licfaq.
If Customer has registered for a trial use of the Software, Data or Web Application, Customer license, rights and restrictions above with respect to the Software, Data and Web Application will apply only for the duration of the trial. All trials are AS IS, with no warranty during this time period.
GENERAL. VALUSOURCE DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
VALUSOURCE PROVIDES THE SOFTWARE, THE WEB APPLICATION, ITS WEBSITES, THE REPORTS AND ALL DATA ON AN “AS IS” BASIS AND ASSUMES NO LIABILITY FOR ANY ERRORS, OMISSIONS, INACCURACIES, OR INCORRECT CALCULATIONS WHEN USING ANY OF THEM AND CUSTOMER IS RESPONSIBLE FOR MAKING THE DETERMINATION OF THE DEGREE AND EXTENT IT WANTS TO RELY ON ITEMS PROVIDED BY VALUSOURCE. CUSTOMER UNDERSTANDS THAT THE SOFTWARE, WEB APPLICATION, REPORTS AND DATA MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
THIRD PARTY SOFTWARE. WHILE VALUSOURCE USES COMMERCIALLY REASONABLE EFFORTS TO DESIGN ITS SOFTWARE AND WEB APPLICATION TO OPERATE WITH THE THIRD-PARTY SOFTWARE, INCLUDING WITHOUT LIMITATION, MICROSOFT OFFICE, WITH WHICH IT IS DESIGNED TO OPERATE, VALUSOURCE DOES NOT GUARANTY THAT THE SOFTWARE OR WEB APPLICATION WILL OPERATE PROPERLY WITH ALL UPGRADES AND UPDATES OF SUCH THIRD-PARTY SOFTWARE.
Orders. Customer must pay all fees as specified on the order, but if not specified, then within 30 days of receipt of an invoice. The fees are exclusive of sales, use, withholding, VAT and other similar taxes, and Customer is responsible for payment of such taxes at the rate and in the manner for the time being prescribed by law. If ValuSource has the legal obligation to pay or collect taxes for which Customer is responsible under this section, ValuSource will invoice Customer and Customer will pay that amount unless Customer provides ValuSource with a valid tax exemption certificate authorized by the appropriate taxing authority. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.
Suspension for Non-Payment. ValuSource may temporarily suspend or terminate, or both, the Software, Data and Web Application if Customer’s payment on any invoice is more than 10 days past due.
Reseller Payment. If Customer places an order for the Software or Data from an ‘authorized’ ValuSource reseller, then Customer must pay such reseller for the order, unless directed otherwise by ValuSource.
8. MUTUAL CONFIDENTIALITY.
- Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). ValuSource’s Confidential Information includes, without limitation, the Software, embedded formulas, Data, design and layout.
- Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care), and it may not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its and its Affiliates’ employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
- Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
The products, services and technology provided by ValuSource as part of the Software, Web Applications and Data are the proprietary property of ValuSource and its licensors, and all right, title, and interest in and to such items, including all associated intellectual property rights, remain only with ValuSource and its licensors. The Software, Web Application and Data are protected by applicable copyright and other intellectual property laws. Customer may not remove any product identification, copyright, trademark, or other notice from the Software, Web Application or Data. ValuSource reserves all rights unless expressly granted in this agreement.
10. TERM AND TERMINATION.
- Term. This agreement expires at the end of the license period specified in the accompanying order.
- Termination for Breach. If ValuSource is in material breach of this agreement, Customer may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured. If Customer breaches any term of this agreement, then the agreement and all orders terminate upon electronic or written notice from ValuSource at the end of the 30-day notice/cure period sent to the last registered email address or physical address registered with ValuSource (Customer may update its contact information by contacting firstname.lastname@example.org).
- Upon Termination.
- Software License. Upon termination or expiration of this agreement or a Software license for any reason, Customer must discontinue using the Software, de-install, and destroy the Software and all copies within 5 days. Upon ValuSource’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
- Data License. Except for termination by ValuSource for material breach on the part of Customer (i.e., non-renewal of a Data license), upon termination or expiration of this agreement or a Data license for any reason, Customer must discontinue using all Data upon expiration of this agreement or a Data license,
- except Customer may continue to only use Data embedded or used as a reference with then existing Work Product (i.e., Data may not be embedded or used regarding any Work Product created after the end of this agreement of the Data license).
Notwithstanding anything contained herein to the contrary, if an order is terminated by ValuSource for material breach on the part of Customer, then upon notice from ValuSource Customer must immediately destroy all Data and printed copies of such Data, whether in standalone form or embedded or referenced with a Work Product.
Upon request of ValuSource, Customer will confirm in writing that the Data required to be destroyed has been destroyed.
- Web Application. Upon termination or expiration of this agreement or a Web Application subscription for any reason, the Web Application access will terminate and Valusource may delete all Customer Data.
11. LIABILITY LIMIT.
- EXCLUSION OF INDIRECT DAMAGES. TO THE MAXIMUM EXTENT ALLOWED BY LAW, VALUSOURCE IS NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; ANY ERRORS, OMISSIONS, INACCURACIES, OR INCORRECT CALCULATIONS FROM THE USE OF THE SOFTWARE, WEB APPLICATION OR DATA; AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OR FORESEEABILITY OF SUCH DAMAGE OR LOSS.
- TOTAL LIMIT ON LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW, VALUSOURCE’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED THE GREATER OF THE AMOUNT PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER WITHIN THE 12-MONTH PERIOD PRIOR TO THE EVENT THAT GAVE RISE TO THE LIABILITY OR $100.
ValuSource’s technical support and maintenance services (Support) is included with the license purchase. Support is provided under the Support policies then in effect. ValuSource may change its Support terms, but Support will not materially degrade during any Support term. More details on Support are located at nacva.valusource.com/licfaq.
To the maximum extent allowed by law, if any third party brings a claim against ValuSource related to Customer’s use of the Software, Web Application or Data, Customer must defend, indemnify, and hold ValuSource harmless from and against all damages, losses, and expenses of any kind (including reasonable legal fees and costs) related to such claim. This indemnity applies irrespective of the negligence of either party.
14. GOVERNING LAW AND FORUM.
- Governing Law and Forum. This agreement is governed by the laws of the State of Colorado (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for El Paso County, Colorado, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation or arbitration is entitled to recover its attorneys’ fees and costs from the other party.
- Arbitration for Claims Less than $10,000. Notwithstanding the foregoing, for any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the parties must resolve all disputes in a more cost-effective manner through binding non-appearance-based arbitration. The party claiming relief must initiate such arbitration through JAMS pursuant to JAMS’ Streamlined Arbitration Rules and Procedures with 1 arbitrator. JAMS and the parties must comply with the following rules, unless prohibited by JAMS: (i) the arbitration will be conducted by telephone, online and be solely based on written submissions, the specific manner will be chosen by the party initiating the arbitration; (ii) the arbitration will not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction. This clause does not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
15. OTHER TERMS.
- Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by ValuSource.
- No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party’s businesses, assets, or at any time to an Affiliate.
- Independent Contractors. The parties are independent contractors with respect to each other.
- Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
- Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
- No Additional Terms. ValuSource rejects additional or conflicting terms of a Customer’s form-purchasing document.
- Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
- Survival of Terms. All provisions of this agreement regarding payment, confidentiality, indemnification, limitations of liability, proprietary rights and such other provisions that by fair implication require performance beyond the term of this agreement must survive expiration or termination of this agreement until fully performed or otherwise are inapplicable. The UN Convention on Contracts for the International Sale of Goods does not apply.
- Compliance Audit. No more than once in any 12-month period and upon at least 30 days’ advance notice, ValuSource (or its representative) may audit Customer’s usage of the Software at any Customer facility. Customer will cooperate with such audit. Customer agrees to pay within 30 days of written notification any fees applicable to Customer’s use of the Software in excess of the license.
- Export Compliance. The Software and Confidential Information may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Neither party will permit its personnel or representatives to access any Software in a U.S.-embargoed country or in violation of any applicable export law or regulation.
- S. Government Restricted Rights. If Customer is a United States government agency or acquired the license to the Software hereunder pursuant to a government contract or with government funds, then as defined in FAR §2.101, DFAR §252.227-7014(a)(1), and DFAR §252.227-7014(a)(5), or otherwise, all Software provided in connection with this agreement are “commercial items,” “commercial computer software,” or “commercial computer software documentation.” Consistent with DFAR §227.7202 and FAR §12.212, any use, modification, reproduction, release, performance, display, disclosure, or distribution by or for the United States government is governed solely by the terms of this agreement and is prohibited except to the extent permitted by the terms of this agreement.
- Opensource Software Licenses. The Software may contain embedded opensource software components, which are provided as part of the Software and for which additional terms may be included in the technical documentation.
- If Customer provides feedback or suggestions about the Software, then ValuSource (and those it allows to use its technology, products and services) may use such information without obligation to Customer.
Data Specific Terms
In addition to the terms of this agreement, Customers agree to be bound by applicable terms at this site www.valusource.com/partnerterms that apply to only the Data offering purchased under order, which our third-party suppliers require that ValuSource impose on its customers.