Access to the Services and VisitDays Mobi
1.1 Orders. The services to be provided by VisitDays under these Terms and Conditions (the “Terms”) will be set forth in one or more Order Forms executed by the Parties from time to time during the Term. The Parties shall negotiate and sign each Order Form separately. Each Order Form shall set out a description of the applicable VisitDays Mobi or Services to be provided by VisitDays, the costs associated with such Services and the period of time Institution will have access to the particular VisitDays Service and VisitDays Mobi (the “Access Term”). Each Order Form shall be attached to these Terms and incorporated in these Terms by reference. “Order Form” means a document signed by both Parties identifying a given type of VisitDays Service to be made available by VisitDays pursuant to this Agreement.
1.2 Provision of Access. Subject to the terms and conditions contained in these Terms, VisitDays hereby grants to Institution and its Authorized Users and Visitors a non-exclusive, non-transferable right to access the features and functions of the applicable VisitDays Service and/or VisitDays Mobi as set forth in the applicable Order Form during the Term set forth on the Order Form for an unlimited number of Authorized Users and Visitors. On or as soon as reasonably practicable after the Effective Date, VisitDays shall provide to Institution the necessary passwords, security protocols and policies and network links or connections and Access Protocols to allow Institution and its Authorized Users and Visitors to access the Services and VisitDays Mobi. Institution and any Authorized User may only use the Services in accordance with the Access Protocols. “Access Protocols” mean the passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Institutions or any Authorized Users to access the Services. “Authorized User” means any individual who is an employee of Institution or such other person or entity as may be authorized by an Order Form (e.g., a third party providing services to Institution), authorized, by virtue of such individual’s relationship to, or permissions from, Institution, to access the VisitDays Service pursuant to Institution’s rights under these Terms.
1.3 Use of VisitDays Mobis. The VisitDays Mobis are made available to the Institution to allow Visitors to access and use some of the Services. The VisitDays Mobis are software tools that Institution may place on Institution’s website to permit Institution visitors to access the Services (each, a “VisitDays Mobi”). Subject to Institution’s compliance with the Terms and the order of the use of the VisitDays Mobi, VisitDays hereby grants Institution, a non-exclusive, non-transferable, non-sublicensable, revocable license to use and display the VisitDays Mobi on Institution’s website for the purposes of scheduling visits by Visitors and communicating with such Visitors. Institution may not use the VisitDays Mobi for any other purpose without VisitDays’ prior written consent, and nothing in the Terms shall be deemed to grant Institution any right, title or interest in the VisitDays Mobi.
1.4 Usage Restrictions. Institution shall not: (a) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Services are compiled or interpreted or the code underlying the VisitDays Mobi, and Institution acknowledges that nothing in these Terms will be construed to grant Institution any right to obtain or use such code; or (c) allow third parties other than Authorized Users and Visitors to gain access to the Services; or (d) use the Services to provide timesharing, subscription service, hosting, or outsourcing services. Institution will ensure that its use of the VisitDays Service complies with all applicable laws, statutes, regulations or rules.
1.5 Restricted Communications. Institution agrees that Institution will not, under any circumstances (except to the extent expressly authorized by the Terms) upload, post, e-mail, text, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of prohibited communication.
1.6 Retained Rights; Ownership.
(a) Ownership and Use of Institution Content. Institution retains all right, title and interest in and to the Institution Content, and VisitDays acknowledges that it neither owns nor acquires any additional rights in and to the Institution Content not expressly granted by these Terms. VisitDays further acknowledges that Institution retains the right to use the Institution Content for any purpose in Institution’s sole discretion. Subject to the foregoing, Institution hereby grants to VisitDays a non-exclusive, non-transferable right and license to use the Institution Content during the Term for the limited purposes of performing VisitDays’ obligations under these Terms. Institution represents and warrants that it has all necessary rights to provide the Institution Content to VisitDays and allows VisitDays to use such Institution Content as contemplated by these Terms and an Order Form. “Institution Content” means all data, text or images provided to VisitDays from Institution under these Terms, including, but not limited to information for use in scheduling visits and information about tour guides.
(b) Ownership of Services and VisitDays Mobi. Subject to the rights granted in these Terms, VisitDays retains all right, title and interest in and to the VisitDays Service and VisitDays Mobi, and Institution acknowledges that it neither owns nor acquires any additional rights in and to the foregoing not expressly granted by these Terms or any licenses to the software used to provide the Services. Institution further acknowledges that VisitDays retains the right to use the foregoing for any purpose in VisitDays’ sole discretion.
1.7 CRM Integration Services.
(a) Integration Services. VisitDays will provide certain integration services to facilitate the integration of VisitDays’ data to the Institution’s customer relationship management (“CRM”), which may include VisitDays’ personnel providing information as to data storage, record creation and record-matching (“Initial Integration”).
(b) Integration Support Services. After the Initial Integration, VisitDays will continue to provide Integration Support from time-to-time during the Term and as requested by Institution. As used herein, “Integration Support” shall be defined as records not updating as contemplated by VisitDays including, without limitation, records not syncing correctly, visits or profile information not syncing correctly and mapping updates due to new visit types, counselors or academic interests.
(c) Integration Reconfiguration Services. In addition to the Integration Support, Integration Reconfiguration will be included to the normal development workflow. As used herein, the term “Integration Reconfiguration” shall mean improvements or modifications to the VisitDays’ Services, as determined by VisitDays, and may include, without limitation, changing mapping criteria, mapping additional fields and changing duplicate or matching criteria. VisitDays will perform at most two (2) Integration Reconfiguration during the Term at no additional costs. If Institution wants additional Integration Reconfigurations, Institution may request so for an additional charge of Two Hundred Dollars ($200.00) per hour. Payment for such additional Integration Reconfigurations shall be made within seven (7) days from receipt of the invoice from VisitDays in connection with same.
(a) Support. Subject to the terms and conditions of these Terms, VisitDays shall exercise commercially reasonable efforts to provide Technical Assistance for the use of the Services to Eligible Support Recipients during VisitDays’ ordinary and customary business hours in accordance with its standard policies and procedures.
(b) Eligible Support Recipients. VisitDays shall have no obligation to provide Technical Assistance, by any means, to any entity or individual other than Eligible Support Recipients. Institution can designate up to two (2) persons, which designees shall be eligible to receive Technical Assistance from VisitDays (“Eligible Support Recipients”). Such designees may be changed at any time by written notice.
(c) Access. As a condition of VisitDays’ obligations under Section 1.6 (a), Institution shall provide such information and/or access to Institution resources as VisitDays may reasonably require in order to provide Technical Assistance under these Terms. VisitDays shall be excused from any non-performance of its obligations hereunder to the extent any such non-performance is attributable to Institution’s failure to perform its obligations under this Section 1.6(b).
(d) Means of Access to Technical Assistance. Eligible Support Recipients shall request Technical Assistance (i) by telephoning VisitDays at such telephone number as VisitDays may specify for such purposes from time to time; or (ii) by directing electronic mail requests therefore to VisitDays at the electronic mail address as VisitDays may specify for such purposes from time to time.
2. Institution Responsibilities.
2.1 Authorized Users and Visitors Access to Services. Institution may permit any Authorized Users and Visitors to access and use the features and functions of the VisitDays Service as contemplated by these Terms. Authorized Users shall have full access to the Services and Visitors will only have access to the VisitDays Mobi and related Services. Institution will be responsible for all actions or omissions of its Authorized Users. Institution and VisitDays shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the VisitDays Service and shall notify VisitDays promptly of any such unauthorized use known to Institution. Institution acknowledges and agrees that it may need certain networking capabilities, bandwidth and hardware to use the Services. Institution is solely responsible for all hardware, software, Internet connectivity and bandwidth required to reach the VisitDays systems to gain access to the Services.
2.2 Institution Responsibility for Data and Security. Institution and its Authorized Users and Visitors shall have access to the Institution Content and shall be responsible for all changes to and/or deletions of Institution Content and the security of all passwords and other Access Protocols required in order to access the Services. VisitDays will use industry standard means to protect the Institution Content from unauthorized access. Institution shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Institution Content.
2.3General. In connection with Institution’s use of VisitDays Properties, Institution shall not:
Make Available any Institution Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
Make available any Content that Institution does not have a right to Make Available under any law or under contractual relationships;
Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights; or
Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court.
3. Fees and Expenses; Payments.
3.1 Fees. In consideration for the access rights granted to Institution and the services performed by VisitDays under these Terms, Institution will pay to VisitDays, without offset or deduction, all fees required by a particular Order Form. All fees will be billed and paid in U.S. dollars. Notwithstanding the foregoing, any set-up fees listed on a particular Order Form, shall be due and payable upon execution of the applicable Order Form.
3.2 Late Fees. If Institution fails to remit any payments within the time set forth herein or any particular Order Form, Institution shall pay VisitDays a late charge at the lesser of one percent (1%) per month or the highest amount permitted by all applicable law on all amounts past due.
3.3 Disputed Fees. If Institution disputes any fees, taxes, or other charges billed by VisitDays, Institution shall notify VisitDays, in writing, of the disputed amount and any relevant information regarding the circumstances of the dispute. VisitDays shall acknowledge receipt of the dispute information in writing to Institution. All parties agree to work cooperatively to resolve any such disputed amounts. If the Institution fails to provide VisitDays with a notice of such a disputed amount within twenty (20) business days following receipt of VisitDays' invoice for such disputed charge, then such amount is deemed undisputed and due to VisitDays.
3.4 Taxes. If applicable, Institution will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on VisitDays’ income), and any related penalties and interest for the grant of access rights hereunder, or the delivery of related services, if any. If Institution is tax exempt, it shall furnish VisitDays with evidence of its tax exempt status prior to placing an order for the Services. Institution will make all required payments to VisitDays free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to VisitDays will be Institution’s sole responsibility, and Institution will, upon VisitDays’ request, provide VisitDays with official receipts issued by appropriate taxing authorities, or such other evidence as VisitDays may reasonably request, to establish that such taxes have been paid.
4. Treatment of Confidential Information.
4.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of these Terms, each Party will have access to certain of the other Party’s Confidential Information or Confidential Information of third parties that the disclosing Party is required to maintain as confidential. Both Parties agree that all items of Confidential Information are proprietary to the disclosing Party or such third party, as applicable, and will remain the sole property of the disclosing Party or such third party. “Confidential Information” means all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.
4.2 Mutual Confidentiality Obligations. Each Party agrees as follows: (a) to use Confidential Information disclosed by the other Party only for the purposes described herein; (b) that such Party will not reproduce Confidential Information disclosed by the other Party, and will hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) that neither Party will create any derivative work from Confidential Information disclosed to such Party by the other Party; (d) to restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to know and who have been advised of and have agreed in writing to treat such information in accordance with the terms of these Terms; and (e) to the extent practicable, return or destroy, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of these Terms. Notwithstanding the foregoing, Institution agrees that VisitDays may collect aggregated statistical data regarding Institution’s use of the Service and provide such aggregated statistical data to third parties. In no event shall VisitDays provide to third parties specific data regarding Institution or Institution’s Authorized Users and Visitors.
4.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 4.1 and 4.2 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (e) is independently developed by the recipient; or (f) is approved for release or disclosure by the disclosing Party without restriction. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under these Terms, including to make such court filings as it may be required to do.
4.4 Limitation Period. The obligations set forth in this Section 4 shall survive the termination or expiration of these Terms for a period of two (2) years.
5. Representations and Warranties. VisitDays represents and warrants that it will provide the VisitDays Service and perform its other obligations under these Terms in a professional and workmanlike manner substantially consistent with general industry standards. VisitDays further warrants, for the benefit of Institution only, that the VisitDays Service will conform in all material respects to the standard user documentation for such VisitDays Service provided to Institution by VisitDays (the “Documentation”) for a period of thirty (30) days after VisitDays firsts makes the VisitDays Service available to Institution, provided that such warranty will not apply to failures to conform to the Documentation to the extent such failures arise, in whole or in part, from (i) any use of the VisitDays Service other than in accordance with the Documentation, or (ii) any combination of the VisitDays Service with software, hardware or other technology not provided by VisitDays under these Terms.
6. Disclaimers, Exclusions and Limitations of Liability.
6.1 Internet Delays. VISITDAYS’ SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. VISITDAYS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
6.2 Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN SECTION 5, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SERVICES, THE DOCUMENTATION, AND ALL SERVICES PERFORMED OR PROVIDED BY VISITDAYS ARE PROVIDED “AS IS,” AND VISITDAYS DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. VISITDAYS DOES NOT WARRANT THAT THE APPLICATION SERVICE OR ANY OTHER SERVICES PROVIDED BY VISITDAYS WILL MEET INSTITUTION’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
6.3 Exclusions of Remedies; Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, BUSINESS INTERRUPTION OR COSTS OF LOST OR DAMAGED DATA, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF VISITDAYS TO INSTITUTION FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED TOTAL AMOUNT OF ALL FEES PAID TO VISITDAYS BY INSTITUTION DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY.
6.4 Essential Basis of the Agreement. Institution acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in this Section 6 form an essential basis of the agreement between the Parties, that the Parties have relied upon such disclaimers, exclusions and limitations of liability in negotiating the terms and conditions in these Terms, and that absent such disclaimers, exclusions and limitations of liability, the terms and conditions of these Terms would be substantially different.
7. INDEMNIFICATION. VisitDays agrees to indemnify, defend and hold harmless Institution from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages awarded to a third party resulting from any claim by that third party that the VisitDays Service and/or the Documentation infringes such third party’s patents issued as of the Effective Date, or infringes or misappropriates, as applicable, such third party’s copyrights or trade secret rights, provided that Institution promptly notifies VisitDays in writing of the claim, cooperates with VisitDays, and allows VisitDays sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Institution agrees to permit VisitDays, at VisitDays’ sole discretion, to enable it to continue to use the VisitDays Service or the Documentation, as applicable, or to modify or replace any such infringing material to make it non-infringing. If VisitDays determines that none of these alternatives is reasonably available, Institution shall, upon written request from VisitDays, cease use of and, if applicable, return such materials that are the subject of the infringement claim. This Section 7 shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of the VisitDays Service or the Documentation by any party (including, without limitation, Institution) other than VisitDays or (ii) combination, operation or use of the VisitDays Service with other software, hardware or technology not provided by VisitDays, or (iii) related to the Institution Content.
8.1 Term. The term of these Terms will commence on the date of the first Order Form and will continue for a period of the later to occur of (a) one (1) year thereafter and (b) the last effective Access Term, unless earlier terminated in accordance with this Section 8. VisitDays may elect to provide Institution with an invoice for an additional year of Services and if CUSTOMER elects in its sole discretion to pay such invoice, this Agreement shall be deemed renewed for an additional one-year period from the end of the previous then-current term (the initial term, together with any renewal terms, collectively, the “Term”).
8.2 Effect of Termination. Upon any termination of these Terms, Institution will (a) immediately discontinue all use of the VisitDays Service and VisitDays Mobis and any VisitDays Confidential Information; and (b) promptly pay to VisitDays all amounts due and payable under these Terms.
8.3 Survival. The provisions of Sections 1.4, 4, 6, 7, 8.3 and the General Terms will survive the termination of these Terms.
8.4 Suspension of Service. If Institution fails to pay undisputed amounts in accordance with the terms and conditions hereof, the Order Form or any other agreement related, directly or indirectly, to the provision of the VisitDays Service to Institution or such amounts are not timely paid on behalf of Institution, VisitDays shall have the right, in addition to any of its other rights or remedies, to suspend the Service, without liability to Institution until such amounts are paid in full.
(i) General Provisions.
Electronic Communications. For contractual purposes, Institution (1) consents to receive communications from VisitDays in an electronic form; and (2) agrees that all notices, disclosures, and other communications that VisitDays provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.
Assignment. The Terms, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by Institution without VisitDays’ prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. VisitDays may assign these terms to any purchaser of all, or substantially all, of the assets or stock of VisitDays.
Force Majeure. VisitDays shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Notice. All notices required by or relating to this Agreement will be in writing and will be sent by means of certified mail, postage prepaid, to the Parties at their respective addresses set forth in the preamble to this Agreement, or addressed to such other address as the receiving Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by facsimile, provided that the sender receives and retains confirmation of successful transmittal to the recipient. Such notices will be effective on the date indicated in such confirmation. In the event that either Party delivers any notice by means of facsimile transmission in accordance with the preceding sentence, such Party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving Party, addressed as contemplated by this Section.
Waiver. Any waiver or failure to enforce any provision of the Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any provision of the Terms is, for any reason, held to be invalid or unenforceable, the other provisions of the Terms will remain enforceable, and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
Entire Agreement. The Terms are the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
End of Terms