Definitions

“Customer” means the corporate entity named in the signed VFC Order Form, and shall include any person who accesses or otherwise uses the Service on Customer’s behalf, with or without the express authorization of Customer or Briefcase.

“Briefcase” means Briefcase Analytics, Inc.

“Agreement” means any signed contract, proposal, order form, or invoice for services to be delivered by Briefcase to Customer, and the VFC Service Terms incorporated by reference therein.

“Service” means the VendorFirstCheck service (in whole or in part) described in the signed VFC Order Form, including any software, Information, and Results made available to Customer in connection with the Service.

“Information” means any data and information collected and/or created by Briefcase and made available to Customer in connection with the Service, in whole or in part.

“Results” means any data and reports developed by Customer through its authorized use of the Service and Information, in the report format delivered to Customer by Briefcase.

“Term” means the subscription period specified in the signed VFC Order Form, and any renewal terms arising under the VFC Service Terms.

“Confidential Information” means certain non-public proprietary information about Customer and its business affairs, including (without limitation): the names of its specific vendors or prospective vendors, disclosed by Customer in the course of its use of the Service; and   (ii) any Results generated by Customer through its use of the Service.

“VFC Service Terms” means these terms and conditions, which are accessible at http://www.briefcasedata.com/terms.

“Start Date” means the beginning date of a Term.

“End Date” means the ending date of a Term.

“Briefcase IP Marks” means the names "Briefcase Analytics", “VendorFirstCheck”, "briefcasedata.com", and Briefcase’s graphics, logos, and trade names.

1.   License Grant & Authorized Uses

Customer is authorized to use the Service for internal purposes relating directly or indirectly to the conduct of its primary business, and not for the use or benefit of any third party. Briefcase grants, and Customer accepts, a global, non-exclusive, non-transferable, limited license to use the Service during the Term for these authorized purposes, and for no other purposes.  In addition, Briefcase grants, and Customer accepts, a global, non-exclusive, non-transferable, limited license to use the Results in perpetuity for the authorized purposes, and for no other purposes. 

2.   Prohibited Uses

Except as expressly authorized in Section 1 above, Customer agrees that it will not:

(a)   Modify, publish, transmit, transfer, sell, reproduce, create derivative works based on, distribute, perform, display, share with any third party, or in any way exploit or use the Service (including the Information and the Results) for any unauthorized commercial purpose.

(b)   Copy or store outside of the Service any significant portion (i.e., more than 5%) of the Information.

(c)   Share or transmit password or account information to persons not expressly authorized to use the Service.

(d)   Use the Service (including the Information or the Results) for any purpose governed by the U.S. Fair Credit Reporting Act (15 U.S.C. Sec. 1861. et seq.).  Specifically, the Service may not be used to establish a consumer’s eligibility for credit, insurance or employment. 

(e)   Use the Service in a manner that is contrary to, or in violation of any applicable federal, state, provincial or local law, rule or regulation.

(f)   Use the Service for any other unauthorized purpose.

3.   Service Maintenance & Access

Briefcase will maintain, modify, upgrade, and improve the Service during the Term for the benefit of users of the Service (including Customer).  Briefcase will use reasonable efforts to ensure that the Service is available twenty-four hours a day, seven days a week.  However, Customer agrees and understands there will be occasions when the Service will be interrupted for maintenance, upgrades and emergency repairs or as a result of failure of telecommunications links and equipment.  Every reasonable step will be taken by Briefcase to minimize such disruption where it is within Briefcase’s reasonable control to do so.  Briefcase will not be responsible to Customer or any other party for any suspension, modification, discontinuance or lack of availability of the Service or the Information beyond Briefcase’s reasonable control.

4.   Term, Renewal & Termination

The term of this Agreement shall be the Term specified in the signed VFC Order Form and any renewal term occurring under the VFC Service Terms (each a “Term”).  This Agreement shall automatically renew on the terms set forth in the VFC Order Form for a period identical in length to the expiring Term, unless at least thirty (30) calendar days prior to expiration, either Briefcase or Customer provides written notice via email to the other party of its intention not to renew.

Customer or Briefcase may terminate the Agreement before the end of the Term only if: (1) the other party has materially breached the Agreement; and (2) the breaching party has failed to cure such breach within thirty (30) days following delivery of written notice from the non-breaching party.  If Customer terminates the Agreement because of an uncured breach by Briefcase, Customer will be entitled to a refund of all sums actually paid in advance for service-months post-dating the date of termination.  If Briefcase terminates this Agreement because of an uncured breach by Customer, such termination will not relieve Customer of the obligation to pay the fees specified in the VFC Order Form, and any fees paid in advance will be non-refundable.  Briefcase reserves the right to suspend Customer’s access to the Service and withhold, remove or discard Results without notice for any uncured breach of the Agreement by Customer, including, without limitation, Customer’s non-payment of fees due hereunder. 

Upon expiration or termination of this Agreement for any reason, Customer shall have no further access to the Service, and Briefcase shall have no obligation to maintain or forward any Results to Customer.

5.   Warranties & Disclaimers

(a)   Briefcase is an independent provider of information relating to vendor risk. The Information is secured from and compiled by numerous third parties, and processed by fallible sources.  Briefcase depends on its sources for the accuracy and reliability of the Information.   There may be delays, errors, misattributions, omissions or inaccuracies in the Information and Results, for which Briefcase shall not be responsible.  The Service (including the Information and Results) are provided on an “as is” basis. 

(b)   The Service (including the Information and Results) presents the considered, informed opinion of Briefcase Analytics, not statements of objective fact.  Briefcase makes no representations or warranties of any kind, express or implied, regarding the Service or the fairness, accuracy, completeness, currency, or non-infringement of the Information and Results.   Briefcase further expressly disclaims all warranties regarding the Service (including the Information and Results), express or implied, including any warranties of merchantability or fitness for a particular purpose.

(c)   Briefcase has no fiduciary duty to Customer.  Customer understands and agrees that Briefcase has no control over, and no duty to take any action regarding:  which users gain access to the Service; what Results may be obtained by Customer through its use of the Service; how Customer may interpret or use the Results; or what actions Customer may take as a result of having been exposed to the Information or the Results.

(d)   This section will survive any termination of the Agreement or the Service Terms.

6.   Confidentiality

(a)   During the Term and thereafter, Briefcase will maintain the confidentiality of the Confidential Information, and will not disclose, reveal or make available the Confidential Information to any person or entity other than its affiliates or representatives who have a need to know the Confidential Information and who have agreed in writing to abide by the Service Terms. Briefcase agrees that it will use the Confidential Information solely for the purpose of delivering the Service to Customer, except as otherwise permitted below.

(b)   Briefcase shall not be restricted in using or disclosing Confidential Information that Briefcase can demonstrate: (1) was publicly known prior to the Start Date of the Agreement; (2) was in the possession of Briefcase prior to disclosure by Customer; (3) was readily available to Briefcase from another source without violation of the Agreement; (4) becomes part of the public domain or publicly known, other than through any act or omission of Briefcase; or (5) was independently developed by Briefcase or acquired by Briefcase without reference to the Confidential Information.  Additionally, nothing in the Agreement shall prevent Briefcase from using the Results to improve the quality of the Service for the benefit of Customer and other users of the Service; provided, however, that except as expressly authorized in the sub-paragraph immediately below, (i) Briefcase shall not disclose to any third-party the existence of an actual or prospective business relationship between Customer and any specific vendor; and (ii) Briefcase shall not disclose Customer’s Results to any third party in any manner that identifies Customer or any other user of the Service. 

(c)   If Briefcase is requested or required by any judicial, governmental or regulatory authority to disclose any Confidential Information, then Briefcase will promptly notify Customer of such request prior to disclosing such Confidential Information, so that Customer may seek a protective order. If, in the absence of a protective order, Briefcase is legally compelled to disclose such Confidential Information, Briefcase may, without liability under the Agreement, furnish only that portion of such Confidential Information that Briefcase is advised is legally required to be furnished.

(d)   This section will survive any termination of the Agreement or the Service Terms.

7.   Limitations of Liability

Under no circumstances shall the liability of Briefcase (including any of its employees, officers, shareholders, partners and affiliates) to Customer for any cause of action related to the Service or the Agreement exceed the total amount actually paid by Customer to Briefcase during the Term in which the cause of action arose.  Regardless of any statute or law to the contrary, Customer must commence any cause of action related to the Service or the Agreement within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Briefcase shall not be liable to Customer for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Briefcase has been advised of the possibility of such damages), resulting from Briefcase’s provision of the Service, or for any other matter relating to the Service.

This section supersedes all other provisions of the Agreement and any terms attached to any Customer purchase order, and will survive any termination of the Agreement.

8.   Indemnification

Customer will defend, indemnify and hold harmless Briefcase (including its employees, officers, shareholders, partners and affiliates) from and against any and all claims, losses, damages and expenses, including attorneys’ fees, incurred by Briefcase arising out of Customer’s unauthorized use of the Service, including but not limited to Customer’s violation of the Agreement; provided that Briefcase: (a) promptly gives Customer written notice of any such claim; and (b) gives Customer, at its option, sole control of the defense and settlement of the claim, provided that Briefcase will be entitled to participate in its own defense at its own expense and, further, that Customer may not settle any claim unless the settlement unconditionally releases Briefcase of all liability and does not require the payment of money by Briefcase.

This section will survive any termination of the Agreement.

9.   Intellectual Property Ownership

Briefcase IP Marks are trademarks or trade dress of Briefcase in the United States and/or other countries. Customer may not use the Briefcase IP Marks without the prior express written permission of Briefcase.  The Service (including the Information and Results) are patented or copyrighted by, or otherwise licensed to, Briefcase or its vendors and suppliers. All technology used in the Service is the property of Briefcase or its technology vendors and is protected by United States and international intellectual property laws. Briefcase makes no proprietary claim to any third-party names, trademarks or service marks appearing in the Service.

This section will survive any termination of the Agreement.

10.   Miscellaneous

(a)   The Agreement constitutes the entire, exclusive agreement between Customer and Briefcase, and supersedes any prior agreements or purchase order terms issued subsequently by Customer in relation to the subject matter of the Agreement, whether written or oral.  Where the signed VFC Order Form and the VFC Service Terms conflict, the VFC Service Terms shall take precedence. 

(b)   The failure of Briefcase or Customer to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision.  If any provision of the Agreement is invalid under applicable law, the remaining provisions will continue in full force and effect.

(c)   Briefcase may modify the VFC Service Terms at any time by posting a notice on the Service, or by sending Customer a notice via email or postal mail.  Customer shall be responsible for reviewing and becoming familiar with any such modifications.  Customer’s use of the Service following such notification constitutes acceptance of the Agreement as modified.  If at any time Customer does not agree to these modifications, Customer must terminate its use of the Service.  In the event of such termination, Customer will remain liable for any obligations incurred or charges accrued on or before the date of the termination, and will only be entitled to a refund of any sums actually paid in advance for service-months post-dating the date of termination.

(d)   The Agreement and all intellectual property issues, rights, and obligations will be interpreted according to the laws of the United States and the Commonwealth of Massachusetts (without reference to its conflicts of laws provision).  All claims and disputes arising under or relating to the Agreement will be settled by binding arbitration in Massachusetts or another location acceptable to both parties. An arbitrator jointly selected by the parties will conduct the arbitration on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association as modified by the parties. Each party shall bear its own costs, expenses and attorneys fees; provided, however, that the cost of arbitration (including arbitrator’s fees but excluding attorneys fees) shall be borne by the party initiating the arbitration, regardless of outcome. An award of arbitration may be confirmed in a court of competent jurisdiction. Any action brought to challenge or otherwise circumvent the exclusive dispute resolution process described above shall be subject to the exclusive jurisdiction of the state and federal courts located in Massachusetts.

(e)   Neither Briefcase nor Customer shall be responsible for delays or performance failures caused by acts beyond their reasonable control.

(f)   Neither party will assign the Agreement without the other party’s written consent. However, either party may assign the Agreement without the other party’s consent to any entity that directly or indirectly controls, is controlled by, or is under common control with the assigning party, or to a successor to all or substantially all of the assigning party’s business, assets, and obligations. 

(g)   The Agreement is binding and will inure to the benefit of the parties and their respective successors and assigns.

(h)   This section will survive any termination of the Agreement.

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