The Parties. This Agreement is by and between the following Parties (the “Parties”):
Article 1.1 TechniPhi Inc., whose address is 695 Pro-Med Ln #205, Carmel, IN 46032 (“TechniPhi”); and
Article 1.2 The party accepting the terms and conditions as the Customer whose address is also set forth
in their Ordering Agreement. (“You” or “Your”);
Article 2.1 For One Dollar and other good and valuable considerations, the Parties agree to the following:
Article 3.1 TechniPhi is in the business of providing products and services to membership organizations such as fraternities, sororities, affinity groups, colleges/universities and the like. Typically, these membership organizations include a Master Organization, such as an International or National Organization, a campus, or a council, and a plurality of Affiliate Organizations, such as Chapters made up of Members, that are under the direct or indirect governance of the Master Organization.
Article 3.2 Among the Products TechniPhi provides is ChapterBuilder, which is a software service that works as a prospect management tool that is used by both Master Organizations and Chapters; MyVote, which is a software service that works as a voting tabulator for recruitment membership voting; and CampusDirector, which is a software service that systemizes a formal fraternity or sorority recruitment process.
Article 3.3 You are either a Master Organization, College/University, Chapter, or a Member who wishes to use the TechniPhi Software to the extent, and at the cost set forth on the respective Ordering Agreement and TechniPhi wishes to enable You to use this Software.
Article 4.1 “You” and “Your” refers to the individual or entity that has ordered software as a service from TechniPhi or an authorized distributor by executing the Ordering Agreement that accompanies and incorporates this TechniPhi software as a service agreement (collectively, the “Agreement”).
Article 4.2 Software as a service consists of system administration, system management, and system monitoring activities that TechniPhi performs for TechniPhi programs, and includes the right to use the TechniPhi programs, support services for such TechniPhi programs, as well as any other services provided by TechniPhi, as defined in the Ordering Agreement (collectively, the “Services”).
Article 4.3 The term “TechniPhi Programs” refers to the software products owned or distributed by TechniPhi (Including ChapterBuilder, MyVote, and CampusDirector) to which TechniPhi grants you access as part of the Services, including Program Documentation, and any program updates provided as part of the Services.
Article 4.4 The term “Users” shall mean You as an entity and those employees and members authorized by you or on your behalf to use the Services, as defined in the Ordering Agreement. “User” does not include any entity or persons outside your organization, as such persons must have their own agreement with TechniPhi
Article 4.5 The term “Your Data” refers to the data provided by you that resides in your Services environment.
Article 4.6 The term “Third Party Data” means data and information that is added to ChapterBuilder that originates from or is added by a source other than either You, Your User Group, or TechniPhi.
Article 4.8 The term “User Group” shall mean that group of affiliated Users that You establish in the Ordering Agreement, or through use, among which data will be shared. For example, a User Group might include the International Organization of Fraternity X, along with all the local chapters of Fraternity X.
Article 4.9 The term PNM shall mean a Potential New Member about which data is entered into the Services.
Article 5.1 This Terms and Conditions portion of the software as a service Agreement is valid for users specified in Your Ordering Agreement
Article 6.1 Upon TechniPhi’s acceptance of your order and for the duration of the Services term defined in the Ordering Agreement, you have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for your internal business operations and subject to the terms of the Agreement. You may allow Your members and employees to use the Services for this purpose and you are responsible for Your member and employee Users’ compliance with the Agreement.
Article 6.2 The Services are provided as described in, and subject to, the Services policies referenced in the Ordering Agreement. You acknowledge that TechniPhi has no delivery obligation and will not install or deliver physical copies of the TechniPhi programs to you as part of the Services. You agree that you do not acquire under the Agreement any license to use the TechniPhi programs specified in the Ordering Agreement in excess of the scope and/or duration of the Services specified in the Ordering Agreement. For example, unless specifically provided, a license to a Master Organization grants no license to any Affiliate Organization. Likewise, a License to an Affiliate Organization grants no license to any other Affiliate Organization or to the Master Organization.
Article 6.3 Upon the end of the Agreement or the Services thereunder, Your right to access or use the TechniPhi programs specified in the Ordering Agreement and the Services shall terminate.
Article 7.2 Third party technology that may be appropriate or necessary for use with some TechniPhi programs is specified in the Program Documentation or Ordering Agreement as applicable.
Your right to use such third-party technology is governed by the terms of the third-party technology license agreement specified by TechniPhi and not under the Agreement.
Article 7.3 You may not:
Article 7.3(A) remove or modify any program markings or any notice of TechniPhi’s or its licensors’ proprietary rights;
Article 7.3(B) make the programs or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific program license or materials from the Services You have acquired);
Article 7.3(C) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or Services competitive to TechniPhi;
Article 7.3(D) disclose results of any Services or program benchmark tests without TechniPhi’s prior written consent;
Article 7.3(E) share with anyone outside you User Group any Third-Party Information, TechniPhi Originated or TechniPhi Aggregated Information, Reports, Opinions or Insights, such as (but not limited to) dashboard information and information relating to industry or organization trends; and
Article 7.3(F) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services, TechniPhi programs or materials available, to any third party other than, as expressly permitted under the terms of the Agreement.
Article 7.4 The rights granted to You under the Agreement are also conditioned on the following:
Article 7.4(A) the rights of any Users licensed to use the Services cannot be shared or used by anyone who is not an employee or a member of the particular entity that is identified as the User. For Example, the International Chapter of Sorority X cannot share the right to use the Services with Chapter βeta of Sorority X, or any members of Chapter βeta of Sorority X, unless Chapter βeta has its own Agreement with TechniPhi. Notwithstanding the foregoing, a PNM may use the system for the purpose of entering personal data into the system, and for communicating with an Authorized user.
Article 7.4(B) as expressly provided herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
Article 7.4(C) You agree to make every reasonable effort to prevent unauthorized third parties from accessing the Services.
Article 8.1 TechniPhi warrants that the Services will perform in all material respects in accordance with the Services policies referenced in the Ordering Agreement. If the Services provided to You for any given month during the Services term were not performed as warranted, You must provide written notice to TechniPhi as specified in the Ordering Agreement no later than five business days after the last day of that particular month or within such other period stated in the Ordering Agreement.
Article 8.2 TechniPhi does not guarantee that the services will be performed error-free or uninterrupted, or that TechniPhi will correct all services errors. You acknowledge that TechniPhi does not control the transfer of data over communications facilities, including the internet, and that the service may be subject to limitations, delays, and other problems inherent in the use of such communications facilities.
Article 8.3 TechniPhi is not responsible for any delays, delivery failures, or other damage resulting from such problems. For any breach of the above warranties, TechniPhi will remit a services fee credit to you calculated one and one-half percent (1.5%) of net monthly fees for the applicable services each day that one or more of the services are not operable due to TechniPhi’s actions for more than one hour. The credit will be provided only towards any outstanding balance for services owed to TechniPhi, and the remittance of such credit will represent your exclusive remedy, and TechniPhi’s sole liability, for all breaches of any warranty specified in the agreement.
Article 8.4 to the extent not prohibited by law, these warranties are exclusive and there are no other express or implied warranties or conditions including for hardware, systems, networks or environments or for merchantability, satisfactory quality and fitness for a particular purpose.
Article 9.1 If specified in the Ordering Agreement, You may order certain Services for trial, non- production purposes subject to the terms and conditions of the Agreement. Services acquired for trial purposes are provided “as is” and TechniPhi does not offer any warranties for such Services, except those explained in article 8.
Article 10.1 If a third party makes a claim against either You or TechniPhi (“Recipient,” which may refer to You or TechniPhi depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by
either You or TechniPhi (“Provider” which may refer to You or TechniPhi depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
Article 10.1(A) notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
Article 10.1(B) gives the Provider sole control of the defense and any settlement negotiations;
Article 10.1(C) gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.
Article 10.2 If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects TechniPhi’s ability to meet its obligations under the relevant order, then TechniPhi may, at its option and upon 30 days prior written notice, terminate the order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s Users documentation or Services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (I) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third-party portal or other external source that is accessible to You within or from the service (e.g., a third-party Web page accessed via a hyperlink).
Article 10.3 TechniPhi will not indemnify You to the extent that an infringement claim is based upon the combination of any Material with any products or Services not provided by TechniPhi. TechniPhi will not indemnify You for infringement caused by Your actions against any third party if the Services as delivered to You and used in accordance with the terms of the Agreement would not otherwise infringe any third party intellectual property rights. TechniPhi will not indemnify You for any infringement claim that is based on: (1) a patent or other intellectual property right that You were made aware of prior to the effective date of the Agreement (pursuant to a claim, demand, or notice); or (2) Your actions prior to the effective date of the Agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.
Article 11.1 Support services provided under the Agreement are specified in the Services policies referenced in the Ordering Agreement.
Article 12.1 Services provided under this software as a service Agreement shall be provided for the period defined in the Ordering Agreement unless earlier terminated in accordance with the Agreement. Most services auto-renew annually at the then-current rate, unless otherwise explicitly agreed to. The term of the Services and any renewal years are collectively defined as the “Services Term.” At the end of the Services Term, all rights to access or use the Services, including the TechniPhi programs listed in the Ordering Agreement, shall end.
Article 12.2 If either of us breaches a material term of the Agreement and fails to correct the breach within 60 days of written specification of the breach, then the breaching party is in default and the non- breaching party may terminate the applicable Ordering Agreement under which the breach occurred. If TechniPhi ends the Ordering Agreement as specified in the preceding sentence, You must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the Services ordered under the Agreement plus related taxes and expenses. If TechniPhi ends the Services under the Indemnification section, You must pay within 30 days all amounts remaining unpaid for Services plus related taxes and expenses. The non-breaching party may agree in its sole discretion to extend the 30-day period for so long as the breaching party continues reasonable efforts to cure the breach.
Article 12.3 You agree that if You are in default under the Agreement, You may not use the Services ordered. You further agree that if You have used a TechniPhi contract to pay for the fees due under an order and You are in default under that contract, You may not use the Services that are subject to such contract. In addition, TechniPhi may immediately suspend Your password, account, and access to or use of the Services if You fail to pay TechniPhi as required under the Agreement and do not cure within the first ten days of the 30-day cure period. TechniPhi may terminate the Services hereunder if any of the foregoing is not cured within 30 days after TechniPhi’s initial notice thereof. Any suspension by TechniPhi of the Services under this paragraph shall not excuse You from Your obligation to make payment(s) under the Agreement.
Article 12.4 At Your request, and for a period of up to 60 days after the termination of the applicable Ordering Agreement, TechniPhi may permit You to access the Services solely to the extent necessary for You to retrieve a file of Your Data then in the Services environment.
Article 12.5 You agree and acknowledge that TechniPhi has the right to retain and to use Your Data, but has no obligation to retain Your Data and that Your Data may be irretrievably deleted after 60 days following the termination of the Ordering Agreement.
Article 12.6 Provisions that survive termination or expiration of the Agreement are those relating to limitation of liability, infringement, indemnity, payment, and others which by their nature are intended to survive.
Article 13.1 You agree to pay for all Services ordered as set forth in the applicable Ordering Agreement. All fees due under the Agreement are non-cancelable and the sums paid non-refundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that TechniPhi must pay based on the Services You ordered, except for taxes based on TechniPhi’s income. You will reimburse TechniPhi for reasonable expenses related to providing any on-site portion of the Services that You request and TechniPhi agrees to provide. Fees for Services listed in an Ordering Agreement are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice unless otherwise
agreed to in writing by TechniPhi.
Article 13.2 You agree that You have not relied on the future availability of any Services, programs or updates in entering into the payment obligations in the Ordering Agreement; however, the preceding does not relieve TechniPhi of its obligation to deliver Services that You have ordered per the terms of the Agreement.
Article 14.1 By virtue of the Agreement, the Parties may have access to information that is confidential to one another (“confidential information”). We each agree to disclose only information that is required for the performance of obligations under the Agreement. Confidential information shall be limited to the terms and pricing under the Agreement, Your Data residing in the Services environment, and all information clearly identified as confidential at the time of disclosure. Article 14.2 A party’s confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (b) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party.
Article 14.3 We each agree to hold each other’s confidential information in confidence for a period of three years from the date of disclosure.
Article 15.2 If any term of the Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the Agreement. It is expressly agreed that the terms of the Agreement, including
any TechniPhi Ordering Agreement, shall supersede the terms in any purchase order or other non- TechniPhi document and no terms included in any such purchase order or other non-TechniPhi document shall apply to the Services ordered.
Article 15.3 The Agreement may not be modified, and the rights and restrictions may not be altered or waived except in writing TechniPhi by authorized representatives of You and of TechniPhi.
Article 16.1 Neither party shall be liable for any indirect, incidental, special, punitive, or consequential damages, or any loss of revenue or profits (excluding fees under the agreement), data, or data use. TechniPhi’s maximum liability for any damages arising out of or related to this software as a service agreement or your order, whether in contract or tort, or otherwise, shall in no event exceed, in the aggregate, the total amounts actually paid to TechniPhi for the services under the order that is the subject of the claim in the twelve (12) month period immediately preceding the event giving rise to such claim. Any damage in your favor against TechniPhi shall be reduced by any refund or credit received by you under the agreement and any such refund and credit shall apply towards the limitation of liability.
Article 17.1 Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. You agree that such export control laws govern Your use of the Services (including technical data) and any Services deliverables provided under this Agreement, and You agree to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations).
Article 18.1 TechniPhi is an independent contractor and we agree that no business partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.
Article 18.2 You shall obtain at Your sole expense any rights and consents from third parties necessary for TechniPhi and its subcontractors to perform the Services under the Agreement.
Article 18.3 The Agreement is governed by the substantive and procedural laws of Indiana and You and TechniPhi agree to submit to the exclusive jurisdiction of, and venue in, the courts in Hamilton County or Marion County in Indiana in any dispute arising out of or relating to the Agreement.
Article 18.4 If You have a dispute with TechniPhi or if You wish to provide a notice under the Indemnification section of this software as a service Agreement, or if You become subject to insolvency or other similar legal proceedings, You will promptly send written notice to: TechniPhi, Inc.at the address set forth above. TechniPhi may give notice applicable to TechniPhi’s software as a service customer base by means of a general notice on the TechniPhi portal for the Services, and notices specific to You by electronic mail to Your e-mail address on record in TechniPhi’s account information or by written communication sent by first class mail or pre-paid post to Your address on record in TechniPhi’s account information.
Article 18.5 You may not assign the Agreement or give or transfer the Services or an interest in them to another individual or entity. If You grant a security interest in any portion of the Services, the secured party has no right to use or transfer the Services or any deliverables, and if You are given the option to finance Your acquisition of the Services, You will follow TechniPhi’s policies regarding financing.
Article 18.6 Except for actions for nonpayment or breach of TechniPhi’s proprietary rights, no action, regardless of form, arising out of or relating to the Agreement may be brought by either party more than two years after the cause of action has accrued.
Article 18.7 TechniPhi may audit Your use of the Services. You agree to cooperate with TechniPhi’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with Your normal business operations. You agree to pay within 30 days of written notification any fees applicable to Your use of the Services in excess of Your rights. If You do not pay, TechniPhi can end Your Services and/or the Agreement. You agree that TechniPhi shall not be responsible for any of Your costs incurred in cooperating with the audit.
Article 18.8 The Uniform Computer Information Transactions Act does not apply to this software as a service Agreement or orders placed under it. You understand that TechniPhi’s business partners, including any third-party firms retained by You to provide computer consulting Services, are independent of TechniPhi and are not TechniPhi’s agents. TechniPhi is not liable for nor bound by any acts of any such business partner, unless the business partner is providing Services as a TechniPhi subcontractor on an engagement ordered under this software as a service Agreement.
Article 19.1 Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed Services upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay for the Services.
Article 20.1 TechniPhi reserves the right to provide the Services from locations, and/or through use of subcontractors, worldwide.
Article 20.2 You agree to provide any notices and obtain any consents related to Your use of the Services and TechniPhi’s provision of the Services, including those related to the collection, use, processing, transfer and disclosure of Personal Information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and ownership of all Your Data.
Article 21.1 You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, ( c ) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. You also are responsible for the accuracy, appropriateness, and lawfulness of the content of all materials and information that are input by You, your employees, member and affiliates, and shall indemnify and hold TechniPhi harmless from all damages, liability and causes of action that may arise from such inaccurate, inappropriate and unlawful materials and information
Article 21.2 You agree not to use or permit use of the Services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any personal or professional purposes outside of Your business, and in particular your business pursuits in the area of managing the organization’s relationship with potential new members. Any use other than that by any user is expressly prohibited
Article 21.3 In addition to any other rights afforded to TechniPhi under the Agreement, TechniPhi reserves the right to remove or disable access to any material that violates the foregoing restrictions. TechniPhi shall have no liability to You in the event that TechniPhi takes such action.
Article 21.4 You agree to defend and indemnify TechniPhi against any claim arising out of a violation of Your obligations under this section.
Article 22.1 TechniPhi may use tools, scripts, software, and utilities (collectively, the “tools”) to monitor and administer the Services and to help resolve Your service requests.
Article 22.2 If TechniPhi provides You with access to or use of any tools in connection with the Services, Your rights to use such tools are governed by the license terms that of the particular owner of the tool(s). TechniPhi does not specify license terms for such tools Any such tools are provided by TechniPhi on an “as is” basis and TechniPhi does not provide technical support or offer any warranties for such tools. Unless the Owner of the tool provides otherwise, Your right to use such tools will terminate upon the earlier of TechniPhi’s notice, the end of the Services term, or the date that the license to use such tools ends under the license terms specified for such tools.
Article 23.1 TechniPhi may compile statistical information related to the performance of the Services, and other information gleaned from your data and from other users, and may make such information publicly available, provided that such publicly available information does not either (1)
incorporate Your Data in a manner which will permit the public to identify it as your data; or (2) identify Your confidential information; or (3) include Your company’s name. TechniPhi retains all intellectual property rights in such information.
Article 24.1 The Services may enable You to add links to Web sites and access to content, products and Services of third parties, including Users, advertisers, affiliates and sponsors of such third parties. TechniPhi is not responsible for any third-party Web sites or third-party content provided on or through the Services and You bear all risks associated with the access and use of such Web sites and third-party content, products, and Services.
Article 24.2 TechniPhi has the right to use the Third-Party Data in any way that it chooses, consistent with its agreement, if any with the originator of the Third-party Data.
Article 25.1 You agree (i) that TechniPhi may identify You as a recipient of Services and use Your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by TechniPhi on its website for promotional purposes.