Defywire, Inc. ("Defywire") provides the following service to you at their website www.defywire.com ("The Site"), subject to these Terms of Service ("TOS"), which may be updated periodically without prior notice. You can review the current version of the TOS at this site. Failure to comply with these TOS may result in account revocation. Please note that your use of the Service is also subject to the Defywire Terms of Use (the "TOU") which are incorporated herein as if by reference. By using the Service, you signify your irrevocable acceptance of the TOU. You can review the most current version of the TOU at this site.
Defywire operates a web-based and mobile service which provides users with access to and use of downloadable software for both client and server to store, manage, track, analyze, aggregate and report data in the education arena (herein referred to as the "Service"). The Service is used through downloaded server software and by the use of downloaded client software (the "Software"). Once registered with Defywire, each user receives access to the server and software to store, collect, manage and aggregate data, and produce and store reports. Any Content (as defined below) may reside on your servers, Defywire's servers or on the servers of a third party.
This Agreement is between Customer and Defywire and governs Customer's use of the Product. Certain Third-Party Software provided with the Software is subject to various other terms and conditions imposed by the licensors of such Third-Party Software. As applicable, the terms of Customers use of the Third-Party Software is subject to and governed by their respective licenses.
Subject to the terms and conditions of this Agreement, Defywire grants Customer a non-exclusive, non-transferable, limited license (without the right to sublicense), solely for the relevant Trial Period or Paid Subscription Period, to (i) use the Software in object code form only; (ii) use all associated Documentation in connection with such authorized use of the Software.
The Product shall be deemed accepted by Customer upon its download.
Defywire currently has the following accounts. By using the Service, you agree to this structure and to Defywire's right to change, modify or discontinue any type of account and/or its respective Services
Trial Accounts: Defywire users may be provided access to a free, 30-day subscription to the Service (Trial Subscription) to evaluate, test and use the Service, subject to the restrictions noted below.
Paid Subscription Accounts: Paid accounts are available on a subscription basis for a monthly fee with a minimum contract length of 36 months of service and offers users all available features and extended support.
At Customer's reasonable request and subject to availability of Defywire personnel, Defywire may, in its discretion, provide to Customer additional installation services, additional training, consulting services, custom modification programming, support services relating to custom modification, assistance with data transfers, system restarts and reinstallations and other support services in accordance with a mutually agreeable separate written agreement.
Customers are provided access to web-based technical support by emailing support issues and questions to support@defywire.com.
Defywire and Customer may include the other party in a list of customers or suppliers that Defywire or Customer make available to third parties. Customer agrees to accept a reasonable number of reference phone calls from potential Defywire customers, industry analysts and press reporters for purposes of discussing Licensed Software implementation and operation. Customer may optionally participate in Defywire case studies and publicity events as requested by Defywire.
Except as expressly permitted in this Agreement, Customer shall not, and shall not permit any third party to: (i) copy, reverse engineer, reverse assemble, or otherwise attempt to discover the source code of all or any portion of the Software; (ii) reproduce, modify, translate or create derivative works of all or any portion of the Product; (iii) assist any third party to gain access, license, sublicense, resell distribute, assign, transfer or use the Product; or (iv) remove or destroy any proprietary notices contained on or in the Product or any copies thereof. Customer may only use the Software for which Defywire has provided a license key and no other Software.
All rights, title and interest in and to the Product and any improved, updated, modified or additional parts thereof, shall at all times remain the property of Defywire. Nothing herein shall give or be deemed to give Customer any right, title or interest in or to the same except as expressly provided in this Agreement. Defywire reserves all rights not expressly granted herein.
NEITHER DEFYWIRE NOR ITS CUSTOMER SHALL BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS, OR DAMAGES ARISING FROM LOSS OF USE, LOSS OF CONTENT OR DATA OR ANY ACTUAL OR ANTICIPATED DAMAGES, REGARDLESS OF THE LEGAL THEORY ON WHICH SUCH DAMAGES MAY BE BASED, AND EVEN IF DEFYWIRE OR CUSTOMER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL DEFYWIRE'S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE EXCEED FIVE HUNDRED DOLLARS ($500.00).
CUSTOMER AGREES THAT DEFYWIRE PROVIDES THE PRODUCT AND THIRD-PARTY SOFTWARE ON AN "AS IS" AND "WHERE-AS" BASIS. DEFYWIRE MAKES NO WARRANTIES WITH RESPECT TO THE PERFORMANCE OF THE PRODUCT OR THIRD-PARTY SOFTWARE, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND DEFYWIRE EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Defywire and Customer agree to observe complete confidentiality with respect to the Confidential Information received from the other party; not to disclose, or permit any third party or entity access to, such Confidential Information (or any portion thereof) without prior written permission of the other party, and to insure that any employees, or any third parties who receive access to such Confidential Information, are advised of the confidential and proprietary nature thereof and are prohibited from copying, utilizing or otherwise revealing such Confidential Information. Prior to disclosing any such Confidential Information received from the other party pursuant to any judicial or governmental order, the receiving party shall give the other party sufficient prior notice to contest such order. Without limiting the foregoing, Defywire and Customer agrees to employ with regard to the other party's Confidential Information commercially reasonable procedures that are no less restrictive than the strictest procedures used by it to protect their own confidential and proprietary information.
All notices permitted or required under this Agreement shall be in writing and shall be delivered by personal delivery, telegram, telex, telecopier, facsimile transmission, or by certified or registered mail, return receipt requested, and shall be deemed given upon personal delivery, five (5) calendar days after deposit in the mail, or upon acknowledgment of receipt of electronic transmission. This Agreement shall be governed by the laws of the Commonwealth of Virginia, U.S.A. without regard to conflict of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. If any provision hereof shall be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid and enforceable, and the remaining provisions of this Agreement shall not be affected thereby. The failure of either party to enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. Nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement may not be assigned, sublicensed or otherwise transferred by either party without the other party's prior written consent except that either party may assign this Agreement without the other party's consent to any entity that acquires all or substantially all of such party's business or assets, whether by merger, sale of assets, or otherwise, provided that such entity assumes and agrees in writing to be bound by all of such party's obligations under this Agreement. In the event any judicial proceeding, lawsuit or claim is brought by one party against the other party in connection with this Agreement, the prevailing party shall be entitled to recover its reasonable fees and costs, including but not limited to attorneys' fees, expert witness fees, consultant fees, and related costs and expenses. This Agreement constitutes the parties' entire understanding regarding the Product, and supersedes any and all other prior or contemporaneous agreements, whether written or oral.