Terms & Conditions

Please read the following Terms & Conditions (these “Terms of Use”) carefully before using this website www.collectorsystems.com (“Site”). By using the Site and the information and Software Services available through the Site, you agree to follow and be bound by these Terms of Use. If you do not agree to these Terms of Use, do not use the Site.

The Site is owned by Collector Systems, LLC (“Collector Systems LLC”, “Collector Systems” or “Provider”). COLLECTOR SYSTEMS LLC HAS COMPLETE DISCRETION TO UPDATE AND CHANGE THE SOFTWARE SERVICES AGREEMENT FROM TIME TO TIME AND TO CHANGE THE SCOPE OR FEATURES OF THE SOFTWARE SERVICES FROM TIME TO TIME. COLLECTOR SYSTEMS LLC MAY MAKE SUCH CHANGES WITHOUT NOTICE. IF YOU CONTINUE TO USE THE SOFTWARE SERVICES AFTER ANY SUCH CHANGES, WITH OR WITHOUT NOTICE, YOU WILL BE CONSIDERED TO HAVE CONSENTED TO THEM.

Definitions

“Account” Monthly or annual licensing of the Provider’s software as a service (SaaS), encompassing the specific Software Plan selection that dictates the default feature set available to the User, and the corresponding pricing model for the plan
“Account Access” The specific set of permissions assigned to each User, as defined by the Account Contact (master administrator for the Account). Permissions include whether or not a User can access a given Subscription / sub-account (see definition of this term below), and what actions the User can perform. Permissions settings include admin-level abilities, and Read/Write, Read-Only, and No Access options governing the User’s access to each specific type of data within the Account.
“Account Holder” means the person or entity with which Provider is contracting under this Agreement.
“Account Contact” The master contact is responsible for the management and administration of the Account. The Account Contact can authorize changes that impact Account Access, Permissions, and billing.
“Account Owner” The owner of the collection(s) managed within the Account. The Account Owner has the ultimate authority to make decisions about the Account (superseding the Account Contact) and is the owner of the User Data.
“Software Plan” Defines the standard list of software features that will be enabled for a given Account based on the use-case of the CMS. Upon request and authorization from the Account Contact or Account Owner, with the written approval of the Account Holder as provided by the requesting Account Contact or Account Owner, additional features can be included and defined in the Software Plan for an Account. Some non-standard features may incur additional fees.
“Features” The specific data points, functions, tools, and limits are defined by the Account type and Software Plan selections. Upon request and authorization from the Account Contact or Account Owner, with the written approval of the Account Holder as provided by the requesting Account Contact or Account Owner, additional features can be added to an Account. Some non-standard features may incur additional fees.
“Subscriptions” Repository of a specific data set. Each Account has at least one Subscription. Certain Software Plans allow for additional Subscription sub-accounts. This allows Accounts on applicable Software Plans to segregate data and control User access across multiple entities, if required. For example, a family office can accommodate separate Subscriptions (sub-accounts) for multiple family members in a scenario where the family office manages all collections, but some family members may not want others to see what they have. This same structure could be used to separate fine art and household contents from jewelry using separate Subscriptions (sub-accounts) for a streamlined way to control access.
“User” or “Users” An individual or individuals authorized by Account Holder to use Provider’s software product and support Software Services.
“Administrative Users” are those persons whose Account Contact gives access to User’s secure CMS platform. For the avoidance of doubt, the Account Holder may change the individuals who constitute “User” from time to time during the Term in its sole discretion.
“CMS” Collection Management Software.
“Software Services” means the Software Services provided by Collector Systems LLC. to Users based on the Software Plan selected by Account Holder, including the use of CMS.
“User Data” is any electronic data, images, or information or other digital content that is (i) created or entered by Users in an Account; (ii) submitted, collected, processed, or managed by Users in conjunction with Users’ utilization of the Software Services or Provider’s support Software Services, and (iii) all analysis, compilations and derivative works of any of the foregoing. User Data is supplied by or for Users and is distinct from anything inherent to Provider’s software product or hosted service.
“Privacy Policy” refers to Provider’s Privacy Policy, as modified from time to time and posted at www.collectorsystems.com).
“Service Level Agreement (SLA)” refers to Provider’s Service Level Agreement.
“Effective Date” refers to the date of commencement of the Service as listed for Users.
“Registrar fees” means service fees.
“Materials” refers to written, graphical, and technical content provided by or through the Provider, and all intellectual property of Provider or its components, including, without limitation, text, photographs, illustrations, and designs in the software as provided by Provider and any technical or non-technical information, material or documents relating to Provider, its intellectual property (including, without limitation, intellectual property for which Provider has or expects to file patent or trademark applications with the applicable governmental agencies), and know-how, including, without limitation, software, content, research, development, improvement, inventions, products designs and plans, processes, techniques, designs or other technical data, source code, Software Services, and other unpublished information; any information, material or documents obtained by Account Holder or any User during the course of meetings or discussions with Provider; the terms of any Account, Software Plan, Features, or Software Services Agreement between Provider and Account Holder or any User; and any information, material or documents that Account Holder or any User knows or has reason to know is considered confidential or proprietary by Provider (sometimes referred to herein as “Confidential Information”). Materials do not include and will not be deemed to include User Data or any other Confidential Information of User.
“Specifications” means all features and functionality of Account Holder’s selected Software Plan (i) described on Provider’s website, and (ii) described in any user documentation made available by Provider to Account Holder from time to time.

01. Provision of Software Services

Subject to the terms and conditions of this Agreement, Collector Systems LLC shall provide certain Software Services (the “Software Services”) to the Account Holder and certain individuals or entities that are authorized to use the Software Services (“Users”). Collector Systems LLC hereby grants Account Holder a limited, non-exclusive, non-transferable, and non-sublicensable license to access and use the Software Services and Documentation during the Term (defined below) provided Account Holder complies with the terms and conditions of this Agreement.
If the Software Services are provided to the Account Holder for evaluation purposes, Collector Systems LLC grants to Account Holder a limited, non-exclusive, non-transferable, non-sublicensable, and royalty-free evaluation license to use the Software Services solely for evaluation prior to purchase (“Evaluation License”). The Evaluation License shall terminate on the end date of the pre-determined evaluation period or immediately upon notice from Collector Systems LLC, at its sole discretion. Notwithstanding any other provision contained herein, Software Services provided pursuant to an Evaluation License are proved to Account Holder “AS IS” without indemnification, support, or warranty of any kind, express or implied. Except to the extent such terms conflict with the specific evaluation terms set forth in the Section, all other terms of this Software Services Agreement shall apply to the Software Services under an Evaluation License.

02. Account Holder’s Obligations; License Restrictions

Account Holder will (i) be responsible for its and its Users’ compliance with this Agreement; (ii) be solely responsible for the accuracy, quality, integrity, and legality of User Data (defined below) and means relating to acquisition of the User Data; (iii) maintain the security of Account Holder’s account, passwords (including administrative and user passwords) and files, and for all uses of Account Holder’s account; (iv) not provide, make available to, or permit other individuals to use or access the Software Services, except under the terms listed herein, that Account Holder will responsible for any unauthorized activity of the Software Services and will immediately notify Collector Systems LLC of unauthorized access and the use of the Platform; (v) report issues or security concerns related to the Platform to Collector Systems LLC in a timely manner; (vi) read the release notes and product update literature that is either communicated to administrative users or provided on the Collector Systems LLC application; (vii) not sell, resell, rent, or lease the Software Services; (viii) not modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code of the Software Services; (ix) not remove any proprietary notices or labels on the Software Services; (x) not license the Software Services if Account Holder (or any of its Users) is a direct competitor of Collector Systems LLC or its affiliated entities for the purposes of monitoring the Software Service’s availability, performance, or functionality or for any other benchmarking or competitive purposes; (xi) not use the Software Services to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of third party privacy rights; (xii) not use the Software Services to store or transmit malicious code; or (xiii) interfere with or disrupt the integrity or performance of the Software Services.

03. Fees & Payment

Account Holder will be required to select the available Software Plan. The provider will provide the Software Services to Account Holder and its Users pursuant to these Terms of Use, Privacy Policy and Security Statement. Fees will be due and payable as set forth in the terms of this agreement or otherwise conveyed to you during the order process. Fees for any Renewal Term shall be at Collector Systems LLC’s then-standard rates, currently in effect, or if applicable, as otherwise set forth on the website or otherwise conveyed to you by Collector Systems LLC. If the Account Holder fails to pay in accordance with the payment terms, Collector Systems LLC shall be entitled, at its sole discretion, (i) to suspend the provision of the Software Services temporarily until the Account Holder fulfills its pending obligations or (ii) to terminate this Agreement for breach. Unless otherwise stated, all payments made under this Agreement shall be in United States dollars. Except as otherwise expressly provided herein, fees are non-refundable.

04. User Licenses

The Account Holder may, at any time during the Term, increase or decrease the number of users of the service. Users who are requested to have their access revoked will lose access to the Site. Collector Systems LLC will make a reasonable attempt to remove access to revoked users upon receiving the request through the proper channel. Any delay revoking the access due to time of day, day of the week, or failure of the Account Holder to communicate the request through the proper channel will not constitute a breach of responsibility by Collector Systems LLC. The monthly billing will be determined by the number of users licenses on the Effective Date. Users who have their account revoked will incur licensing charges for the month in which their access was revoked. New users added to the system will be billed for the month in which the account was created.

05. Access and License Grant

License Grant. Provider hereby grants to the Users a non-transferable, non-exclusive license to access and use the Software Services pursuant to the terms and conditions herein. The Provider also agrees to provide data import/export, security, monitoring, training and support, backup and disaster recovery, upgrades, and termination assistance as described in this Agreement and the Specifications and, in addition, as the Provider determines, in its sole and exclusive judgment, is necessary for Users’ productive use of such Software Services.
Rent, Lease and Sublicense Restrictions. None of the Account Holder nor Users shall rent, lease, sublicense, grant a security interest in, or otherwise pledge, encumber, or transfer the Account Holder’s or Users’ right under said license to such Software Services, in whole or part.
No License. Except as expressly set forth herein, no license is granted by Provider to Account Holder or any User with respect to Materials or Confidential Information. Nothing in this Agreement shall be construed to grant to Account Holder or any User any ownership or other interest in the Materials, or Confidential Information of Provider, except as may be provided under a license specifically applicable to such Confidential Information or Materials.
The provisions of this Section shall survive the termination of this Agreement.

06. Taxes

The fees are exclusive of taxes. If Account Holder is required to withhold any tax for payments due under this Agreement, Account Holder shall gross its payments to Collector Systems LLC so that Collector Systems LLC receives sums due in full and free of any deductions. Upon written request by Provider, the Account Holder will provide documentation to Collector Systems LLC showing that taxes have been paid to the relevant taxing authority. “Taxes” means any sales, VAT, use, and other taxes (other than taxes on Collector Systems LLC’s income), export and import fees, customs duties, and similar charges imposed by any government or other authority. Account Holder hereby confirms that Collector Systems LLC can rely on the name and address that Account Holder provides to Collector Systems LLC when Account Holder agrees to the Software Services fees or in connection with Account Holder’s payment method as being the place of supply for sales tax and income tax purposes or as being the place of supply for VAT purposes where Account Holder has established its business. Account Holder is responsible for paying New York State Sales and Use taxes, if applicable, except for a User who accesses the Software Services from outside New York State or unless User provides Provider with a tax-exempt certificate which is acceptable by New York State Department of Finance and Taxation. Account Holder is responsible for paying any other state, federal, and international taxes, as applicable.,

07. Term & Termination

Term Unless terminated earlier in accordance with this Section, this Agreement will begin on the Effective Date and will continue for twelve (12) months (the “Initial Term”), and will automatically renew for an additional one (1) year renewal periods (each a “Renewal Term”) unless Account Holder notifies Provider, no later than thirty (30) days prior to the end of the then-current term, of its desire to not renew this Agreement. The Initial Term and Renewal Terms are collectively defined in this Agreement as the “Term”.
Termination. Account Holder may terminate this Agreement at any time with thirty (30) days’ notice in writing to Collector Systems LLC. Collector Systems LLC may, in addition to such other remedies as it may have at law or pursuant to this Agreement, terminate this Agreement immediately upon written notice to Account Holder if the Account Holder becomes subject to bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, the Account Holder infringes or misappropriates Collector Systems LLC’s intellectual property, or breaches the License Restrictions or Confidentiality provision set forth herein. In the event of any other breach of these Terms of Use, in addition to such other remedies as Provider may have at law or pursuant to this Agreement, Provider may suspend or terminate User’s access to the Service, upon notice to Account Holder, if such breach is not cured to the satisfaction of Collector Systems LLC within 15 days of Account Holder’s receipt of written and electronic notification. Neither this Agreement nor the Terms of Use requires that either Party take any action against the other or any other User or customer for violating the Privacy Policy or the Terms of Use. The Privacy Policy protections of Provider extend only to the Software Services and do not extend to any third-party site or links to third-party Software Services.
Effect of Termination. Upon termination of this Agreement for any reason other than breach (including a failure to pay) by Account Holder, Provider will provide Account Holder, upon request, with a full backup of all User Data in accordance with Section titled “Confidentiality”. The following provisions will survive termination of this Agreement: (i) any obligation of Account Holder to pay for Software Services rendered prior to the date of termination; (ii) any obligation, if any, of Provider to refund to Account Holder the unused portion of any prepaid fees; (iii) the following Agreement Sections: “Definitions”; “Provider Materials & Intellectual Property Rights” “Warranties and Representations” as to User Data; “Disclaimers”; “Indemnification”; ”Confidentiality”; “Effects of Termination”; “User Marks”; “Notices”; “Governing Law”; “Severability”; and, “Entire Agreement”; (iv) all User obligations with respect to the non-disclosure of Provider Materials; (v) all provisions of Confidentiality; and (vi) any other provision of this Agreement that must survive termination to fulfill its essential purpose.

08. User Data

Collector Systems LLC agrees that the data and information uploaded by Account Holder (or Users of Account Holder) that is stored or processed via the Software Services (the “User Data”) shall be treated as confidential pursuant to Section 10 by Collector Systems LLC and shall remain Account Holder’s sole property. Access by Collector Systems LLC and its affiliated entities or agents to Account Holder’s confidential data will require prior authorization by said Account Holder unless the access follows a judicial order or other compulsion of law. The Account Holder agrees that it is responsible for maintaining and protecting backups of all User Data directly or indirectly processed using the Software Services and that Collector Systems LLC is not responsible for the failure to store, the loss, or the corruption of User Data. Account Holder agrees that Collector Systems LLC and its affiliated entities will collect and track technical and related information about Account Holder and Account Holder’s use of the Software Services, including Account Holder’s internet protocol address, the hardware, and software that Account Holder utilizes, and various usage statistics to assist with the necessary operation and function of the Software Services and for internal purposes only, including without limitation to facilitate in the provision of updates, support, invoicing marketing by Collector Systems LLC, its affiliated entities, or its agents, and research and development. In the event that Collector Systems LLC is required or ordered to disclose User Data to a third party pursuant to a judicial order or other compulsion of law, if legally permitted, Collector Systems LLC shall take all commercially reasonable steps to provide the Account Holder with prompt notice of any relevant order or basis for disclosure so as to allow Account Holder to take whatever steps it can to object to such compulsory disclosure if Account Holder so chooses.

09. System Security

Collector Systems LLC agrees to make every reasonable effort to prevent unauthorized access to all software and systems associated with the Collector Systems LLC platform. Collector Systems LLC is not responsible for unauthorized access and any resulting losses due to negligent, reckless, or intentional malicious Account Holder behavior.

10. Confidentiality.

Provider and each of its employees, agents and subcontractors will hold strictly confidential (i) the terms of this Agreement; (ii) any User Data; and (ii) all information received (whether by observation, orally or in writing) from Users (which term includes, for purposes of this Section, any Administrative Users, and any affiliates, licensors, suppliers, contractors, agents or sponsors of Users) that Provider should reasonably know, based on the nature of the information or the circumstances surrounding its disclosure, is to be treated as confidential by Provider (any of the foregoing “User Confidential Information”). Provider (and each of its employees, agents and subcontractors) will not use the User Confidential Information except as necessary to perform under this Agreement, and will not disclose any User Confidential Information to any third parties without prior written authorization from Account Holder in each instance, except that Provider may disclose User Confidential Information as and to the extent required by court order or applicable law; provided that Provider first notifies Account Holder in writing of any required disclosure as soon as it is legally able to do so, cooperates, at Account Holder’s expenses including the payment by Account Holder of Provider’s reasonable legal fees, with Account Holder’s reasonable efforts to resist or narrow the disclosure and to obtain an order or other reliable assurance that confidential treatment will be accorded to the User Confidential Information being disclosed, and furnishes only such User Confidential Information that Provider is legally compelled to disclose according to the advice of its legal counsel. The foregoing obligations of Provider with respect to User Confidential Information will survive the expiration or termination of this Agreement indefinitely.
Access, Use, & Legal Compulsion. Unless it receives User’s prior written consent, Provider (i) will not access or use User Data other than as necessary to facilitate the Services for Account Holder and Users; and (ii) will not give any third-party access to User Data. Notwithstanding the foregoing, subject to the requirements of Section 10(a), Provider may disclose User Data as required by applicable law or by proper legal or governmental authority.
Account Holder’s Rights. As between the Parties, Account Holder possesses and retains all right, title, and interest in and to User Data and all other User Confidential Information, and Provider’s use and possession thereof is solely as User’s software provider as expressly provided in this Agreement.
Retention & Deletion. After the expiration or termination of this Agreement, the Provider will retain all User Data and other User Confidential Information, and if requested by the Account Holder in writing, the Provider will provide Account Holder with a FULL backup of such User Data and User Confidential Information. The provider will retain all User Data and User Confidential Information through termination or expiration of the Term and for seventy (70) days thereafter for the purposes of cycling through the Provider’s backup and disaster preparedness protocols. Upon expiration of such 70-day period, all such User Data and User Confidential Information will be securely erased, pursuant to the Data Policy, by Provider. User Data that is ready to be erased pursuant to the Data Policy shall be referred to as “Covered Data”. Account Holder is solely responsible for validating the integrity and accuracy of the backup and must notify Provider in writing within twenty (20) days of its receipt of such backup that it is unacceptable. If Account Holder notifies Provider that the backup is unacceptable, Provider will back up User Data again and the provisions of this Section will again apply until Account Holder has notified Provider that the backup is acceptable.
Covered Data.
i) During the Term and thereafter until the Covered Data (as defined in Section 10(d) above) is securely erased or destroyed by Provider, and at any time Provider has access to Account Holder’s or Users’ system(s), software, or to any Covered Data in connection with this Agreement, Provider will comply with its Data Policy. Any failure to comply with this Section will constitute a material breach of this Agreement.
ii) Without limiting the remaining obligations in this Section, except with Account Holder’s advance written consent in each instance, Provider will not and will not permit any third-party to (A) collect any Covered Data (except as required to perform the Services, and as otherwise needed to comply with its obligations under this Agreement); (B) share, disclose or deliver the Covered Data to any third party (except as required by applicable law subject to the requirements of Section 10(a)); or (C) remove any flags, classifications, labels or other means of segregating or classifying Covered Data.
iii) Notwithstanding anything in this Agreement or any exhibit hereto to the contrary, Provider may maintain in perpetuity all information with respect to the identity of any Account Holder and any payments by or on behalf of Account Holder to Provider, including, but not limited to such identifying and financial information as may be necessary or required for Provider to meet its federal, state or local tax reporting or payment obligations, if any, and any records required to be maintained for Provider’s liability insurance purposes. Such information shall be excluded from the definition of Covered Data for erasure or destruction purposes.
NDA To the extent that the Parties have previously entered into a Non-Disclosure Agreement (NDA) with respect to the Services anticipated by this Software as a Service Usage Agreement (SaaS), and to the extent that there is a conflict between the terms of the NDA and the SaaS, or the terms of the NDA are more restrictive than the terms of this Agreement, as to the disclosure of Confidential Information, the terms of the NDA shall control.

11. Proprietary Rights

The Software Services are licensed, not sold. Use herein of the word “purchase” in conjunction with licenses of the Software Services shall not imply a transfer of ownership. Except for the limited rights expressly granted by Collector Systems LLC to Account Holder in Section 1, Account Holder acknowledges and agrees that, as between Account Holder and Collector Systems LLC, all rights, title, and interest, including all registered and unregistered copyright(s), trademark(s), patent(s), trade secret(s), intellectual property (including but not limited to algorithms and business processes) and other proprietary rights, arising out of or relating to the provision of the Software Services, the Materials, and the Service (collectively, “Provider IP”), belong exclusively to Collector Systems LLC, other than the User Data. Collector Systems LLC is hereby granted a royalty-free, fully-paid, worldwide, exclusive, transferable, sub-licensable, irrevocable, and perpetual license to use or incorporate into its products and Software Services any information, data, suggestions, enhancement requests, recommendations, or other feedback provided by Account Holder or its Users relating to the Software Services. All rights not expressly granted under this Agreement are reserved by Collector Systems LLC. User does not acquire any right, title, or interest in, or to, the Materials except the limited and temporary license to use them as necessary for User’s use of the Software Services, pursuant to the terms herein. Notwithstanding the foregoing, and for the avoidance of doubt, as between the Parties, all User Data (excluding Provider IP) is the property of Account Holder or its affiliates, as the case may be, and Provider does not acquire any right, title, or interest in, or to, such User Data, except as necessary for Provider to render the Software Services under, and in accordance with, this Agreement to Account Holder and Users.

12. Warranties & Representations.

a) User’s Identity. User warrants: (i) that it has accurately identified itself through its User registration and will maintain the accuracy of such identification.
b) Account Holder’s Identity. Account Holder warrants: (i) that it has accurately identified itself through its Account and will maintain the accuracy of such identification; and (ii) that if it is a business entity, it is authorized to do business pursuant to applicable law.
c) Provider’s Identity. Provider warrants that it is a registered limited liability company in the State of New York, authorized to do business pursuant to applicable law.
d) Requisite Authority. Each person executing this Agreement represents that he or she is authorized to execute and deliver this Agreement for the party entering into this Agreement.
e) User Data. User warrants that User has the right, as owner, licensee, agent, bailee, or representative, to post and/or disseminate or upload all User Data placed within the Site and Software Services by User or an Administrative User for purposes of Provider providing the Software Services to Account Holder and Users in accordance with this Agreement as well as Users’ use of the Software Services.
f) Right to Do Business. Both Parties warrant that they have the full right and authority to enter into, execute, and perform their respective obligations under this Agreement and that no pending or threatened claim or litigation known to them, or anticipated by them, would have a material adverse impact on the Parties’ ability to perform as required by this Agreement.
g) Absence of Conflict. Both Parties represent and warrant that the execution and performance of this Agreement will not conflict with, or result in any violation of, any other agreement (whether oral or written) or court order or degree to which the Account Holder, any User, or Provider, as the case may be, is a party or is otherwise bound.
h) Software Services. Provider warrants that (i) it will perform the Software Services in a competent and workmanlike manner in accordance with the highest level of professional care customarily observed by highly skilled professionals rendering similar Software Services; (ii) it and its personnel will comply, at the Provider’s sole cost, with all applicable ordinances, codes, standards, laws, rules, regulations and orders of any governmental authority (“Laws”) having jurisdiction over Provider or the rendering of the Software Services, and will hold and fully comply with all required licenses, permits and approvals required by the jurisdiction in which Provider is based and from which Provider renders the Software Services; (iii) it has all rights necessary for (and is not subject to any restriction, penalty, agreement, commitment, law, rule, regulation or order which is violated by) its execution and delivery of this Agreement and performance of its obligations under this Agreement; (iv) the Software Services include all features and functionality necessary in order for Account Holder to be able to export all User Data (or any portion thereof) in a common file format, at any time and from time to time in Account Holder’s sole discretion, and without additional charge; and (v) CMS and the Software Services will conform to the Specifications and other descriptions set forth in this Agreement and will be free from material defects.
i) Account Holder’s Warranty. Account Holder, on behalf of itself, the Account Owner, and all Users warrants, at Account Holder’s sole cost, that they will comply with all applicable ordinances, codes, standards, laws, rules, regulations and orders of any governmental authority having jurisdiction overuse or receipt of Provider’s Software Services (“Laws”) or having jurisdiction over Account Holder, Account Owner, and Users having use of the Software Services and Account Holder, Account Owner, and Users will obtain and comply with all licenses, permits, and approvals required by the jurisdiction in which Account Holder, Account Owner, and Users are receiving the Software Services.

13. Disclaimer

THE SOFTWARE SERVICES, THE DOCUMENTATION, AND ALL OTHER PRODUCTS AND SOFTWARE SERVICES, INCLUDING THIRD-PARTY HOSTING SOFTWARE SERVICES PROVIDED HEREUNDER, ARE PROVIDED “AS IS” WITH ALL FAULTS AND WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 12, COLLECTOR SYSTEMS LLC HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COLLECTOR SYSTEMS LLC SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES AS TO THE CONDITION, VALUE OR QUALITIES OF ANY SOFTWARE SERVICES, INFORMATION OR MATERIALS PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, WHETHER ANY SUCH SOFTWARE SERVICES, INFORMATION OR MATERIALS WILL BE ACCURATE, COMPLETE, SECURE, CONTINUOUS, UNINTERRUPTED, NON-INFRINGING OR ERROR-FREE, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY AS TO THE WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, INCLUDING ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. COLLECTOR SYSTEMS LLC ALSO SPECIFICALLY DISCLAIMS RESPONSIBILITY OF THIRD-PARTY PRODUCTS AND SOFTWARE SERVICES WITH WHICH ACCOUNT HOLDER MAY UTILIZE THE SOFTWARE SERVICES, AND ACCOUNT HOLDER SPECIFICALLY DISCLAIMS AND WAIVES ANY RIGHTS AND CLAIMS ACCOUNT HOLDER MAY HAVE AGAINST COLLECTOR SYSTEMS LLC WITH RESPECT TO SUCH THIRD-PARTY PRODUCTS AND SOFTWARE SERVICES, TO THE MAXIMUM EXTENT PERMITTED BY LAW.

14. Limit of Liability

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (I) IN NO EVENT WILL COLLECTOR SYSTEMS LLC OR ITS AFFILIATED ENTITIES HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, STATUTORY OR EXEMPLARY DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE SERVICES OR ANY PRODUCTS OR SOFTWARE SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOST OR CORRUPTED DATA, LOSS OF GOODWILL, WORK STOPPAGE, EQUIPMENT FAILURE OR MALFUNCTION, PERSONAL INJURY, PROPERTY DAMAGE OR ANY OTHER DAMAGES OR LOSSES, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STATUTE, INDEMNITY OR OTHERWISE) UPON WHICH ANY SUCH LIABILITY IS BASED; AND (II) THE ENTIRE AGGREGATE LIABILITY OF COLLECTOR SYSTEMS LLC AND ITS AFFILIATED ENTITIES AND THE SOLE REMEDY AVAILABLE TO THE ACCOUNT HOLDER IN ANY CASE IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE SOFTWARE SERVICES OR ANY PRODUCTS OR SOFTWARE SERVICES PROVIDED HEREUNDER SHALL BE LIMITED TO TERMINATION OF THIS AGREEMENT AND MONETARY DAMAGES THAT IN THE AGGREGATE MAY NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAYABLE OR PAID TO COLLECTOR SYSTEMS LLC BY ACCOUNT HOLDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO ITS TERMINATION.

15. Intellectual Property Indemnification

Collector Systems LLC will indemnify and hold Account Holder harmless from any third party claim brought against Account Holder that the Software Services, as provided by Collector Systems LLC to Account Holder under this Agreement and used or distributed within the scope of this Agreement, infringes or misappropriates any U.S. patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, provided (i) use of the Software Services by Account Holder is in conformity with the Agreement and Documentation; (ii) the infringement is not caused by modification or alteration of the Software Services or Documentation; and/or (iii) the infringement was not caused by a combination or use of the Software Services with products not supplied by Collector Systems LLC. Collector Systems LLC indemnification obligations are contingent upon Account Holder: (i) promptly notifying Collector Systems LLC in writing of the claim; (ii) granting Collector Systems LLC sole control of the selection of counsel, defense, and settlement of the claim; and (iii) providing Collector Systems LLC with reasonable assistance, information, and authority required for the defense and settlement of the claim. This Section states Collector Systems LLC’s entire liability (and shall be Account Holder’s sole and exclusive remedy) with respect to indemnification to Account Holder.

16. Indemnification.

Each Party hereto (collectively the “Indemnifying Party”) hereby releases and will defend, hold harmless, and indemnify the other Party, and/or its subsidiaries, affiliates, directors, officers, employees, agents, successors and assigns (collectively the “Indemnified Party”), from and against any allegation or claim based on, or any loss, damage, settlement, cost, expense and any other liability (including but not limited to reasonable attorneys’ fees incurred and/or those necessary to successfully establish the right to indemnification) (collectively, “Claims”), arising from such Indemnifying Party’s breach of any material representation, warranty or covenant of this Agreement. The Indemnifying Party shall not provide indemnification for any Claims to the extent arising from any Indemnified Party’s own negligence, recklessness, or misconduct. . The Indemnifying Party will use counsel reasonably satisfactory to the Indemnified Party to defend each Claim, and the Indemnified Party will cooperate (at the Indemnifying Party’s expense) with the defense. The Indemnifying Party will not consent to the entry of any judgment or enter into any settlement without the Indemnified Party’s prior written consent, which may not be unreasonably withheld.

17. User Marks.

The Provider will not use any of the names, logos or trademarks of Account Holder, any User or any of their respective affiliated entities, their affiliated sports leagues, their respective advertisers or events or projects for any reason, including for publicity, press releases or marketing purposes without the prior written consent of Account Holder or such User, as applicable, which may be granted or withheld in Account Holder’s or User’s sole discretion, as applicable. Unless expressly provided to the contrary in Account Holder’s or User’s written approval, as applicable, each proposed use by Provider will require the prior written approval of Account Holder or User in accordance with this Section.

18. Notices.

All notices and communications required or permitted under this Agreement shall be in writing, shall be sent to the addresses set forth above (or such other address as either Party may provide in a written notice to the other Party delivered in accordance herewith) and shall be deemed to be given: (a) on the date of service if served personally or by facsimile or electronic transmission (provided the receipt of the facsimile or electronic transmission is acknowledged by the recipient in writing to the sender, and in the absence of such acknowledgment of receipt, notice shall not be deemed as given), (b) on the third business day after mailing if mailed by certified or registered mail, return receipt requested, postage prepaid and properly addressed, or (c) on the following business day if sent by reputable overnight commercial courier.

19. General

a) Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Nothing in this Agreement creates an exclusive relationship or in any way prevents Collector Systems LLC from entering into similar arrangements with or providing similar Software Services to other entities, including, without limitation, other similar customers. The Account Holder understands and acknowledges that Collector Systems LLC is free to use some or all of the data, information, techniques, methodologies, forms, layouts or results of any of the products or Software Services provided by Collector Systems LLC hereunder in providing products or Software Services to other customers and nothing in this Agreement shall be construed to limit Collector Systems LLC’s right to do so.
b) Third-Party Software Services. If the Account Holder uses any third-party service with the Software Services (including Software Services that may use any application programming interface (API) provided by Collector Systems LLC), the Account Holder acknowledges that the third party service may access or use the customer’s information. Collector Systems LLC will not be responsible for any act or omission of the third party, including such third party’s use of the customer’s information. The Account Holder agrees to contact the third-party service provider for any issues arising from the Account Holder’s use of the third-party service.
c) Compliance with Applicable Laws. The Software Services are protected by intellectual property laws and other laws of the United States and international laws and treaties, including intellectual property and export laws. The Account Holder agrees that it shall use the Software Services and shall perform all obligations under this Agreement in a manner that complies with all applicable laws applicable to the Account Holder and its use of the Software Services and published documentation, including, but not limited to, any and all contractual, statutory, or common law rights and obligations and applicable restrictions concerning intellectual property rights. The Software Services provided to the Account Holder hereunder may be subject to U.S. control laws and regulations and may also be subject to other applicable import and export laws. The Account Holder agrees that it shall abide by all applicable export control laws, rules, and regulations applicable to its use of the Software Services.
d) Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflict of laws principles thereof. The Parties hereby irrevocably and unconditionally agree to refer any claim or dispute between the Parties hereunder exclusively to JAMS for resolution by confidential, binding arbitration before a single arbitrator in New York, New York in accordance with the Streamlined Arbitration Rules and Procedures of JAMS (the “Rules”). The single arbitrator shall be appointed by agreement of the Parties or, in the absence of such agreement, by JAMS in accordance with such Rules. The Parties agree that any award rendered by the arbitrator shall be final and binding, and hereby exclude any right of appeal to any court on the merits of the claim or dispute. The prevailing Party in the arbitration shall be entitled to an award of all of the JAMS administrative fees, arbitrator fees and reasonable attorneys’ fees and costs incurred by such Party in connection with the arbitration. The arbitrator’s award may be enforced in any court having jurisdiction over the award, any of the Parties and/or any of a Party’s assets, and judgment on the award (including, without limitation, equitable remedies) granted in any arbitration hereunder may be entered in any such court. Each Party shall maintain the nature of any claim or dispute, the resolution of any claim or dispute by discussion, negotiation, or arbitration, and/or any documentation, memoranda, submissions, and other materials delivered or received by the arbitrator or other person involved in the arbitration strictly confidential, except as required by law or the Rules, and/or as may be required to enforce any settlement agreement, arbitrator’s award or other resolution of such claim or dispute. Nothing in this paragraph shall prevent a Party from seeking provisional remedies in any court of competent jurisdiction as a conservatory measure or in aid of arbitration. In the event of a conflict between the Rules and this paragraph, the provisions of this paragraph shall control.
e) Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.
f) Relationship. The relationship between the Parties is solely that of independent contractors, not as partners, joint venturers, employees, agents, or otherwise. The Parties acknowledge that this Agreement is a service contract that reflects a sale of Software Services. Nothing herein is intended to create an employment relationship between the Parties, and this is not a work for hire. Neither shall have any authority to bind the other in any manner, and neither shall represent or imply that it has such authority.
g) No Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any prior or subsequent breach of this Agreement.
h) Force Majeure. Neither Party shall be liable to the other for any alleged loss or damage resulting from failure to perform due to acts of God, natural disasters, acts of civil or military authority, fire, epidemics, quarantine, energy crises, acts of terrorism, war or riots or other similar circumstances beyond the reasonable control of the affected Party; provided that the affected Party is using all commercially reasonable efforts to restore performance as soon as is reasonably practicable. Each Party shall notify the other Party of such event as soon as practicable thereafter. All time periods hereunder that are affected by a Force Majeure shall be extended until such condition is resolved, and the affected Party is again able to act.
i) Assignment & Successors. Neither Party may assign this Agreement or any of its rights or obligations hereunder (directly or indirectly, whether by change of control, operation of law or otherwise) without the other Party’s written consent, which consent shall not be unreasonably withheld, delayed, or conditioned. However, either Party may, upon notice to the other Party, assign this Agreement to an affiliated entity or to any entity that acquires substantially all of the Party’s business or ownership interest. In any assignment of any rights and obligations under this Agreement, the assignee would be required to execute an agreement agreeing to be bound by all the terms of the existing agreement, including all requirements of confidentiality, and would further be required to sign an agreement keeping the terms of the assignment confidential. This Agreement is binding upon and inures to the benefit of the respective successors and assigns of the Parties.
j) Counterparts. This Agreement may be executed by facsimile or electronic signature and in one or more counterparts, each of which shall be deemed to be an original but all of which shall constitute the same agreement.
k) Entire Agreement. This Agreement, together with any incorporated Exhibits, constitutes the final, complete, and exclusive agreement among the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings, whether in written, oral, electronic, or another form, relating to the subject matter hereof. Notwithstanding the foregoing, the Account Holder acknowledges and agrees that Collector Systems LLC’s Terms of Use may be modified by Collector Systems LLC from time to time in accordance therewith provided that the Account Holder has been given notice of any such modifications, specifically apply to the Software Services provided hereunder and are binding upon Account Holder and its Users. In the case of a conflict between a provision in this Agreement and any other agreement, you may enter into with Collector Systems LLC, such conflicting provision in this Agreement controls. Any terms and conditions appearing on a purchase order or similar document issued by the Account Holder do not apply to the Software Services, do not override or form part of this Agreement, and are void.

Terms & Conditions