THIS TERMS OF SERVICE AGREEMENT (“Terms of Service”) applies to data transmission and data processing transactions (the “Services”) provided by Collection Integration Solutions, LLC, dba Anva (“Company”) to you as the law firm or collection agency (“Subscriber”) and/or to you as a client of a Subscriber (“Portal User”), including any managing agent, employee, officer, director, or committee member of the foregoing. By accessing the Services, you agree to be bound by the terms and conditions of the Terms of Service. If you do not agree to be bound by the terms and conditions of this Terms of Service, do not access or use the Services. You also represent that you are a duly authorized representative entitled to access the Services, including any confidential information contained therein. For purposes of this Terms of Service, Company, Subscriber and Portal User may be referred to individually as a “Party” and jointly as the “Parties.”
Company provides software as a service to the Subscriber under the terms and conditions of another contract or agreement, which other contract or agreement remains in full force and effect. The Subscriber provides services to its Portal Users under the terms and conditions of independent contracts or agreements.
The Parties do hereby agree to the terms and conditions of the Terms of Service.
1.1 Content Delivery. Portal User shall provide all content, materials and/or elements (collectively, the “Content”) to Subscriber and Subscriber shall receive and process such Content via Company recommended methods and/or using Company approved formats. Portal User and/or Subscriber are responsible for all charges and fees associated with the transmission of Content to Subscriber, including purchasing and maintaining computer equipment and telecommunication fees, if any.
1.2 Provision of Services. Subscriber personnel shall use the Content in conjunction with Subscriber’s representation of its clients and customers and the Content will be used to further Subscriber’s purposes in providing such representation. Portal User grants an express license of the Content to Subscriber for use in its representation of the clients and customers. Portal User also expressly grants a license of the Content to Company to use or modify the Content as may be necessary to provide the Services, including the right to compile statistical and performance information related to the provision and operation of the Services. Company shall also be entitled to utilize the Content or any additional information input into the software for purposes of aggregating non-personally identifiable, technical, statistical, or analytical data, gathered or generated directly by the software or by use of the software.
1.3 Subscriber Responsibilities. Subscriber shall provide all personnel and equipment that may be reasonably necessary to receive and process Content. Subscriber shall use commercially reasonable efforts to ensure that the Content is processed accurately and without error, but does not guarantee error-free Services. As may be required by law or by ethical obligations, Subscriber shall treat all Content as confidential information and shall not disclose any Content to any third party, except as may be necessary to complete the Tasks, without the prior approval of Portal User or as legally required by any court or governmental agency.
1.4 Portal User Responsibilities. Portal User shall provide all personnel and equipment that may be reasonably necessary to prepare and transmit Content to Subscriber for processing hereunder. Portal User is solely responsible for verifying the accuracy of all Content prior to initiating any collection or legal related activity for any Assignment given to the Subscriber.
1.5 Company Responsibilities. Company shall use commercially reasonable efforts to ensure that the Content is stored in a secure and backed-up state.
1.6 Recommended Practices and Procedures. Subscriber specifically recommends that Portal User review and verify the accuracy of Content. Portal User expressly acknowledges that failure to follow the recommended practices and procedures for transmitting Content may result in errors and that Portal User shall be solely responsible for the consequences of any errors in any Content where Subscriber acts in reasonable reliance on Content. Company shall not be responsible for any errors in any Content
Portal User represents and warrants that (a) Portal User has sufficient rights in the Content to use it in the manner contemplated by this Agreement, (b) the Content does not infringe upon or violate any patent, copyright, trade secret, trademark or other intellectual property right of any third party or any obscenity law or other applicable law, rule or regulation in any jurisdiction in which the Content may be viewed or retrieved, (c) Subscriber’s provision of the Service and Company’s hosting of the Content hereunder will not infringe upon or violate any patent, copyright, trade secret, trademark or other intellectual property right of any third party, including but not limited to any and all performance license rights, mechanical license rights, synchronization license rights and/or rights under the Digital Performance Right in Sound Recordings Act of 1995, or any obscenity law or other applicable law, rule or regulation in any jurisdiction in which the Content can be viewed or retrieved, and (d) the Content and Subscriber’s provision of the Service on behalf of Portal User is not for any illegal, obscene, offensive or immoral purpose.
Company represents and warrants to Subscriber that the Services will be performed in a manner consistent with industry standards and in compliance with any specifications and requirements set forth in this Agreement. Subscriber’s exclusive remedy for breach of the foregoing limited warranty shall be for Company to update and correct such Services not in compliance with such specifications and requirements, at no cost to Subscriber. The foregoing limited warranty shall not apply to performance issues or defects in the Services that result from factors outside Company’s reasonable control, that resulted from any actions or inactions of Subscriber or its Authorized Users, or that resulted from Subscriber’s equipment or any third party equipment not within the control of Company.
Except as set forth in Section 3, ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, AND/OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PROVIDER MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET SUBSCRIBER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN SUBSCRIBER AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS. COMPANY SHALL HAVE NO FURTHER LIABILITY REGARDING ANY ERRORS IN TRANSCRIPTION OR DATA ENTRY OR THE LOSS, DAMAGE OR DESTRUCTION OF ANY CONTENT. NOTWITHSTANDING THE FOREGOING, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY TYPE WHATSOEVER REGARDING THE HOSTING OF ANY CONTENT ON ITS NETWORK OR ANY SUBCONTRACTOR’S OR OTHER PARTY’S NETWORK OR THE PERFORMANCE OR RELIABILITY OF ANY SUCH NETWORK, OR ANY CONNECTION TO, TRANSMISSION OVER, RESULTS OF OR USE OF ANY NETWORK CONNECTION OR FACILITIES PROVIDED (OR FAILED TO BE PROVIDED) UNDER THE TERMS OF SERVICE, AND COMPANY MAKES NO WARRANTY WHATSOEVER FOR PRODUCTS OR SERVICES NOT ACTUALLY PRODUCED OR PROVIDED BY COMPANY. COMPANY SHALL NOT BE LIABLE TO SUBSCRIBER OR ITS PORTAL USERS OR ANY OTHER PERSON FOR ANY ACT OR OMISSION OF ANY PERSON SELECTED BY COMPANY TO PERFORM SERVICES FOR SUBSCRIBER OR ITS PORTAL USERS.
COMPANY SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER THEORY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 5, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR PUNITIVE DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. Company has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of subscriber data. COMPANY’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID TO COMPANY BY SUBSCRIBER DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. The allocations of liability in this section represent the MAXIMUM POSSIBLE agreed and bargained-for understanding of the parties. The limited remedies set forth in this Agreement shall apply notwithstanding the failure of their essential purpose.
Subscriber and Portal User agree to defend, protect, indemnify and hold Company harmless from and against all claims of any kind, whether based in contract, in tort (including negligence or strict liability), or resulting from (a) Services provided by Company on behalf of Subscriber or Portal User hereunder, except for any damages arising exclusively out of any material breach of these Terms of Service by Company, (b) any use by Company of any data or files provided by Subscriber or Portal User to Company under these Terms of Service, (c) any breach by Subscriber or Portal User of these Terms of Service, including without limitation any failure by Subscriber or Portal User to observe or satisfy any terms or conditions of these Terms of Service, (d) any violation of any applicable federal, state or local laws with regard to the transmission and use of information and Content, including laws related to privacy, or publicity, (e) any infringement of any United States or other patent, trademark, copyright, trade secret or other intellectual property right, or (f) otherwise for any losses, expenses, damages and liabilities, direct, indirect, special or consequential which may arise out of Subscriber’s or Portal User’s use of the Services, except those caused solely by the gross negligence of Company. Subscriber and Portal User expressly and explicitly indemnify Company from any and all claims and associated damages made on the basis of access by any third party. Notwithstanding the foregoing, neither Subscriber nor Portal User shall have any indemnification obligation to Company with respect to the foregoing arising solely from otherwise unavoidable third party access via illegal, unlawful, unauthorized, improper and/or unknowing means.
5.1 Waiver. Any waiver by Company of any default by the Subscriber or Portal User hereunder shall not be deemed to be a continuing waiver of such default or a waiver of any other default or of any of the terms and conditions of these Terms of Service.
5.2 Modification. The terms and conditions of these Terms of Service may be updated from time to time by posting of a new version at the website of Company with notice provided electronically of such changes. Should the Subscriber or Portal User not agree to any updated terms and conditions, the only recourse will be for the Subscriber and Portal User to stop accessing and using the Services.
5.3 Integration; Merger. These Terms of Service, together with the Software as a Service Agreement, constitutes the entire agreement between Company and the Subscriber. These Terms of Service constitutes the entire agreement between Company and Portal User with regard to the Services set forth herein. Subscriber and Portal User may have other independent agreements with each other, which agreements are not impacted by these Terms of Service.
5.4 Choice of Law. These Terms of Service shall in all instances be governed by, and construed and enforced in accordance with the laws of the State of Arizona, without regard to any conflict of laws provisions.
5.5 Venue; Jurisdiction. All Parties agree that any litigation or arbitration between Company and any of the other Parties shall take place in Maricopa County, Arizona, and all Parties waive any objection to personal jurisdiction or venue in any forum located in that county.
5.6 Costs; Attorney Fees. In any suit or action brought to enforce any term, condition or covenant of these Terms of Service or to recover damages arising from any breach of the Terms of Service, the losing party shall pay the prevailing party’s reasonable attorneys’ fees and all other costs and expenses which may be incurred by the prevailing party in any suit, action or in any reviews or appeals therefrom.
5.7 Force Majeure. Company is not liable for any failure to deliver, or delay in the delivery of, any Services due to a cause beyond its control, including but not limited to network failure, hardware failure, power outages, third party performance, acts of God, fires, typhoons, earthquakes, labor disputes, governmental actions, etc. In the event of any such delay, the data of delivery or performance hereunder shall be extended by a period equal to the time lost by reason of such delay. If Subscriber’s production is curtailed for any of the above reasons, Subscriber may allocate its production among its various Portal Users. Such allocation shall be in a commercially fair and reasonable manner.
5.8 Binding Effect. The terms and conditions of these Terms of Service shall be binding upon the successors and assigns of the Parties.
5.9 Subcontract and Third Party Software. Subscriber and Portal User acknowledge that Company, in its sole discretion, may subcontract all or part of the Services to be provided hereunder, and may contract with providers of third party software. All terms of use provisions of such third party software providers are incorporated into these Terms of Service. In the event of any conflict between the provisions of such third party software and these Terms of Service, these Terms of Service shall control.
5.10 Condition Precedent. COMPANY’S PERFORMANCE UNDER THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE IS EXPRESSLY CONDITIONED UPON SUBSCRIBER’s and PORTAL USER’S ACCEPTANCE AND CONTINUED ACCPETANCE OF THE TERMS AND CONDITIONS CONTAINED HEREIN, irrespective of whether the Portal User accepts these conditions by oral or written acknowledgment, by implication or by acceptance of or payment for the provision of the services requested hereunder based on the Content provided to Subscriber by Portal User.