TERMS AND CONDITIONS OF USE
Welcome to the website of Case Ghost, Inc., a Florida corporation (hereinafter sometimes also referred to as “Case Ghost”, “we”, “us”, or “our”).
IMPORTANT – READ ALL OF THE FOLLOWING TERMS AND CONDITIONS OF USE (HEREINAFTER, TOGETHER WITH ALL THE POLICIES, GUIDELINES AND SPECIAL TERMS DESCRIBED OR INCORPORATED BY REFERENCE BELOW, COLLECTIVELY REFERRED TO AS THIS “TOU”) CAREFULLY BEFORE CONTINUING REGISTRATION. THIS TOU CONTAINS IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS.
BY CLICKING THE “I ACCEPT” BUTTON OR BY ACCEPTING THIS TOU THROUGH A SUBSCRIPTION AGREEMENT THAT INCORPORATES THIS TOU BY REFERENCE OR BY SUBMITTING ANY INFORMATION TO WWW.CASEGHOST.COM OR ANY OF ITS SUBDOMAINS WHICH CUSTOMER OR ITS DESIGNATED USERS ARE PERMITTED TO ACCESS (COLLECTIVELY THIS “SITE”), OR BY ACCESSING OR USING THIS SITE OR ANY SERVICE OR OTHER FEATURE OR FUNCTIONALITY OF ANY SERVICE OFFERED ON OR THROUGH THIS SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND, AND AGREE TO BE BOUND BY AND TO COMPLY WITH ALL OF THE TERMS AND CONDITIONS OF THIS TOU.
VISITORS AND DESIGNATED USERS ARE ALSO SOMETIMES REFERRED TO IN THIS TOU AS “YOU”, “you”, “YOUR” or “your”. YOUR ACCESS TO AND USE OF THIS SITE OR ANY SERVICE IS SUBJECT TO AND CONDITIONED UPON YOUR ACCEPTANCE OF AND FULL COMPLIANCE WITH THIS TOU. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS IN THIS TOU WITHOUT ANY MODIFICATION BY YOU, YOU MUST SELECT THE “I DECLINE” BUTTON, AND YOU ARE NOT AUTHORIZED TO AND MUST NOT ACCESS OR USE ANY FEATURE, FUNCTIONALITY OR SERVICE OFFERED ON OR THROUGH THIS SITE.
A. Introduction/Services. Case Ghost provides various services to Clients pursuant to Agreements in which Clients subscribe to certain Subscribed Services provided by Case Ghost, which may include: Lead identification, generation and screening, Lead management and Processing, case management, processing intakes, training, consulting services and other services relating to Social Security disability and Veterans compensation claims, each as offered from time to time by Case Ghost and subscribed for by Customer (each of which are included in the term Services defined below). Customer will access the Site and Subscribed Services pursuant to and subject to the terms of the Agreement and this TOU through its Designated Users. The Site may also be accessed by Visitors.
B. Non-Legal Services. Customer and the Designated Users acknowledge that the Services are administrative outsourcing and services and neither Customer nor Designated Users consider such Services to be legal services required to be performed by an attorney and Customer and each Designated User understands that neither Case Ghost, nor any of its officers, employees, contractors or Affiliates is providing any legal services to or any legal representation to Customer or any Designated User. Customer and Designated Users represent and warrant that all Services used by any Designated Users are under the supervision and control of Customer. In the event that any of the Services require the involvement of an attorney, Customer agrees that it shall be solely responsible for obtaining the required legal assistance.
C. Leads. Customer is responsible for supplying the Leads to Case Ghost in order for Case Ghost to provide the Subscribed Services, provided that in some cases if subscribed for by Customer, Case Ghost may arrange for or obtain Leads for Customer. For purposes of the Agreement and this TOU, a “Lead” means the name and certain information of a person that has requested that they be contacted to discuss their prospective Social Security disability or Veterans compensation claim. Case Ghost shall have no liability or responsibility for the actions or inactions of any party that provides or sells Leads to Customer or from which Case Ghost purchases Leads and supplies such Leads to Customer. All decisions made whether to accept or reject representation of Claimants are in the sole discretion of Customer. Customer will direct Case Ghost to file appropriate documentation with the appropriate government agency once the Customer accepts the case for representation.
D. Hardware. Customer will be responsible for providing its own computer hardware at its sole cost as necessary to connect to the System. In the event that Case Ghost elects to provide any hardware, such hardware shall at all times remain the property of Case Ghost and Customer shall return such hardware upon the request of Case Ghost.
E. Exclusivity: During the Term, Customer agrees that Case Ghost shall be the exclusive supplier of Services to Customer and Customer will not obtain any similar services from a party other than Case Ghost or an affiliate of Case Ghost.
F. As used in this TOU, the capitalized words or phrases listed on the Definitions attachment have the meanings listed on that attachment.
2. SERVICES AND USE OF THE SERVICES
2.1 SERVICES/GENERAL. Customer is only authorized to access or use the Services through Designated Users, and then only for so long during the Term as: (a) Customer is not in default or breach of this TOU or any other provision of the Agreement; and (b) no Designated User is in default or breach of this TOU; and (c) for which Customer timely pays the fees for the Subscribed Services (the “Service Fee”).
2.2 GRANT OF LICENSE TO CUSTOMER’S DESIGNATED USERS
a. Case Ghost and its third party licensors and suppliers own and reserve all right, title and interest, including all Intellectual Property Rights, in and to the System, Services, Software, Case Ghost Technology and any Derivatives thereof. Subject to the terms, conditions and restrictions of the Agreement, including this TOU, Case Ghost hereby grants Designated User, and Designated User hereby accepts from us, a limited, non-exclusive, non-transferrable, non-sublicensable, revocable license to access and the Subscribed Services during the Term, and only under Customer’s Account.
b. Customer and its Designated Users may only use the Subscribed Services: (i) via such portion of the Site as we from time to time designate; (ii) for the purpose of accessing and utilizing those features or functionality of an executable object code version of Case Ghost Applications hosted on the System; (iii) for Customer’s internal business purposes only; and (v) solely in accordance with this TOU (herein collectively the “Customer License”).
c. The Customer License is subject to all limitations and restrictions set forth in the Agreement, including this TOU and all rights not expressly granted in this Section 2.2 are reserved by us. No other rights or licenses are granted to Customer, any Designated User or any other Person under the Agreement, this TOU or otherwise, nor may any be implied by or inferred from any provision of the Agreement, this TOU or otherwise.
2.3 GRANT OF LICENSE TO CASE GHOST. Customer and each Designated User and each Visitor (if any) hereby grants to us, our Affiliates, agents, contractors, successors and assigns a non-exclusive, royalty-free, worldwide, transferable, fully paid up sub-licensable, perpetual and irrevocable right and license to: (i) host, store, cache, use, reproduce, modify, make Derivative Works of, transmit, distribute and display their respective or joint Customer Content, Leads, Claimant information or any part thereof as we deem necessary to render or perform any Service to or for any of them or on any of their behalf and otherwise in connection with and in furtherance of the exercise of our rights and obligations under this TOU or the Agreement; and (ii) use, reproduce, transmit, distribute or display their respective trade names, trademarks or service marks as we deem necessary to render or perform any Service to or for any of them or on any of their behalf or otherwise in connection with and in furtherance of the exercise of our rights and obligations under this TOU or the Agreement (collectively the “Customer Content License”).
2.4 THIRD PARTY SOFTWARE.
a. The Services or Case Ghost Applications may from time to time contain or comprise, or otherwise require our use of, third party software licensed to us pursuant to one or more third party license agreements. Neither Customer nor any Designated User: (i) acquires any right or license in or to any such third party software by virtue of the Agreement, this TOU or otherwise; nor (ii) may under any circumstance directly or indirectly copy, modify, alter, tamper with, create any Derivative of, reverse engineer, decompile, disassemble or otherwise attempt to discern or derive the source code or any underlying algorithm of any such third party software, or attempt to do any of the foregoing.
b. WE MAKE NO, AND HEREBY DISCLAIM ANY, REPRESENTATION OR WARRANTY CONCERNING ANY THIRD PARTY SOFTWARE OR SERVICE INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
2.5 SERVICE MODIFICATIONS AND MAINTENANCE.
a. We reserve the right to and may at any time or from time to time: (i) enhance, modify or remove any feature(s) or functionality of any Software or Service; (ii) add additional Service offerings; (iii) remove Service offerings; or (iv) modify this TOU, or any policy or other terms referenced in this TOU or posted on the Site from time to time, including by modification, deletion, or addition of any part(s) thereof (the immediately preceding (i) – (iv) collectively, “Revised Terms”). We will provide Customer and Designated Users with notice of Revised Terms by posting a revised version of this TOU on the Site, (in which case we may, but will not be obligated to, also notify Customer by e-mail that such revision has been posted) or by posting a notice to Designated Users on the Site or when they attempt to access a Service. Unless we otherwise provide in such notice, revised Terms will become effective immediately upon our posting them on the Site. Any Designated User’s continued use of any Service after any Revised Terms become effective constitutes Customer’s and that Designated User’s acceptance of the Revised Terms. Customer and each Designated User are responsible for regularly checking the Site for Revised Terms.
b. We may from time to time suspend all or part of any Service or Services without liability and without prior notice to Customer or any Designated User. We will endeavor in good faith to provide Customer with advance notice of scheduled suspension of applicable Services, whether by posting such notice to the Site, email or otherwise.
2.6 NONEXCLUSIVE RIGHTS/SIMILAR AGREEMENTS. The rights and licenses granted by us in this Agreement are nonexclusive. Nothing in this TOU prevents us nor may in any respect or under any circumstance be construed or operate to prevent us or any of our Affiliates from offering or providing any access to or use of any Service, Software, the System or any part thereof to any other Person(s) or from offering, entering into or performing under similar agreements with any other Person(s), including any Person(s) engaged in any business or profession which may be the same as, similar to or competitive with your Customer, each Designated User’s or Visitor’s business.
2.7 CONSENT TO RECEIVE EMAILS. By accessing or using the Site or any Service, you consent to receive communications from us electronically, including emails from us related to the Service.
Unless set forth in a Subscription Agreement or Addendum:
3.1 FEES. Customer must pay Case Ghost for all of its and its Designated Users use of the Subscribed Services, as well as for all of Case Ghost’s costs and out of pocket expenses (if any), according to the schedule of fees set attached to the Subscription Agreement or Addendum, (or if there is none, at Case Ghost’s then current rate for such Subscribed Services) (the “Fees”). The term “Fees” includes all subscription service fees, fees for Leads, Lead Screening and Retainer Fees, Training Fees, Consulting Fees, Customization Fees, and all amounts that Customer is required to pay to Case Ghost for any Subscribed Services.
3.2 INCREASES. All Fees will automatically increase by 5% at the completion of each 12 month period during the Term of the Subscription Agreement. We may from time to time increase any Fees or add new Fees, for any existing or new Service (or any feature thereof) or implement a Fee for any previously free Service or Service feature, by giving Customer at least 30 days notice before the effective date of such change(s). If any such increases of more than 5% per year are unacceptable to Customer, Customer’s sole and exclusive remedy is to terminate the Term of this Agreement by providing written notice to Case Ghost not less than 15 days following the date that Case Ghost notifies Customer of the Fee increase in accordance with this TOU. Any access to or use of any Subscribed Service by a Designated User following the effective date of any increase to or addition of any fees or charges will constitute Customer’s acceptance thereof.
3.3 SCHEDULED LEAD VOLUME. In the event that the Subscription Agreement or Addendum contains a scheduled lead volume or minimum lead volume (“Scheduled Lead Volume”), Customer acknowledges that it is responsible for using the System to order and pay for the amount of Scheduled Lead Volume multiplied by the sum of the Fees for (i) Social Security Lead screening services where the client provides the lead (“Service 1”); and (ii) Processing such leads with Case Ghost’s lead management services (“Service 2”). In the event that the Customer’s charges for the items in the prior sentence does not match the fees for the Scheduled Lead Volume, Customer agrees to pay to Case Ghost the difference between 90% of the amount of Fees for the Scheduled Lead Volume in the amount of fees for those services actually paid during such month. [For example, in the event that the Scheduled Lead Volume is $500 per month and the cost of Service 1 is $20 and the cost of Service 2 is $5, the monthly Fees resulting from the Scheduled Lead Volume would be $12,500. If, however, in a month Customer only used and paid for Service 1 and Service 2, 400 times, Customer would be required to pay Case Ghost the difference between 90% of the Schedule Lead Volume Amount ($11,250) and the actual lead volume amount (400 x $25 = 10,000) or $1,250 upon invoice by Case Ghost] Customer acknowledges that the Scheduled Lead Volume requirement is reasonable based on the resources that Case Ghost uses for Customer’s Account and Customer waives any and all arguments that payments for failure to reach the Scheduled Lead Volume are unreasonable.
3.4 TIME AND MANNER OF PAYMENT. Customer must pay all charges for any set-up fees, consulting fees, training fees and deposits in advance prior to the first day of the Term. Any deposit required by Case Ghost (a “Deposit”) shall be applied against services charges and Fees and shall be applied to the Fees on the final invoice, provided that in the event that the Deposit exceeds the Fees on the final invoice, Case Ghost shall refund the balance within 30 days following the application of the Deposit. Thereafter, Customer must pay all of our invoices within fifteen (15) days following Customer’s receipt thereof, in each case without any setoff or deduction. Case Ghost will invoice Customer for any Fees not paid in advance based on Case Ghost’s estimate of Customer’s monthly Fees for each month during the Term. Customer authorizes Case Ghost to charge any and all Fees to Customer’s credit card at any time that any Fees are due and outstanding. Any amount remaining unpaid after thirty (30) days (including any amounts declined by Customer’s credit card) shall accrue interest at a rate equal to the lesser of 1½ % per month or the highest rate allowed by applicable Law, until paid in full. All amounts payable by Customer under this Agreement must be paid in immediately available funds, in United Stated dollars. Customer agrees to receive our invoices electronically via the e-mail address associated with Customer’s Account, if at any time we choose to provide our invoices in that manner.
3.5 Customer authorizes us to charge Customer’s credit card account to pay for any Fees and charges that may apply to Customer’s Account. Customer must immediately notify us of any changes to its credit card account. Customer’s failure to pay all Fees and charges for Subscribed Services, and applicable taxes, when due shall be a material breach by Customer of this Agreement justifying Case Ghost, in its sole and absolute discretion to suspend the Customer License or otherwise deny any Subscribed Service, or terminate this Agreement or the Term. Customer is responsible for any costs that we incur in collecting amounts from Customer, including reasonable attorney’s fees, court costs and collection agency fees.
3.6 TAXES. Customer must pay any taxes or duties on Subscribed Services. All Fees and charges payable by Customer under the Subscription Agreement or pursuant to any Addendum are exclusive of any applicable taxes or duties, including any value-added, transaction, service or sales tax(es).
4. RESPONSIBILITIES OF CUSTOMER AND DESIGNATED USERS; PROHIBITED ACTS
4.1 Neither Customer nor any Designated User may access or use the System or any Service in any manner or for any purpose other than as expressly permitted under the Customer License and then only in compliance with all other terms, conditions and restrictions of the Agreement, this TOU and all applicable Laws.
4.2 Customer must never permit anyone other than a Designated User to access or use any of the System or any Service under Customer’s Account.
4.3 Prohibited Acts. Neither Customer nor any Designated User may at any time directly or indirectly access or use the System or attempt to access or use the System (or any part thereof) to:
(1) modify, alter, tamper with, repair or create any Derivative of the System or any part thereof;
(2) reverse engineer, decompile, disassemble or otherwise attempt to discern or derive the source code or any underlying algorithm of any Software (including any third party software) or any part thereof;
(3) violate, misappropriate or infringe any of our Intellectual Property Rights or the Intellectual Property Rights of any other Person;
(4) post, upload, download, reproduce, display, create Derivative Works of, view, disclose or transmit anything (other than Customer Content and information regarding Claimants), and then only they have the legal right to do so. Customer and its Designated Users, jointly and severally, represent and warrant to us that they have all requisite legal rights to do so and to grant us the Customer Content License with respect to, that Customer Content and information regarding Claimants and Leads, and that such activities and the Customer License, do not infringe the rights of any Person or violate any applicable Laws);
(5) post, upload, transmit or distribute, or facilitate the posting, uploading, transmission or distribution of, any Customer Content or other data, files or materials which contain or constitute a virus, worm, malware, Trojan horse, spyware, malicious or harmful code or corrupted data or code that otherwise manifests contaminating, harmful or destructive properties;
(6) delete any author attributions, legal, Intellectual Property Rights or other proprietary rights notices or designations from any Customer Content or any other data, files or other materials that Customer or its Designated Users upload to or download from any part or feature of the System;
(7) upload, reproduce, transmit or otherwise distribute any unsolicited advertising, promotional materials, junk mail, chain letters, pyramid schemes, spam or any other form of solicitation or advertising or otherwise for the purpose of direct marketing, spamming, unsolicited contacting of any Person, including any activities that violate anti-spamming Laws.
(8) Upload, reproduce, transmit or otherwise distribute any Customer Content, message, information, data, text, file, or other communication, content or materials that is in any respect unlawful, harmful, threatening, abusive, harassing, defamatory or otherwise tortious, pornographic, obscene, or objectionable, or which may be invasive of any Person’s right of privacy or publicity, or which might in any respect be unlawful or give rise to civil or criminal liability;
(9) use any of the System’s communication features in a manner that adversely affects the availability of the System’s resources to us or any of our other customers or users;
(10) impersonate, or falsely state or otherwise misrepresent any affiliation with any Person;
(11) manipulate or display the Site or any part thereof by using framing or similar navigational technologies;
(12) operate any file storage service, resell any part of any Service, or conduct any outsourcing, service bureau or similar activities;
(13) attempt a denial of service attack on the System or any part thereof; or attempt to hack or break any security mechanism of or on the System or any Service or we otherwise determine that Customer or any Designated User’s access to or use of the System or any Service poses a security or service risk to us, to any user of Services offered by us, to any third party on the Site, or to any of our or their respective customers, or may subject us or any third party to liability or damages;
(14) access or use or attempt to access or use the System or any Service in a way that is disruptive or threatens the System, a Service, or any part thereof, or any access or use of the System or any Service, or any part thereof by us or any of our other customers; or
(15) violate any applicable Laws.
4.4 Customer and its Designated Users alone (and at their sole cost and expense) are responsible for the development, operation, maintenance and use of any Customer Content, including: (i) compliance of Customer Content with any restrictions set forth in this TOU or imposed under any applicable Laws; (ii) any claims relating to Customer Content; (iv) proper handling and processing of any notices sent to Customer or a Designated User (or to any of their respective Affiliates), regarding any claim that any Customer Content violates any Person’s Intellectual Property Rights or other rights, including notices pursuant to the Digital Millennium Copyright Act; (v) properly configuring the Customer System and Designated Users’ computers and devices, and any Customer Installed Programs; (vi) obtaining and maintaining in full force and effect all requisite licenses for, and the proper operation of all Customer Installed Programs; and (vii) taking their own respective steps to maintain appropriate security, protection and backup of all Customer Content.
4.5 VIOLATIONS BY DESIGNATED USERS. All Designated Users are responsible for all of their actions or inactions with respect to the System. Without limiting the foregoing, between Customer and Case Ghost, Customer is responsible for the acts or omissions of any of its Designated Users. If we become aware of any violation by a Designated User of any of his or her obligations under this TOU, or otherwise have reason to believe that a Designated User may have improperly accessed or used the System, we may terminate that person’s status as a Designated User and their access to or use of the System and terminate the Term or the Customer License. We may in our sole and absolute discretion suspend or terminate the Customer License in whole or in part and with respect to any or all Designated Users or otherwise, and with or without notice if Customer or any Designated User fails to comply with any term, condition, restriction or other provision of the Agreement or this TOU.
4.6 SECURITY. We make no representation or warranty regarding, and Customer and its Designated Users acknowledge that they alone bear sole responsibility for, adequate security, protection and backup of any Customer Content and all information entered into the System by or on behalf of Customer or any Designated Users, including without limitation, information regarding Claimants and Leads.
4.7 COOPERATION. Customer and each Designated User must provide us with any information, documents, cooperation or assistance we may from time to time reasonably request to enable us to comply with any applicable Laws. We may report such information to regulatory or law enforcement authorities if and to the extent we deem necessary and appropriate in order to comply with applicable Laws.
5. PROPRIETARY RIGHTS
5.1 Case Ghost’s PROPRIETARY RIGHTS.
a. The System, Software, Case Ghost Technology and Case Ghost Applications, and any content of, or materials which from time to time comprise any of the foregoing, including any text, images, graphics, logos, illustrations, photographs, video, audio or other content or files, as well as any designs, icons, screens and screen layout, layout, “look and feel” and any other graphical elements and any of our or any third party trademarks, service marks, trade dress or other source indicators, (collectively “Our Materials”) and all Intellectual Property Rights in and to Our Materials are and remain the sole and exclusive property of Case Ghost or our third party Affiliates, suppliers or licensors. Neither Customer nor any Designated User may remove or obscure, or attempt to remove or obscure any of our copyright, trademark, service mark, or other Intellectual Property Rights notices or marks at any time appearing in any of Our Materials;
b. Nothing in this TOU or the Agreement grants, transfers or conveys, nor may be construed or operate as a grant, transfer or conveyance to Customer, any Designated User or any other Person of any right, title or interest in or to any of Our Materials or any Intellectual Property Rights therein, including but not limited to any trademark, trade name, service mark, trade dress or other proprietary identifying symbols or devices used by us from time to time on or in connection with the System (including “Case Ghost”) or any feature or functionality thereof (collectively “Our Marks”). Neither Customer nor any Designated User may use any of Our Marks without in each case first obtaining our prior written consent, which consent may be withheld in our sole and absolute discretion. All goodwill arising from or incident to any use of Our Marks shall inure exclusively to Case Ghost or our Affiliates as applicable.
5.2 CUSTOMER’S AND DESIGNATED USER’S PROPRIETARY RIGHTS. Our Materials do not include Customer Content or any trademark or service mark of Customer.
5.3 NON-ASSERTION. During and after the Term of the Agreement, neither Customer nor any Designated User shall assert, nor will they authorize, assist, or encourage any third party to assert, against us or any of our Affiliates, business partners, licensors, licensees or transferees, any patent infringement or other Intellectual Property Rights infringement claim with respect to the System, or any Case Ghost Technology.
5.4 SUGGESTIONS. If Customer, any of its employees or agents or any Designated User provides any recommendations, advise, ideas or suggestions regarding improvement(s) to the System or any feature or functionality thereof (“Suggestions”) to us or any of our Affiliates, we will own all right, title and interest (including any Intellectual Property Rights) in and to any Suggestion even if the Person making the Suggestion has designated the Suggestion as confidential or proprietary.
6.1 The Party that receives Confidential Information (“Recipient”) from Customer or Case Ghost, as applicable (the “Disclosing Party”) agrees that it will not, without the Disclosing Party’s express written authorization, disclose to any third party or use for Recipient’s own benefit, the Disclosing Party’s Confidential Information except as contemplated by or permitted under this TOU or the Agreement. Recipient will protect the confidentiality of the Disclosing Party’s Confidential Information using at least the same degree of care Recipient takes to protect its own Confidential Information of like kind (but in no event less than a reasonable degree of care) and will, except as may be required to comply with any applicable Laws, restrict access to the Disclosing Party’s Confidential Information in Recipient’s possession or control, to those of Recipient’s personnel, agents or contractors that need to know such information in order to exercise Recipient’s rights or perform Recipient’s obligations under the Agreement or this TOU, and who have been advised of the confidential nature of the Confidential Information and the restrictions upon disclosure and use thereof imposed by this Section. Nothing herein is intended to nor may be construed or operate to prevent Case Ghost from disclosing, and Case Ghost may disclose, Customer or any Designated User’s information, including any Confidential Information, to any Person who or which directly or indirectly acquires all or substantially all of our business assets, or the issued and outstanding shares of our equity securities, or upon a merger, stock-swap, consolidation, reorganization or any other means by which a third party acquires or otherwise succeeds to all or substantially all of our business. The foregoing obligations of confidentiality shall survive the expiration of any earlier termination of the Agreement for a period of three years. It is Customer’s responsibility to maintain the confidentiality of any PHI contained in any Leads or used by Customer or its Designated Users.
6.2 DISCLOSURE TO LAW ENFORCEMENT. Case Ghost may provide Confidential Information to law enforcement authorities in the investigation and prosecution of criminal activity.
7. REPRESENTATIONS AND WARRANTIES
7.1 Customer and each Designated User hereby severally (and not jointly) represent and warrant to us as follows:
a. Non-Solicitation: that throughout the Term and for a period of one (1) year following expiration or any termination thereof: (i) neither they nor any of their respective Affiliates shall directly or indirectly solicit the employment of, employ, or otherwise engage the Services of any of our current or former employees with whom they had contact with under the Agreement or this TOU (except where such prohibitions are prohibited by law or applicable professional regulations); and (ii) they shall promptly notify us of any communications which they or any of their respective Affiliates may have with any such persons regarding or in any way pertaining to any potential employment or other engagement for the provision of services;
b. that they own all right, title and interest in and to the Customer Content and all information regarding Claimants, including all Intellectual Property Rights therein necessary for the lawful use of such Customer Content;
c. that they have all necessary rights, licenses, consents, permissions, waivers and releases to copy, distribute, use, display and otherwise exploit any Customer Content uploaded by them at any time to any Service;
d. that no Customer Content: (i) violates, misappropriates or infringes any of our rights or rights of any third party; (ii) constitutes defamatory material; (iii) is designed or intended for use in any illegal activity or to promote any illegal activities; or (iv) contains any unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code;
e. that they will not use or attempt to use the System, Services, any part thereof, or any Customer Content or and Claimant data or information: (i) in a manner that infringes, violates or misappropriates any of our rights or rights of any third party; (ii) to engage in any impermissible or unlawful advertising, marketing or other activities; (iii) in any manner that constitutes or facilitates the illegal export of any controlled or otherwise restricted items, including, without limitation, software, algorithms or other data subject to export limitations, including the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations; or (iv) in a way that otherwise violates any applicable Laws;
f. Customer is duly organized, existing and in good standing and has all necessary corporate or company power and authority to execute and deliver this Agreement and to perform its obligations hereunder;
g. Customer’s execution, delivery and performance of this Agreement and Customer and its Designated Users’ use of the Subscribed Services does not and will not at any time conflict with, violate or result in a breach of, or constitute a default under any applicable obligations of Customer or any Designated Users or any Laws relating to Customer or any of its Designated Users;
h. Customer will never authorize anyone other than Designated Users to access or utilize any Services under Customer’s Account and Designated Users will never let any other Person use their password or System log-in information; and
i. Customer and Designated Users acknowledge that they have been advised that Case Ghost uses certain dialers for Leads and to contact certain Claimants and Customer and Designated Users assume all risks and liabilities arising out of or in connection with such dialers under the Telephone Consumer Protection Act (TCPA) or other applicable Law.
8.1 GENERAL. Customer and each Designated User must at all times indemnify, defend and hold us, our Affiliates and third party suppliers or licensors, each of our and their business partners and each of our and their respective employees, officers, directors and representatives (each an “Indemnitee” and collectively the “Indemnitees”), harmless from and against any and all losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including attorneys’ fees and court costs) suffered or incurred by any of the Indemnitees as a result of any third party claim, action, suit, or proceeding arising out of or incident to (i) Customer’s or any Designated User’s access to or use of the System in a manner not authorized by this TOU, or in violation of any applicable Laws; (ii) Customer Content, or Customer Installed Programs or the combination of either, with other applications, content or processes, including any claim regarding infringement or misappropriation of third-party rights or the use, development, design, manufacture, production, advertising, promotion or marketing of Customer Content, (iii) any breach by Customer or a Designated User of any term or condition of this TOU, including without limitation, any representation and warranty hereunder, or (iv) any act, omission or misconduct of Customer, any of its employees, contractors, or any Designated User. Customer agrees that, notwithstanding any indemnification obligations of each Designated User, Customer shall indemnify Company for the acts of all Designated Users.
8.2 NOTIFICATION. We will promptly notify you or Customer (as applicable) of any claim which we become aware of and which we believe to be subject to indemnification under this Section 8; provided that our failure to promptly notify you or Customer shall not affect Customer’s or your indemnification obligations hereunder except to the extent that our failure to promptly notify you or Customer materially prejudices your or Customer’s ability to defend the claim. At our option, you or Customer will have the right to defend against any such claim(s) with counsel of your or Customer’s own choosing (subject to a conflicts assessment), and to settle such claim as you or Customer deem appropriate, provided that neither you nor Customer (nor any Person acting on your or Customer’s behalf) may enter into any settlement without our prior written consent (which may be conditioned or withheld in our sole and absolute discretion) and provided that we may, at any time, elect to take over control of the defense and settlement of any claim
9. TERM AND TERMINATION
9.1 TERM. The initial term of the Agreement (the “Initial Term”) commences on the date contained in the Agreement (the “Effective Date”) and continues until the Expiration Date set forth in the Agreement and if no Expiration date is set forth, then until the expiration of the twelfth full calendar month thereafter unless sooner terminated in accordance with the provisions of Section 9 or elsewhere in this TOU (the “Initial Term”). Following the expiration of the Initial Term, the term of this Agreement will be renewed automatically for additional successive terms for the length of time designated a renewal terms in the Agreement and if no length of renewal term is set forth in the Agreement for a period of one month each (each a “Renewal Term”) effective immediately upon expiration of the Initial Term, or if applicable, the immediately preceding Renewal Term, unless either Party provides the other Party with written notice of non- renewal, at least 15 days prior to the expiration of the Initial Term or any Renewal Term (as the case may be) or unless otherwise terminated in accordance with the provisions of the Agreement or this TOU. As used herein “Term” means the Initial Term together with all Renewal Terms, if any.
9.2 TERMINATION OF PARTICULAR DESIGNATED USERS. Customer’s and each Designated User’s right to access and use the System or any Service, and the Customer License, as to Customer’s and each Designated User, will terminate: (a) if Customer revokes your status as a Designated User; (b) you fail to comply with any of the terms or conditions of this TOU; (c) Customer defaults under or breaches any of the provisions of its Agreement with us; or (d) either we or Customer terminate the Agreement or the Term thereof for any reason or no reason. At any time following any of the foregoing events, we may disable your login credentials and you may no longer be permitted access to or use of any of the System or Services. Any provision of this TOU that by its nature or express terms extends beyond the expiration or any earlier termination of the Term of the Agreement or your authorization hereunder to access or use the System or any Service, shall remain in effect, and shall apply to you until fulfilled or discharged by your performance thereof.
a. The Term of the Agreement may be terminated as follows (and upon such termination of the Term, each Designated User’s right to access and use the System or any Service, and the Customer License shall also terminate):
(i) At any time upon the mutual written agreement of Customer and Case Ghost;
(ii) Following the expiration of the Initial Term, by Customer for any or no reason, by providing us with not less than 60 days advance written notice of termination and the effective date of termination shall be the 60th day following the date that Case Ghost receives written notice from Customer.
(iii) At any time by Case Ghost without cause or reason, by providing Customer with not less than 15 days advance written notice of termination and the effective date of termination shall be the 15th day following the date of the written notice.
(iv) At any time by Case Ghost with or without notice effective at such time as designated by Case Ghost for any of the following reasons:
(1) Customer or any Designated User defaults or breaches any provisions of the Agreement, an Addendum or this TOU;
(2) Customer is in default of any payment obligation under the Agreement;
(3) We determine that Customer or a Designated User may be accessing or using the System or any part thereof in a way that violates applicable Laws or violates, infringes, or misappropriates our or any third party’s Intellectual Property Rights;
(4) We determine, in our sole and absolute discretion, that our provision of any of the Services to Customer or any Designated User is prohibited by any applicable Law, or has become impractical or unfeasible;
(5) Customer (i) commences liquidation or dissolution proceedings; (ii) disposes of or attempts to dispose of its assets other than in the ordinary course of business; (iii) fails to continue its business, makes an assignment for the benefit of creditors; or (iv) if Customer becomes the subject of a voluntary or involuntary bankruptcy or similar proceeding; or
(6) At the election of Case Ghost if Customer fails to meet any of the Scheduled Lead Volume.
b. Customer may terminate any individual’s status as a Designated User upon such termination, that individual authorization to access or use the System or Services shall be revoked with or without notice to such individual.
9.4 EFFECT OF SUSPENSION OR TERMINATION
a. SUSPENSION. We may suspend the Customer and Designated User’s use of the System in whole or in part for any reason and Customer shall be required to pay all fees for Services that it continues to use and all fees, charges and any other obligations which have accrued under the Agreement through the date of suspension.
b. EFFECT OF TERMINATION. Upon expiration or any earlier termination of the Term: (i) Customer remains liable for all fees, charges and any other obligations which have accrued under the Agreement through the date of expiration or earlier termination (or for any services or costs after termination); (ii) all of Customer’s or any Designated User’s rights under this TOU (including the Customer License) immediately terminate; (iii) Customer, all then current Designated Users and any individual who at any time during the Term may have been a Designated User must immediately return, or if instructed by us, destroy all of our Confidential Information and any of our other property (if any) then in Customer’s, such Designated User’s or other person’s possession or subject to their control.
9.5 DATA PRESERVATION IN THE EVENT OF SUSPENSION OR TERMINATION
a. FOLLOWING EXPIRATION OR TERMINATION. Upon expiration, or any earlier termination of the Term for any reason: (i) Customer’s Content and Data will be maintained on the System for 30 days following which time Customer is responsible for making arrangements to obtain all of the data and information, including Customer Content, that Customer needs. Case Ghost, may assist Customer in providing such information in a format determined by Case Ghost at such charges as Case Ghost then charges for such services, provided that Case Ghost shall have no obligation to provide any information to Customer in the event that Customer or any Designated User is in default of any of its payment or other obligations under the Agreement, an Addendum or this TOU. Following the 30 day period immediately following termination or expiration, Case Ghost may erase or delete any of Customer’s data including Customer Content with no liability to Customer or any Authorized User or any third party.
b. SUSPENSION. In the event we suspend the Customer License for any reason other than as a result of any actions of Customer or a Designated User, we will not intentionally erase or delete any Customer Content then stored on the System until the Customer License or the Term expires or is otherwise terminated, but in any case, we may erase or delete any Customer Content and any other data including all information regarding Claimants if the suspension continues for 6 months or longer.
c. COPIES AND ARCHIVES. We shall be entitled (but not obligated) to retain archives and a copy of any and all Customer Content and any other data, including Leads and information regarding Claimants in our discretion.
If you are authorized to act on behalf of a copyright owner, and any Customer Content or other material on the Site or any Service infringes the Intellectual Property Rights of the owner, please notify us at: Case Ghost, Inc., Attention: President, 7067 D. West Broward Blvd., Plantation, FL 33317.
To be effective, your notification must provide us with information that meets certain requirements of the Digital Millennium Copyright Act, Title 17, United States Code, Section 512, which are summarized as follows:
(i) a physical or electronic signature of a Person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
(ii) a detailed identification of copyrighted work or works claimed to have been infringed;
(iii) information sufficient to permit us to locate the allegedly infringing material;
(iv) information sufficient to permit us to contact you, such as an address, telephone number or email address;
(v) a statement that you have a good faith belief that the use of the allegedly infringing material in the manner complained of is not authorized by the copyright owner, its agent or the law; and
(vi) sworn statement that the information in your notification is accurate and that you are authorized to act on behalf of the copyright owner of the allegedly infringed material.
11. DISCLAIMER & LIMITATIONS ON LIABILITY
11.1 GENERAL DISCLAIMER. The System, Software, Services, Site, Case Ghost Technology Case Ghost Application, and any instruction or materials provided by or through us or any of our third party licensors or suppliers under or in connection with the Agreement or this TOU or which at any time or times comprise any part of the System (collectively the “Offerings”) are provided “AS IS” and “AS AVAILABLE”. NEITHER WE NOR ANY OF OUR THIRD PARTY LICENSORS OR SUPPLIERS MAKE ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE WITH RESPECT TO ANY OF THE OFFERINGS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE, AND OUR THIRD PARTY LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUIET ENJOYMENT, OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. NEITHER WE NOR ANY OF OUR THIRD PARTY LICENSORS OR SUPPLIERS WARRANT THAT ANY OF THE OFFERINGS WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF HARMFUL COMPONENTS, THAT ANY CONTENT, FILES, DATA OR OTHER MATERIALS (INCLUDING BUT NOT LIMITED TO ANY CUSTOMER CONTENT) UPLOADED TO, DOWNLOADED FROM, OR STORED BY OR WITHIN ANY OF THE OFFERINGS WILL BE TIMELY, CURRENT OR SECURE, OR WILL NOT BE LOST, CORRUPTED OR OTHERWISE DAMAGED OR IMPAIRED, OR THAT WE OR THEY WILL BE ABLE TO PREVENT DISRUPTION OF OR TO ANY OF THE OFFERINGS OR THAT WE OR THEY WILL CORRECT ANY DEFECTS.
11.2 INTERRUPTION OF SERVICE. Neither Case Ghost nor any of its third party licensors or suppliers shall have any liability whatsoever to Customer, any Designated User or Claimants for or with respect to any delay, outage or interruption of any Service or the unavailability in whole or in part of the System in any respect. As between Case Ghost and Customer, the foregoing disclaimers and limitation of liability for and with respect to any such delay, outage or interruption set forth in the immediately preceding sentence may be modified if (but then only to the extent) otherwise expressly set forth in a separate Addendum (if any) executed by and between Case Ghost and Customer which, by its express terms amends this Section.
11.3 NO LIABILITY FOR THIRD PARTY WEBSITES OR SOFTWARE OR CONENT. The Site and/or the Services may contain links to websites that are not under our control. We provide such links as a convenience and the inclusion of any such link does not constitute or imply our endorsement or validation of any third party site. We are not responsible for or with respect to any third party software, including Customer Installed Programs, or for the contents or functionality of any third party site or any website that can be accessed via links on any Third Party Site. We are not responsible for or with respect to any Leads or any information regarding Claimants whether provided by or through us or otherwise.
11.4 LIMITATIONS OF LIABILITY.
a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM TOTAL LIABILITY OF CASE GHOST (AND ANY OF ITS AFFILATES, ASSIGNEES, MEMBERS AND DIRECTORS) TO CUSTOMER AND ANY OF ITS DESIGNATED USERS WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS TOU, THE AGREEMENT AND THE SERVICES PROVIDED BY CASE GHOST SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 6 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL THE AGGREGATE LIABILITY OF CASE GHOST (AND ANY OF ITS AFFILATES, ASSIGNEES, MEMBERS AND DIRECTORS) ARISING OUT OF OR RELATED TO THIS TOU, THE AGREEMENT AND THE SERVICES PROVIDED BY CASE GHOST EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
b. Consequential and Related Damages. IN NO EVENT WILL CASE GHOST (AND ANY OF ITS AFFILATES, ASSIGNEES, MEMBERS AND DIRECTORS) HAVE ANY LIABILITY TO CUSTOMER AND ANY OF ITS DESIGNATED USERS FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF CASE GHOST (AND ANY OF ITS AFFILATES, ASSIGNEES, MEMBERS AND DIRECTORS) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
c. Customer and each Designated User hereby expressly waives any claim that the foregoing exclusions deprive them of an adequate remedy.
12.1 FORCE MAJEURE. Notwithstanding any provision of this TOU or the Agreement to the contrary, neither we nor any of our Affiliates will be liable in any respect under any theory of liability for any delay, default or failure to perform any obligation under the Agreement, this TOU, or otherwise, due to any cause beyond our or their reasonable control including acts of God, war, terrorism, riot or riots; embargos; strikes or walkouts or other industrial disputes; acts of civil or military authorities, government interference; denial or delays in processing of export license application; fire, floods, earthquakes, storms, hurricanes or other accidents; fuel crises, failure or interruption of telecommunication, electric power, fiber optic cable service or the internet.
12.2 ATTORNEYS FEES. If any legal action or other proceeding relating to our Agreement with Customer or this TOU or the enforcement of any provision of said Agreement or this TOU is brought by us against Customer or you, we shall be entitled to recover reasonable attorney’s fees, costs and disbursements whether same be incurred before or at trial, on appeal or in any post judgment proceedings (in addition to any other relief to which we may be entitled). In addition, Customer is responsible for any costs that we incur in collecting amounts from Customer, including attorney’s fees and collection agency fees even if no legal action is brought.
12.3 GOVERNING LAW; VENUE; EQUITABLE RELIEF; REMEDIES CUMULATIVE.
a. The Agreement and this TOU shall be construed in accordance with, and governed in all respects by, the internal laws of the state of Florida and the federal laws of the United States, without giving effect to any principles of conflicts of laws which might cause the application of the laws of any other jurisdiction. Neither the Agreement nor this TOU will be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
b. Our rights and remedies under the Agreement, any SOW or this TOU shall be cumulative (and not alternative). In addition to any and all other remedies available to us hereunder, thereunder or otherwise at law or in equity, we may seek and shall be entitled to injunctive or other equitable relief for any actual, threatened or alleged infringement of our or any third party’s Intellectual Property Rights or for any breach or threatened breach of any of the provisions of Sections 2, 3, 4, 5 or 6. Except as provided in the preceding sentence, any dispute arising from or incident to this Agreement or any SOW shall be exclusively adjudicated in any state or federal court in Broward County, Florida. Customer and each Designated User consent to the exclusive jurisdiction and venue in such courts and agree that each such court shall be deemed to be a convenient forum.
12.4 US GOVERNMENT. With respect to the procurement or use of any Service by or for any agency or part of the U.S. Government, any software provided in connection with any Service and any related explanatory written materials are “commercial items” as that term is defined at 48 CFR Section 2.102, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used in 48 CFR Section 12.212 or 48 CFR Section 227.7202, as applicable. Consistent with 48 CFR Section 12.212 or 48 CFR Section 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computers Software Documentation are being licensed to the U.S. Government end users (a) only as Commercial Items; and (b) with only those rights as are granted to Customer or its Designated Users pursuant to the terms, conditions and restrictions of the Agreement and this TOU. All Computer Software, technical data and documentation were developed exclusively at private expense by Case Ghost or its third party licensors or suppliers.
12.5 NOTICES. Notices made by us to Customer or any Designated User under this TOU may be posted on the Site. Notices made by us under the Agreement or an Addendum may be provided to Customer and its Designated Users via the email address provided to us in Customer’s registration for the Services or Account set-up, or via any updated email address Customer provide to us in accordance with standard account information update procedures we may provide from time to time. It is Customer’s responsibility to keep its email address current and Customer and its Designated Users will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not Customer or such Designated User actually receives the email.
Notices given to us pursuant to this Agreement shall be effective only when actually received by us and shall be sufficient if given in writing and (a) hand delivered; or (b) sent by first class mail, return receipt requested and postage prepaid; or (c) by Federal Express or other reputable overnight courier service to us at the following address: Case Ghost, Inc., 7067 D. WEST BROWARD BLVD., PLANTATION, FL 33317; Attention: President. We may change the address or contact person for notice to us, by notifying Customer of such address change in accordance with the notice provisions of this Section.
12.6 SEVERABILITY. If any portion of this TOU is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this TOU will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language and is valid and enforceable. If such construction is not possible, the provision will be severed from this TOU, and the rest of the TOU shall remain in full force and effect.
12.7 WAIVERS. The failure or delay by us to enforce any provision of this TOU or the Agreement or any SOW shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in a writing executed by one of our authorized officers to be effective.
12.8 SURVIVAL. Expiration or any termination of the Term, the TOU or the Agreement does not relieve a Party of any obligation of that Party which accrues prior to expiration or termination of the Term, or which by the express terms of the Agreement or TOU contemplate performance subsequent to expiration or termination, and those obligations remain in effect until fully discharged by performance. Any provisions of the Agreement or the TOU which by its terms are to survive expiration or termination, will survive any expiration or termination of this Agreement or the Term.
12.9 RELATIONSHIP. Each party is an independent contractor with respect to all activities under this TOU and nothing in this TOU is intended or may be construed or operate to create any employment, franchise, joint venture, agency, partnership, escrow, franchise, fiduciary or other relationship other than independent contractors.
12.10 ASSIGNMENT. We shall at all times have the right to assign any or all of our rights or delegate any or all of our obligations under this Agreement to any third party without any notice to or consent of Customer or any Designated User. Neither Customer nor any Designated User may assign any of its rights or delegate any of its obligations under this Agreement (whether by operation of Law or otherwise) without in each case first obtaining our prior written consent, which consent may be withheld in our sole and absolute discretion.
12.11 Export Compliance. The Services and other technology we make available, and Derivatives may be subject to export laws and regulations of the United States and other jurisdictions. Customer represents that it is not named on any U.S. government denied-party list. You shall not permit Designated Users to access or use any Service in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
12.12 Anti-Corruption. You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Case Ghost’s employees or agents in connection with the Agreement. If you learn of any violation of the above restriction, you will promptly notify us in accordance with the Notice section above.
“Agreement” or “Subscription Agreement” means that certain Case Ghost Software as a Service Subscription Agreement entered into by and between us and Customer together with this TOU and any other written exhibit, schedule, order form addendum or statement of work (each an “Addendum”) which may from time to time be executed by and between us and Customer in connection with and appended to that Subscription Agreement, pursuant Customer has subscribed to Services from us subject to the terms and conditions of this TOU.
“Account” means the “sub administrator” or “account group” created by us on our System for Customer’s use and configuration under the Agreement and the use of Customer’s Designated Users.
An “Affiliate” of a Person means a Person that directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified. As used in the immediately preceding sentence, the term “control” (including the correlative terms “controlling”, “controlled by”, or “under common control”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
“Case Ghost Applications” means any of our or our third party licensor’s proprietary suite of software application(s) which are hosted on or accessed via the System or on the Site from time to time, access to features or functionality of which may from time to time be offered by us as part of a Service. The Case Ghost Applications, include, Case Ghost’s proprietary EZ CLAIM CASE MANAGEMENT SYSTEM (“EZ Claim”) which is a software application that has been developed for managing leads, processing intakes, and managing Social Security and Veterans Compensation claims.
“Case Ghost Technology” means and includes any of our proprietary technology, including Software in any form (whether in object code, source code or otherwise), software tools, algorithms, flow charts, user interface designs, architecture, libraries, objects and documentation (both printed and electronic), network designs or configurations, hardware designs or configurations, know-how, trade secrets and any related Intellectual Property Rights (whether owned by us or licensed to us from a third party) and also including any Derivatives, improvements, enhancements or expansions of any of the foregoing conceived, reduced to practice or developed at any time.
“Claimant” means a Person who is or may be a social security disability or veterans benefits claimant or a Person that Customer or Case Ghost or a third party has identified as a Person that might be eligible for such benefits. Claimant also includes potential claimants and Persons identified by leads that are either supplied by Customer or by Case Ghost, any of Case Ghost’s Affiliates or any other Person, including Persons identified by leads that Case Ghost or an Affiliate of Case Ghost supplies or purchases from a third party.
(1) “Confidential Information” means and includes any information, data or facts concerning the business, operations, finances, assets, affairs or prospects of Customer or Case Ghost (or an affiliate of Case Ghost) disclosed by the Disclosing Party, to the Recipient, in written or other tangible form or media, or in electronic form and which is: (i) labeled at the time of disclosure by the Disclosing Party to Recipient as “Proprietary”, “Confidential” or with a legend of similar import; or (ii) orally disclosed and identified as confidential at the time of such disclosure and which is summarized by the Disclosing Party to the Recipient in writing within fifteen days of such disclosure.
(2) The immediately preceding paragraph (1) notwithstanding, Confidential Information does not include any information which: (i) was or subsequently becomes generally available to the public other than as a result of an act or omission by Recipient in breach of any confidentiality obligation hereunder (but only with respect to the period of time after which such information was so generally available); or (ii) was lawfully known to Recipient prior to the disclosure of such information to Recipient by Disclosing Party (as shown by Recipient’s files and records existing prior to the time of such disclosure); or (iii) was obtained by Recipient from a third party where such disclosure was made without any restriction as to confidentiality or use and Recipient does not know or have any reason to believe that the third party’s disclosure of such information violated an obligation or duty of confidentiality to Disclosing Party; or (iv) is disclosed by Disclosing Party to any other Person without restrictions on use or disclosure; or (v) was or is independently developed by Recipient without any use of or reference to any Confidential Information, by employees or contractors of Recipient who had no access to any Confidential Information.
(3) Notwithstanding any provision of the Agreement to the contrary, the exceptions set forth in the immediately preceding paragraph (2)do not apply to any Software (including any of the Case Ghost Applications) or any related technology, know how, technical data, software tools, algorithms, specifications, flow charts, architecture, protocols, manuals or related documentation, all of which are and shall for all purposes hereunder be considered and treated as the Confidential Information of CAC or its third party licensors, as applicable. Customer and Designated Users shall also keep confidential all of Case Ghost’s designs, icons, screens and screen layout, layout, “look and feel” and other graphical elements of the Case Ghost Applications.
“Customer” means the Person who: (i) has entered into an Agreement with us, and with respect to whom we have therefore created an Account; and (ii) has specifically authorized the Designated Users to access Services under their Account subject to this TOU.
“Customer Content” means any data, image, video, text or other content, file or materials created, or with respect to which all requisite Intellectual Property Rights are owned or licensed, by Customer or a Designated User or Visitor. Customer Data also includes information regarding Leads and Claimants.
“Customer Installed Programs” means any third party software or, if applicable, Customer’s or any Designated User’s own proprietary software that Customer or such Designated User is required to have installed on their own computers in order to access and properly interact with the System.
“Derivative” means with respect to copyrightable or copyrighted materials, a Derivative Work thereof; (ii) for patentable or patented subject matter, any improvement thereon; and (iii) for material which is protected by trade secret, any new material derived from such existing trade secret material, including new material which may be protected by copyright, patent and/or trade secret
“Derivative Work” means with respect to copyrightable or copyrighted materials, any translation, abridgement, revision or other form in which and existing work may be recast, transformed or adapted.
“Designated User” means those of Customer’s employees, agents, consultants, clients or contractors who are specifically designated by Customer under its Account as the individuals who may access and use a Service on Customer’s behalf, pursuant to the TOU.
“Intellectual Property Rights” means any intellectual property rights which may exist or be created under the laws of any country or other jurisdiction anywhere in the world, whether arising under statutory or common law or otherwise, and whether or not perfected, including, without limitation, all (i) patents and patent applications; (ii) industrial property rights; (iii) rights associated with works of authorship, including copyrights, copyright applications, copyright registrations, mask work rights, mask work applications, mask work registrations; (iv) moral rights; (v) rights relating to the protection of trade secrets and confidential information or rights of privacy or publicity; (vi) rights associated with trademark, service mark, trade dress, or trade name, including any common law rights and any state or federal trademark or service mark applications or registrations; (vii) divisionals, continuations, renewals, reissues and extensions of any of the foregoing whether in whole or in part(as and to the extent applicable) now existing, hereafter filed, issued or acquired; and (viii) any right analogous to those set forth in this definition; and (ix) any other proprietary rights relating to intangible property.
“Laws” means all laws, statutes, ordinances, rules and regulations of any country, state, city or other governmental authority or any department, agency or subdivision thereof, including all orders, judgments, injunctions, awards, decisions or decrees of any court having effect of law.
“Person” means a natural person, a corporation (for profit or not for profit), an association, a partnership (general or limited), limited liability company, limited liability partnership, joint venture, trust, government or political department, subdivision or agency, or any other entity.
“Protected Health Information” or PHI” has the meaning provided under that part of the HIPAA privacy rule that protects all “individually identifiable health information” held or transmitted by a covered entity or its business associate, in any form or media, whether electronic, paper or oral. The HIPAA privacy rule calls this information “protected health information (PHI)”. “Individually identifiable health information” is information, including demographic data, that relates to the individual’s past, present or future physical or mental health or condition, the provision of healthcare to the individual, or the past, present, of future payment for the provision of healthcare to the individual, and that identifies the individual or for which there is a reasonable basis to believe it can be used to identify the individual. “Individually identifiable health information” includes common identifiers such as name, address, birth date, social security number. The HIPAA privacy rule excludes from PHI employment records that a covered entity maintains in its capacity as an employer, and education and certain other records subject to, or defined in, the Family Educational Rights and Privacy Act, 20 USC Section 1232g.
“Processing” of or to “Process” Customer Content, User Data Leads or Claimant information or other data or materials means any operation or set of operations that is performed upon Customer Content, or other data or materials, and includes without limitation the following: access, collection, use, retention, copying, recording, organization, viewing, reviewing, display, caching, storage, adaptation, modification, editing, printing, creating Derivative Works of, or alteration, retrieval, uploading, downloading, transmission, dissemination or otherwise making available, utilizing and/or disposal or destruction thereof.
“Service” means each of the services offered by us from time to time on or through the Site, which may provide Customer’s Designated User(s) with access to certain features or functionality of Case Ghost Applications or other Software for purposes of lead identification and generation services and case management and processing Social Security disability and Veterans compensation claims and such other services as are offered by the System and Case Ghost Software from time to time, if and as applicable.
“Subscribed Services” means those Services subscribed for by Customer.
“Software” means the Case Ghost Applications, and any other computer software comprising or hosted on the System, including any third party software but excluding any Customer Installed Applications.
“System” means and includes the Services, Software, the Site, computers, server(s), routers, cables and any other equipment or connections used or maintained by us, our Affiliates or contractor(s) to facilitate Customer or its Designated Users access to use the Case Ghost Applications.
“Visitors” means a Person who accesses the Site and is not a Designated User.