Terms of Service - Referrals and connections made simple - CardTapp

MASTER SUBSCRIPTION AGREEMENT AND TERMS OF SERVICE

FOR PRIVACY POLICY PLEASE VISIT HTTP://WWW.CARDTAPP.COM/PRIVACY.

THIS AGREEMENT GOVERNS YOUR ACQUISITION AND USE OF OUR SERVICES. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREETRIAL.

YOUR ACCEPTANCE OF THIS AGREEMENT IS BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on November 23, 2016.  It is effective between You and Us as of the date of You accepting this Agreement.

TERMS AND CONDITIONS

DEFINITIONS.  As used in this Agreement:

1.1Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Customer Data is the Confidential Information of Customer.  Confidential Information of Company includes information derived from or concerning the Company Service, the Company System, the Documentation and the terms of this Agreement.

1.2Customer Data” means any documents, data, or information contained in any document, template or other similar file submitted by Customer through the Company Service or provided by Customer to Company as part of the Company Service

1.3Documentation”   means any user manuals, handbooks, and online materials  provided by Company to Customer that describe the features, functionality or operation of the Company System.

1.4Company Service” means the personalized mobile apps Cardtapp Inc. creates. Each app contains industry specific features such as a calculators, trends, requests for service, real time news, and more along with content provided by the User. With each app is also provided a back end tracking dashboard.  The Company Service also includes but is not limited to the ability to link with and share apps via social media, email, near field communication, and other technologies.

1.5Company System” means the technology, including hardware and software, used by Company to deliver the Company Service to Customer.

1.6Users” means Customer’s employees, representatives, consultants, contractors or agents that use an email address with an authorized domain name as set forth in The Order Form to access the Company Service.

1.7 “The Order Form” means a contract signed by both parties representing the licensing terms the parties have agreed to.

2.0 COMPANY SERVICE.

2.1 Subscription to the Company Service. Subject to the terms and conditions of this Agreement, Company hereby grants to Customer a non-sub licensable, non-, non-exclusive subscription to access and use the Company Service by the number of Users set forth in The Order Form solely for Customer’s internal business purposes and not for resale or to provide services to third parties.

2.2 Additional Users. Access to the Company Service cannot be shared with anyone other than a User. If Customer wishes to add additional Users beyond the number authorized on The Order Form, Customer shall request and pay for such additional Users on a prorated basis.

2.3 Support. Subject to the terms of this Agreement, Company shall use commercially reasonable efforts to (a) maintain the security of the Company Service; (b) provide online documentation (c) Provide a hotline during Pacific time normal business hours; (d) use commercially reasonable efforts to correct all Errors in the Company Service reported by Customer over the phone or in writing (including, but not limited to, electronic mail); (e) Provide improvements at the Company’s discretion.

2.4 Exclusions. Company shall have no responsibility or liability of any kind, whether for breach of warranty or otherwise, arising or resulting from: (a) Customer’s or Users’ use of any version of the Company Services other than the then-current unmodified version provided to Customer; (b) any problems which are not Errors; (c) problems caused by failed Internet or cellular connections or other hardware, of software which is not owned, controlled or operated by Cardtapp, Inc.; (d) nonconformities resulting from misuse, abuse, negligence, or improper or unauthorized use of all or any part of the Cardtapp, Inc. Services, Cardtapp, Inc. System, or Documentation; (e) problems or Errors caused by Customer’s, Users’, or other third party’s products, services; or (f) modification, amendment, revision, or change to the Cardtapp, Inc. System or the Cardtapp, Inc. Services by any party other than Cardtapp, Inc. or Cardtapp, Inc.-authorized representatives. Any use of or reliance on data or data output contained in the Cardtapp, Inc. Services is Customer’s or User’s sole responsibility.

2.5 Privacy. We take our customer’s privacy seriously.  Please read our Privacy Policy for full details at www.cardtapp.com/privacy

CUSTOMER’S USE OF THE COMPANY SERVICE.

3.1 Access and Security Guidelines. Each User will be assigned a unique user identification name and password (“UserID”) for access to and use of the Cardtapp, Inc. Service.

3.2 Restrictions. Customer will not, and will not permit any User or other party to: (a) use the Company Service to harvest, collect, gather or assemble information or data regarding other Company customers without their consent; (b) access or copy any data or information of other Company customers without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the Company Service or the data contained therein; (d) harass or interfere with another Company customer’s use and enjoyment of the Company Service; (f) reverse engineer, disassemble or decompile any component of the Company System; (g) interfere in any manner with the operation of the Company Service, or the Company System or the hardware and network used to operate the Company Service; (h) sublicense any of Customer’s rights under this Agreement, or otherwise use the Company Service for the benefit of a third party or to operate a service bureau; (i) modify, copy or make derivative works based on any part of the Company System; or (j) otherwise use the Company Service in any manner that exceeds the scope of use permitted under Section 2.1.

3.3 Customer Responsibilities. It shall be Customer’s responsibility to perform those specific services that are necessary to establish Customer’s or Users’ use of the Company System, Documentation, and Company Services. This includes: (a) providing employee lists to setup User accounts and (b) designating Users to participate in training.

3.4 Consent to Receive SMS Messages.  If you provide us your cell phone number, you consent to receiving SMS messages from us.  You also agree that you are solely responsible for the cost your wireless provider may charge you.

4.0 FEES, PAYMENT AND SUSPENSION OF SERVICES. Customer will pay Company the fees for the Company Service (“Fees”) in accordance with The Order Form. In the event that Customer wishes to increase the  number of Users beyond the maximum number of Users set forth in The Order Form, Customer shall be required to pay additional fees associated with the increased number of Users, prorated for the remainder of the term. All Fees will be billed in advance on the agreed upon basis. All properly submitted invoices not then subject to dispute are due and payable within thirty (30) days of receipt of invoice. All undisputed Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Company’s net income. Company will not invoice customer for any of the taxes covered by such certificate of exemption for any applicable periods arising after such certificate is provided to Company. If Customer disputes the accuracy of an invoice, Customer shall provide Company written notice (including electronic mail) within thirty (30) days of the invoice date.  Customer and Company shall resolve the disputed invoice within ninety (90) days from the date of Customer’s notice.  If such dispute is not resolved in that timeframe, Customer may seek its rights and remedies at law or in equity.  Company reserves the right (in addition to any other rights or remedies Company may have) to discontinue the Company Service and suspend all UserID’s and Customer’s access to the Company Service if any undisputed Fees set forth in The Order Form are more than thirty (30) days overdue until such amounts are paid in full. Customer shall maintain complete, accurate and up-to-date Customer billing and contact information.

4.1 CONFIDENTIAL INFORMATION. The receiving party agrees that it will not use or disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under this Agreement. The receiving party will limit access to the Confidential Information to those who have a need to know such information to use or provide the Company Service. The receiving party will protect the disclosing party’s Confidential Information from unauthorized use, access, or disclosure in a reasonable manner. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, or (c) is independently developed by the receiving party or (d) has all personally identifiable information removed.  The receiving party may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body.

Under the terms of this Agreement, Company may receive or have access to information or materials regarding consumers or borrowers of Customer. Notwithstanding any other provision of this Agreement, Company shall maintain the privacy of all personal financial information regarding Customer’s consumers and borrowers in accordance with all state and federal laws, rules, and regulations, including all provisions of the Gramm-Leach-Bliley Act, the federal Fair Credit Reporting Act and any rules and regulations promulgated thereunder. Company hereby agrees to use Customer’s Borrower Information solely for the purposes expressly set forth in this Agreement or in any attachments hereto, and not for any other purpose and to restrict disclosure or use of Customer’s Borrower Information to only those of its employees who are directly involved in performing its obligations under this Agreement and shall restrict use of Customer’s Borrower Information by such employees to the purposes expressly set forth in this Agreement.  Company hereby agrees that is shall not, directly or indirectly, disclose, sell, give, or otherwise transfer or make available Customer’s Borrower Information to any third party, including any of Company’s affiliates, except to those vendors of Services and otherwise as necessary to perform pursuant to this Agreement or as required by law. In the event it is necessary to disclose Customer’s Borrower Information to a third party in order to perform according to this Agreement, Company shall limit the Customer’s Borrower Information provided by it to only that Customer’s Borrower Information that is absolutely necessary in order to perform pursuant to this Agreement, and Company shall require such third party to abide by the terms and conditions relating to Customer’s Borrower Information set forth herein.

Company shall at all times be in compliance with Title V of the Gramm-Leach-Bliley Act (15 U.S.C. 6801 et seq.) and any and all rules and regulations promulgated there under, now or in the future, and both parties agree to amend this Agreement as and when necessary to comply with the Act.

All Confidential Information remains the exclusive property of Customer, that Company is prohibited from disclosing and agrees to maintain the confidentiality of and safekeeping and protect Customer’s Confidential Information in accordance with the relevant state and federal laws, regulations, rules and guidelines, including, but not limited to, the Gramm-Leach-Bliley Act of 1999, the federal Fair Credit Reporting Act, all applicable regulations related thereto.

5.0 OWNERSHIP.

5.1 Company System and Technology. Customer acknowledges that Company retains all right, title and interest in and to the Company System and all software and all Company proprietary information and technology used by Company or provided to Customer in connection with the Company Service (the “Company Technology”), and that the Company Technology is protected by intellectual property rights owned by or licensed to Company. Other than as expressly set forth in this Agreement, no license or other rights in the Company Technology are granted to the Customer. Customer hereby grants Company a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Company Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Company Service. Company shall not identify Customer as the source of any such feedback.

5.2 Customer Data. Customer retains all right, title and interest in and to the Customer Data. Company will only use Customer Data to provide and improve the Company Service and in de-identified aggregate form for marketing.   Customer  grants  to  Company  all  licenses  in  and  to  such  Customer  Data as necessary for Company to provide the Company Service to Customer.  Company will not otherwise knowingly use or access any Customer Data unless authorized to do so by Customer.  Customer will not provide, post or transmit any Customer Data that: (a) infringes, misappropriates or violates any intellectual property rights, publicity/privacy rights, law or regulation; (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal or personally identifiable information; or (c) is deceptive, defamatory, obscene, pornographic or unlawful.

TERM AND TERMINATION.

6.1 Term. This Agreement commences on the date You first accept it and continues until all subscriptions hereunder have expired or have been terminated.  This Agreement will renew for additional one (1) year terms unless either party gives written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term. “Term” means collectively the initial term and each renewal term.  Company reserves the right to increase the Fees applicable to any renewal term upon written notice to Customer, provided, (a) such Fees shall not increase by more than three percent (5%), and (b) such notice is given at least sixty (60) days prior to such renewal term.

6.2 Termination. Either party may terminate this Agreement upon written notice if the other party materially breaches The Order Form and does not cure such breach (if curable) within thirty (30) days after written notice of such breach.  Upon the expiration or termination of this Agreement for any reason, (a) any undisputed amounts owed to Company under this Agreement will become immediately due and payable; and (b) each party will return to the other all property (including any Confidential Information and Customer Data) of the other party. Company agrees that upon expiration or termination of this Agreement, Company will enable Customer to access the Customer Data for thirty (30) days.  In the event that Company breach, Company shall refund to Customer the User licenses fees paid in advance, prorated for the remainder of the term.  Thereafter, Company will remove all Customer Data from the Company System and all Customer access to the Company Service will cease.  Sections 1, 5, 6, 7.2, 8.2, 9-11 will survive the termination of this Agreement.

7.0 REPRESENTATIONS, WARRANTIES; DISCLAIMER.

7.1 Representations and Warranties. During the Term, Company warrants that the Company Service provided hereunder will be performed in a commercially reasonable manner consistent with industry standards and in accordance with the requirements of The Order Form.  Company further warrants that the Company Services when used as permitted by Company and in accordance with the Documentation, will operate as described in the Documentation in all material respects. Except for those Services or any portion thereof identified by Company as that of a third party service provider, the Service will be original work of authorship, will not be injurious, scandalous, libelous, obscene or an invasion of privacy and will not infringe upon any United States or foreign copyright, patent, trade secret or other proprietary right, or misappropriate any trade secret of any third party. Company warrants that it is not a party to any other existing agreement which would prevent Company from entering into this Agreement or which would adversely affect this Agreement. With respect to any Service identified by Company as being provided by a third party service provider, Company represents and warrants that it has the right to license or otherwise provide such Service to Customer.  Any software provided or accessed in connection with the Service will be free of any and all disabling devices, disabling mechanisms such as “drop dead devices”, “Easter eggs”, “cancelbots”, “time bombs”, “trap doors”, “trojan horses”, “worms”, computer viruses detectable by current industry standard means, malicious code and/or copy protection mechanisms which may disable, damage or interfere with Customer’s or any end user’s network or the security thereof or which may permit access to Customer’s or end user’s network without Customer’s knowledge or consent. Any Service provided to Customer hereunder shall comply with all applicable laws and regulations If Customer notifies Company of any breach of the foregoing representations and warranties, Company shall, as Customer’s sole and exclusive remedy, provide the support services described in The Order Form or seek to provide a non-infringing service substantially similar to the Company Service.

7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE COMPANY SERVICE, COMPANY SYSTEM AND DOCUMENTATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND (B) COMPANY AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

8.0 INDEMNITY

8.1 By Company. Company will defend, indemnify and hold harmless Customer, Customer’s affiliates, and their officers, directors, employees, agents and licensees, from any claims, demands, causes of action, liabilities, losses, damages and expenses, including reasonable attorneys’ fees, arising out of a third party claim that the Company Service infringe upon or violate U.S. trademark or U.S. patent issued on or before the date the Company Service is provided to Customer, or infringe any copyright, or constitute a misappropriation of any trade secret. If the Company Service or Company System is enjoined or, in Company’s determination is likely to be enjoined, Company shall, at its option and expense (a) procure for Customer the right to continue using the Company Service, (b) replace or modify the Company System or Company Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Company Service and refund any amounts previously paid for the Company Service attributable to the remainder of the then-current term.  In addition, Company shall indemnify Customer from, and defend Customer against, any and all liability or expenses (including attorneys’ fees and expenses as reasonably incurred) arising out of or relating to (a) an act or omission by Company in its capacity as an employer or implied employer of a person providing the Company Service and any aspect of the employment relationship or its termination (including claims for breach of an expressed or implied contract of employment), (b) personal injury, death, or damage to tangible personal or real property in any way incident to, or in connection with or arising out of the act or omission of Company, its affiliates or third party service providers or any of their employees, contractors, or agents, (c) any claim arising out of the disclosure or use of Confidential Information, and (d) any direct and actual loss, cost, liability and expense (including reasonable attorney fees) resulting from any breach by Company under any third party service provider agreement.

8.2 By Customer. If any action is instituted by a third party against Company relating to Customer’s breach of Section 6.2, Customer will defend such action at its own expense on behalf of Company and shall pay all damages attributable to such claim which are finally awarded against Company or paid in settlement of such claim.  This subsection states the sole and exclusive remedy of Company and the entire liability of Customer for  the claims and actions described herein.

8.3 Procedure. Any party that is seeking to be indemnified under the provision of this Section 9 (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit,or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim.  The Indemnifying Party will not compromise or settle any claim, action, suit or judgment for which the indemnified party is entitled to indemnification hereunder, without the Indemnified Party’s prior written consent, which consent must not be unreasonably withheld, conditioned or delayed.

8.4 LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN THIS SECTION 10, TO THE EXTENT PERMITTED BY  LAW, IN NO EVENT SHALL COMPANY OR CUSTOMER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS IN ANY WAY RELATING TO THIS AGREEMENT.  IN NO EVENT SHALL  COMPANY’S OR CUSTOMER’S AGGREGATE, CUMULATIVE LIABILITY IN ANY WAY RELATING TO THIS AGREEMENT EXCEED TWO (2) TIMES THE AMOUNT OF FEES ACTUALLY RECEIVED BY COMPANY FROM CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM; PROVIDED HOWEVER, THE FOREGOING LIMITATIONS SHALL NOT APPLY TO PAYMENT, CONFIDENTIALITY AND INDEMNITY OBLIGATIONS. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH LIMITATIONS.

GENERAL PROVISIONS.

9.1 Use of Name.  Company may use Customer’s name and logo on Company’s website and identify Customer as a customer of Company.

9.2 Assignment.  This Agreement will be binding upon, and inure to the benefit of, each party and its respective successors and assigns. This Agreement and all of the rights, interest or obligations hereunder may be not assigned, directly or indirectly, including, without limitation, by operation of law, by either party, without the prior written consent of the non-assigning party, not to be unreasonably withheld; provided, however, either party may assign this Agreement, in whole or in part to any affiliate, subsidiary or successor in interest in the event of a merger, consolidation, acquisition, reorganization, change in control or otherwise, provided that such successor agrees in writing to be bound by the terms of this Agreement and possesses the skills and qualifications necessary to perform the transferring party’s obligation

9.3 Subcontracting.  Customer agrees that Cardtapp, Inc. may subcontract certain aspects of the Cardtapp, Inc. Service to qualified third parties, provided however that any such subcontracting arrangement will not relieve Company of any of its obligations hereunder and Company shall assume the same liability and responsibility for the acts or omissions of any such third party subcontractor or supplier as if Company performed the Company Service.

9.4 Governing Law; Dispute Resolution.  This Agreement will be governed by and construed in accordance with the laws of the state of Washington, without regard to its conflicts of laws principles. Each party hereto irrevocably submits to the non-exclusive jurisdiction of the state and federal courts situated within the State of Washington for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby or thereby. Each party agrees to waive all right to a jury trial in connection with disputes arising out of this Agreement excluding actions seeking solely equitable relief, any dispute, claim or controversy arising out of or relating to this Agreement shall be finally determined by binding arbitration administered by the Rules in Seattle before one (1) arbitrator. Any notice under this Agreement must be given in writing to the other party at the address set forth above; provided, however, disputes with respect to Fees shall be permitted to be delivered by electronic mail. Except as set forth herein, notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, or (b) sent by recognized courier service.  

9.5 Entire Agreement.  This Agreement and the exhibits attached hereto (as modified by the parties from time to time) is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings.  No modification of this Agreement will be binding upon either party, unless evidenced by a writing duly signed by authorized representatives of the party against which enforcement is sought. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect.  

9.6 No Waiver.  The failure of either party to insist upon a strict performance of or to seek remedy of any one of the terms or conditions of this Agreement or to exercise any right, remedy or election set forth herein or permitted by law shall not constitute nor be construed as a waiver or relinquishment for the future of such term, condition, right, remedy or election, but such items shall continue and remain in force and effect. All rights or remedies of either party specified in this Agreement and all other rights or remedies that either party may have at law, in equity or otherwise shall be distinct, separate and cumulative rights or remedies, and no one of them, whether exercised by the party seeking enforcement or not, shall be deemed to be in exclusion of any other right or remedy of such party. Any consent, waiver or approval by either party of any act or matter must be in writing and shall apply only to the particular act or matter to which such consent or approval is given.

9.7 Independent Contractor.  The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.

9.8 Counterparts.  This Agreement may be executed in counterparts, which taken together shall form one legal instrument.

  1. DISASTER RECOVERY

During the Term Company will: (a) maintain and annually test a disaster recovery plan (“Disaster Recovery Plan”) which provides for the relocation of all affected Company Service (or any portion thereof) to a separate disaster recovery site as expeditiously as is practicable after declaration by Company of any unplanned interruption of operations which materially affects Company’s ability to provide Company Services, or as otherwise provided in the Disaster Recovery Plan. The Disaster Recovery Plan shall address, among other things, the scope and frequency of testing, recovery point and recovery time objectives, and expected service levels during any disaster event for each Company Service then being provided; and (b) provide Customer, upon request, with copies of Company’s current SSAE 16 type audit report performed with respect to the pertinent systems.

INSURANCE

Company shall, at its sole cost and expense, maintain for the duration of the Term, at least the following insurance coverages: (i) comprehensive general liability and property damage insurance, including coverage for subcontractors. Company shall use commercially reasonable efforts to give Customer thirty (30) days’ prior written notice of any cancellation, material alteration or lapse of such coverage.. Upon Customer’s request, Company will furnish to Customer certificates of insurance and other appropriate documentation (including renewal certificates) evidencing all coverage.

11.0 CHANGES TO TERMS AND CONDITIONS

We may change these Terms and Conditions from time to time.  By agreeing to these terms and conditions, you agree that we may provide you by use of electronic communications required notices and updates including changes to these terms and conditions.

12.0 FORCE MAJEURE

Unless avoidable through the implementation and maintenance of the disaster recovery plan described above and subject to the support services set forth in The Order Form, either party will be excused from any delay or failure in performance hereunder caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, labor disputes and strikes, riots, war or other unanticipated occurrences or problems, and governmental requirements.  Such nonperformance will not be a default or a ground for termination as long as an effected party uses commercially reasonable efforts to expeditiously remedy the problem causing such nonperformance and to execute its disaster recovery plan then in existence.  Customer may terminate this Agreement without penalty if a force majeure event continues for more than fifteen (15) days and receive a refund of all prepaid, but unused Fees.