Derivita Terms of Service

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IF YOU ARE UNDER 18 YEARS OF AGE, PLEASE BE SURE TO READ THIS AGREEMENT WITH YOUR PARENTS OR GUARDIAN AND ASK QUESTIONS ABOUT THINGS YOU DO NOT UNDERSTAND.

This End User License Agreement (the “Agreement”) governs your use of the SaaS Services (defined below) made available to you by Derivita, Inc., a Delaware corporation (“Derivita”), pursuant to and subject to the Software as a Service Agreement (the “SaaS Agreement”) between Derivita and the party who designated you as Authorized User thereunder.

YOU ACCEPT THIS AGREEMENT AND AGREE TO BE BOUND BY ITS TERMS BY CLICKING THE ACCEPTANCE BOX WHEN YOU FIRST ACCESS OR USE THE SAAS SERVICES. ADDITIONALLY, YOUR CONTINUED ACCESS TO AND USE OF THE SAAS SERVICES CONFIRMS YOUR CONTINUING ACCEPTANCE OF THIS AGREEMENT AND ITS TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOUR ACCEPTANCE OF THIS AGREEMENT IS YOUR REPRESENTATION THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS OF THIS AGREEMENT, 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 SAAS SERVICES.

You agree not to access the SaaS Services if you are a competitor of Derivita. You agree not to provide access to the SaaS Services to any party who is a competitor of Derivita or any party who is not an Authorized User under the SaaS Agreement. In addition, you may not access the SaaS Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

1) DEFINITIONS. 

a) “Derivative Work” means a revision, enhancement, modification, translation, abridgment, condensation or expansion of any SaaS Services or any form in which any SaaS Services may be recast, transferred, or adapted. 

b)  “SaaS Services” means the services made available to you through the Software and all support materials designed to assist you in the use of the Software which are delivered to you by Derivita pursuant to this Agreement.

c) “Software” refers to (i) the proprietary software made available to you pursuant to the terms of this Agreement and the SaaS Agreement and (ii) any updates, upgrades, enhancements, or modifications to the Software, if any. 

2) LICENSE GRANT. Derivita hereby grants, and you hereby accept, subject to the terms and conditions of this Agreement and the SAAS Agreement, a limited, non-exclusive, non-sublicensable, non-transferable, license during the term of this Agreement to use the SaaS Services as set forth herein (the “License”). You shall not have any rights in or to the SaaS Services except as expressly granted in this Agreement. Derivita reserves to itself all rights to the SaaS Services not expressly granted pursuant to this Agreement.

3) COPYRIGHT AND TITLE. The SaaS Services and all copyrights, trade secrets and other proprietary rights therein, including any Derivative Work, are and will remain the sole property of Derivita, regardless of the use thereof made by you; and are protected by certain United States and international intellectual property laws. The License confers no title of ownership in the SaaS Services and is not a sale of any rights in the SaaS Services. You shall treat the SaaS Services with at least the same standard of care as you treat any other material copyrighted and/or trademarked by a third party, in no case less than a reasonable standard of care. You agree not to challenge Derivita’s ownership in or enforceability of Derivita’s rights in and to any SaaS Services or any related intellectual property. 

4) USE OF SAAS SERVICES. The SaaS Services are solely for your personal and noncommercial use. Use of the SaaS Services is subject to the terms of use set forth in this Agreement. If there is unauthorized use by anyone who obtained access to the SaaS Services directly or indirectly through you, you shall take all steps reasonably necessary and cooperate and assist with any actions taken by Derivita to prevent or terminate such unauthorized use. You will indemnify, defend and hold Derivita harmless from any and all liability, loss, damage, expense or other costs resulting from such access.

5) TERM. The License granted by this Agreement shall begin as of the first date on which you access the SaaS Services or any portion thereof and continue until terminated pursuant to Section 10 hereof (which with respect to Derivita may occur at any time)

6) ASSIGNMENT. You shall not assign or otherwise transfer the License granted hereby or the rights granted hereunder without the prior written consent of Derivita, in its absolute, complete and unqualified discretion. Any attempt to assign or otherwise transfer any of the rights, duties or obligations hereunder without compliance with this Section is and shall be void ab initio.

7) TRADE SECRETS. The SaaS Services are confidential information of Derivita and contain valuable proprietary products and trade secrets of Derivita, embodying substantial creative efforts and confidential information, ideas, and expressions. You shall take appropriate action to protect the confidentiality of the SaaS Services. You shall not modify, translate, disassemble, create Derivative Works based on, reverse-assemble, reverse-compile or otherwise reverse-engineer the SaaS Services in whole or in part, or otherwise use, copy, reproduce or distribute any SaaS Services except as expressly permitted hereunder. The provisions of this Section will survive the termination of this Agreement.

8) OTHER RESTRICTIONS. You will not (a) rent, loan, license, market, or sell the SaaS Services to any party, (b) use the SaaS Services or Software beyond the scope of the License or (c) use the SaaS Services in violation of any law, regulation, or rule. You hereby agree (i) to notify any of your agents who may have access to the SaaS Services of the restrictions in this Agreement and (ii) to ensure their compliance with such restrictions. The provisions of this Section will survive the termination of this Agreement.

9) COLLECTION/USE OF INFORMATION. You acknowledge that Derivita may, directly or indirectly through the services of third parties, collect and store information regarding use of the SaaS Services. You agree that Derivita may use such information in accordance with its Privacy Policy located at https://www.derivita.com/privacy-policy and for any purpose related to any use of the SaaS Services by Derivita, including but not limited to, improving the performance of the SaaS Services or developing updates thereto and verifying your compliance with the terms of this Agreement and enforcing Derivita’s rights in and to the SaaS Services.

10) TERMINATION. You may terminate this Agreement and the License granted herein by providing Derivita 30 days’ prior written notice of such termination and ceasing use of the SaaS Services on or prior to the end of such notice period. Derivita may terminate this Agreement and the License granted herein by giving you written notice of termination for any reason. This Agreement and the license granted hereunder shall also terminate automatically upon termination of the SAAS Agreement. Upon any termination of this Agreement, you shall cease all use of the SaaS Services.

11) COMPLIANCE WITH LAWS. You will comply with all applicable export and import control laws and regulations and obtain at your expense all necessary licenses, permits and regulatory approvals required by any and all governmental authorities in your use of the SaaS Services and, in particular, you will not export or re-export the SaaS Services without Derivita’s prior written consent, and, if such consent is granted, without you first obtaining all required United States and foreign government licenses.

12) DISCLAIMER OF WARRANTY. THE SAAS SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, ORAL, WRITTEN, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF PERFORMANCE OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU BEAR ALL RISK RELATING TO QUALITY, PERFORMANCE AND USE OF THE SAAS SERVICES. WITHOUT LIMITING THE FOREGOING, DERIVITA DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SAAS SERVICES SHALL BE ERROR-FREE OR UNINTERRUPTED. Because some states may not allow the exclusion of implied warranties, such limitation may not apply in its entirety to you. Any warranties made in this Agreement are for your benefit only. 

13) LIMITATION ON LIABILITY. IN NO EVENT WILL DERIVITA, ITS SUPPLIERS, SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY LOST PROFITS, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES DUE TO LOSS OF DATA OR GOODWILL, ARISING OUT OF THIS AGREEMENT OR THE USE OF THE SAAS SERVICES, EVEN IF DERIVITA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DERIVITA SHALL NOT BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES OR ANY UNAUTHORIZED USE OR MISUSE OF THE SAAS SERVICES. YOU ASSUME RESPONSIBILITY FOR THE USE AND RESULTS OF THE SAAS SERVICES. UNDER NO CIRCUMSTANCES WILL DERIVITA’S TOTAL LIABILITY OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO DERIVITA DURING THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD (AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). THE PARTIES AGREE THAT THIS SECTION SHALL SURVIVE AND CONTINUE IN FULL FORCE AND EFFECT DESPITE ANY FAILURE OF CONSIDERATION OR OF AN EXCLUSIVE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PRICES HAVE BEEN SET AND THE AGREEMENT ENTERED INTO IN RELIANCE UPON THESE LIMITATIONS OF LIABILITY AND THAT ALL SUCH LIMITATIONS FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. BECAUSE SOME STATES MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, SUCH LIMITATIONS MAY NOT APPLY TO YOU.

14) GOVERNING LAW; VENUE. This Agreement shall be governed by the laws of the State of Utah, U.S.A., without regards to any choice of laws provisions thereof. The parties hereto agree to submit to the exclusive jurisdiction of the federal and state courts found within the State of Utah, and they do agree that venue shall be proper in Utah County in the State of Utah.

15) REMEDIES. You acknowledge that the unauthorized use, transfer, or disclosure of the SaaS Services will (a) substantially diminish the value to Derivita of the proprietary interest that are the subject of this Agreement; (b) render Derivita’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (c) cause irreparable injury in a short period of time. If you breach any of your obligations with respect to the use of the SaaS Services, Derivita shall be entitled to equitable relief to protect its interest therein, including but not limited to, preliminary and permanent injunctive relief without requirement of a bond and without the necessity of proving actual damages. 

16) ATTORNEY FEES. In case of any action to enforce any rights or conditions of this Agreement, or appeal from said proceeding, it is mutually agreed that the losing party in such suit, action, proceeding or appeal shall pay the prevailing party’s reasonable attorney fees and costs incurred.

17) ENTIRE AGREEMENT; AMENDMENT. This Agreement is a binding contract and constitutes the entire agreement and understanding of the parties relating to the subject matter hereof; is intended as the parties’ final expression and complete and exclusive statement of the terms hereof, superseding all prior or contemporaneous understandings. This Agreement may be amended or modified only by an instrument in writing by Derivita by providing a copy of such amendment to you in accordance with this Agreement with prior notice of the effectiveness thereof.

18) NON-WAIVER. No waiver of any provision of this Agreement shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure to enforce any provision of this Agreement shall not operate as a waiver of such provision or any other provision or of the right to enforce such provision or any other provision.

19) NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement, express or implied, is intended to confer on any person, other than the parties to this Agreement, any right or remedy of any nature whatsoever.

20) SEVERABILITY; BINDING EFFECT. If any provision of this Agreement shall be invalid or unenforceable in any respect for any reason, the validity and enforceability of any such provision in any other respect and of the remaining provisions of this Agreement shall not be in any way impaired. This Agreement shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, successors, and, to the extent permitted by Section 6.

21) FORCE MAJEURE. Derivita will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond Derivita’s reasonable control, so long as Derivita uses all commercially reasonable efforts to avoid or remove such causes of non-performance.

22) RELATIONSHIP OF PARTIES. Both parties agree that they are independent entities. Nothing in this Agreement shall be construed to create a partnership, joint venture, or agency relationship between the parties. 

23) NOTICES. All notices, consents and other communications permitted or required to be given hereunder (“Notice”) shall be delivered by electronic mail to Derivita at support@Derivita.com and to you at the electronic mail address provided by you during registration. Any party may change its email address for notification purposes by giving the other party notice of the new email address and the date upon which it will become effective in accordance with the terms of this Section.

24) INDEMNIFICATION. You agree to indemnify, defend and hold harmless Derivita and its affiliates, directors, officers, employees, agents and representatives from and against any losses, damages, liabilities, expenses (including reasonable attorneys’ fees), judgments and claims that arise out of or relate to (a) any breach by you of this Agreement and (b) your use of the SaaS Services. Derivita will: (i) give you prompt written notice of the claim; (b) grant you full and complete control over the defense and settlement of the claim; (c) assist you with the defense and settlement of the claim as you may reasonably request and at your expense; and (d) comply with any settlement or court order made in connection with the claim; provided that you may not settle or defend any claim unless it unconditionally releases Derivita of all liability.

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