1. DEFINITIONS
“Affiliate” means any entity which directly or indirectly owns or controls, is controlled by, or is under common control with, Donnelley Financial LLC (“DFIN”) or Client, as the case may be.
“Agreement” means these Venue Terms & Conditions of Service, together with the corresponding proposal, statement of work, or order form between DFIN and Client for use of the Services.
“AI Feature” means any feature, functionality, or component of the Services that incorporates or otherwise uses AI Technology.
“AI Output” means new information, data, or other content created or generated by an AI Feature in response to an input of Client Data by Client or its end Users, but expressly excluding Usage Data.
“AI Technology” means any machine learning, deep learning, and other artificial intelligence technologies, including statistical learning algorithms, models (including large language models), neural networks, and other artificial intelligence tools or methodologies, and any software implementations of any of the foregoing, capable of generating various types of content (including text, images, video, audio, computer code, decisions, analysis, predictions or recommendations) based on user-supplied prompts.
“Applicable Law” means, with respect to each party, all international, federal, state, provincial, and local laws, statutes, regulations, rules, codes, and ordinances of any country or jurisdiction applicable to such party or its activities hereunder enacted, adopted, issued, or promulgated by (a) any governmental agency, authority, department, regulatory body, or other instrumentality of any government or country, or of any national, federal, state, provincial, regional, county, city, or other political subdivision of any such government, or any supranational organization of which any such country is a member; (b) any self-regulatory organization; or (c) any court, tribunal, or judicial or arbitral body.
“Controlling”, “controlled by”, or “under common control with” means either the beneficial ownership under trust, or outright ownership of more than fifty (50) percent (%) of the affiliate or business entity itself or the affiliate’s or business entity’s securities, or units if a limited liability company.
“Client Data” means (a) all data, documents, content, and other information provided by the Client or its End Users for use in the performance of the Services.
“Data Protection Legislation” means the GDPR and all other applicable law, from time to time, relating to the processing of personal data and privacy.
“Data Room” means a portion of the Services through which Client’s authorized End Users may process, store and communicate information, documentation, or files for a specific business transaction or project.
“End User(s)” means those employees, professional advisors, contractors and agents of Client who have been granted permission to access Client’s Data Rooms.
“GDPR” means the General Data Protection Regulation (EU) 2016/679 of the European Parliament.
“Go-Live Date” refers to the point at which an applicable Venue virtual data room (VDR) is set up and accessible to the Client and its End Users.
“Hibernation Administrator” means a Client administrator expressly appointed by the Client during the Hibernation Period.
“Hibernation Period” means any time during a Renewal Term, when the Client’s administrator has requested to turn off access to End Users as defined in Section 21. Hibernation Period places the applicable project into hibernation as outlined in an applicable proposal, statement of work, or the order form. Unless otherwise agreed to by the parties in an applicable proposal, statement of work, or order form, no more than one Hibernation Period, not to exceed 6 months, shall be permitted.
“Permitted Use” means the specific single transaction or purpose for which a Data Room is created.
“Services” means the secure online document exchange, communication and collaboration environment and related services (including without limitation Data Rooms) provided by DFIN to Client. The “Services” do not include data transmitted through the Services by End Users.
“Staging Data Room” is an area or environment where Client Data is prepared and organized prior to the applicable Go Live Date, i.e. before being made available in a live Data Room.
“Third Party” means a person other than DFIN (including its personnel) or Client or their respective Affiliates.
“Third-Party AI Materials” means any product (including software or hardware), service, solution, technology, or other materials and information, including a model, data, dataset, application, or other offering, in any form or media, of a Third Party (such Third Party, “AI Provider”).
“Usage Data” means information and other data relating to Client’s and its End Users’ use of the Services and AI Features, if any, including activity (including specific features or functions accessed), resource utilization, availability, frequency and duration of usage, and other user interaction metrics, user preferences and patterns of behavior, and any statistical or other analysis, information, or data based on or derived from any of the foregoing or technical information and metrics and other performance metrics and usage information or other data.
2. SERVICES
(a) Subject to Client’s compliance with the terms and conditions of this Agreement, DFIN shall make the Services available to Client for Client’s and its End Users’ use, for Client’s internal business purposes. Client shall use each Data Room only for its Permitted Use and for no other use or purpose. Client shall not allow any third party to use or access the Services provided to Client hereunder, except third party End Users authorized by Client to access the Data Room for the Permitted Use.
(b) Title and all ownership rights in the Services and any adaptation thereof, including all related patents, copyrights and other proprietary rights, are and shall at all times remain with DFIN or its licensors or suppliers. Neither Client nor its End Users shall attempt to reverse compile, reverse engineer or disassemble (except as permitted by law), duplicate, modify or distribute any element of the Services (including without limitation any technology element of the Services.
(c) Client shall not use the Services other than as expressly permitted by the Agreement. Without limiting the foregoing, Client shall not, and shall not permit or authorize any person, directly or indirectly, to:
(i) use any user identifications, codes, passwords, procedures, or user keys issued to Client for access to and use of any of the Services other than End Users;
(ii) license, sell, lease, rent, outsource, or otherwise make available any of the Services to third parties other than End Users or act as an intermediary, aggregator, or service bureau;
(iii) make any use of the Services that violates Applicable Law, the privacy rights, intellectual property rights, or other rights of any third party;
(iv) circumvent the user authentication or security of any of the Services or any host, network, or account related thereto;
(v) use any API to access any of the Services other than an API made available by DFIN for such purpose or use or launch any automated system, including “robots,” “spiders,” or “offline readers” to access any of the Services;
(vi) mirror any of the Services on any server;
(vii) use, frame, or use framing techniques to enclose any portion of the Services;
(viii) use meta tags or any other “hidden text” using DFIN’s trademarks, service marks, logos, or other indicia of origin; or
(ix) use the Services in violation of DFIN’s then-current acceptable use policy.
(d) DFIN shall provide Client with administrative user IDs and passwords for accessing the Services. Client acknowledges that DFIN shall retain secondary administrative rights; Client may also request in writing for DFIN administrators to add or modify Client End User access on Client’s behalf. Client is responsible, through its designated administrator, for setting and modifying Client’s and End Users’ profiles and preferences for the Services, authorizing and terminating individual End Users’ ID’s and passwords, and specifying the access rights of each End User to the Services. Customer’s administrator shall notify DFIN if the administrator needs to change the administrative user ID or any End User’s ID, and the administrator may do so only by contacting DFIN. Unless arising from or related to willful misconduct of DFIN, Client is responsible for all activities that occur under its or End Users’ accounts and for maintaining the security and confidentiality of all user names and passwords for each End User, including any loss or damage suffered by Client or DFIN as a result of Client’s or any End User’s failure to adequately safeguard such account information. Client shall promptly notify DFIN of any unauthorized use of any user name, password, or account or any other known or suspected breach of security.
(e) DFIN may suspend immediately Client or any End User’s account or access to or use of any Services if such account or activity is (a) disrupting or causing harm to DFIN’s or its Representatives’ computers, systems, or infrastructure, or to other Persons or (b) is in violation of Section 2(b) or 2(c); provided that, DFIN shall promptly notify Client of any such suspension.
3. WARRANTIES
DFIN shall use commercially reasonable efforts to ensure that the Services are provided in a secure environment and without interruption, and that the Services will substantially conform to the descriptions of the features and functionality of the Data Rooms contained on this site, which may be modified from time to time by DFIN; provided, however, such modification shall not materially impair Client’s use of the Data Room to store documentation and files that can be accessed by End Users. DFIN does not warrant that the Services will meet all of Client’s business requirements, or that the Services will be free of errors, interruption, faults or delays. Client acknowledges and agrees that scheduled downtime may be required for upgrades, backup or maintenance. If End Users are likely to be affected by scheduled downtime, DFIN shall use commercially reasonable efforts to provide notification of such scheduled downtime on the site and DFIN shall take commercially reasonable efforts to restore such Services as soon as practicable following such service interruption.
DFIN’s sole liability, and Client’s sole and exclusive remedy, under the foregoing warranties shall be limited to supplying, as soon as practicable, and at DFIN’s cost and expense, services that DFIN determines to be necessary to cause the Services to perform in accordance with the applicable warranty; provided, however, that written notice of an asserted breach of warranty must be received by DFIN promptly after Client or its End Users first become aware of such asserted breach, and in any event, no later than thirty (30) calendar days after Client or its End Users first become aware of such asserted breach. The foregoing warranties will not apply to the extent that (i) the Services are used for any purpose other than the Permitted Use, (ii) the cause of a breach of warranty is due to a malfunction in Client’s hardware, software, or communications network through which the Services are accessed, or (iii) the cause of a breach of warranty is due to any other cause outside of DFIN or its hosting facility’s sole and reasonable control.
EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICES, INCLUDING THE AI FEATURES, IF ANY, THE DFIN IP, AND ANY THIRD-PARTY LINKS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. DFIN HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, STATUTORY, OR, PERTAINING TO AI FEATURES, ARISING OUT OF THE COURSE OF DEALING OR TRADE REGARDING THE AI FEATURES, AI OUTPUT, AND THIRD-PARTY AI MATERIALS, INCLUDING ACCESS TO AND USE THEREOF, INCLUDING (I) ANY WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, OR FITNESS FOR A PARTICULAR PURPOSE, (II) ANY WARRANTIES THAT THE SERVICES, THE DFIN IP, ANY THIRD PARTY LINKS, AI FEATURES, AI OUTPUT, AND THIRD-PARTY AI MATERIALS ARE ACCURATE, OR CAN OR SHOULD BE RELIED UPON FOR ANY PURPOSE, OR (III) ANY WARRANTIES, INACCURACIES OR DEFECTS SHALL BE CORRECTED, THAT THE SERVICES, THE DFIN IP, THIRD PARTY LINKS, AI FEATURES, AI OUTPUT, AND THIRD-PARTY AI MATERIALS SHALL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ACCESS TO THEM AND THEIR USE SHALL BE UNINTERRUPTED OR ERROR-FREE.
4. LIMITATION OF LIABILITY
IN THE EVENT OF ANY LOSS, DAMAGE OR DESTRUCTION OF DOCUMENTS, FILES OR MEDIA CAUSED BY ANY ACT, ERROR, OMISSION, NEGLIGENCE OR OTHER CAUSE BY DFIN OR ANY OF ITS AFFILIATES, AGENTS, VENDORS OR SUBCONTRACTORS, DFIN'S LIABILITY SHALL BE LIMITED TO THE COST OF DUPLICATION OF SUCH DOCUMENTS OR FILES FROM BACKUP COPIES MAINTAINED BY CLIENT AND THE COST OF REPLACEMENT MEDIA.
UNDER NO CIRCUMSTANCES WILL DFIN, ITS AFFILLIATES, EMPLOYEES, AGENTS, OR ANY THIRD PARTY CONNECTED WITH THE SERVICE BE LIABLE FOR THE COST OF RECREATING INFORMATION FOR WHICH NO BACKUP COPIES HAVE BEEN RETAINED BY CLIENT. DFIN, ITS AFFILIATES, EMPLOYEES, AGENTS, OR ANY THIRD PARTY CONNECTED WITH THE SERVICES SHALL HAVE NO LIABILITY TO CLIENT, ANY CLIENT AFFILIATE OR END USER FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS, LOST REVENUE OR LOSS OF OPPORTUNITY, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON CLAIMS OF CLIENT, ITS AFFILIATES OR END USERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR WASTED COSTS, LOSS OF GOODWILL, USE OF OR RELIANCE ON THE SERVICES, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OR DIMINUTION IN VALUE OF OTHER ASSETS/TRANSACTIONS), ARISING OUT OF BREACH OR FAILURE OF ANY EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND EVEN IF A LIMITED REMEDY PROVIDED IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL THE AGGREGATE LIABILITY OF DFIN, ITS AFFILIATES, EMPLOYEES, AGENTS, OR ANY THIRD PARTY CONNECTED WITH THE SERVICES PROVIDED TO CLIENT, ITS AFFILIATES OR END USERS OR ANY OTHER PARTY (INCLUDING LIABILITY FOR ANY INDEMNITY OBLIGATION, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE, REGARDLESS OF FORM OF ACTION), EXCEED, IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID BY CLIENT TO DFIN FOR THE RELEVANT SERVICES OUT OF WHICH ANY ASSERTED CLAIM WITH RESPECT TO THE SERVICES ARISES. THE FOREGOING LIMITATION IS A FUNDAMENTAL PART OF THE BASIS OF THE BARGAIN HEREUNDER AND IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE BEEN HELD TO BE INVALID OR INEFFECTIVE.NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATED TO THE USE OF THE SERVICES PURSUANT TO THIS AGREEMENT MAY BE BROUGHT BY CLIENT MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION FIRST AROSE.
NOTWITHSTANDING THE FOREGOING, DFIN DOES NOT EXCLUDE OR LIMIT ITS LIABILITY IN RESPECT OF CLAIMS FOR DEATH OR PERSONAL INJURY CAUSED BY DFIN’S GROSS NEGLIGENCE OR FOR FRAUD.
5. CLIENT REPRESENTATIONS
Client hereby represents to DFIN that: (a) it has all rights necessary to utilize its Data Rooms and to otherwise perform its obligations under this Agreement; (b) any data, media, or other content placed into Client’s Data Rooms does not violate the rights of any third party; (c) if any data, media, or other content placed into Client’s Data Rooms is subject to export control restrictions of any country, it will be solely responsible for complying with all applicable export control, restrictions, obligations and requirements, (d) it will comply with any other local, state, federal or foreign laws, rules and/or ordinances applicable to the performance of its obligations under, and use of the Services pursuant to, this Agreement; and (e) in using the Services it will not (and will ensure that End Users shall not) post, transmit, store, upload or distribute any documents, images or other materials which constitute advertising or marketing materials or which are defamatory, obscene, illegal or which contravene any applicable laws; (f) in using the Services it will not (and will ensure that End Users shall not), introduce any software, virus or other material which could interfere with the operation of the Services; and (g) it shall retain a hard and electronic copy of any document, image, file or other information provided to DFIN during the Services so that if any such document, image, file or other information is lost, damaged or destroyed during the Services, the Client will be able to provide a replacement.
6. INDEMNITY
(a) DFIN shall, at its sole cost and expense, release, defend, indemnify and hold harmless Client, its Affiliates, directors, officers, agents, employees, and shareholders from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys’ fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to a claim that the technology used by DFIN for the Data Rooms or Services infringes a patent, copyright, trademark, trade secret or other proprietary right of a third party, provided that this indemnity shall not apply to the extent that the infringement was caused by any modification of the Services or Data Rooms conducted by or on behalf of the Client or any End User. Notwithstanding any provision to the contrary contained herein, the limitation of liability contained in Section 4 shall not apply to any indemnity obligation contained under this Section 6.
(b) Client shall, at its sole cost and expense, release, defend, indemnify and hold harmless DFIN, its Affiliates, directors, officers, agents, employees, and shareholders from and against all claims, demands, disputes, complaints, causes of action, suits, losses and damages (including attorneys’ fees) of any kind to the extent they in any way relate to or arise, in whole or in part, due to a breach of this Agreement (including without limitation, any breach of the Client’s representations in clause 5) or any claim that any document, image, file, data, media, or other content placed into Client’s Data Rooms violate the intellectual property, privacy or other proprietary rights of any third party or violates any local, state, federal or foreign laws, rules and/or ordinances.
(c) The party seeking indemnification shall notify the other party promptly of any such action, suit or proceeding and shall cooperate fully with the indemnifying partying the defense of any such claim. The indemnifying party shall have sole control of the defense of any such action and all negotiations for its settlement or compromise, provided that such settlement or compromise shall not interfere with DFIN's provision of the Services. The indemnified party may participate, at its expense, in the defense of any such action, but shall make no admission of liability or settle any claim without the prior written agreement of the indemnifying party.
7. CONFIDENTIALITY
DFIN and Client shall keep as confidential and not disclose to any third party any information concerning each other’s business including but not limited to any documentation and files deposited in the Data Room by Client, Services (including without limitation any software, screen layouts, manuals and process workflows), Data Rooms, clients, investors, fees, software programs, trade secrets, data stored on servers under DFIN’s control, methods or processes which either first learns during the performance of this Agreement (“Confidential Information”), without the prior written consent of the other party. The terms and pricing of the Services shall be considered Confidential Information.
Each party will use the other party's Confidential Information solely to fulfill the purposes of this Agreement. Neither party will disclose, in whole or in part, the other party's Confidential Information to any person, except to End Users, compliance departments at End Users’ firms, government or regulatory agencies, Affiliates, or employees or agents of the any of the foregoing who require access in order to fulfill the purposes of this Agreement or comply with the laws, rules or regulations of any country having jurisdiction in connection with the Permitted Use. Client, on behalf of itself and its End Users further agrees not to reverse engineer the underlying technology of the Services.
Each party acknowledges that any unauthorized use or disclosure of the Confidential Information may cause irreparable damage to the other party. If an unauthorized use or disclosure occurs, such party will take, at its expense, all steps that are necessary to recover the other party's Confidential Information and to prevent its subsequent unauthorized use or dissemination, including availing itself of actions for seizure and injunctive relief. If such party fails to take these steps in a timely and adequate manner, the other party may take them at such party's expense.
Neither party will have any confidentiality obligation with respect to any portion of the other party’s Confidential Information that (i) it independently knew or develops, (ii) it lawfully obtains from a third party under no obligation of confidentiality or (iii) becomes available to the public other than as a result of its act or omission. Notwithstanding the foregoing to the contrary, all documentation and files deposited in the Data Room by Client shall be deemed to be Confidential Information hereunder.
8.DATA PROTECTION
(a) For the purposes of this clause 8, ‘’data breach’’ "data controller", "data processor", "data subject", "personal data", "processing", and "appropriate technical and organisational measures" have the meanings ascribed to them in Data Protection Legislation.
(b) Both parties will comply with their obligations under the Data Protection Legislation, in the case of Client (or the Client Affiliates, as applicable), as data controller and, in the case of DFIN, as data processor.
(c) Without limiting the foregoing, DFIN shall:
(i) act only in accordance with Client's (or the relevant Client Affiliate's) written instructions with regard to the processing of Client personal data, as that term is defined under the GDPR or other applicable law (“Personal Data”). If DFIN is required to process Client Personal Data for any other purpose by applicable law, DFIN shall inform Client of this legal requirement, to the extent legally permissible ;
(ii) ensure that any persons processing Client Personal Data on behalf of DFIN have committed themselves to confidentiality or are under appropriate statutory obligation of confidentiality;
(iii) transfer Client Personal Data to a country or territory outside the European Economic Area (the "EEA"), or the United Kingdom (‘’UK’’), as applicable, only in accordance with data transfer requirements under Data Protection Legislation;
(iv) ensure appropriate technical and organisational measures are in place to safeguard against any unauthorised or unlawful processing and against accidental, alteration, or disclosure of Client Personal Data
(v) promptly notify Client in the event that it receives a request or notice from a data subject exercising his/her rights under the Data Protection Legislation for Client to resolve and to assist the Client promptly with all requests and notices which may be received from data subjects. This includes, upon the applicable Client entity's written request and to the extent permitted by the Data Protection Legislation, where the applicable Client entity cannot itself access such data, promptly providing copies of any Client Personal Data in the possession or control of DFIN which are requested by that Client entity (in the format and medium reasonably required by that entity);
(vi) make available to the Client all information necessary to demonstrate compliance with the obligations laid down in this clause 8 and, at Client’s sole cost, no more than once per calendar year, allow for and contribute to audits, including inspections, conducted by the Client or another auditor mandated by the Client (who can be reasonably established as not being a competitor of DFIN).
(vii) reasonably assist Client in ensuring compliance with obligations pursuant to Articles 32 to 36 of the GDPR, taking into account the nature of processing and the information available to DFIN;
(viii) on the expiry or termination of this Agreement for any reason, promptly cease to use Client Personal Data and shall arrange for its return or destruction as notified by Client in writing at the relevant time, unless applicable law requires storage of Client Personal Data;
(ix) promptly notify Client upon receiving any notice or communication from any data protection supervisory or government body, including the Office of the Information Commissioner, which relates to the processing of Client Personal Data under this Agreement, for Client to resolve; and
(x) notify the Client without undue delay after becoming aware of a data breach affecting Client Personal Data.;
(d) DFIN may disclose Client Personal Data to its Affiliates, and subcontractors for the purpose of providing the Services, provided that it (i) shall enter into an agreement with its subcontractors that imposes obligations regarding the processing of personal data that are the same as those that apply to DFIN hereunder (ii) shall remain fully liable for all acts and omissions of its subcontractors, (iii) inform the Client of any intended changes concerning the addition or replacement of its subcontractors. For the purpose of this clause 8(iv), subcontractors include Microsoft Corporation.
(e) Without limiting the foregoing, the Client shall;
(i) comply with Data Protection Legislation and ensure that any instructions it issues to DFIN, including the transfer itself, shall comply with Data Protection Legislation; and
(ii) have sole responsibility for the accuracy, quality, and legality of Personal Data, and the means by which the Client acquired Personal Data and shall establish the legal basis for Processing under Data Protection Legislation.
(iii) Client warrants that:
A. the disclosure of Personal Data to DFIN is limited to what is necessary in order for DFIN to perform the Services;
B. such Personal Data is accurate and up-to-date at the time that it is provided to DFIN;
C. it shall provide advance written notice to DFIN of its intention to transfer Personal Data to DFIN for use in the Services.
(f) Client shall;
(i) collect Personal Data in a manner compliant with Data Protection Legislation, including by providing all notices and obtaining all consents as may be requested under Data Protection Legislation in order for DFIN to lawfully and fairly process Personal Data in connection with/arising out of the provision of the Services and as otherwise contemplated by the remainder of the Agreement
(ii) ensure compliance with the security measures;
(iii) notify DFIN upon becoming aware that Personal Data has become inaccurate or out of date;
(iv) Use reasonable endeavours to notify DFIN of all categories of personal data that might be processed – with such notice to be in the form of a data processing agreement;
(v) indemnify and hold harmless DFIN against any fines, costs, losses or expenses arising from any breach of Data Protection Legislation caused by an End User.
9. TERM AND TERMINATION
This Agreement shall have an initial term as specified in the corresponding proposal, statement of work, or work order between the parties. This Agreement shall automatically renew for successive renewal term(s) as specified in the corresponding proposal, statement of work, or work order between the parties.
During the initial term and any renewal term(s) of the Agreement, unless otherwise expressly stated in any proposal, statement of work, or work order, DFIN shall have the right to increase its fees for Services on an annual basis.
Either party may terminate this Agreement upon written notice in the event the other party breaches any of the material terms of this Agreement and fails to cure such breach within thirty (30) calendar days of the breaching party’s receipt of notice from the non-breaching party. DFIN may deny Client or any of its End Users access to the Services (including the ability to open Data Rooms) if (a) Client or its End Users use the Services beyond the scope of the Permitted Use or in violation of any law or regulation; (b) Client or any such End User’s use of the Service may, in DFIN’s reasonable opinion, unreasonably impair the ability of other End Users to access or use the Service; or (c) Client has failed to pay any overdue invoice after receipt of written or email notice of such delinquency and a fourteen (14) calendar day opportunity to cure.
Upon termination or expiration of this Agreement, DFIN will continue to maintain access to the Services for Client’s End Users for a period of thirty (30) days after the date of termination or expiration (“Winding-Up Period”) and will, upon the written request of Client, provide a summary disc or compilation of the Data Room. At the conclusion of the Winding-Up Period, DFIN shall terminate Client’s access to the Services and destroy all Client data from the Venue production environment. Notwithstanding the foregoing, as per DFIN’s record retention policy, there will be Client data retained on encrypted backup tapes for up to 13 months after deletion from the Venue production environment.
10. ASSIGNMENT
Client may not by operation of law or otherwise assign, sublicense, or otherwise transfer any of its right or obligations under this Agreement without the prior written consent of DFIN. Notwithstanding anything herein to the contrary, DFIN may assign, transfer or otherwise delegate all or any portion of, or any rights and obligations under, this Agreement to one or more of its Affiliates, affiliated parties or any third party entity carrying on that part of the business to which the assigned portion of the Agreement relates without the consent of the Client. Any prohibited assignment, sublicense, or transfer shall be null and void. This Agreement shall bind, benefit, and be enforceable by and against both parties and their respective successors and permitted assigns.
11. MODIFICATION
DFIN reserves the right at any time to modify the features, functionality or performance of the Services; provided, however, such modification shall not materially impair Client’s use of the Data Room to store documentation and files that can be accessed by End Users, and to modify this Agreement at any time.
12. SEVERABILITY
If any provision of this Agreement is held to be unenforceable, this holding will not affect the validity of the other provisions of this Agreement, unless DFIN deems the unenforceable provision to be essential to this Agreement, in which case DFIN may terminate this Agreement, effective immediately upon notice to Client.
13. INDEPENDENT CONTRACTORS
This Agreement shall not be deemed to create any employment, partnership, or joint venture relationship between the parties hereto. Neither party shall have the authority or represent itself as having the authority to bind the other party to any agreement or commitment with a third party or otherwise.
14. GOVERNING LAW AND JURISDICTION
This Agreement will be governed by and interpreted in accordance with the laws of the State of Delaware, without regard to its conflict of laws rules. The parties hereby: (a) waive all right to trial by jury; (b) consent to the exclusive jurisdiction and venue of the state courts located in New Castle County, Delaware and of the United States District Court for the District of Delaware; and (c) agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
15. FORCE MAJEURE
DFIN DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE SERVICES, AS SUCH FLOW DEPENDS IN LARGE PART ON THE PERFORMANCE OF INTERNET SERVICES AND SOFTWARE PROVIDED OR CONTROLLED BY THIRD PARTIES AND ON THE PUBLIC INTERNET INFRASTRUCTURE, AS WELL AS OTHER EVENTS BEYOND THE CONTROL OF DFIN. AT TIMES, ACTION OR INACTION OF PARTIES OTHER THAN DFIN OR EVENTS BEYOND DFIN’S REASONABLE CONTROL (“FORCE MAJEURE EVENTS”) CAN IMPAIR OR DISRUPT DFIN’S ABILITY TO PROVIDE THE SERVICES OR CLIENT’S OR ITS END USERS’ ABILITY TO ACCESS THE SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DFIN DISCLAIMS, AND CLIENT SHALL NOT HOLD DFIN RESPONSIBLE FOR, ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH ACTIONS OR FORCE MAJEURE AND DFIN SHALL TAKE COMMERCIALLY REASONABLE EFFORTS TO RESTORE SUCH SERVICES AS SOON AS PRACTICABLE FOLLOWING SUCH FORCE MAJEURE EVENT.
16. SURVIVAL
The provisions of Sections 1, 3-7, 14-15, 19 and any other provision that should be expected to survive shall survive the termination or expiration of this Agreement.
17. THIRD PARTY RIGHTS
No rights under this Agreement shall be enforceable by any person not party to it except for those clauses that confer rights and benefits on to DFIN’s Affiliates, affiliated parties, directors, officers, agents, employees and shareholders which may be enforced by such persons.
18. NO PUBLICITY
DFIN shall have the right to identify Client as a DFIN Client and to use Client’s logo in connection therewith in DFIN’s general marketing materials. Except as set forth in the preceding sentence, neither Party shall use the name(s), trademark(s), trade name(s), service name(s), or service mark(s), whether registered or not, of the other Party in publicity releases or advertising, or in any other manner without the prior written consent of the other Party, unless required by applicable law. Any use of Client’s logo shall be subject to DFIN’s compliance with Client’s trademark guidelines provided to DFIN.
19. PAYMENT TERMS
(a) All subscription fees for the Services, as well as all other fees and expenses due hereunder, shall be due and payable in the manner and time frame as set forth in the applicable proposal, statement or work or order form for the Services. All payments shall be made in USD$ by wire transfer to DFIN’s designated bank account, or as otherwise agreed to by DFIN. DFIN reserves the right to charge and/or pass through to Client any service or convenience fee or surcharge applied should DFIN approve an alternative form of payment (e.g. payment via credit card). Late payments shall accrue interest from the due date at a rate of one-and-one-half percent (1.5%) per month or, if lower, the highest rate allowed by applicable law. Payments shall first be applied against the payment of any late fees that have accrued, after which any balance remaining shall be applied to payment of the principal due and outstanding. Client shall pay all reasonable expenses incurred by DFIN related to the collection of late payments, including reasonable attorneys’ fees. If (i) Client (A) files a voluntary petition in bankruptcy or an involuntary petition is filed against it; (B) is adjudged bankrupt; (C) has a court assumes jurisdiction of its assets under a federal reorganization act, or other statute; (D) has a trustee or receiver appointed to it by a court for all or a substantial portion of its assets; (E) becomes insolvent, suspends business or ceases to conduct its business in the ordinary course; or (F) makes an assignment of its assets for the benefit of its creditors, or (ii) Client fails to pay any undisputed amounts when due and does not remedy such failure within ten (10) Business Days after the date such amounts were due, DFIN may, without liability, in its sole discretion (A) suspend performance of some or all of the Services, including access to the Services, until full payment for all undisputed outstanding amounts is received, or (B) may accelerate Customer’s unpaid Fees for the full outstanding period of the Term and require immediate payment by Customer of such Fees. Should Client dispute any portion of an invoice, Client shall notify DFIN within thirty (30) days after receipt of such invoice. Customer’s failure to give DFIN notice within such time period shall constitute a waiver of any rights which Client may have to any adjustment, charge, or reimbursement with respect to such amounts. The parties shall use commercially reasonable efforts to resolve disputes regarding invoices within thirty (30) days after Client notifies DFIN of such dispute.
(b) Fee increases shall be set forth in the applicable proposal, statement or work or order form for Services. Notwithstanding the foregoing, if the proposal, statement or work, or order form does not contain an express fee increase provision, then the following shall apply: At least thirty (30) days prior to the end of each twelve (12) month period during the Term, DFIN shall notify Client as to any increase in the fees to be charged during the following twelve (12) month period; provided that, DFIN may increase the fees by no more than ten (10%) percent per twelve (12) month period.
(c) Fees and other amounts due hereunder are exclusive of all taxes. Client shall be responsible for all present and future sales, use, excise, service, goods, value added, property, and other taxes and duties arising in connection with the Agreement or any Services provided by DFIN to Client hereunder, other than taxes on DFIN’s net income (collectively “Taxes”), including any penalties and interest relating thereto. Except to the extent that Client has provided to DFIN a resale certificate, exemption certificate, direct pay permit, or other appropriate documentation of exemption or explanation of non-taxability sufficient to confirm the exempt status of Client or the relevant transaction involving Client under the Agreement so as to eliminate DFIN’s obligation to charge, collect, and remit any Taxes, DFIN shall add to each invoice issued and collect from Client any such Taxes.
20. STAGING DATA ROOM
Prior to the Go Live Date, Client may elect to utilize a Staging Data Room. Client agrees only to use such Staging Data Room: (a) for the limited purpose of confirming the upload and management of relevant Client Data, within the immediate transaction team of Client’s employees, agents, and advisors (the “Transaction Team”); or (b) for such other purpose as expressly agreed to by the Parties in the applicable proposal, statement of work, or order form. In respect of both (a) or (b) of this Section 20, the Client Data shall not be made accessible to any parties or third-party other than the Client transaction team (“Transaction Team”). DFIN retains, in its sole discretion, the right to terminate the Staging Data Room if suspension is necessary to avoid harm to DFIN or its business, or in the event Client, or any of its Transaction Team, has violated this provision, including any use of the Staging Data Room in excess of its limited scope of use hereunder. Furthermore, any use of a Staging Data Room by Client or its Transaction Team in excess of its limited scope of use hereunder shall be subject to fees immediately due and payable to DFIN in the amount that would be charged to a live Data Room. A Staging Data Room shall be provided “As-Is” and without any guarantee or warranty of any kind, express or implied. All confidentiality and ownership rights applicable to Services generally under this Agreement, and all Client obligations concerning the Services hereunder, shall also apply equally to Client’s use of the Staging Data Room. DFIN reserves the right to discontinue the Staging Data Room at any time in its sole discretion. DFIN shall have no liability for any harm or damage to Client (including Client Data), the Transaction Team, or any other parties or third parties arising out of or in connection with the Staging Data Room.
21. HIBERNATION PERIOD
During the Hibernation Period for a Data Room, the Client acknowledges and agrees that: (a) only the Hibernation Administrator will be able to access, view, edit, and add Client Data within the project; (b) all other End Users and Client Administrators access will be withdrawn; (c) Hibernation Administrators will not be able to modify any user permissions in any way; and (d) Client will be charged at the Hibernation rates as listed in the applicable proposal, statement of work or order form for the duration of the Hibernation Period. Hibernation Administrators may terminate the Hibernation Period at any time with prior written notice to DFIN.
22. THIRD-PARTY LINKS
(a) The Services may include gateways, links, pop-ups, or other functionality that allows Client and End Users to access Third Party services or Third Party data, content and materials that are not owned or controlled by DFIN (collectively, “Third-Party Links”). Access to Third-Party Links is included solely for Client’s convenience and does not constitute any approval, endorsement, or warranty by DFIN of or for such Third-Party Links.
(b) DFIN does not supply, and is not responsible or liable for, any Third-Party Links or the content, security, operation, or use thereof, including the availability of, connectivity to, or viruses received as a result of accessing such services, the products or services that may be offered or obtained through them, or the accuracy, completeness, or reliability of any information obtained from them. The use of Third-Party Links is governed by the licenses, end-user agreements, privacy and security policies, and terms of use of the Third Parties providing such services. CLIENT USES THIRD-PARTY LINKS AT ITS OWN RISK AND EXPRESSLY RELIEVES DFIN FROM ANY AND ALL LOSSES, DAMAGES, AND OTHER LIABILITIES CLIENT INCURS AS A RESULT OF ITS ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE ANY THIRD-PARTY LINKS.
(c) Access to Third-Party Links may be contingent on agreements that the providers of such Third-Party Links have with other Third Parties. DFIN shall notify Client as soon as practicable after DFIN becomes aware that a provider of any Third-Party Links intends to make any changes to the terms of its agreements relating to such service that will impose additional financial and/or contractual obligations on DFIN or Client. DFIN may in its sole discretion pass on such obligations and/or costs to Client. Notwithstanding anything to the contrary herein, DFIN is not responsible for any changes to the terms of any agreement between the supplier of any Third-Party Link and DFIN or any other person.
23. ENTIRE AGREEMENT
Unless there is an existing agreement in place for these Services, previously executed by both parties hereunder, this Agreement constitutes the complete and exclusive statement of the terms, conditions and representations of the agreement between DFIN and Client with respect to the Services and supersedes all other agreements with respect to the subject matter hereof. In the instance of any conflict between these Venue Terms and Conditions of Service and any corresponding proposal, statement of work, or work order between the parties, such corresponding proposal, statement of work, or work order shall govern and control. Logging in, uploading documents or otherwise utilizing the Services constitutes acceptance by Client of all of the terms and conditions included or referenced on this page.