(A) Vigilant Eye Inc Located at 16231 Haynie Ln, Jupiter FL, 33478 (“Vigilant Eye”) has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-Unit/Member per month basis for the purposes of increasing transparency and oversight in the financial operations of client organizations.
(B) The Client wishes to use Vigilant Eye’s service in its business operations.
(C) Vigilant Eye has agreed to provide, and the Client has agreed to take and pay for, Vigilant Eye’s service subject to the terms and conditions of this agreement.
(1.1) The definitions in this clause apply in this agreement.
Account Administrator: means the legally authorized representative of the client organization with the authority to enter into agreements or create contracts on behalf of the Client.
Account Member: the users authorized access to Vigilant Eye Services by the Account Administrator and/or Account Sub-Admin User at the Account Member Permission Level.
Authorized Users: means all users of Services in accordance with this agreement regardless of Permission Level.
Billing Cycle: One calendar month beginning on the Commencement Date.
Business Day: a day other than a Saturday, Sunday, or US federally recognized holiday.
Commencement Date: the commencement date stated in the Order Form.
Client: means the client organization as set out in the Order Form.
Client Contact: means the contact named in the Order Form who is authorized to enter into this agreement on behalf of the Client.
Client Data: any data inputted by the Account Administrator, Sub Admin, or Vigilant Eye Inc. on the Client’s behalf for the purpose of using the Services or facilitating the Client’s use of the Services.
Member Funded Organization: Any entity which relies on dues, fees, or donations from their members and/or contributors as a primary funding source.
Normal Business Hours: 9.00 am to 5.30 pm Eastern Standard time, each Business Day.
Number of Users: means the number of Units/Members of the Client as set out in the Order Form.
Order Form: means the online form completed by the Account Administrator, or completed by Vigilant Eye Inc. at the Account Administrator’s direction, to commence the services provided by Vigilant Eye Inc.
Parties: means Vigilant Eye Inc. and the Client.
Payment Terms: means the payment terms as set out in the Order Form.
Permission Level: means the level of access to features of the Software as granted by the Account Administrator or Vigilant Eye Inc.
Personally Identifiable Information – Information that would identify any individual or entity to include; Names, Dates of Birth, Account Numbers, Tax Identification Numbers, and Social Security Numbers
Services: the subscription services provided by Vigilant Eye Inc. to the Client under this agreement via www.myvigilanteye.com or any other website notified to the Client by Vigilant Eye Inc. from time to time.
Software: the online software applications provided by Vigilant Eye Inc. as part of the Services.
Sub-Admin User: those agents or board members of the Client who are authorized by the Account Administrator to use the Services at the Sub-Admin User permissions level.
Subscription Fees: the subscription fees payable by the Client to Vigilant Eye Inc. for the User Subscriptions, as set out in the Order Form.
Subscription Term: has the meaning given in the Order Form.
Transaction Data: All data, that is not personally identifiable information or Client data, obtained by Vigilant Eye Inc. through linking either directly or via third party to the Client’s financial accounts while performing Services.
Unit/Members: the total number of units in a community organization, or members in a Member Funded Organization for purposes of establishing the Subscription Fees, whether or not such members are permitted or choose to register for use of Services.
User Subscriptions: individual Unit/Members provided with access to Services by the Account Administrator or at the Account Administrator’s direction which entitle Sub-Amin users and Account Member Users to access and use the Services in accordance with this agreement.
Vigilant Eye Invoice: any invoice raised by Vigilant Eye Inc. to the Client for the provision of the Services.
Virus: any, thing or device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
(2.1) Subject to the Client purchasing the User Subscriptions Vigilant Eye Inc. hereby grants to the Client a non-exclusive, non-transferable right to permit the Authorized Users to use the Services during the Subscription Term solely for the Client’s internal operations.
(2.2) In relation to the Authorized Users, the Client undertakes that:
(a) the maximum number of Authorized Users that it authorizes to access and use the Services shall not exceed the number of User Subscriptions it has purchased from time to time;
(b) it will not allow any User Subscription to be used by more than one individual Authorized User Authorized User;
(c) each Authorized User shall keep a secure password for their use of the Services and that each Authorized User shall keep his password confidential;
(d) If Vigilant Eye Inc. determines that the Client has underpaid Subscription Fees to Vigilant Eye Inc., the Client shall pay to Vigilant Eye Inc. an amount equal to such underpayment as calculated in accordance with the prices set out in the Order Form within 10 Business Days of the date of the relevant audit.
(2.3) The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or
(c) in a manner that is otherwise illegal or causes damage or injury to any person or property;
and Vigilant Eye Inc. reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client’s access to any material that breaches the provisions of this clause.
(2.4) The Client shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software in any form or media or by any means;
(ii) or attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services in order to build a product or service which competes with the Services; or
(c) use the Services to provide services to third parties; or
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorized Users, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services, other than as provided under this clause 2; and
(2.5) The Client shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services and, in the event of any such unauthorized access or use, promptly notify Vigilant Eye Inc.
(2.6) The rights provided under this clause 2 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.
(3.1) Vigilant Eye Inc. shall, during the Subscription Term, provide the Services to the Client subject to the terms of this agreement.
(3.2) Vigilant Eye Inc. shall use commercially reasonable endeavors to make the Services available during Normal Business Hours.
(3.3) Vigilant Eye Inc. will, as part of the Services and at no additional cost to the Client, provide the Client with Vigilant Eye Inc.’s standard customer support services during Normal Business Hours.
(4.1) The Client shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Data.
(4.2) Vigilant Eye Inc. shall follow its archiving procedures for Client Data. In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy shall be for Vigilant Eye Inc. to use reasonable commercial endeavors to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by Vigilant Eye or the sub-contractors thereof. Vigilant Eye Inc. shall not be responsible for any loss, destruction, alteration, or disclosure of Client Data caused by any third party (except those third parties sub-contracted by Vigilant Eye Inc. to perform services related to Client Data maintenance and back-up).
(4.4) If Vigilant Eye Inc processes any Personally Identifiable Information on the Client’s behalf when performing its obligations under this agreement, the parties record their intention that the Client shall be the data controller and Vigilant Eye Inc. shall be a data processor and in any such case:
(a) the Client acknowledges and agrees that the Personally Identifiable Information may be transferred or stored outside the USA or the country where the Client and the Authorized Users are located in order to carry out the Services and Vigilant Eye’s other obligations under this agreement;
(b) the Client shall ensure that the Client is entitled to transfer the relevant Personally Identifiable Information to Vigilant Eye Inc. so that Vigilant Eye Inc. may lawfully use, process and transfer the personally Identifiable Information in accordance with this agreement on the Client’s behalf;
(5.1) Vigilant Eye Inc. shall own all right, title and interest in and to all of the Transaction Data.
(5.2) Vigilant Eye Inc. shall follow its archiving procedures for Transaction Data. In the event of any loss or damage to Transaction Data, the Client’s sole and exclusive remedy shall be for Vigilant Eye Inc. to use reasonable commercial endeavors to restore the lost or damaged Transaction Data from the latest back-up of such Transaction Data maintained by Vigilant Eye or the sub-contractors thereof. Vigilant Eye Inc. shall not be responsible for any loss, destruction, alteration, or disclosure of Transaction Data caused by any third party (except those third parties sub-contracted by Vigilant Eye Inc. to perform services related to Transaction Data maintenance and back-up).
5.3) Vigilant Eye Inc. shall, in providing the Services, use Transaction Data to perform a variety of statistical processes to improve product development and delivery. The Transaction Data may be used in various
5.4) Vigilant Eye Inc. may, in developing other products and services, use Transaction Data to support the development and delivery of such products.
(6.1) Vigilant Eye Inc. undertakes that the Services will be performed with reasonable skill and care.
(6.2) The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Vigilant Eye Inc.’s instructions, or modification or alteration of the Services by any party other than Vigilant Eye Inc. or Vigilant Eye Inc.’s duly authorized contractors or agents. If the Services do not conform with the foregoing undertaking, Vigilant Eye Inc. will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, Vigilant Eye Inc.:
(a)does not warrant that the Client’s use of the Services will be uninterrupted or error-free; or that the Services, the information obtained by the Client through the Services will meet the Client’s requirements; and
(b)is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
(6.3) This agreement shall not prevent Vigilant Eye Inc. from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
(6.4) Vigilant Eye Inc. warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this agreement.
(7.1) The Client shall:
(a) provide Vigilant Eye Inc. with:
(i) a list of all authorized users by name and valid email address;
(ii) notification within 5 business days of any change to the Account Administrator; and
(iii) all necessary access to such information as may be required by Vigilant Eye Inc.;
in order to provide the Services, including but not limited to Client Data, Transaction Data and account configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) ensure that the Authorized Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorized User’s breach of this agreement.
(8.1) The Client shall pay the Subscription Fees to Vigilant Eye Inc. for the User Subscriptions in accordance with this clause 8 and the Order Form.
(8.2) Unless otherwise agreed between the Parties, the Client shall provide a valid form of payment on the Order Form on the Commencement Date for the Subscription Fees payable in accordance with the terms outlined on the Order Form.
(8.3) If Vigilant Eye Inc. has not received payment within 10 days after the date outlined in the Order Form or within 10 days of any subsequent Billing Cycle, Vigilant Eye Inc. will issue a Vigilant Eye Invoice due on the date of the next Billing Cycle for the outstanding balance, and without prejudice to any other rights and remedies of Vigilant Eye Inc.:
(a)Vigilant Eye Inc. may, without liability to the Client, disable the Client’s password, account and access to all or part of the Services and Vigilant Eye Inc. shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b)interest shall accrue on a daily basis on such due amounts at an annual rate equal to 6%, commencing on the Vigilant Eye Invoice due date and continuing until fully paid, whether before or after judgment.
(8.4) All amounts and fees stated or referred to in this agreement:
(a)shall be payable in US Dollars unless otherwise specified in the Order Form;
(b)are non-cancellable and non-refundable;
(8.5)Vigilant Eye Inc. shall be entitled to vary the Subscription Fees upon 30 days’ prior notice to the Client and the Order Form shall be deemed to have been amended accordingly.
(9.1) The Client shall defend, indemnify and hold harmless Vigilant Eye Inc. against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s use of the Services provided that:
(a) the Client is given prompt notice of any such claim;
(b) Vigilant Eye Inc. provides reasonable co-operation to the Client in the defense and settlement of such claim, at the Client’s expense; and
(c) the Client is given sole authority to defend or settle the claim.
(9.2) Vigilant Eye Inc. shall defend the Client, its officers, directors and employees against any claim that the Services infringes any patent effective as of the Commencement Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
(a) Vigilant Eye Inc. is given prompt notice of any such claim;
(b) the Client provides reasonable co-operation to Vigilant Eye Inc. in the defense and settlement of such claim, at Vigilant Eye’s expense; and
(c) Vigilant Eye Inc. is given sole authority to defend or settle the claim.
(9.3) In the defense or settlement of any claim, Vigilant Eye may procure the right for the Client to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
(9.4) In no event shall Vigilant Eye Inc., its employees, agents, and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than Vigilant Eye Inc.; or
(b) the Client’s use of the Services are in a manner contrary to the instructions given to the Client by Vigilant Eye Inc.; or
(c) the Client’s use of the Services after notice of the alleged or actual infringement from Vigilant Eye Inc or any appropriate authority.
(9.5) The foregoing states the Client’s sole and exclusive rights and remedies, and Vigilant Eye’s (including Vigilant Eye Inc.’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
(10.1) This clause 10 sets out the entire financial liability of Vigilant Eye Inc. (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:
(a)arising under or in connection with this agreement;
(b)in respect of any use made by the Client of the Services or any part of them; and
(c)in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
(10.2) Except as expressly and specifically provided in this agreement:
(a)the Client assumes sole responsibility for results obtained from the use of the Services and for conclusions drawn from such use. Vigilant Eye Inc. shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Vigilant Eye Inc. by the Client in connection with the Services, or any actions taken by Vigilant Eye Inc. at the Client’s direction;
(b)all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
(c)the Services are provided to the Client on an “as is” basis.
(11.1) This agreement shall, unless otherwise terminated as provided in this clause 11, commence on the Commencement Date and shall continue for the Subscription Term and, thereafter, this agreement shall continue until either party provides the other party with one (1) month written notice of termination, unless otherwise agreed in the Order Form:
(11.2) Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a)the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment;
(b)the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c)any warranty given by Vigilant Eye Inc. in clause 6.4 of this agreement is found to be untrue or misleading.
(11.3) On termination of this agreement for any reason:
(a)all licenses granted under this agreement shall immediately terminate;
(b)Vigilant Eye Inc. may in its discretion destroy or otherwise dispose of any of the Client Data in its possession.
(c)any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
Vigilant Eye Inc. shall have no liability to the Client under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Vigilant Eye Inc. or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of Vigilant Eye Inc. or sub-contractors, provided that the Client is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of this agreement and the Order Form, the provisions in the Order Form shall prevail.
No variation of this agreement shall be effective unless it is in writing and accepted by the parties (or their authorized representatives). For the avoidance of doubt, agreement by email shall constitute an agreement in writing.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
(17.1) If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
(17.2) If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
(18.1) This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
(18.2) Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
(19.1) The Client shall not, without the prior written consent of Vigilant Eye Inc., assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
(19.2) Vigilant Eye Inc. may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
(21.1) Any notice required to be given under this agreement shall be in writing and shall be delivered by email to the Account Administrator as listed on the Order Form, by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Order Form, or such other address as may have been notified by that party for such purposes.
(21.2) A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
This Agreement and the Notes, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute will be governed by and construed in accordance with the internal laws of the State of Florida, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Florida. Venue for any action or claim arising from this Agreement shall lie in Broward County, Florida, or the United States District Court for the Southern District of Florida, or in the case where there exists a Florida Business Court at the time during which such action or claim is brought, the region or circuit of that Business Court deemed appropriate by the laws of Florida as an appropriate forum or venue for the action or claim arising here from.
In the event that any to this Agreement is required to engage the services of legal counsel to enforce its rights under this Agreement against the other Party, regardless of whether such action results in litigation, the prevailing Party shall be entitled to reasonable attorneys’ fees and costs from the other Party, which in the event of litigation shall include fees and costs incurred at trial and on appeal.