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Terms of Service

TERMS OF SERVICE

(Last Updated June 2023)

 

Please read these Terms of Service carefully because they govern Customer’s use of our products and services. The Customer, together with Dingo Technologies, Inc. (“Dingo”), are referred to as the “Parties”.

 

SECTION A – DEFINITIONS

 

  • “Agreement” means this Software as a Service Agreement.

  • “Customer” means the Customer customers identified in the Quote Summary.

  • “Data” means Customer’s data necessary to utilize the Dingo Software.

  • “Defect” means a failure of the Dingo Software to substantially conform to the functional descriptions set forth in Dingo’s written proposal to Customer, or their functional equivalent.  Future functionality may be updated, modified, or otherwise enhanced through Dingo’s maintenance and support services, and the governing functional descriptions for such future functionality will be set forth in Dingo’s then-current Documentation.

  • “Defined Users” means the number of users that are authorized to use the SaaS Services.  The Defined Users for the Agreement are as identified in the Quote Summary.

  • “Developer” means a third party who owns the intellectual property rights to Third Party Software.

  • “Documentation” means any online or written documentation related to the use or functionality of the Dingo Software that Dingo provides or otherwise make available to Customer, including instructions, user guides, manuals and other training or self-help documentation.[VS1] 

  • “Effective Date” means the date by which both Customer’s and Dingo’s authorized representatives have signed the Agreement.

  • “Force Majeure” means an event beyond the reasonable control of Customer or us, including, without limitation, governmental action, war, riot or civil commotion, fire, natural disaster, or any other cause that could not with reasonable diligence be foreseen or prevented by Customer or us.

  • “Quote Summary” means the agreed upon cost proposal or order form for the products and services.

  • Quote Summary“SaaS Fees” means the fees for the SaaS Services identified in the Quote Summary.

  • “SaaS Services” means software as a service consisting of system administration, system management, and system monitoring activities that Dingo performs for the Dingo Software, and includes the right to access and use the Dingo Software, receive maintenance and support and Data storage and archiving.  SaaS Services do not include support of an operating system or hardware, support outside of Dingo’s normal business hours, or training, consulting or other professional services.

  • “Term” means the Term as set forth in Section F.1.

  • “Support Call Process” means the support call process applicable to all of Dingo’s customers who have licensed the Dingo Software.   Dingo Technologies use commercially reasonable efforts to resolve support calls or provide a circumvention procedure within one (1) business day of receipt of the support call. Quote Summary

  • “Third Party Products” means the Third Party Software.

  • “Third Party Software” means the third party software, if any, identified in the Quote Summary.

  • “Dingo” means Dingo Technologies, Inc., dba DINGO, an Delaware corporation.

  • “Dingo Software” means Dingo’s proprietary software, including any integrations, custom modifications, and/or other related interfaces identified in the Quote Summary and licensed by Dingo to Customer through these Terms.

  • “Customer” and similar terms mean Client.

 

SECTION B – SAAS SERVICES

 

1. Rights Granted.  Dingo grants to Customer the non-exclusive, non-assignable limited license to use the SaaS Services solely for Customer’s internal business purposes for the number of Defined Users only.  CustomerCustomer acknowledges that Dingo has no delivery obligations and Dingo will not ship copies of the Dingo Software as part of the SaaS Services.

 

2. SaaS Fees.  Customer agree to pay Dingo the SaaS Fees as set forth herein and within the Quote Summary. 

 

3. Ownership. 

 

3.1 Dingo retains all ownership and intellectual property rights to the SaaS Services, the Dingo Software, and anything developed by Dingo under these Terms.  Customer does not acquire under these Terms any license to use the Dingo Software in excess of the scope and/or duration of the SaaS Services. 

 

3.2 The Documentation is licensed to Customer and may be used and copied by Customer’s employees for internal, non-commercial reference purposes only. 

 

3.3 Customer retain all ownership and intellectual property rights to the Data.  Customer expressly recognize that except to the extent necessary to carry out Dingo’s obligations contained in these Terms,Dingo does not create or endorse any Data used in connection with the SaaS Services.   The Data shall not be sold, assigned, leased or otherwise provided to third parties by Dingo, including any Customer  Customer and/or broker identifying information shared by Customer with Dingo in order to administer these Terms

 

4. Restrictions. Customer may not: (a) make the Dingo Software or Documentation resulting from the SaaS Services available in any manner to any third party for use in the third party’s business operations; (b) modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the SaaS Services; (c) access or use the SaaS Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to us; or (d) license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the SaaS Services, Dingo, or Documentation available to any third party other than as expressly permitted by these Terms.

 

5. Software Warranty. Dingo warrant that the Dingo Software will perform without Defects during the term of as set forth in the Quote Summary.  If the Dingo Software does not perform as warranted,Dingo will use all reasonable efforts, consistent with industry standards, to cure the Defect in accordance with the maintenance and support process set forth below.

 

6. Future Functionality. Customer  Customer agrees that it has not relied on the promise of availability of any future functionality of the Dingo Software or any other future product or service in executing these Terms or any Quote Summary. Customer  Customer acknowledgess that information provided by Dingo regarding future functionality should not be relied upon to make a purchase decision. Should Dingo offer additional optional functionality in the future that complement the existing Dingo Software, Customer may elect to add optional functionality for an additional fee.

 

7. SaaS Services.

 

7.1 Dingo’s SaaS Services are internally audited at least yearly to ensure Dingo’s security, processing integrity, confidentiality and privacy controls.  The scope of audit coverage varies for some Dingo solutions.  Upon execution of a mutually agreeable Non-Disclosure Agreement (“NDA”),Dingo will provide Customer with a summary of Dingo’s compliance report(s) or its equivalent.  If Dingo’s SaaS Services are provided using a 3rd party data center, Dingo will provide available compliance reports for that data center.

 

7.2 Customer will be hosted on shared hardware in a Dingo data center or in a third-party data center.  In either event, databases containing Customer’s Data will be dedicated to Customer and inaccessible to Dingo’s other customers.

 

7.3 Dingo data centers or third-party data centers utilized by Dingo have fully-redundant telecommunications access, electrical power, and the required hardware to provide access to the Dingo Software in the event of a disaster or component failure. 

 

7.4 Dingo will maintain industry standard intrusion detection and prevention systems to monitor malicious activity in the network and to log and block any such activity.  Dingo will provide Customer with a written or electronic record of the actions taken by Dingo in the event that any unauthorized access to Customer’s database(s) is detected as a result of Dingo’s security protocols.  Dingo will undertake an additional security audit, on terms and timing to be mutually agreed to by the parties, at Customer’s written request.  Customer may not attempt to bypass or subvert security restrictions in the SaaS Services or environments related to the Dingo.  Unauthorized attempts to access files, passwords or other confidential information, and unauthorized vulnerability and penetration test scanning of Dingo’s network and systems (hosted or otherwise) is prohibited without the prior written approval of Dingo’s IT Security Officer.

 

7.5 Dingo test Dingo’s disaster recovery plan on an regular basis.  Dingo’s standard test is not client-specific.  Should Customer request a client-specific disaster recovery test, Dingo will work with Customer to schedule and execute such a test on a mutually agreeable schedule.  At Customer’s written request, Dingo will provide test results to Customer within a commercially reasonable timeframe after receipt of the request.

 

7.6 Dingo will be responsible for importing back-up and verifying that Customer can log-in.  Customer will be responsible for running reports and testing critical processes to verify the returned Data.

 

7.7 Dingo provide secure Data transmission paths between each of Customer’s workstations and Dingo’s servers.

 

7.8 Dingo data centers or third-party data centers utilized by Dingo are accessible only by authorized personnel with a unique key entry. All other visitors to Dingo data centers or third-party data centers utilized by Dingo must be signed in and accompanied by authorized personnel.  Entry attempts to the data center are regularly audited by internal staff and external auditors to ensure no unauthorized access.

 

 

SECTION C – PROFESSIONAL SERVICES

 

1. Professional Services. Dingo will provide Customer with various implementation-related services itemized in the Quote Summary.

 

2. Professional Services Fees.  Customer agrees to pay Dingo the professional services fees in the amounts set forth in the Quote Summary in accordance with the these Terms or the terms set forth in the Quote Summary.  Customer acknowledges that the fees stated in the Quote Summaryare good-faith estimates of the amount of time and materials required for Customer’s implementation.  Dingo will bill Customer the actual fees incurred based on the in-scope services provided to Customer.  Any discrepancies in the total values set forth in the Quote Summarywill be resolved by multiplying the applicable hourly rate by the quoted hours.

 

3. Additional Services.  The Quote Summary contains the scope of services and related costs (including programming and/or interface estimates) required for the project based on Dingo’s understanding of the specifications Customer supplied.  If additional work is required, or if Customer use or request additional services, Dingo will provide Customer with an addendum or change order, as applicable, outlining the costs for the additional work.  The price quotes in the addendum or change order will be valid for thirty (30) days from the date of the quote. 

 

4. Services Warranty.  Dingo will perform the services in a professional, workmanlike manner, consistent with industry standards.  In the event Dingo provides services that do not conform to this warranty, Dingo will re-perform such services at no additional cost to Customer.

 

5. Client Assistance.  Customer acknowledges that the implementation of the Dingo Software is a cooperative process requiring the time and resources of Customer’s personnel.  Customer agree to use all reasonable efforts to cooperate with and assist Dingo as may be reasonably required to meet the agreed upon project deadlines and other milestones for implementation.  This cooperation includes at least working with Dingo to schedule the implementation-related services outlined in these Terms.  Dingo will not be liable for failure to meet any deadlines and milestones when such failure is due to Force Majeure or to the failure by Customer’s personnel to provide such cooperation and assistance (either through action or omission).

 

6. Maintenance and Support.  For so long as Customer timely pay Customer’ SaaS Fees according to the Quote Summary, then Dingo will:

 

6.1 perform Dingo’s maintenance and support obligations in a professional, good, and workmanlike manner, consistent with industry standards, to resolve Defects in the Dingo Software (subject to any applicable release life cycle policy);

 

6.2 provide support during Dingo’s established support hours, which includes using commercially reasonable efforts to resolve support calls or provide a circumvention procedure within one (1) business day of receipt of the support call;

 

6.3 maintain personnel that are sufficiently trained to be familiar with the Dingo Software, in order to provide maintenance and support services;

 

6.4 provide non-Defect resolution support of prior releases of the Dingo Software in accordance with any applicable release life cycle policy.

 

SECTION D – THIRD PARTY PRODUCTS

 

1. Third Party Software.  As part of the SaaS Services, Customer may receive access to the Third Party Software and documentation for internal business purposes only.  Customer’s rights to the Third Party Software will be related governed by the terms of use of the third party software. 

 

2. Third Party Products Warranties. Customer acknowledges that Dingo is not the manufacturer of the Third Party Products.  Dingo does not warrant or guarantee the performance of the Third Party Products.  However, Dingo grants and passes through to Customer any warranty that Dingo may receive from the Developer or supplier of the Third Party Products.

 

SECTION E - INVOICING AND PAYMENT; INVOICE DISPUTES

 

1. Invoicing and Payment.  Dingo will invoice Customer the SaaS Fees and fees for other professional services as set forth in the Quote Summary, subject to Section E(2).   

 

2. Invoice Disputes. If Customer believe any delivered software or service does not conform to the warranties in these Terms, Customer will provide Dingo with written notice within thirty (30) days of Customer’s receipt of the applicable invoice.  The written notice must contain reasonable detail of the issues Customer contends are in dispute so that Dingo can confirm the issue and respond to Customer’s notice with either a justification of the invoice, an adjustment to the invoice, or a proposal addressing the issues presented in Customer’s notice.  Dingo will work with Customer as may be necessary to develop an action plan that outlines reasonable steps to be taken by each of Dingo to resolve any issues presented in Customer’s notice.  Customer may withhold payment of the amount(s) actually in dispute, and only those amounts, until Dingo completes the action items outlined in the plan.  If Dingo is unable to complete the action items outlined in the action plan because of Customer’s failure to complete the items agreed to be done by Customer, then Customer will remit full payment of the invoice.  Dingo reserves the right to suspend delivery of all SaaS Services, including maintenance and support services, if Customer fails to pay an invoice not disputed as described above within fifteen (15) days of notice of Dingo’s intent to do so.

 

SECTION F – TERM AND TERMINATION

 

1.    Term.  These Terms shall be in effect for the Term specified in the Quote Summary. Unless otherwise set forth in the Quote Summary, the Term for the Dingo Software, in whole or part, will automatically renew at the end of the initial Term for the same period of time as the initial Term.

 

2. Termination.  Dingo may terminate these Terms, any Quote Summary, and Customer’s access to and use of the Dingo Software at its sole discretion, at any time upon notice to Customer. However, if Dingo so terminates for its convenience and not as otherwise set forth in these Terms or the applicable Quote Summary or due to Customer’s breach thereof, then Dingo shall refund to Customer prepaid fees, if any, prorated to the period of time between the termination and expiration of the term as set forth in the Quote Summary. Unless otherwise set forth herein or in the applicable Quote Summary, the Quote Summary and agreement cannot be terminated prior to the expiration of the term set forther therein or within these Terms. In the event of termination, Customer will pay Dingo for all undisputed fees and expenses related to the software, products, and/or services Customer has received, or Dingo has incurred or delivered, prior to the effective date of termination.  Disputed fees and expenses in all terminations other than Customer’s termination for cause must have been submitted as invoice disputes in accordance with Section E(2).

 

2.1 Failure to Pay SaaS Fees.  Customer acknowledges that continued access to the SaaS Services is contingent upon Customer’s timely payment of SaaS Fees.  If Customer fails to timely pay the SaaS Fees, Dingo shall have the right to discontinue the SaaS Services and deny Customer’s access to the Dingo Software until payment is received.  Dingo may also terminate these Terms if Customer doesn’t cure such failure to pay within forty-five (45) days of receiving written notice of Dingo’s intent to terminate.

 

2.2 For Cause.  If Customer believes Dingo has materially breached these Terms, Customer will invoke the Dispute Resolution clause set forth in Section H(2). 

 

2.3 Force Majeure.  Either party has the right to terminate these Terms if a Force Majeure event suspends performance of the SaaS Services for a period of forty-five (45) days or more.

 

 

SECTION G – INDEMNIFICATION, LIMITATION OF LIABILITY AND INSURANCE

 

  1. Intellectual Property Infringement Indemnification. 

 

1.1 Dingo will defend Customer against any third party claim(s) that the Dingo Software or Documentation infringes that third party’s patent, copyright, or trademark, or misappropriates its trade secrets, and will pay the amount of any resulting adverse final judgment (or settlement to which Dingo consents).  Customer must notify Dingo promptly in writing of the claim and give Dingo sole control over its defense or settlement.  Customer agree to provide Dingo with reasonable assistance, cooperation, and information in defending the claim at Dingo’s expense.

 

1.2 Dingo’s obligations under this Section G(1) will not apply to the extent the claim or adverse final judgment is based on Customer’s use of the Dingo Software in contradiction of these Terms, including with non-licensed third parties, or Customer’s willful infringement.

 

1.3 If Dingo receives information concerning an infringement or misappropriation claim related to the Dingo Software, Dingo may, at Dingo’s  expense and without obligation to do so, either: (a) procure for Customer the right to continue its use; (b) modify it to make it non-infringing; or (c) replace it with a functional equivalent, in which case Customer will stop running the allegedly infringing Dingo immediately.  Alternatively, Dingo may decide to litigate the claim to judgment, in which case Customer may continue to use the Dingo Software consistent with these Terms.

 

1.4 If an infringement or misappropriation claim is fully litigated and Customer’s use of the Dingo Software is enjoined by a court of competent jurisdiction, in addition to paying any adverse final judgment (or settlement to which Dingo consents), Dingo will, at Dingo’s  option, either: (a) procure the right to continue its use; (b) modify it to make it non-infringing; or (c) replace it with a functional equivalent.  This section provides Customer’s exclusive remedy for third party copyright, patent, or trademark infringement and trade secret misappropriation claims.

 

2. General Indemnification.

 

2.1 Dingo will indemnify and hold harmless Customer and Customer’s agents, officials, and employees from and against any and all third-party claims, losses, liabilities, damages, costs, and expenses (including reasonable attorney's fees and costs) for personal injury or property damage to the extent caused by Dingo’s  sole negligence or willful misconduct.  Customer must notify Dingo promptly in writing of the claim and give Dingo sole control over its defense or settlement.  Customer agree to provide Dingo with reasonable assistance, cooperation, and information in defending the claim at Dingo’s  expense.

 

2.2 To the extent permitted by applicable law, Customer will indemnify and hold harmless Dingo and Dingo’s  agents, directors, officers, and employees from and against any and all third-party claims, losses, liabilities, damages, costs, and expenses (including reasonable attorney's fees and costs) for personal injury or property damage to the extent caused by Customer’s negligence or willful misconduct or Customer’s violation of a law applicable to Customer’s performance under these Terms. Dingo will notify Customer promptly in writing of the claim and will give Customer sole control over its defense or settlement. Dingo agrees to provide Customer with reasonable assistance, cooperation, and information in defending the claim at Customer’s expense.

 

3. DISCLAIMER.  EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THESE TERMS AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,DINGO HEREBY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES, OR CONDITIONS OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

 

4. LIMITATION OF LIABILITY.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THESE TERMS, FOR ANY CAUSE RELATED TO OR ARISING OUT OF THESE TERMS, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, DINGO WILL IN NO EVENT BE LIABLE TO Customer OR ANY THIRD PARTY FOR: (A) DAMAGES BASED ON USE OR ACCESS, INTERRUPTION, DELAY OR INABILITY TO USE THE DINGO SOFTWARE, LOST REVENUES OR PROFITS, LOSS OF SOLUTIONS, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION, BREACHES BY AN AUTHORIZED PARTNER, OR BREACHES IN CUSTOMER’S SYSTEM SECURITY; OR (B) ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES; OR (C) ANY AMOUNTS THAT EXCEED THE TOTAL FEES PAID BY CUSTOMER FOR THE DINGO SOFTWARE THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT DINGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BOTH PARTIES UNDERSTAND AND AGREE THAT THE LIMITATIONS OF LIABILITIES FOR EACH PARTY SET FORTH IN THESE TERMS ARE REASONABLE AND THEY WOULD NOT HAVE ENTERED INTO THE AGREEMENT WITHOUT SUCH LIMITATIONS.

 

5. EXCLUSION OF CERTAIN DAMAGES.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DINGO BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, EVEN IF DINGO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

SECTION H – GENERAL TERMS AND CONDITIONS

 

1. Additional Products and Services.  Customer may purchase additional products and services at the rates set forth in the Quote Summary for twelve (12) months from the Effective Date by executing a mutually agreed addendum.  If no rate is provided in the Quote Summary, or those twelve (12) months have expired, Customer may purchase additional products and services at Dingo’s  then-current list price, also by executing a mutually agreed addendum.  These Terms will control any such additional purchase(s), unless otherwise specifically provided in the addendum.

 

2. Dispute Resolution.  Customer Dingo Customer Dingo  Dingo Customer Dingo Any dispute arising from or relating to these Terms or Customer's use of the Products that cannot be resolved by the Parties within a period of sixty (60) days after notice of a dispute has been given by one Party hereunder to the other, shall be finally and exclusively settled by confidential arbitration in Delaware, using the English language in accordance with the Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services, Inc. (“JAMS Rules”) then in effect, by one or more commercial arbitrator(s) with substantial experience in resolving complex commercial contract disputes. The Parties agree that such arbitrator(s) shall have full authority to award preliminary and permanent injunctive relief, damages, and any other relief available in law, at equity, or otherwise pursuant to applicable law and that any emergency arbitrator(s) appointed in accordance with the JAMS Rules shall have authority to grant emergency relief in accordance with such rules[VS2] .

 

3. Taxes.  The fees in the Quote Summary do not include any taxes, including, without limitation, sales, use, or excise tax.  If Customer are a tax-exempt entity, Customer agree to provide Dingo with a tax-exempt certificate.  Otherwise, Dingo will pay all applicable taxes to the proper authorities and Customer will reimburse Dingo for such taxes.  If Customer have a valid direct-pay permit, Customer agree to provide Dingo with a copy.  For clarity, Dingo is responsible for paying Dingo’s  income taxes, both federal and state, as applicable, arising from Dingo’s  performance of these Terms.     

 

4. Binding Effect; No Assignment.  These Terms shall be binding on, and shall be for the benefit of, either Customer’s or Dingo’s  successor(s) or permitted assign(s). Neither party may assign these Terms without the prior written consent of the other party; provided, however, Customer’s consent is not required for an assignment by Dingo as a result of a corporate reorganization, merger, acquisition, or purchase of substantially all of Dingo’s  assets.

 

5. Updates. Dingo reserves the right to modify these Terms at our sole discretion provided that changes to the these Terms shall not materially decrease the Dingso Software features and functionalities that Customer has purchased to during the then-current Term. Should Dingo make any modifications to the Agreement, Dingo will post the amended terms on the applicable URL links and will update the “Last Updated Date” within such documents and notify Customer via the contact information provided in the Quote Summary, or such other written communication method implemented by Dingo from time-to-time. Customer may notify Dingo within 30 days after the effective date of the change of its rejection of such change. If Customer notifies Dingo of its rejection during such thirty (30) day period, then Customer will remain governed by the terms in effect immediately prior to the change until the end of Client’s then-current Term. However, any subsequent renewal of the Term will be renewed under the then-current terms, unless otherwise agreed in writing by the parties.

 

6. Force Majeure. Except for Customer’s payment obligations, neither party will be liable for delays in performing its obligations under these Terms to the extent that the delay is caused by Force Majeure; provided, however, that within ten (10) business days of the Force Majeure event, the party whose performance is delayed provides the other party with written notice explaining the cause and extent thereof, as well as a request for a reasonable time extension equal to the estimated duration of the Force Majeure event. 

 

7. No Intended Third Party Beneficiaries.  These Terms is entered into solely for the benefit of Customer and us.  No third party will be deemed a beneficiary of these Terms, and no third party will have the right to make any claim or assert any right under these Terms.  This provision does not affect the rights of third parties under any Third Party Terms.

 

8. Entire Agreement; Amendment.  These Terms together with the Quote Summary represent the entire agreement between Customer and Dingo with respect to the subject matter hereof, and supersedes any prior agreements, understandings, and representations, whether written, oral, expressed, implied, or statutory.  Purchase orders submitted by Customer, if any, are for Customer’s internal administrative purposes only, and the terms and conditions contained in those purchase orders will have no force or effect.  Except as provided herein, these Terms may  be amended, modified, or supplemented only by an agreement in writing signed by an authorized representative of each party.

 

9. Severability.  If any term or provision of these Terms or Quote Summary is held invalid or unenforceable, the remainder of these Terms and provisions of the Quote Summary will be considered valid and enforceable to the fullest extent permitted by law.

 

10. No Waiver.  In the event that the terms and conditions of these Terms are not strictly enforced by either party, such non-enforcement will not act as or be deemed to act as a waiver or modification of these Terms, nor will such non-enforcement prevent such party from enforcing each and every one of these Terms thereafter.

 

11. Independent Contractor.  Dingo is an independent contractor for all purposes under these Terms.

 

12. Notices.  All notices or communications required or permitted as a part of these Terms, such as notice of an alleged material breach for a termination for cause or a dispute that must be submitted to dispute resolution, must be in writing and will be deemed delivered upon the earlier of the following: (a) actual receipt by the receiving party; (b) upon receipt by sender of a certified mail, return receipt signed by an employee or agent of the receiving party; (c) upon receipt by sender of proof of email delivery; or (d) if not actually received, five (5) days after deposit with the United States Postal Service authorized mail center with proper postage (certified mail, return receipt requested) affixed and addressed to the other party at the address set forth on the signature page hereto or such other address as the party may have designated by proper notice.  The consequences for the failure to receive a notice due to improper notification by the intended receiving party of a change in address will be borne by the intended receiving party.

 

13. Customer Lists.  Customer agrees that Dingo may identify Customer by name in Dingo’s customer lists, marketing presentations, and promotional materials.

 

14. Confidentiality.  Both parties recognize that their respective employees and agents, in the course of performance of these Terms, may be exposed to confidential information and that disclosure of such information could violate rights to private individuals and entities, including the parties.  Confidential information is nonpublic information that a reasonable person would believe to be confidential and includes, without limitation, personal identifying information (e.g., social security numbers) and trade secrets, each as defined by applicable state law.  Each party agrees that it will not disclose any confidential information of the other party and further agrees to take all reasonable and appropriate action to prevent such disclosure by its employees or agents.  The confidentiality covenants contained herein will survive the termination or cancellation of these Terms.  This obligation of confidentiality will not apply to information that:

a. is in the public domain, either at the time of disclosure or afterwards, except by breach of these Terms by a party or its employees or agents;

b. a party can establish by reasonable proof was in that party's possession at the time of initial disclosure;

c. a party receives from a third party who has a right to disclose it to the receiving party; or

d. is the subject of a legitimate disclosure request under the open records laws or similar applicable public disclosure laws governing these Terms; provided, however, that in the event Customer receive an open records or other similar applicable request, Customer will give Dingo prompt notice and otherwise perform the functions required by applicable law. 

 

15. Governing Law.  These Terms and any action related thereto will be governed by the laws of the State of California [VS3] without regard to its conflict of laws provisions. Subject to the agreement to arbitrate set forth herein, exclusive jurisdiction and venue for actions arising from or related to these Terms or Customer's use of the Products will be the state and federal courts located in Delaware, United States, and both Parties consent to the jurisdiction of such courts with respect to any such actions.

 

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