Effective Date: August 1, 2016
This SAAS Subscription Agreement (“Agreement”), dated as of the Effective Date, governs the use by Customer of the master controllers, and other equipment, parts and supplies designated by Service Provider (“Products”, and collectively, the “SAAS System”), and the services provided by Service Provider in connection with the SAAS System (the “SAAS Services”). This Agreement includes (1) each Order Form and Invoice that provides the type, quantity and payment terms for the Products purchased from Service Provider and the SAAS Services, (2) the Terms of Purchase and Use below as modified from time to time by Service Provider, and (3) the Pre-Deployment Checklist executed by the parties. In the event of conflict among the terms of the foregoing documents, the order of priority shall be as follows: the Order Forms, this Agreement, and the Terms of Purchase and Use.
Use; Pre-Deployment Checklist.
1. Service Provider agrees to sell the Products and provide the SAAS Services described in each Order Form, and Customer agrees to pay for the Products and SAAS Services and comply with the terms and conditions set forth in the Agreement, each Order Form, and the Terms of Purchase and Use. As provided in each Order Form, the Products to be purchased may include master controllers configured to communicate with the Service Provider network operations center (each a “Gateway”) and/or activation kit(s) or other devices (the “Devices”) listed in the Order Form. The term Product includes both Gateways and Devices where applicable. The Products shall be for use (i) only in connection with accessing the SAAS System and use of the SAAS Services, (ii) only for Customer's internal business purposes, (iii) only in conformance with the applicable manufacturer’s recommendations. The applicable fees (“Fees”) for the Products are shown in the Order Form. Subsequent purchases of Products shall be made only from Service Provider, and shall be subject to the terms and conditions of this Agreement.
2. The Term of Service for the SAAS Services is indicated in the Order Form for the SAAS Services. The SAAS Services may be accessed and used only by the number of end users (“Users”) specified in the Order Form(s), for the Fees corresponding to that number and type of User. For each User, and based on the SAAS Service provided, Customer may be provided a User name (User ID) and password, which enables the number of Customer's Users to access the SAAS System and use the SAAS Services. Customer shall ensure the confidentiality of such User IDs and passwords and shall be responsible for all acts or omissions of all Users using such User IDs and passwords or otherwise allowed access by Customer to the SAAS Services, whether or not authorized by Customer. Following expiration of the Initial Term, the Term of Service will automatically renew for successive periods of one (1) year each unless and until either party gives the other party written notice of non-renewal at least 60 days prior to the next scheduled renewal date. Customer may elect Early Termination of the Services solely as permitted in the Terms of Purchase and Use for the SAAS Services.
3. Service Provider grants to Customer a limited, non-exclusive, terminable, revocable, non-transferable, non-sublicensable license to access the SAAS Services through the SAAS System, or by any other means on which the parties may agree in writing, and to use the SAAS Services during the Term of Service, subject to the Terms of Purchase and Use located at http://www.data360.me and http://www.data360.solutions, as Service Provider may revise such Terms of Purchase and Use from time to time.
4. All other terms and conditions that are part of this Agreement shall be as set forth in the Terms of Purchase and Use, and this Agreement (inclusive of the Terms of Purchase and Use), and all Order Forms completed and approved pursuant to this Agreement, constitute the complete and exclusive terms of the Agreement between the parties regarding the subject matter hereof, and supersedes all other prior and contemporaneous agreements or communications with respect to such subject matter.. In the event of a direct conflict between the terms of this Agreement and the terms of the then-current Terms of Purchase and Use, the terms of the Agreement shall control.
5. Customer represents and warrants that Customer (a) has all necessary authorization to purchase and pay for the Products and SAAS Services indicated in each Order Form; (b) is not subject to any restriction, penalty, agreement, commitment, law, rule, regulation or order which prohibits, or is violated by, its execution and delivery of this Agreement; and (c) in using the Products, SAAS System and SAAS Services, Customer will comply with all applicable federal, state and local laws.
6. Customer agrees to provide the necessary electric service, wiring, computer equipment and communication line access (in accordance with UL standards) for access to the SAAS Services. Customer agrees to provide, install and maintain, at Customer's sole expense, data communication lines therefor, all pursuant to minimum specifications prescribed by Service Provider from time to time. Customer shall be responsible for ongoing charges for Customer's own use of such data communication lines.
7. In addition to the initial Order Form, the parties may enter into one or more additional Order Forms, each of which provides a general description of the Products and SAAS Services to be provided to Customer. For any Order Form to be effective, it must be in writing and signed or otherwise authenticated by Customer. Electronic and fax documents are considered to be in writing for this purpose. All terms and conditions set forth in this Agreement are automatically incorporated in, and deemed part of, each such Order Form.
8. If there is any conflict between the terms of an Order Form and the terms of this Agreement or the Terms of Purchase and Use, then the terms of the Order Form shall control Each Order Form, as supplemented by the terms of this Agreement and the Terms of Purchase and Use, constitutes an entire and separate agreement between the parties regarding the Products and SAAS Services covered by that Order Form, and supersedes any other prior oral or written understandings and agreements of the parties regarding the Products and SAAS Services covered by that Order Form. Any provisions contained in Customer's own purchase order forms, such as preprinted terms and conditions typically found on their reverse side, shall not apply and are superseded in their entirety by the provisions of this Subscription Agreement, including the applicable Order Form.
THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL NOT BE BINDING UNTIL FULLY EXECUTED BY AN AUTHORIZED SIGNATORY FOR BOTH CUSTOMER AND SERVICE PROVIDER (OR ITS APPLICABLE AFFILIATE).
Description of SAAS Services
(1) BASIC MONITORING. The SAAS Services include access by Customer through the SAAS Customer.
(2) HOSTING AND MANAGEMENT SERVICES. The SAAS Services include the following managed services:
• Network administration, including communications between the Gateway and the network operations center through cellular wireless transmission or Customer provided Ethernet connection
• Software administration
• Data administration
• Periodic firmware upgrades
(3) AUTHORIZED USER LICENSE (WEB PORTAL). The Authorized User License for the number of Authorized Users set forth in the Quantity column on the Order Form includes on-going hosting enabling access to the Portal.
(4) PORTAL AND BUSINESS PROCESS TRAINING. If these Training services are purchased, Customer shall receive the number of days of on-site Portal and Business Process Training set forth in the Quantity column of the Fees and Services table. Alternatively, Customer may elect to receive Portal and Business Processing Training remotely
(5) SUPPORT SERVICES. Support Services include unlimited remote service and support during normal business hours and 24x7 for emergency support. Customer will designate one individual who will be the authorized point of contact for all technical support communications between Service Provider and Customer at all times. Service Provider will use commercially reasonable efforts to keep the SAAS System available on a 24 hour a day, 7 day a week basis, via web site access utilizing the Minimum Configuration, subject to occasional scheduled downtime (during non-working hours, for short periods of time, typically on Sundays and communicated in advance) for maintenance purposes, unforeseen maintenance and systems outages, or routine testing of the Services. As used herein, “Minimum Configuration” means the minimum configuration of Customer hardware and software required to access the Support Services, which, shall be that users have an Internet connection and the most current versions Microsoft Internet Explorer, Microsoft Edge, Google Chrome, or Mozilla Firefox.
Terms of Purchase and Use
PLEASE READ THESE TERMS OF PURCHASE AND USE CAREFULLY BEFORE PURCHASING THE PRODUCTS AND USING THIS SAAS SERVICE. BY PURCHASING THE PRODUCTS, AND/OR ACCESSING AND USING THE SAAS SERVICE AND THE ASSOCIATED WEBSITE, APPLICATIONS AND TOOLS, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS SET FORTH HEREIN. THESE TERMS OF PURCHASE AND USE FORM PART OF THE SAAS SUBSCRIPTION AGREEMENT, WHICH YOU ARE REQUIRED TO ACCEPT IN CONNECTION WITH YOUR INITIAL AND ALL SUBSEQUENT PURCHASING OF THE PRODUCTS AND USE OF THE SAAS SERVICE.
Purchase of Products
You agree to purchase the Products consisting generally of the devices, software and firmware programs incorporated into the master controllers, and other equipment, parts and supplies shown in each Order Form that is completed and approved under the Agreement.
If the Order Form provides a schedule for delivery, the schedule is an estimate only and is subject to availability of the Products, readiness of your designated site for installation, and scheduling of installers, as applicable. In the event the Products are not be available within a reasonable period of time of the scheduled delivery, you may, at your option (a) terminate the purchase of undelivered Products, or (b) to accept postponement of delivery until such time as Service Provider can complete the delivery of the Products. In no event shall Service Provider be liable to you or any Users for any delay or impact costs or damages associated with any late, partial or incomplete delivery.
Unless otherwise indicated in the Order Form, delivery of all Products will be F.O.B. manufacturer. All transportation, handling and insurance costs incurred in delivery will be charged to you. Service Provider or its vendors may arrange for, and prepay, transportation, handling and insurance with the understanding that these charges will be invoiced to and paid by you. In addition, the expense for any special crating or handling required shall be your responsibility.
You may inspect the Products within ten (10) days after arrival and installation and conduct appropriate testing to ascertain whether the Products conform to their Specifications. Failure to notify Service Provider within that 10-day period of time shall be considered acceptance of the Products. Any such acceptance shall be without prejudice to any warranties provided by the original manufacturer of the Products or maintenance terms purchased from Service Provider or such manufacturer. UPON ACCEPTANCE OF THE PRODUCTS, THE PURCHASE SHALL BE NON-CANCELLABLE AND IRREVOCABLE, AND PAYMENTS MADE OR TO BE MADE TO SERVICE PROVIDER SHALL BE UNCONDITIONAL.
Unless otherwise indicated in the Order Form, you agree to be responsible for all site preparation, including utility connections and procurement of necessary equipment or peripheral devices, and for installation of the Products.
If you reject any of the Products upon inspection, you agree to take responsibility for packaging and returning the Products to Service Provider or the original manufacturer (as requested by Service Provider), with delivery pre-paid by you, unless you are requested to hold the Products for repair or replacement. You will also notify Service Provider in writing of the basis of your rejection in reasonable detail.
You are advised that it is your responsibility to determine whether to purchase and pay for extended warranty service, maintenance, installation assistance, training or customer support available for the Products. If Service Provider provides any such support services in connection with the Products, Service Provider will do so on terms and prices provided in an Order Form completed and approved by Service Provider and signed by you.
Orders accepted by Service Provider may not be cancelled by you except with Service Provider's written authorization.
The Products are offered with the SAAS Services, but the Products may be used without the SAAS Services in case the SAAS Services are terminated or become unavailable for any purpose. You own the Products you purchase, regardless of whether the SAAS Services are obtained.
SAAS Services; Grant of Rights
If SAAS Services are purchased pursuant to an Order Form, Service Provider grants you and your staff (collectively, the “Users”), for the Term of Service indicated in the Order Form, a limited, non-exclusive, terminable, revocable, non-transferable, non-sublicensable license to access and use the services, tools and applications provided through the SAAS Service subject to these Terms of Purchase and Use. The SAAS Services may include download areas and product information provided by Service Provider or third-party vendors. All SAAS Services, including any updates, enhancements, new features, and/or the addition of any new Web properties, are subject to these Terms of Purchase and Use. All rights not expressly granted to you and your Users pursuant to the Agreement and these Terms of Purchase and Use are reserved to Service Provider, and all uses of the SAAS Service not expressly permitted hereunder are prohibited.
If Service Provider is required to procure from a third party any of the Products or SAAS Services listed on an Order Form you agrees that, unless otherwise expressly set forth on such Order Form: (a) you will be subject to, and shall comply with, any and all terms and conditions specified by such third party licensor, lessor or provider (“Third Party Provider”) as Service Provider may communicate to you from time to time or that are otherwise the subject of an agreement between you and such Third Party Provider (e.g., an end user license agreement pertaining to third party software provided by Service Provider); (b) in the event of any conflict between such terms and conditions specific to the Products or SAAS Services provided by such Third Party Provider, such third party terms and conditions shall control; and (c) in conjunction with any cancellation by you of any services from a Third Party Provider, Customer will be responsible for all termination charges imposed upon Service Provider by such Third Party Provider.
Permitted and Prohibited Use
Limited Use. You and your Users may access the SAAS System and use the SAAS Services solely to support and operate in your internal business environment (i) the Products purchased by you from Service Provider; and (ii) Service Provider's web-based monitor and control management portal (“the “Portal”). Service Provider reserves the right, in its sole discretion, to limit your and/or your Users' use of the SAAS Services in the event that Service Provider determines that your and/or your Users' use thereof to be inconsistent with such purposes, and/or otherwise inconsistent with these Terms of Purchase and Use.
You agree, for yourself and all your Users, as a condition of use of the SAAS Services, not to use the SAAS Services for any purpose that is unlawful or prohibited by any terms, conditions, in the Agreement, the Terms of Purchase and Use and the Order Form, and any notices provided by Service Provider. You and your Users may not use the SAAS Service in any manner that could damage, disable, overburden, or impair any Service Provider server or subscriber server, or the network(s) connected to any Service Provider server or subscriber server, or interfere with any other party's use and enjoyment of any of the SAAS Services. You and your Users may not attempt to gain unauthorized access to any part of the SAAS Services, other accounts, computer systems or networks connected to any Service Provider or subscriber server or to any part of the SAAS Services, through hacking, password mining or any other means. You and your Users may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the SAAS Services.
Except as expressly set forth herein, you and your Users may not (i) copy, reproduce, alter, modify, transmit, perform, create derivative works of, publish, sub-license, distribute, or circulate the SAAS Services, or any associated applications, tools or data thereof; (ii) disassemble, decompile, or reverse engineer the software used to provide the SAAS Services, or use a robot, spider, or any similar device to copy or catalog any materials or information made available through the SAAS Services; (iii) take any actions, whether intentional or unintentional, that may circumvent, disable, damage or impair the SAAS Services' control or security systems, or allow or assist a third party to do so; (iv) market, sell, license, lease, provide or make available to a third party (excluding Users), or otherwise distribute, directly or indirectly, the Products, SAAS System or SAAS Services, in whole or in part; (v) post, communicate or transmit any material that infringes on any intellectual property, publicity or privacy right of another person or entity; (vi) engage in conduct that would constitute a criminal offense or give rise to civil liability or otherwise violate any law or regulation; (vii) use or attempt to use another User’s account without authorization from Service Provider; (viii) develop any third party applications that interact with Products, SAAS System or SAAS Services without Service Provider’s prior written consent; (ix) express or imply that any statements you make are endorsed by Service Provider, without Service Provider’s specific prior written consent; and (x) download lists of other Users of the SAAS Services and use their information for your own business reasons.
Suspension of Service. Service Provider may at any time suspend (or require that you suspend) the access of Users to the SAAS Services and/or disable their Login Information in the event of violation of these terms and conditions. Grounds for termination also include, but are not limited to legal or regulatory reasons, investigation of suspicious activities, action by governmental authorities, or if Service Provider or you have has reason to suspect any such User is engaged in activities that may violate these Terms of Purchase and Use, applicable laws, or subscriber policies, or are otherwise deemed harmful to Service Provider, your organization, your and our respective network or facilities, or other Users. Service Provider shall not be liable to any User for suspension of SAAS Service, regardless of the grounds.
Ownership; Subscriber and User Submissions
As between you and your Users and Service Provider, the SAAS Services, any material or information provided pursuant to the SAAS Services, and any associated applications, tools or data, and all additions, modifications and improvements made or specified by Service Provider, its agents or contractors, are the property of Service Provider, and are protected by United States and international copyright, trademark, trade secret and patent laws, as applicable. By using the SAAS Services, neither you nor your Users gain any ownership interest in such items or the intellectual property rights embodied therein.
As between Service Provider and you, you shall own, and shall be and remain wholly responsible for, all usage data, information and other content used, generated, uploaded, stored and/or transmitted by you in connection with any Products, the SAAS System or SAAS Services (“Data”), including ensuring you have valid right to use such Data, ensuring the integrity and security of such Data, backing up and retaining archival copies of all such Data, restoring your Data in the event of any loss or impairment thereof, and ensuring such Data complies with all applicable laws and regulations relating thereto (including those related to protection of your Data comprising personally identifiable information, the encryption of such Data or the destruction thereof in connection with decommissioned hardware, as applicable). You represent and warrants that under no circumstances shall any Data infringe, misappropriate, or otherwise violate any intellectual property, publicity or privacy rights of any person or entity.
Service Provider does not claim ownership of the Data you or your Users provide for the use and operation of the SAAS Services. However, by using the Products or SAAS Services, you grant Service Provider and its vendors and contractors the right to use such Data to operate and administer the SAAS Services, and to retain, analyze, use and share such Data in anonymous, filtered, or aggregate form for general business purposes.
You shall use reasonable efforts not to upload any Malicious Code on any Products or the SAAS Services or other property of Service Provider, or to otherwise transmit any Malicious Code via the use of the Service Provider network or any SAAS Services. In the event you upload or otherwise introduce any Malicious Code into any Products or SAAS Services or other property of Service Provider or otherwise transmits any Malicious Code via the use of the Service Provider network or SAAS Services, you shall, at your sole cost and expense, promptly eliminate such Malicious Code and otherwise be responsible for and remedy any damages, losses or other adverse effects suffered by Service Provider, any licensors or licensees of Service Provider, or other persons or entity, resulting from such Malicious Code. As used herein, Malicious Code means any computer virus, Trojan horse, worm, time bomb, or other similar code or hardware component designed to disable, damage or disrupt the operation of, permit unauthorized access to, erase, destroy or modify any software, hardware, network or other technology.
Service Provider reserves the right to upgrade, modify, replace or reconfigure the SAAS Services at any time, provided that you will be provided at least thirty (30) days' advance notice for changes that materially and adversely affect any use of the SAAS Services. Service Provider may also change the fee schedule, support terms, and service level agreements for the SAAS Services subject to at least thirty (30) days' advance notice, except that the change will not apply for the remainder of the Term of Service to the amount and type of SAAS Services you have contracted for under existing Order Forms. Any such notice may be given and shall be effective if posted by Service Provider in the “Subscriber Alert” section of Service Provider's website (), or if provided in an email sent to your account representative, or if included in any amendment, extension or new version of this Agreement or any Order Form.
You shall retain all books and records and other documentation related to your performance under this Agreement for the Term of Service and for a period of at least one (1) year following the effective date of termination hereof. During the Term of Service and during the one (1) year period subsequent to the effective date of termination hereof, Service Provider and/or its designee shall have the right, upon at least five (5) business days’ notice to you and during your normal business hours, to inspect and audit all of your books and records and other documentation, all systems and other technology, and all facilities, relevant to ascertaining your (and, if applicable, your Users’ ) compliance with the terms and conditions of this Agreement. Without limiting the generality of the foregoing, you shall cooperate in good faith with Service Provider and/or its designee to facilitate Service Provider’s exercise of its rights under this Section. In the event any inspection or audit reflects that you is not in compliance with the terms or conditions of this Agreement, you shall, at its sole cost and expense, promptly remedy such non- compliance.
Links to Third Party Sites
The SAAS Service may provide links that allow you or your Users to leave Service Provider's site and/or access third party websites. The linked sites in many cases are not under the control of Service Provider and Service Provider is not responsible for the contents of any linked site or any link contained in a linked site, or any changes or updates to such sites. Service Provider is not responsible for webcasting or any other form of transmission received from any linked site. Service Provider provides these links only as a convenience, and the inclusion of any link does not imply endorsement by Service Provider of the site or any products or services specified thereon.
Use of Passwords; Internet
You are responsible for providing and administering usernames and passwords for all Users (the “Log-In Information”). Each User must have a valid username and password for the purpose of accessing the SAAS Services. You and your Users must keep all Log-In Information strictly confidential. Log-In Information may be used only by the assigned User and may not be shared or transferred without your consent and control.
You and your Users are responsible for maintaining the confidentiality of that User's username and password. You and your Users are responsible for any and all activities that occur under all your Users' accounts. You agree to notify Service Provider immediately of any unauthorized use of your Users' accounts or any other breach of security. Service Provider will not be liable for any loss that you or a User may incur as a result of someone else using your Users' passwords or accounts, either with or without the applicable Users' knowledge.
Service Provider does not guarantee the security of any information transmitted to or from you or any User over the Internet, including through the use of e-mail. Access to the Internet, if employed, is your and each User's sole responsibility and the responsibility of Internet provider(s) you select. Service Provider does not accept any responsibility for failure of service due to Internet facilities, including related telecommunications or equipment.
Communications from Service Provider
Service Provider may periodically contact you or Users for customer service purposes. By accessing the SAAS Services, you and each User consent to receive such communications. You agree that Service Provider may reference its business relationship with you in its marketing or sales materials.
You agree to pay at the time indicated in each Order Form all payments due from you thereunder. If not otherwise indicated in the Order Form, all payments are due upon presentation of the Order Form.
You agree to accept responsibility for paying and reporting (a) all federal, provincial, state and local taxes, however designated, levied or based on account of the purchase price of the Products or SAAS Services or on account of your acquisition or ownership or use of the Products (exclusive only of taxes based on net income derived by Service Provider), and (b) all foreign taxes, export or import tariffs, and custom duties, however designated, levied or based in connection with the sale conducted hereby, the purchase price of the Products and the SAAS Services, or your acquisition or ownership or use of the Products. You agree to hold Service Provider harmless from all claims and liability arising in connection with Purchaser's failure to report or pay such taxes.
You agree that Service Provider and its assigns shall have a security interest in the Products until you have paid in full the total purchase price of those Products shown in each applicable Order Form. You agree that this Agreement shall be a security agreement as defined by the Uniform Commercial Code in effect in the jurisdiction in which the Products are located and Service Provider is authorized to execute and file financing statement or other recordings in order to document the security interest.
In the event that you default in any of the terms and conditions of the Agreement, including these Terms of Purchase and Use and any Order Forms completed and approved thereunder, or a petition for bankruptcy is filed by or against you, then, to the extent permitted by applicable law, Service Provider shall have the right to exercise one or more of the following remedies: (a) To declare the entire amount of the unpaid total purchase price due and payable plus all service fees that would otherwise come due for the remainder of the Term of Service, together with interest thereon at the lesser of 18% per annum or the then highest allowable legal rate per annum; (b) Without demand or legal process, you authorize Service Provider's agents to enter into the premises where the Products may be found and take possession and remove the same and you specifically waive any claim or right of action for trespass or damages in connection with Service Provider's exercise of such right. Service Provider shall have the right to sell, lease or retain the Products in complete or partial satisfaction of any outstanding claim and to retain all prior payments in respect of the purchase price or Products and previously accrued service fees. Notwithstanding the taking of possession by Service Provider of the Products, you shall remain liable for the total purchase price for the Products and all service fees that would otherwise come due for the remainder of the Term of Service; and/or (c) To terminate this Agreement as to any or all of the Order Forms. All remedies of Service Provider hereunder are cumulative and may, to the extent permitted by law, be exercised concurrently or consecutively and jointly or severally, and the exercise of any one remedy shall not be deemed to be an election of such remedy to preclude the exercise of any other remedy. No failure on the part of Service Provider to exercise, and no delay in exercising any right or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by Service Provider of any right or remedy hereunder preclude any other or further exercise of any partially exercised right or remedy.
Notice Specific to Software Available with the SAAS Services
Any software that is made available to download from the SAAS Services (“Software”) is the copyrighted work of Service Provider and/or its suppliers. Use of the Software is governed by the terms of the end user license agreement, if any, which accompanies or is included with the Software (“License Agreement”). In some cases, you or a User may be unable to install any Software that is accompanied by or includes a License Agreement, unless you first agree to the License Agreement terms.
The Software so provided is made available for download solely for use according to the License Agreement. Any reproduction or redistribution of the Software not in accordance with the License Agreement is expressly prohibited by law, and may result in civil and criminal penalties. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT ACCOMPANYING SUCH SOFTWARE.
You agree not to and not to permit any other person or entity to, without the prior written consent of Service Provider: (i) copy, modify, duplicate, decompile, reverse engineer, disassemble or otherwise reduce to a humanly perceivable form, make any attempt to discover the source code of, create derivative works based on, or translate the Software; or (ii) without the consent of Service Provider, upgrade from one version of Software to another. Unless otherwise set forth in any Order Form, any license to any Software hereunder shall be revocable, non- exclusive, non-transferable (except as set forth therein), and non-sublicenseable, and shall be only for the object code (and not the source code) of such Software.
RESTRICTED RIGHTS LEGEND. Any Software which is downloaded from the Services for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), is provided with Restricted Rights. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARSor subparagraphs (c)(1) and (2) of the Commercial Computer Software -- Restricted Rights at 48 CFR 52.227-19, as applicable.
Termination of the Agreement; Effect of Termination or Expiration
In the event that you breach any term of the Agreement, or you or your Users breach these Terms of Purchase and Use, and such breach is not cured within 10 days after receipt of notice thereof from Service Provider, Service Provider may terminate the Agreement in whole or in part immediately upon written notice to you. Notwithstanding the foregoing, there shall be no cure period for any Event of Default that is not curable.
Upon expiration or prior termination of the Agreement, all rights granted herein shall revert to Service Provider. All access to and use of the SAAS Services by Users must then cease, and all materials, applications and tools downloaded from the SAAS Service must be erased, deleted, or destroyed.
No Warranties, Limitation of Liability
To the extent that the original manufacturer is not THE Service Provider or its affiliates and such manufacturer makes any warranties covering the Products, Service Provider assigns those warranties to you, subject to the conditions and limitations provided by the manufacturer. Service Provider will cooperate with you, at your cost, to process any warranty claim, but Service Provider assumes no other responsibility for such warranties.
THE FOREGOING ASSIGNMENT OF WARRANTIES IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES PERTAINING TO THE PRODUCTS, SAAS SYSTEM OR SAAS SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY EXPRESS WARRANTY ARISING FROM ANY DESCRIPTION OR SPECIFICATION PROVIDED FOR THE PRODUCTS, OR ANY SAMPLE OR MODEL PRESENTED TO YOU OR YOUR REPRESENTATIVES, OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, OR TITLE. YOUR EXCLUSIVE REMEDY FOR ANY CLAIM BASED ON THE CONDITION, PERFORMANCE, DEFECT OR NON-CONFORMITY OF THE PRODUCTS SHALL BE TO MAKE A CLAIM TO THE ORIGINAL MANUFACTURER FOR THE WARRANTIES (IF ANY) PROVIDED BY THE ORIGINAL MANUFACTURER.
THE SAAS SERVICES AND ANY TOOLS, APPLICATIONS, INFORMATION OR MATERIALS PROVIDED TO YOU IN CONNECTION WITH THE SAAS SERVICES ARE PROVIDED “AS IS,” AND ALL WARRANTIES OF ANY KIND, PAST OR PRESENT, WHETHER STATUTORY, COMMON-LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RESULTS OR OUTPUT, SECURITY AND, EXCEPT AS MAY BE OTHERWISE STATED IN THIS AGREEMENT, NON-INFRINGEMENT, ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. SAAS DOES NOT GUARANTEE OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR ACCURACY OF THE SAAS SERVICES.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SERVICE PROVIDER OR ITS EMPLOYEES OR CONTRACTORS SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF SAAS'S OBLIGATIONS HEREUNDER. IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE FOR ANY LOST OR CORRUPTED DATA, DOWNTIME, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, INCLUDING NEGLIGENCE. FURTHER, IN NO EVENT SHALL SERVICE PROVIDER BE LIABLE HEREUNDER FOR ANY PRODUCTS OR SERVICES OF ANY THIRD PARTY PROVIDER THAT ARE PROCURED OR PROVIDED BY SERVICE PROVIDER HEREUNDER OR USED BY OR ON BEHALF OF SERVICE PROVIDER TO PROVIDE ANY PRODUCTS OR SERVICES.
Service Provider and its affiliates shall not be liable for loss, injury or damage of any kind to any person or entity resulting from any use, condition, performance, defect or failure in the Products or the SAAS Services. You and your Users release and waive all claims against Service Provider, its parent, subsidiaries, affiliated companies, agents or content providers, and the directors, trustees, officers, shareholders, employees, agents and representatives of each of the foregoing (the “Service Provider Group”), from any and all claims, damages, liabilities, costs and expenses arising out of your and your Users' use of the Products and the SAAS Services. California residents waive any rights they may have under §1542 of the California Civil Code, which reads: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” You and your Users agree to release unknown claims and waive all available rights under California Civil Code §1542 or under any other statute or common law principle of similar effect. To the extent permitted by applicable law, this release covers all such claims regardless of the negligence of the Service Provider Group.
You may not, and hereby waive any right to, bring any claim against Service Provider arising out of or in connection with this Agreement more than one (1) year after the effective date of expiration or termination of the Order Form relating to the Products or SAAS Services giving rise to such claim.
You represent and warrant that (i) you have full power and authority to enter into the Agreement, and to agree to all the terms and conditions contained therein and in these Terms of Purchase and Use; (ii) only you and your Users shall per permitted to access the SAAS Services and any related tools, applications, information and materials provided in connection with the SAAS Services; and (iii) you shall obtain and maintain in effect all permits, licenses and authorizations necessary for the purchase and intended use of the Products and the SAAS Services; (iv) your execution and performance of its obligations and exercise of its rights hereunder will not violate any agreement or other obligation by which you are bound; and (v) you will comply with all applicable laws, rules and regulations in connection with the performance of your obligations and exercise of your rights hereunder, including any applicable export control laws and regulations.
By accessing and/or using the SAAS Services, Users agree to report to Service Provider all claims or suspected claims of copyright or other infringement of Service Provider's intellectual property or other proprietary rights. Claims of infringement should be directed to Legal Department, Service Provider, at the address above or to email@example.com.
If you believe that any information on the SAAS Site infringes on your copyright, you should notify Service Provider of your claim in accordance with the following procedures. Service Provider will process notices of alleged infringement in accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable copyright laws. The DMCA requires that notification of claimed infringement be in writing and provided to Service Provider's designated agent of service:
To be effective, the notice of infringement must contain the following information: (1) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (2) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (3) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material; (4) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted; (5) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (6) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
All confidential or proprietary information the receiving Party may receive from the disclosing Party or be given access to by the disclosing Party will be deemed “Confidential Information”. Confidential Information shall specifically include all trade secrets and other non-public information, materials, data, know-how, research, systems, plans and procedures of or relating to the disclosing Party, including maps, network routes, methodologies, specifications, locations, business plans and strategies, pricing and other financial information, marketing plans, lists of existing and prospective suppliers and customers, contractual arrangements, employee information, and proprietary technologies and processes, software programs, systems, source code, specifications, inventions, designs, developments, and databases, together with compliance reports, auditor’s reports, and related work papers and records. Notwithstanding the foregoing, Confidential Information will not include information (i) that the receiving Party can demonstrate was lawfully received from another source with the right to furnish such information, without restriction or subject to restrictions in which it has conformed; (ii) that is or becomes generally available to the public other than as a result of the unauthorized direct or indirect acts of the receiving Party; (iii) which the receiving Party can demonstrate was, at the time of disclosure to it, rightfully known to it free of restriction; or (iv) which is independently developed by a
Party without the use of or referral to any other Party’s Confidential Information.
Except as otherwise expressly provided in this Agreement, the receiving Party shall not, and shall not permit any other Person to, (a) use Confidential Information for any purpose other than the performance of the receiving Party’s obligations or exercise of its rights under this Agreement, or (b) divulge such Confidential Information, without the disclosing Party’s prior written consent, except to those employees and independent contractors who have a need to know such Confidential Information for purposes of carrying out the receiving Party’s obligations or exercising the receiving Party’s rights under this Agreement. The receiving Party shall be responsible for all acts or omissions of its employees and contractors in respect of access to or use of the Confidential Information. Notwithstanding the foregoing, in the event disclosure of Confidential Information is mandated or requested by applicable laws or by an order of a court or any regulatory, governmental or law enforcement agency or other authority, each of competent jurisdiction, then, (1) if not so prohibited by a regulatory, law enforcement or other governmental authority or an order of a court of competent jurisdiction, the receiving Party shall promptly notify the disclosing Party of such requirement, (2) if so requested by disclosing Party, the receiving Party shall use good faith efforts, in consultation with the disclosing Party, to secure confidential treatment of the Confidential Information to be so disclosed, and (3) the receiving Party shall furnish only that portion of the Confidential Information it is legally required to disclose.
The receiving Party shall promptly notify the disclosing Party of any actual or reasonably suspected unauthorized use or disclosure of any Confidential Information and shall fully cooperate with the disclosing Party to remedy and/or mitigate any losses or damages associated therewith.
Each Party acknowledges and agrees that the violation of any of its obligations or any of the other Party’s confidentiality rights would cause irreparable harm to the other Party, which harm may not be compensable solely by monetary damages, and that, therefore, in the event of an actual or threatened breach by the other Party of the confidentiality obligations herein, the non-breaching Party shall be entitled to seek injunctive and other equitable relief, without the necessity of proving monetary damages or posting a bond or other security. Any such equitable relief granted shall be without prejudice to any other rights and remedies as the non-breaching Party may have under this Agreement.
Each Party agrees that, during the term of this Agreement and for a period of twelve (12) months immediately following the effective date of expiration or termination hereof, it shall not, without the other Party’s prior written consent, knowingly employ, or engage on any other basis, or solicit the employment or other engagement of, any employee, contractor or consultant of the other Party; provided, however, that general advertisements of employment or engagement shall not be considered a violation of the foregoing covenant.
You agree to indemnify, defend and hold harmless Service Provider and its Third Party Providers and the officers, directors, employees, agents and contractors of each (collectively, “Indemnitees”) from and against losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees and expenses (collectively, “Losses”) incurred or suffered by such Indemnitees arising out of, or in connection with, any claim, demand, proceeding, investigation or cause of action initiated by a third party (each, a “Claim”) including any Claim by your customers, based upon or arising out of (i) any breach by you of any provision of this Agreement; (ii) any use by you (or any of your customers or Users), of any Products or SAAS Services, or any other act or omission relating thereto; (iv) any End User Agreement; or (v) any Data. Notwithstanding the foregoing, you will have no obligations under this Section to the extent the Claim arises from or in connection with the willful misconduct or gross negligence of Service Provider or its Indemnitees.
Failure to perform by reason of any law, natural disaster, labor controversy, encumbered intellectual property right, war or any similar event beyond a party's reasonable control shall not be a breach hereof.
Service Provider shall not be liable for any loss or damage of any kind or for any consequences thereof resulting from delay or inability to deliver caused by strikes, lockouts, fire, theft, shortage, inability to obtain materials or shipping space, breakdowns, delays or carriers, manufacturers, or suppliers, acts of God, governmental statutes, proclamations or regulations, riot, civil commotion, war, malicious mischief, receipt of necessary information from Purchaser, or by any cause beyond your reasonable control.
You acknowledge and agree that the SAAS Services and the tools, applications, information and materials provided in connection with the SAAS Services possess a special, unique and extraordinary character that makes difficult the assessment of the monetary damages that would be sustained as a result of unauthorized use, and that unauthorized use may cause immediate and irreparable damage to Service Provider or other Subscribers for which Service Provider or such other Subscribers would not have an adequate remedy at law. Therefore, you agree that, in the event of such unauthorized use, in addition to such other legal and equitable rights and remedies as may be available to Service Provider, Service Provider shall be entitled to injunctive and other equitable relief without the necessity of proving damages or furnishing a bond or other security.
This Agreement shall be construed and enforced under the laws of the State of California, USA without reference to the choice of law principles thereof. User hereby consents to and submits to the jurisdiction of the federal and state courts located in the State of California. User waives any defenses based upon lack of personal jurisdiction or venue, or inconvenient forum. All parties agree to submit to binding arbitration in the above venue of law in accordance with the rules of JAMS (http://www.jamsadr.com).
If any provision herein is unenforceable, then such provision shall be of no effect on any other provision hereof.
No waiver of any breach hereof shall be deemed a waiver of any other breach hereof.
Section headings are provided for convenience only, and shall not be used to construe the meaning of any section hereof.
DATA 360 TERMS OF SERVICE
SERVICE PROVIDER: DATA360 Inc.
Service Provider Address 830 TRACTION AVENUE, #3A, LOS ANGELES, CA 90013