Written approval is not a prerequisite to the validity or enforceability of this Agreement and no solicitation of any such written approval by or on behalf of Service Provider shall be construed as an inference to the contrary. If you have ordered the Platform or the services, Service Provider’s acceptance is expressly conditional on your assent to these terms to the exclusion of all other terms.
This Agreement may be modified from time to time. It is your responsibility to regularly check Service Provider’s site to determine if there have been changes to this Agreement and to review such changes. Continued use of the Platform or continue access of the services by you will constitute your acceptance of any changes or revisions to the Agreement.
Your failure to abide by this Agreement or any other terms or conditions posted anywhere within the services may result in suspension or termination of your use of the Platform or access to the services, without notice, in addition to Service Provider’s other remedies.
I. THE PLATFORM
LICENSE GRANT. Subject to the terms of this Agreement, we (“Service Provider”) hereby grant to you (“You”) a limited, nontransferable, nonsublicensable, nonexclusive license to install and operate the object code version of the Platform solely on authorized systems, computers or mobile devices, solely to interact with, and allow the collection of data by, the Services and solely up to the number of licenses acquired by You.
LICENSE RESTRICTIONS. You may not, directly or indirectly: (a) modify, translate, reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code or the underlying ideas or algorithms of the Platform, except to the extent applicable statutory law expressly prohibits such restrictions; (b) create derivative works based on the Platform; (c) use the Platform for performing comparisons or other “benchmarking” activities; (d) copy, rent, lease, distribute, or otherwise transfer rights to the Platform; or (e) remove any proprietary notices or labels on the Platform.
II. THE SERVICES
ACCESS GRANT. Subject to the terms and conditions of this Agreement, Service Provider shall provide You with access rights to the Platform online service (the “Services”), solely in accordance with this Agreement, solely for use with the Platform, solely for your internal business purposes and up to the number of authorized users for whom access rights have been purchased in accordance with this Agreement. Each authorized user purchased must have a unique username in the system. Sharing of usernames is expressly prohibited and in violation of this agreement.
SECURITY. If You have reason to believe that your account is no longer secure (e.g., loss, theft or unauthorized disclosure or use of your Registration Information or computer or mobile device used to access the Services), you must promptly change the affected Registration Information and notify Service Provider via the ‘Contact Us’ page in the Service Provider’s site(s) (the “Site”). If you install any software or enable any service that stores information from the Services on any mobile device or computer, it is your responsibility, prior to transfer of such device, to remove your information or otherwise disable access to such software or service, in order to prevent unauthorized access to your information or account.
USE OF THE SERVICES. Unless otherwise specified, the Services are solely intended for your internal business purposes only. You agree to use the Services only for lawful purposes and you acknowledge that your failure to do so may subject you to civil and criminal liability. You will not, nor attempt to do, any of the following with respect to the Services, except as expressly authorized or enabled by Service Provider: (a) Access the Services in a manner or through an interface not provided or authorized by Service Provider including but not limited to, any automated means (e.g., scripts or bots); (b) Reproduce, duplicate, copy, sell, trade, resell or exploit the Services; (c) Republish or syndicate the information available on the Services.
USER CONDUCT. You agree not to use the Services to upload, post, transmit, share, store or otherwise make available any content that we deem to be harmful, threatening, unlawful, defamatory, infringing, abusive, inflammatory, harassing, vulgar, obscene, fraudulent, invasive of privacy or publicity rights, hateful, or racially, ethnically or otherwise objectionable. You further agree not to upload, post, transmit, share or otherwise make available any unsolicited or unauthorized advertising, solicitations, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation. You hereby represent and warrant that you will not use the Services to violate, misappropriate or infringe rights of third parties, including intellectual property rights.
COMPLIANCE WITH LAWS AND AGREEMENT. You agree to use the Services only for purposes that are permitted by any applicable law, rules or regulations, and as permitted by this Agreement.
INTERFERENCE. You agree not to disrupt, overwhelm, attack, modify or interfere with the Services or its associated software, hardware and/or servers in any way, and you agree not to impede or interfere with others’ use of the Services. You further agree not to alter or tamper with any information or materials on or associated with the Services. Other than connecting to Service Provider’s servers by http requests using a Web browser, you may not attempt to gain access to Service Provider’s servers by any means – including, without limitation, by using administrator passwords or by masquerading as an administrator while using the Services or otherwise.
USER CONTENT. You are solely responsible for the reviews, messages, notes, text, information, business data, photos, profiles, and any other content that you upload, publish or display (hereinafter, “post”) on or through the Services, or transmit to or share with other users (collectively the “User Content”). You may not post, transmit, or share User Content on the Services that you did not create or that you do not have permission to post, transmit, or share. You understand and agree that Service Provider may, but is not obligated to, review the Services and may delete or remove (without notice) any User Content in its sole discretion, for any reason or no reason, including User Content that in the sole judgment of Service Provider violates this Agreement, or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of users or others. You are solely responsible at your sole cost and expense for creating backup copies and replacing any User Content you post or store on the Services or provide to Service Provider.
III. INTELLECTUAL PROPERTY
TITLE. As between the parties, Service Provider and its licensors retain all right, title, and interest, including, without limitation, all intellectual property rights to the Platform and/or the Services. You understand that Service Provider may modify or discontinue offering the Platform or the Services at any time. The Platform and Services are protected by the intellectual property laws of the United States and international treaties. This Agreement does not give You any rights not expressly granted herein. You understand that the Platform is licensed and not sold, and that you get an access right to the Services not a proprietary interest.
USE OF MATERIAL. The Services contain material that is protected by state, national and international copyright, trademark and other intellectual property laws. You may not modify, copy, reproduce, republish, upload, post, transmit or distribute in any way any material, including code and software, from the Services. You may download material from the Services and may use the Services for your personal use only, provided you keep intact all copyright and other proprietary notices.
OWNERSHIP AND CONTROL. The content, organization, graphics, text, images, video, design, mark up language, compilation, trademarks, service marks, logos, slogans, advertising and all other material on or used for the Services, including without limitation, the “look and feel” of the Site(s), are protected under applicable copyrights and other proprietary (including but not limited to intellectual property) rights and are the property of Service Provider or its licensors. The copying, rearrangement, redistribution, modification, use or publication by you, directly or indirectly, of any such matters or any part of the Site, including but not limited to the removal or alteration of advertising, except for the limited rights of use granted hereunder, is strictly prohibited.
FEEDBACK. If you provide Service Provider with feedback, suggestions, testimonials, comments, ideas, ratings, reviews, bug reports, or any similar or related information (“Feedback”), you agree that (a) any and all right, title and interest to such Feedback shall become the exclusive property of Service Provider; (b) Service Provider shall be able to use and share such Feedback without your consent; (c) Service Provider owes you no obligation or compensation whatsoever regarding the Feedback; and (d) Service Provider may already have contemplated or be contemplating the same or similar ideas as your Feedback. If you do not agree with these terms regarding Feedback, or want to maintain ownership of any intellectual property contained in any specific Feedback, your sole option and recourse is to not submit such specific Feedback to Service Provider.
Except as expressly allowed by this Agreement, You will not use or disclose any Platform , software or related technology, idea, algorithm or information except to the extent You can document that it is generally available for use and disclosure by the public without any charge or license. User Content is Your confidential information.
V. ECONOMIC TERMS
SERVICES. If You subscribe to the Services, you agree to pay any and all applicable fees (e.g., one time, recurring monthly, annual subscription fees for accounts) incurred in connection with your account at the rates in effect when the charges were incurred.
You agree to indemnify Service Provider and its affiliates, employees, agents, representatives and third party services providers, and to defend and hold each of them harmless, from any and all claims and liabilities (including attorneys fees) which may arise from your submissions, from your unauthorized use of material obtained through the Services, or from your breach of this Agreement, or from any such acts through your use of the Services or the Platform (s).
EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SERVICE PROVIDER DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, TITLE AND/OR NON-INFRINGEMENT. SERVICE PROVIDER DOES NOT WARRANT THAT THE PRODUCT(S) OR SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES OR USE OF THE PRODUCT(S) WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
VIII. LIMITATIONS OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SERVICE PROVIDER BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, INCLUDING USER CONTENT AND/OR USE OF THE SERVICES OR PRODUCTS BY YOU, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. THE CUMULATIVE LIABILITY OF SERVICE PROVIDER TO YOU FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE GREATER OF: (A) FIFTY DOLLARS (US$50); OR (B) THE TOTAL AMOUNT OF ALL FEES PAID TO SERVICE PROVIDER BY YOU UNDER THIS AGREEMENT DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. YOU HEREBY AGREE TO RELEASE SERVICE PROVIDER, ITS LICENSORS, ITS AFFILIATES AND THIRD-PARTY SERVICE PROVIDERS, AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AND AGENTS FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF THE PRODCUT(S) OR SERVICES.
IX. TERM AND TERMINATION
This Agreement shall continue until terminated as set forth herein. You may terminate this Agreement at any time. Service Provider has the right to terminate and/or suspend your ability to access the Services or any portion thereof, for any or no reason, without notice. Any termination of this Agreement shall terminate the licenses granted hereunder. Upon termination of this Agreement for any reason, You shall destroy and remove from all equipment, computers, hard drives, mobile devices, networks, and other storage media all copies of the Platform. Except for the license and except as otherwise expressly provided herein, the terms of this Agreement shall survive termination.
X. GOVERNMENT USE
If You are part of an agency, department, or other entity of the United States Government (“Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Platform or any related documentation is restricted in accordance with the Federal Acquisition Regulation 12.212 for civilian agencies and the Defense Federal Acquisition Regulation Supplement 227.7202 for military agencies. The Platform and documentation is a “commercial item”, “commercial computer software” and “commercial computer software documentation.” The use of the Platform and documentation is further restricted in accordance with the terms of this Agreement, or any modifications thereto.
XI. EXPORT CONTROLS
You shall comply with the U.S. Foreign Corrupt Practices Act and all applicable export laws, restrictions, and regulations of the United States or foreign agency or authority. You will not export, or allow the export or re-export of the Platform (s) in violation of any such laws, restrictions or regulations.
XII. DISPUTE RESOLUTION
If a dispute arises between you and Service Provider, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and Service Provider agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (each, a “Claim”) in accordance with one of the subsections below or as Service Provider and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly to seek a resolution.
LAW AND FORUM FOR DISPUTES. This Agreement shall be governed by and construed under the laws of the Commonwealth of Pennsylvania, U.S.A. without regard to the conflicts of laws provisions thereof, and without regard to the United Nations Convention on Contracts for the International Sale of Goods. You agree that any claim or dispute you may have against Service Provider must be resolved by a court located in Lancaster County, Pennsylvania, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Lancaster County, Pennsylvania for the purpose of litigating all such claims or disputes and You hereby agree to service of process in accordance with the rules of such courts.
ARBITRATION. For any claim (excluding claims for injunctive or other equitable relief), Service Provider may elect to resolve the dispute through binding non-appearance-based arbitration. In the event Service Provider elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider and such arbitration shall be conducted in accordance with such provider’s rules for non-appearance-based arbitration.
IMPROPERLY FILED CLAIMS. All claims you bring against Service Provider must be resolved in accordance with this Dispute Resolution Section. All claims filed or brought contrary to the Dispute Resolution Section shall be considered improperly filed. Should you file a claim contrary to the Dispute Resolution Section, Service Provider may recover reasonable attorneys’ fees and costs, provided that Service Provider has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
XIII. GENERAL PROVISIONS