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SPS TERMS
OF SERVICE AGREEMENT BY CLICKING THE "I HAVE READ AND AGREE TO THE SPS TERMS
OF SERVICE AGREEMENT" CHECKBOX DISPLAYED AS PART OF THE “NEW USER
REGISTRATION” OR “BEGIN/RENEW SERVICE” PROCESS, LICENSOR AND LICENSEE AGREE TO
THE FOLLOWING TERMS AND CONDITIONS. THE TERMS "YOU", “YOUR”, or “USER” REFER TO THE
PERSON USING THE SERVICE IN ANY WAY. IF
YOU HAVE REGISTERED AS, FOR, OR ON BEHALF OF A CORPORATE ENTITY, “YOU”, “YOUR”,
OR “USER” ALL REFER TO THE ENTITY, ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES,
SUBCONTRACTORS, AFFILIATES, SUBSIDIARIES, AND ALL OTHER PERSONS OR ENTITIES
WHICH THE REGISTERED ENTITY PERMITS TO USE THE SERVICE IN ANY WAY. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A
COMPANY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE COMPANY TO THE
TERMS GOVERNING THE PRODUCTS AND SERVICES DESCRIBED IN THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF
YOU DO NOT AGREE WITH THESE TERMS, YOU MAY NOT REGISTER TO USE THE SERVICE.
This is a license
and services agreement and not an agreement for sale. This license and services agreement (hereinafter “Agreement”) is
between you (hereinafter “Licensee”) and Root Systems LLC and its affiliates
(hereinafter Licensor) whose address
can be found under the “Contact Us” section at the Internet website address of
www.idcs.info. This Agreement
gives Licensee certain limited rights to use the proprietary Same Page SystemTM
(SPSTM) software and related items (as defined below in the
“Definitions” section of this Agreement).
All rights not specifically granted in this Agreement are reserved to
Licensor. HEADINGS DEFINITIONS
As used herein, the following words, phrases, or terms in
this Agreement shall have the following meanings: “Internal” means within the Licensee’s own organization that
has been granted this license. “Executable Code” means machine-readable code compiled by a
high-level compiler. “Source Code” means code written in human-readable format or
in a high-level program language. “Same Page System”, “SPS”, or any other version name, means
the suite of programs, scripts, manuals, and procedures received from Licensor. “Software” means the actual copy of all or any portion of
the allocated source or executable code for program routines delivered on the
media or via network, inclusive of backups, updates, or merged copies permitted
hereunder or subsequently supplied by Licensor. “Software” includes file structures, programming instructions,
user interfaces, screen formats, sequences, and all Related Materials (defined
below). “Related Materials” means all of the printed materials, user
documentation, training documentation, demonstration programs, and any other
documentation supplied by Licensor under this Agreement. "Content" means the audio and visual information,
documents, software, products and services contained or made available to
Licensee in the course of using the Service; "Licensee”, “You” or “Licensee's" means the
individual or legal entity, its directors, officers, affiliates agents, and
employees, as identified in the registration and identification data provided
to Licensor via this web site; "Licensee Data" means any data, information or
material provided or submitted by Licensee to Licensor in the course of
utilizing the Service; "Intellectual Property Rights" means non-patented
inventions, patent applications, patents, design rights, copyrights,
trademarks, service marks, trade names, domain name rights, mask work rights,
know-how and other trade secret rights, and all other intellectual property
rights, derivatives thereof, and forms of protection of a similar nature; "Service(s)" means the specific edition of
Licensor's online process management services identified during the
registration and/or ordering process, developed, operated, and maintained by
Licensor accessible via samepagesystem.com or another designated web site or IP
address or ancillary services rendered to Licensee by Licensor, to which
Licensee is being granted access under this Agreement, "User(s)"
means Licensee's, employees, representatives, consultants, contractors or
agents who are authorized to use the Service and have been supplied user
identifications and passwords by Licensee (or by Licensor at Licensee's
request). RESERVATION
OF OWNERSHIP AND GRANT OF LICENSE
Licensor retains exclusive ownership of any copy of the
Software (as defined below) licensed under this Agreement and hereby grants to
Licensee a personal, non-exclusive, non-transferable license to use the
Software, without the right to sublicense, pursuant to the terms and conditions
of this Agreement. From the date of
receipt, Licensee agrees to use reasonable efforts to protect the Software from
unauthorized use, reproduction, distribution, or publication. CONFIDENTIALITY
Licensee acknowledges that the Software provided under this
Agreement is a trade secret and proprietary to Licensor, and as such, Licensee
agrees to receive all such materials in confidence and use the Software only in
accordance with the terms of this Agreement. COPYRIGHT
The Software is owned by Licensor and is protected by United
States copyright laws and applicable international treaties and/or conventions. PERMITTED
USES
The Software may be used for Licensee’s own internal
BUSINESS uses. THIS IS NOT A LICENSE
FOR PERSONAL USE. Licensee may allow
Licensee’s agents and contractors to use the programs for this purpose subject
to the terms of this Agreement. Licensee
shall report any performance problems to Licensor for improvement of the Software. Source
Code: No source code is
to be allocated in this license. Any
allocations must be agreed to in an independent writing. USES
NOT PERMITTED
Licensee may not: modify, translate, reverse engineer,
de-compile, disassemble, create derivative works based on, or copy ( except as
designated in the “Permitted Uses” section ) the Software. Licensee has not been granted a license to
use any source code, and may not store copies of such in any form. Licensee has not been granted any trademark license as part
of this agreement and may not use the name or mark “Root Systems”, “Same Page SystemTM” or any
rendition thereof for any purpose outside the purpose stated herein. Third
Parties: Licensee may not
sell, rent, lease, sublicense, lend, time-share, act as a service bureau,
provide subscription services for the Software, or transfer, in whole or in
part, or provide unlicensed Third Parties access to prior or present versions
(or any parts thereof) of the Software, any updates, or Licensee’s rights under
this Agreement. Licensee may not use
the programs to provide third party training except for training agents and
contractors that Licensee will have authorized under this Agreement. Licensee may not remove or obscure any copyright or
trademark notices. The Software and Related Materials shall not become subject
to application for patent, copyright, or other intellectual property
application by Licensee. Assignment: Licensee shall not assign this Agreement or
Licensee’s rights hereunder without the prior written consent of Licensor. Any purported assignment without such
consent shall result in Licensee’s breach of this Agreement. EVALUATION Licensor may provide Licensee access to the Service for
evaluation purposes. In such cases,
Licensee access to the Service and this Agreement shall terminate on the
expiration of the evaluation period described in the order process unless
Licensee chooses to subscribe to the service prior to the end of such
evaluation. Licensee may choose to
renew a previous evaluation and in doing so will be required to repeat the
acceptance of this Agreement. Licensor
shall have no obligation to retain or otherwise safeguard information captured
during evaluation. This paragraph
withstands all others of this Agreement. FEES, PAYMENT AND BILLING Licensor charges and collects in advance for use of the
Service. All charges shall be in US dollars.
Each month, Licensor will send Licensee an invoice for the current
monthly charge and/or bill Licensee's credit card. The invoice will be sent via electronic mail to the then current
SPS Administrative User. The current
monthly charge will be equal to the then current number of Valid Users times
the then current Per User License Fee and any miscellaneous fees. All fees are exclusive of all taxes, levies,
or duties imposed by taxing authorities, and Licensee shall be responsible for
payment of all such taxes, levies, or duties.
The current Per User License Fee information will be available on the
Service. If the Licensee is paying by credit card, the credit card
charge will occur on or soon after the date of the invoice. If the Licensee is not paying by credit
card, the Licensee shall send payment to Root Systems within 30 days or Licensee
may elect to have Licensor automatically debit the invoice amount from
Licensee's bank account. Licensee's
account shall be considered in arrears if the credit card transaction is
refused, Root Systems fails to receive payment within 30 days or the electronic
debit of Licensee's account is refused.
If Licensee's account is in arrears, Licensor shall have the
right to terminate Licensee's access to the Service. Licensee will continue to be charged during any period of
suspension. If Licensee or Licensor initiates termination of this Agreement,
Licensee will be obligated to pay the balance due on Licensee's account
computed in accordance with the above. Licensee agrees that Licensor may charge
such unpaid fees to Licensee's credit card or otherwise bill Licensee for such
unpaid fees. Licensee agrees and
acknowledges that Licensor has no obligation to retain Licensee Data and that
such Licensee Data may be irretrievably deleted if Licensee's account is 30
days or more delinquent. Delinquent
amounts are subject to interest at a rate of 1.5% per month, or the maximum
permitted by law, whichever is less, plus any collection expenses. If Licensee believes that the invoice amount is incorrect,
Licensee must contact Licensor via email at billing within 30
days. No adjustments will be made to
any invoice unless Licensee contacts Licensor in the prescribed manner and
within the prescribed timeframe. LICENSEE'S RESPONSIBILITIES Licensee is responsible for any and all activities that
occur under Licensee's user accounts and shall abide by all applicable local,
state, national and foreign laws, treaties and regulations in connection with
use of the Service. Licensee shall:
(i) notify Licensor immediately of any unauthorized use of any password or
account or any other known or suspected breach of security; (ii) report to
Licensor immediately and use reasonable efforts to stop immediately any copying
or distribution of Content that is known or suspected by Licensee or its users;
(iii) assure that use of the Service shall at all times comply with all
applicable local, state, federal, and international laws, regulations, and
conventions, including without limitation those related to data privacy,
international communications, and the exportation of technical or personal
data; and (iv) not impersonate another user or provide false identity
information to gain access to or use the Service. ACCOUNT INFORMATION AND DATA All data submitted by Licensee to the Service, whether
posted by Licensee or by third parties, shall remain the sole property of
Licensee or such third parties, as applicable, unless specifically notified in
advance. Licensee, not Licensor, shall have sole responsibility for the
accuracy, quality, integrity, legality, reliability, appropriateness and
copyright of all Licensee Data, and Licensor shall not be responsible or liable
for the deletion, correction, destruction, damage, loss or failure to store any
Data. In the event that Licensee terminates this Agreement (other than by
reason of Licensee's breach), Licensor will make available to Licensee a file
of the Licensee Data within 30 days of termination notice if Licensee so
requests. Licensor reserves the right
to withhold, remove and/or discard Licensee Data without notice for any breach,
including, without limitation, Licensee's non-payment. Upon termination for
cause, Licensee's right to access or use Licensee Data immediately ceases, and
Licensor shall have no obligation to maintain or forward any Licensee Data. TERM AND TERMINATION The Initial Term of this Agreement is determined by
Licensee's election during the online subscription process, commencing on the
date Licensee agrees to pay for the Service by completing the online
subscription form. This Agreement will
automatically renew, for a term equal in duration to the Initial Term, upon the
expiration of the Initial Term or any renewal term. Either party may terminate this Agreement or reduce the number of
licenses, effective upon the expiration of the then current term, by notifying
the other party in writing at least five (5) business days prior to the date of
the invoice for the following term. In the case of free trials, notifications
provided through the ordering process indicating the period of the free trial
shall constitute notice of termination.
In the event that Licensee terminates this Agreement (other than by
reason of Licensee's breach), Licensor will make available to Licensee a file
of its Licensee Data within 30 days of termination if Licensee so requests at
the time notice of termination is given.
Licensee agrees and acknowledges that Licensor has no obligation to
retain the Licensee Data, and may delete such Licensee Data, more than 30 days
after termination. TERMINATION FOR CAUSE Any breach of Licensee's payment obligations or unauthorized
use of the Service will be deemed a material breach of this Agreement. Licensor, in its sole discretion, may
terminate Licensee's password, account or use of the Service if Licensee
breaches or otherwise fails to comply with this Agreement. Licensee agrees and acknowledges that
Licensor has no obligation to retain the Licensee Data, and will delete such
Licensee Data, if Licensee has materially breached this Agreement, including
but not limited to failure to pay outstanding fees, and such breach has not
been cured within 30 days of notice of such breach. REPRESENTATIONS AND WARRANTIES Each party represents and warrants that it has the legal
power and authority to enter into this Agreement. Licensor represents and warrants that it will provide the Service
in a manner consistent with general industry standards reasonably applicable to
the provision thereof and that the Service will perform substantially in
accordance with the user documentation under normal use and circumstances.
Licensee represents and warrants that it has not falsely identified itself nor
provided any false information to gain access to the Service. DISCLAIMER OF WARRANTIES LICENSOR AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY,
OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH,
AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT; LICENSOR
AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE
WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION
WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET
LICENSEE'S REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE
OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER
MATERIAL PURCHASED OR OBTAINED BY LICENSEE THROUGH THE SERVICE WILL MEET
LICENSEE'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE
CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE
ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS;(III) THE SERVICE AND ALL
CONTENT IS PROVIDED TO LICENSEE STRICTLY ON AN "AS IS" BASIS; AND
(IV) ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD
PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW BY LICENSOR AND ITS LICENSORS. NETWORK DELAYS ROOT SYSTEMS' SERVICES MAY BE SUBJECT TO LIMITATIONS,
DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC
COMMUNICATIONS. LICENSOR IS NOT
RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM
SUCH PROBLEMS. LIMITATION OF LIABILITY IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED
THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM LICENSEE IN THE TWELVE (12) MONTH
PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT
SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT,
PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY
TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC
ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING
BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT
OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR
OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH
DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. LOCAL LAWS AND EXPORT CONTROL Licensor makes no representation that the Service is
appropriate or available for use in other locations. If Licensee uses the
Service from outside the United States of America and/or the European Union,
Licensee is solely responsible for compliance with all applicable laws,
including without limitation export and import regulations of other countries.
Any diversion of the Content contrary to United States or European Union
(including European Union Member States) law is prohibited. None of the Content, nor any information
acquired through the use of the Service, is or will be used for nuclear
activities, chemical or biological weapons, or missile projects, unless
specifically authorized by the United States Government or appropriate European
body for such purposes. NOTICE Licensor may give notice by means of a general notice on the
Service, electronic mail to Licensee's SPS Administrator e-mail address, or by
written communication sent by first class mail or pre-paid post to Licensee's
address on record in Root Systems' account information. Such notice shall be
deemed to have been given upon the expiration of 48 hours after mailing or
posting (if sent by first class mail or pre-paid post) or 12 hours after
sending (if sent by email). Licensee may give notice to by email to
notice or by first class mail to the address found under the
"Contact Us” section at the Internet website address of
www.idcs.info. MODIFICATION OF TERMS Licensor reserves the right to change the terms and
conditions of this Agreement or its policies relating to the Service at any
time and shall notify Licensee by posting an updated version of this Agreement
on the Service. Licensee is responsible for regularly reviewing this Agreement.
Continued use of the Service after any such changes shall constitute Licensee's
consent to such changes. ASSIGNMENT This Agreement may not be assigned by Licensee without the
prior written approval of Licensor but may be assigned by Licensor to (i) a
parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger.
Any purported assignment in violation of this section shall be void. SEVERABILITY
If any provision(s) of this Agreement shall be held to be
invalid, illegal, or unenforceable by a court or other tribunal of competent
jurisdiction, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby. GOVERNING
LAW
This Agreement shall be governed by the laws of the State of
Colorado without reference to conflict of laws principals. The parties hereby consent to the personal
jurisdiction of the courts of the State of Colorado and waive their rights to
venue outside of Adams County, Colorado. |