WE MAY AT OUR SOLE DISCRETION CHANGE, ADD, OR DELETE PORTIONS OF THIS AGREEMENT AT ANY TIME ON A GOING-FORWARD BASIS. IT IS YOUR RESPONSIBILITY TO CHECK THIS AGREEMENT FOR CHANGES PRIOR TO USE OF THE SERVICES, AND IN ANY EVENT YOUR CONTINUED USE OF THE SERVICES FOLLOWING THE POSTING OF CHANGES TO THIS AGREEMENT CONSTITUTES YOUR ACCEPTANCE OF ANY CHANGES. WE WILL NOTIFY YOU OF ANY SUCH MATERIAL CHANGES BY POSTING NOTICE OF THE CHANGES ON THE SERVICES, AND/OR, IN OUR SOLE DISCRETION, BY EMAIL
CERTAIN ASPECTS OF THE SERVICES ARE PROVIDED WITH OR OTHERWISE COMPATIBLE WITH CERTAIN SERVICES OWNED OR CONTROLLED BY THIRD PARTIES, SUCH AS QUICKBOOKS, WHICH IS OWNED BY INTUIT, INC. YOUR USE OF THOSE THIRD-PARTY SERVICES WILL BE GOVERNED BY THOSE LICENSES, AND NOT THIS AGREEMENT.
ORDERS. The Services to be provided by ServiceCore under this Agreement will be set forth in one or more Order Forms executed by Company and ServiceCore. An “Order Form” means a document signed by both Company and ServiceCore identifying the Services ordered, the costs associated with such Services, the period of time Company will have access to the ordered Service(s) (the “Access Term”), the schedule of payments for the performance of such Services, data syncing and/or import preferences, limits on Authorized Users, and any unique additional terms.
SERVICES. Subject to the terms and conditions contained in this Agreement, ServiceCore hereby grants Company a non-exclusive, non-transferable right to: (a) access and use, and allow its employees and independent contractors (collectively, “Authorized Users”) the Services during the Access Term identified in the applicable Order Form, solely in accordance with the terms and conditions of this Agreement, including the applicable Order Form; and (b) use any documentation provided therewith during the Access Term for Company’s internal business purposes in connection with Company’s use of the Services. On or as soon as reasonably practicable after the Effective Date (as defined below), ServiceCore will provide to Company the necessary passwords, security protocols and policies and network links or connections (the “Access Protocols”) to allow Company and its Authorized Users to access the Services. Company will be solely responsible for all acts or omissions of its Authorized Users with respect to this Agreement. Company shall notify ServiceCore immediately of any unauthorized use of Company’s Access Protocols or any other known or suspected breach of security. ServiceCore provides limited technical support services as part of the Services. The parties may agree to ServiceCore providing additional technical support services pursuant to an Order Form.
RESTRICTIONS. Company will not, nor will Company authorize or assist any third party, including Authorized Users, to: (a) use, copy, modify, download or transfer the Services or any component of the foregoing, in whole or in part, except as expressly provided in this Agreement; (b) reverse engineer, disassemble, decompile, or translate any software components of the Services, attempt to derive the source code of any software components of the Services, create any derivative work from any software components of the Services; (c) rent, lease, loan, resell for profit, or distribute the Services, or any part thereof; (d) remove or alter any proprietary notice or legend regarding ServiceCore’s proprietary rights in the Services; (e) export the Services from and outside the United States of America; (f) interfere with or disrupt the integrity or performance of the Services or the data contained therein; (g) attempt to gain unauthorized access to the Services or its related systems or networks. Additionally, Company may not use the Services: (i) except in accordance with applicable laws and regulations; (ii) for spamming, sending chain letters, junk mail, or using a distribution list to communicate with a person who has not given Company specific permission to contact them in such a manner; (iii) to display, transmit or otherwise provide access to any unlawful, infringing, libelous, obscene or harassing content of any kind; (iv) to defraud any third party or to distribute obscene or other unlawful materials or information; or (v) to send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs.
CONTENT AND INFORMATION.
a. Types of Content. Company acknowledges that all files, materials, data, text, information, audio, video, images or other content (“Content”), is the sole responsibility of the party from whom such Content originated. This means that you, and not Company, are entirely responsible for all Content that Company or any Authorized Users, upload, post, e-mail, transmit or otherwise make available (“Make Available”) through the Services (“Company Content”).
b. Storage. Unless expressly agreed to by ServiceCore in writing elsewhere, ServiceCore has no obligation to store any of Company Content that Company Make Available on Services. ServiceCore has no responsibility or liability for the deletion or accuracy of any Content, including Company Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Services. Company agrees that ServiceCore retains the right to create reasonable limits on ServiceCore’s use and storage of the Content, including Company Content, such as limits on file size, storage space, processing capacity, and similar limits described on the applicable Order Form and as otherwise determined by ServiceCore in its sole discretion.
c. License. ServiceCore does not claim ownership of Company Content. However, when Company uploads Company Content to the Services, Company represents that Company have all rights, permissions, and consents (including from Authorized Users) necessary to use Company Content (in whole or in part) as contemplated herein. Company grants ServiceCore a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Company Content (in whole or in part) for the purposes of operating and providing Services to Company and Company’s Authorized Users. Company agrees that Company, not ServiceCore, are responsible for all of Company Content that Company Makes Available on or in Services.
TECHNOLOGY. Company understands and acknowledges that the software, code, proprietary methods and systems used to provide the Services (“Our Technology”) are: (a) copyrighted by ServiceCore and/or our licensors under United States and international copyright laws; (b) subject to other intellectual property and proprietary rights and laws; and (c) owned by ServiceCore or our licensors. Our Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. Company must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology. Nothing in this Agreement grants Company any right to receive delivery of a copy of Our Technology or to obtain access to Our Technology except as generally and ordinarily permitted through the Services, according to this Agreement. Furthermore, nothing in this Agreement will be deemed to grant, by implication, estoppel or otherwise, a license to Our Technology, and we reserve all rights not expressly rights herein. Certain of the names, logos, and other materials displayed on the Services constitute trademarks, tradenames, service marks or logos (“Marks”) of ServiceCore or other entities. Company is not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with ServiceCore or those other entities.
DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND ALL SERVICECORE CONTENT IS PROVIDED “AS IS” WITHOUT ANY CONDITION OR WARRANTY WHATSOEVER. THE ENTIRE RISK ASSOCIATED WITH THE USE OF THE SERVICES RESIDES WITH YOU. SERVICECORE EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE AND/OR QUIET ENJOYMENT, SYSTEM INTEGRATION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND DATA ACCURACY. WE DO NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE OR VIRUS FREE. WE DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE SERVICECORE CONTENT OR SERVICES. INFORMATION THROUGH THE SERVICES MAY NOT BE CURRENT AT THE MOMENT COMPANY OR ITS AUTHORIZED USERS VISIT THE SERVICES AND MAY CONTAIN ERRORS. FURTHER, The ServiceS ARE controlled and operated from its facilities in the United States. We make no representations that the ServiceS ARE appropriate or available for use in other locations. Those who access or use the ServiceS from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States, foreign and local laws and regulations, including but not limited to export and import regulations.
LIMITATION OF LIABILITY. IN NO EVENT SHALL SERVICECORE OR ANY OF ITS LICENSORS OR REPRESENTATIVES BE LIABLE TO COMPANY, AUTHORIZED USERS, OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL OR LOST PROFITS OR LOST OPPORTUNITIES IN ANY WAY RELATING TO THIS AGREEMENT OR RESULTING FROM THE USE OF OR INABILITY TO ACCESS THE SERVICES OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY HARDWARE, THIRD-PARTY SOFTWARE AND/OR SERVICES, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF SERVICECORE HAS BEEN NOTIFIED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. IN NO EVENT WILL SERVICECORE’S LIABILITY FOR ANY DAMAGES TO COMPANY, AUTHORIZED USERS, AND/OR ANY THIRD PARTY EVER EXCEED THE TOTAL AMOUNT OF ALL FEES THEN-PAID UNDER SECTION 6 DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. THESE LIMITATIONS OF LIABILITY ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
INDEMNITY. To the maximum extent permitted by law, Company agrees to indemnify and hold ServiceCore, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “ServiceCore Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Company Content; (b) Company’s or its Authorized Users’ use of, or inability to use, Services; (c) Company’s or its Authorized Users’ breach or violation of this Agreement; (d) Company’s violation of any rights of another party, including any Authorized Users; (e) Company’s violation of any applicable laws, rules or regulations; and/or (f) claims by Authorized Users with respect to the Services or transactions between the Company and any Authorized Users. ServiceCore reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event, Company will fully cooperate with ServiceCore in asserting any available defenses.
- INTERACTIONS WITH THIRD PARTIES.
b. Authorized Users. Company is solely responsible for its interactions with Authorized Users. Company agrees that ServiceCore will not be responsible for any liability incurred as the result of such interactions.
NO DUTY TO CORRECT ERRORS. Without limiting the provisions of Section 2, Company acknowledges and agrees that ServiceCore has no obligation under this Agreement to correct any defects or errors in the Services furnished to Company under this Agreement, regardless of whether Company informs ServiceCore of such defects or errors or ServiceCore otherwise is, or becomes aware of, such defects or errors. To the extent ServiceCore provides Company with any updates or upgrades to the Services such updates and upgrades shall be deemed to constitute part of the Services and shall be subject to all terms and provisions set forth in this Agreement, including, without limitation, terms and provisions related to use restrictions, ownership and distribution of the Services.
TERM AND TERMINATION. The Agreement shall commence on the date set forth in the applicable Order Form, or if no such date is set forth the date Company’s first Authorized User first accepts this Agreement or first access the Services, whichever first occurs (the “Effective Date”), and continue until the expiration of all outstanding Access Term(s). The term of each Order Form shall commence on the effective date of such Order Form and continue for the Access Term specified on the Order Form. Thereafter, the Access Term will automatically renew for additional, consecutive periods of the same term, unless and until either party provides written notice to the other party of its intent not to renew the Order Form. We may suspend and/or terminate this Agreement or any Order Form immediately if Company or any Authorized User breaches any term or condition herein, provided that we will use reasonable efforts to provide Company with notice of such termination. Upon termination, all rights granted to Company under this Agreement will immediately cease, Company may not thereafter use the Services, and ServiceCore may delete any information or content Company has provided to ServiceCore through use of the Services.
a. Confidential Information. “Confidential Information” means all proprietary, secret or confidential information or data relating to either party, their respective affiliates, operations, employees, products or services, clients, customers or potential customers. Confidential Information shall include, but not be limited to, customer lists, pricing and financial information, computer access codes, instruction and/or procedural manuals, trade secrets, functional and technical specifications, designs, drawings, translations, analysis, research processes, computer programs, beta versions, algorithms, methods, ideas, “know how” and other technical information, and the terms and conditions of this Agreement. Information shall not be considered Confidential Information to the extent, but only to the extent, that such information is: (i) already known to the receiving party free without violation of its confidentiality obligations under this Agreement at the time it was obtained; (ii) learned from an independent third party free of any restriction and without breach of this agreement; (iii) publicly available through no wrongful act of, or breach of this Agreement by, the receiving party; or (iv) independently developed by the receiving party without reference to any Confidential Information of the other.
b. Confidentiality Obligations. Each party acknowledges that it may directly or indirectly disclose Confidential Information (as defined below) to the other party in the course of performance of this Agreement. All such Confidential Information disclosed hereunder shall remain the sole property of the disclosing party (or other third party), and the receiving party shall have no interest in, or rights with respect thereto, except as set forth herein. Each party agrees to treat such Confidential Information with the same degree of care and security as it treats its Confidential Information. Each party may disclose such Confidential Information to its employees, agents and advisors who require such knowledge to perform services under this Agreement and are bound by confidentiality obligations at least as restrictive as under this Agreement. Except as otherwise contemplated by this Agreement, except as required by applicable law, rule or regulation, neither party shall disclose the Confidential Information of the other party to any third party without the prior written consent of the disclosing party. This Section shall survive any termination of the Agreement.
c. Feedback. We will treat any feedback or suggestions Company provides to us as non-confidential and non-proprietary. In the absence of a written agreement with us to the contrary, Company agrees that Company will not submit to us any information or ideas that Company considers to be confidential or proprietary.
COMMUNICATIONS. The communications between Company and ServiceCore relating to the Services use electronic means. For contractual purposes, Company (a) consents to receive communications from ServiceCore in an electronic form, whether via email or posting on the Services or other reasonable means; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that we provide to Company electronically satisfy any legal requirement that such communications would satisfy if it were in writing. If Company has any questions about the foregoing, please contact us at the following e-mail address: email@example.com.
FORCE MAJEURE. ServiceCore shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials, or failures of its third-party hosting provider.
GOVERNING LAW AND DISPUTE RESOLUTION. This Agreement will be governed by the laws of the State of Colorado without regard to, or application of, rules or principles regarding conflicts of law. Any dispute, controversy or claim arising out of or relating to this Agreement, shall be finally settled pursuant to an arbitration proceeding conducted by JAMS, in accordance with JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/. The arbitration shall be conducted by one arbitrator mutually agreed upon by the parties. In no event, even if any other portion of these provisions is held to be invalid or unenforceable, shall the arbitrator have power to make an award or impose a remedy that could not be made or imposed by a court deciding the matter in the same jurisdiction. All aspects of the arbitration shall be treated as confidential. The location of any hearing under this arbitration provision shall be conducted in Douglas County, Colorado. The language to be used in the arbitral proceedings shall be English. The award or decision through arbitration shall be binding upon the parties and may be incorporated into and thereupon enforced as an order of a court of competent jurisdiction.
- GENERAL PROVISIONS. The parties irrevocably waive any and all rights they may have to a trial by jury in any judicial proceeding involving any claim relating to or arising under this Agreement. Company acknowledges that ServiceCore will have the right to seek an injunction if necessary to prevent a breach of Company’s obligations hereunder. If any provision of this Agreement is held to be unenforceable, that provision will be disregarded for purposes of the dispute or other circumstance giving rise to such finding, and the remaining provisions will remain in full force. In the event that ServiceCore prevails in any proceeding or lawsuit brought by either party in connection with this Agreement, ServiceCore will be entitled to receive its costs, expert witness fees and reasonable attorney’s fees, including costs and fees on appeal. The failure of ServiceCore to require Your performance of any provision in this Agreement shall not affect ServiceCore’s full right to require such performance at any time thereafter; nor shall the waiver by ServiceCore of any breach of any provision of this Agreement be taken or held to be a waiver of the provision itself. Company may not assign this Agreement without the prior written consent of ServiceCore. This Agreement inures to the benefit of each party’s respective heirs, representatives, and permitted successors and assigns. Any attempted or purported assignment by Company shall be null and void. Excepting any contractual agreement between the person or entity that purchased the right to access the Services and ServiceCore, this Agreement is the complete and exclusive statement of the agreement between ServiceCore and Company, which supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement.