This Terms of Use Agreement (this “Agreement”) shall govern Subscriber’s (as defined below)
access and use of the Services (as defined below) provided by Mainsaver Software
(“Company”).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING
ACCEPTANCE, BY RESELLER PURCHASE, BY EXECUTING AN ORDER FORM THAT
REFERENCES THIS AGREEMENT OR BY OTHERWISE ACCESSING AND USING THE
SERVICES, SUBSCRIBER AGREES TO THE TERMS OF THIS AGREEMENT. AS A RESULT,
PLEASE READ ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY.
IF THE INDIVIDUAL ENTERING INTO THIS AGREEMENT IS ACCEPTING ON BEHALF OF A
COMPANY OR OTHER LEGAL ENTITY, THE INDIVIDUAL REPRESENTS THAT THEY HAVE
THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT, IN WHICH CASE THE TERMS “ACCOUNT” OR
“SUBSCRIBER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY,
OR DOES NOT AGREE WITH THE TERMS AND CONDITIONS SET FORTH HEREIN, THE
INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
Section 1.0 Ordering and Use of the Service
1.1 Company Cloud Service; Subscriber-Hosted Software.
(a) Company Cloud Service. Unless otherwise specified on an applicable Order Form,
Company Service shall be provided as Company-hosted, cloud Service. Company
grants Subscriber a non-exclusive and non-transferable right to access and use the
Service for the Term.
(b) Subscriber-Hosted Software. Where an applicable Order Form sets forth
Subscriber-Hosted Software, subject to the provisions of this Agreement, Company
grants Subscriber a non-exclusive and non-transferable license (with no right to
sublicense) to install and use the software for the Term. In respect of such
Subscriber-Hosted Software:
(i) Subscriber is responsible for installing and implementing the
Subscriber-Hosted Software and any updates, enhancements or modifications,
except for any Professional Services set forth on an applicable Order Form (i.e.,
implementation).
(ii) Subscriber may create copies of the Subscriber-Hosted Software to the extent
strictly necessary to install and operate the Subscriber-Hosted Software for use
in accordance with this Agreement, and to create backup and archival copies to
the extent reasonably required in the normal operation of Subscriber systems. All
such copies must include a reproduction of all copyright, trademarks or other
proprietary notices contained in the original copy of the Subscriber-Hosted
Software.
(iii) Subscriber is responsible for providing the Environment and ensuring the
Environment functions properly, and for implementing appropriate data backup
and security measures. “Environment” means the systems, networks, servers,
equipment, hardware, software and other material specified in Documentation or
an Order Form on which, or in connection with which, the Subscriber–Hosted
Service will be used.
1.2 Ordering.
(a) Ordering. For the Company Services purchased, Company shall grant Subscriber
Account Users access or use of the Service(s) and Professional Service(s) during their
associated Term, including access and use of all of the Content contained in or made
available through the Service(s), Subscriber agrees that its purchase is not contingent on
the delivery of any future functionality or features, or dependent upon any oral or written
public comments regarding future functionality or features. Subscriber agrees that it shall
use the Service(s) solely for internal business purposes, and access and use of the
Service(s) shall be limited to Account Users. Affiliates of either party may conduct
business under this Agreement by executing an Order Form or other document that
references this Agreement’s terms.
(b) Account Setup. To subscribe to the Service, Subscriber must establish its Account,
which may only be accessed and used by its Account Users. To setup an Account User,
Subscriber agrees to provide true and accurate information for such Account Users.
Each Account User must establish and maintain personal, non-transferable Access
Credentials, which shall not be shared with, or used by, any other individual. Subscriber
must not create Account User(s) in a manner that intends to or has the effect of avoiding
Fees, circumvents thresholds with the Account, or intends to violate the Agreement.
(c) Subscriber Responsibilities. With full responsibility for its Account Users, Subscriber
shall:
(i) take appropriate action to ensure that nonAccount Users do not access or use
the Service;
(ii) ensure that all Account Users comply with all of the terms and conditions of
this Agreement;
(iii) be solely responsible for the accuracy, and appropriateness of all Subscriber
Data created by Account Users using the Service;
(iv) access and use the Service solely in compliance with the Documentation and
all applicable laws, rules, directives and regulations (including those relating to
export, homeland security, anti-terrorism, data protection and privacy);
(v) allow e-mail notifications generated by the Service on behalf of Subscriber’s
Account Users to be delivered to Subscriber’s Account Users; and
(vi) promptly notify Company if Subscriber becomes aware of any unauthorized
use of its Account.
(d) Usage Restrictions. Subscriber agrees that it shall not, and shall not permit any Third
Party to, directly or indirectly:
(i) modify, copy, create derivative works or attempt to derive the source code of
the Service;
(ii) assign, sublicense, distribute or otherwise make available the Service, to any
Third Party, including on a timesharing, software-as-a-service or other similar
basis;
(iii) share Access Credentials or otherwise allow access or use the Service to
provide any service bureau services or any services on a similar basis;
(iv) use the Service in a way not authorized in writing by Company or for any
unlawful purpose;
(v) use the Service to store or transmit infringing, libelous, or otherwise unlawful
or tortious material, or to store or transmit material in violation of Third Party
privacy rights;
(vi) attempt to tamper with, alter, disable, override, or circumvent any security,
reliability, integrity, accounting or other mechanism, restriction or requirement of
the Service;
(vii) remove, obscure or alter any copyright, trademark, patent or proprietary
notice affixed or displayed by or in the Service;
(viii) perform load tests, network scans, penetration tests, ethical hacks or any
other security auditing procedures on the Service;
(ix) interfere with or disrupt the integrity or performance of the Service or the data
contained therein;
(x) access or use the Service in order to replicate applications, products or
services offered by Company and/or otherwise build a competitive product or
service, copy any features, functions or graphics of the Service or monitor the
availability and/or functionality of the Service for any benchmarking or
competitive purposes;
(xi) under any circumstances, through a Third Party application, a Subscriber
Application or otherwise, repackage or resell the Service, or any Company data;
(xii) store, manipulate, analyze, reformat, print, and display the Content for
personal use; and
(xiii) upload or insert code, scripts, batch files or any other form of scripting or
coding into the Service.
Notwithstanding the foregoing restrictions, in the event Subscriber has purchased a
Subscription for Commercial Use (as such term is defined below), Subscriber shall be
permitted to use the Service to provide Third Party services in cases where such Third
Parties access the Subscriber provided applications or services, but where such Third
Parties do not have the ability to install, configure, manage or have direct access to the
Services. Company hereby agrees, subject to payment of the applicable fees, to permit
such use and the terms of this Agreement, including references to “internal use” and/or
“internal business operations” shall be deemed to include and permit such use (hereafter
referred to as “Commercial Use“).
(e) Additional Guidelines. Company reserves the right to establish or modify its Service
offerings, general practices and limits concerning use of the Service, and if applicable
provide alternative Service offerings and practices, with approximately thirty (30) days’
prior notice. Company also reserves the right to block IP addresses originating a Denial
of Service (DoS) attack. Company shall notify Subscriber should this condition exist and
inform Subscriber of its action. Once blocked, an IP address shall not be able to access
the Service and the block may be removed once Company is satisfied corrective action
has taken place to resolve the issue.
(f) Links to Third Party Websites. To the extent that the Service links to any Third Party
website, application or service, the terms and conditions thereof shall govern
Subscriber’s rights with respect to such website, application or service, unless otherwise
expressly provided Company. Company shall have no obligations or liability arising from
Subscriber’s access and use of such linked Third Party websites, applications and
services.
(g) Beta Service. From time to time, Company may make Beta Service available to
Subscribers at no charge. Subscriber may choose to try such Beta Service or not in its
sole discretion. Use of Beta Service is at Subscriber’s sole risk and may contain bugs or
errors. Subscriber may discontinue use of the Beta Service at any time, in its sole
discretion. Further, Company may discontinue any and all Beta Service availability at any
time in its sole discretion without notice.
NOTWITHSTANDING THE REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
IN SECTION 6, BETA SERVICE AND DOCUMENTATION, ARE PROVIDED ON AN
“AS-IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND.
COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR
PURPOSE, AND NON-INFRINGEMENT. COMPANY SHALL HAVE NO
INDEMNIFICATION OBLIGATIONS AND NO LIABILITY OF ANY TYPE WITH
RESPECT TO THE BETA SERVICE UNLESS SUCH EXCLUSION IS
UNENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE COMPANY’S
LIABILITY WITH RESPECT TO THE BETA SERVICE PROVIDED SHALL NOT
EXCEED $500.00.
1.3 Proprietary Rights.
(a) Subscriber acknowledges and agrees that Company retains all ownership right, title,
and interest in and to the Service, the Documentation and the Content, including without
limitation all corrections, enhancements, improvements to, or derivative works thereof
(collectively, “Derivative Works”), and in all Intellectual Property Rights therein or thereto.
To the extent any Derivative Work is developed by Company based upon ideas or
suggestions submitted by Subscriber to Company, Subscriber hereby irrevocably
assigns all rights to use and incorporate Subscriber’s feedback, including but not limited
to suggestions, enhancement requests, recommendations and corrections (the
“Feedback”) relating to the Service, together with all Intellectual Property Rights related
to such Derivative Works. Nothing contained in this Agreement shall be construed to
convey to Subscriber (or to any party claiming through Subscriber) any Intellectual
Property Rights in or to the Service, the Documentation and the Content, other than the
rights expressly set forth in this Agreement
(b) Company acknowledges and agrees that Subscriber retains all ownership right, title,
and interest in and to the Subscriber Data, including all Intellectual Property Rights
therein or thereto. Notwithstanding the foregoing, Subscriber hereby grants Company
and its Affiliates a nonexclusive, royalty-free license to: (i) access, display, copy,
distribute, transmit, publish, disclose and otherwise use all or any portion of the
Subscriber Data to fulfill its obligations under this Agreement. In addition, Subscriber
hereby grants Company a non-exclusive, royalty-free right to use aggregated and
de-identified data generated and/or derived by Company from the Subscriber Data (the
“De-Identified Data”) in order to improve the Service and Company’s performance
hereunder, including without limitation, submitting and sublicensing such De-Identified
Data to Third Parties for analytical purposes, provided that Company shall take
commercially reasonable efforts to conduct such de-identification in a manner that
ensures that such De-Identification cannot be traced back to Subscriber or natural
persons.
(c) Subscriber acknowledges the Services may utilize, embed or incorporate Third Party
software and/or tools (each, a “Third-Party Tool”) under a license granted to Company by
one or more applicable Third Parties (each, a “Third-Party Licensor”), which licenses
Company the right to sublicense the use of the Third-Party Tool solely as part of the
Services. Each such sublicense is nonexclusive and solely for Subscriber’s internal use
and Subscriber shall not further resell, re-license, or grant any other rights to use such
sublicense to any Third Party. Subscriber further acknowledges that each Third-Party
Licensor retains all right, title, and interest to its applicable Third-Party Tool and all
documentation related to such Third-Party Tool. All confidential or proprietary information
of each Third-Party Licensor is Confidential Information of Company under the terms of
this Agreement and shall be protected in accordance with the terms of Section 7.
Section 2.0 Company Responsibilities
2.1 Professional Services. To the extent Professional Services are included in the applicable
Order Form and/or described in one or more statements of work, Subscriber agrees to abide by
Company’s Professional Services Addendum. Each statement of work shall be effective,
incorporated into and form a part of this Agreement when duly executed by an authorized
representative of each of the parties. Each statement of work shall (i) describe the fees and
payment terms with respect to the Professional Services being provided pursuant to such
statement of work, (ii) identify any work product that will be developed pursuant to such
statement of work, and (iii) if applicable, sets forth each party’s respective ownership and
proprietary rights with respect to any work product developed pursuant to such statement of
work.
2.2 Service Levels.
(a) Company shall use commercially reasonable efforts to make the Service available 99.9% of
the time for each full calendar month during the Term, determined on a twenty-four (24) hours a
day, seven (7) days a week basis (the “Service Standard”). Service availability for access and
use by Subscriber(s) excludes unavailability when due to: (a) any access to or use of the
Service by Subscriber or any Account User that does not strictly comply with the terms of the
Agreement or the Documentation; (b) any failure of performance caused in whole or in part by
Subscriber’s delay in performing, or failure to perform, any of its obligations under the
Agreement; (c) Subscriber’s or its Account User’s Internet connectivity; (d) any Force Majeure
Event; (e) any failure, interruption, outage, or other problem with Internet service or
Non-Company Service; (f) Scheduled Downtime; or (g) any disabling, suspension, or
termination of the Service by Company pursuant to the terms of the Agreement. “Scheduled
Downtime” means, with respect to any applicable Service, the total amount of time (measured in
minutes) during an applicable calendar month when such Service is unavailable for the majority
of Subscribers’ Account Users due to planned Service maintenance. To the extent reasonably
practicable, Company shall use reasonable efforts to provide eight (8) hours prior electronic
notice of Service maintenance events and schedule such Service maintenance events outside
the applicable business hours.
2.3 Protection of Subscriber Data. Company shall maintain commercially reasonable
administrative, physical, and technical safeguards for protection of the security, unauthorized
access or disclosure of Subscriber Data. All data and information provided by Subscriber
through its use of the Service is subject to Company’s Privacy Policy, which can be viewed by
clicking the “Privacy” hypertext link located within the Service. By using the Service, Subscriber
accepts and agrees to be bound and abide by such Privacy Policy. At all times during the
Subscription term and upon written request of Subscriber within thirty (30) days after the
effective date of termination or expiration of this Agreement, Subscriber data shall be available
for Subscriber’s export and download. Following the thirty (30) days after termination or
expiration, Company shall not be obligated to maintain Subscriber Data and may delete or
destroy what remains in its possession or control unless prohibited by law. (a) If applicable in
the United States, if Subscriber is a “Covered Entity” under the Health Insurance Portability and
Accountability Act of 1996 (as amended from time to time, “HIPAA”), and if Subscriber must
reasonably provide protected health information as defined by HIPAA in order to use the
Services, Company shall be Subscriber’s “Business Associate” under HIPAA, and Company
and Subscriber shall enter into a Business Associate Agreement (the form of which shall be
reasonably satisfactory to Company). (b) If applicable in the United Kingdom, Switzerland or
European Economic Area (EEA), both parties will comply with the applicable requirements of
Data Protection Legislation. “Data Protection Legislation” means (i) the United Kingdom’s Data
Protection Act 2018, and (ii) the General Data Protection Regulation (“GDPR”) and any national
implementing laws, regulations or secondary legislation. Company and Subscriber agree that
Company will not be processing any personal data on behalf of the Subscriber as “Data
Controller” (defined in accordance with the Data Protection Legislation). Company will collect,
use, disclose, transfer and store personal information when needed to administer this
Agreement and for its operational and business purposes, in accordance with Data Protection
Legislation. To the extent personal data from the UK, Switzerland or the EEA are processed by
Company, the terms of a data processing addendum (“DPA”) must be signed by the parties. To
the extent Company processes personal data, its binding corporate rules and the standard
contract clauses shall apply, as set forth in the DPA. For standard contract clauses, Subscriber
and Company agree that Subscriber is the data exporter and Subscriber’s acceptance of this
Agreement or applicable Order Form shall be treated as its execution of the standard contract
clauses.
Section 3.0 Third Party Interactions
3.1 Relationship to Third Parties. In connection with
Subscriber’s use of the Service, at Subscriber’s discretion, Subscriber may: (i) participate in
Third Party promotions through the Service; (ii) purchase Third Party goods and/or services,
including implementation, customization, content, forms, schedules, integration and other
services; (iii) exchange data, integrate, or interact between Subscriber’s Account, the Service,
its application programming interface (“API”) and a Third Party provider; (iv) receive additional
functionality within the user interface of the Service through use of the API; and/or (v) receive
content, knowledge, subject matter expertise in the creation of forms, content and schedules.
Any such activity, and any terms, conditions, warranties or representations associated with such
Third Party activity, shall be solely between Subscriber and the applicable Third Party. Company
shall have no liability, obligation or responsibility for any such Third Party correspondence,
purchase, promotion, data exchange, integration or interaction. Company does not warrant any
Third Party providers or any of their products or services, whether or not such products or
services are designated by Company as “certified,” “validated,” “premier” and/or any other
designation. Company does not endorse any sites on the Internet that are linked through the
Service.
3.2 Ownership. Subscriber is the owner of all Third Party content and data loaded into the
Subscriber Account. As the owner, it is Subscriber’s responsibility to make sure it meets its
particular needs. Company shall not comment, edit or advise Subscriber with respect to such
Third Party content and data in any manner.
Section 4.0 Fees and Payment
4.1 Fees. Subscriber shall pay to Company all fees specified in Order Forms. Except as
otherwise stated on the Order Form: (i) Subscription Fees are based on Services and
subscriptions purchased, (ii) all Subscription Fee payment obligations are non-refundable and
non-cancelable, and (iii) quantities purchased cannot be decreased during the relevant Services
Term. The Subscription Fee for such Service subscription shall be invoiced upon
commencement of the Services Term. Thereafter, Company shall make reasonable efforts to
invoice Subscriber for each applicable Subscription Fee sixty (60) days prior to its
commencement. Unless Subscriber provides written notice of termination in accordance with
Section 5.1, Subscriber agrees to pay all fees no later than thirty (30) days after the receipt of
Company’s applicable invoice. Subscriber is responsible for providing complete and accurate
billing and contact information to Company and notifying Company promptly of any changes to
such information.
4.2 Automatic Payments. If Subscriber is paying by credit card or Automated Clearing House
(“ACH”), Subscriber shall establish and maintain valid and updated credit card information or a
valid ACH auto debit account (in each case, the “Automatic Payment Method”). Upon
establishment of such Automatic Payment Method, Company is hereby authorized to charge
any applicable Subscription Fee using such Automatic Payment Method.
4.3 Overdue Charges. If any invoiced amount is not received by Company by the due date,
without limiting Company’s rights or remedies, those overdue charges may accrue late interest
at the rate of 1.5% of the outstanding balance per month, or the maximum amount permitted by
law, whichever is lower. Company reserves the right to condition an overdue Account’s future
subscription renewals and Order Forms on shorter payment terms than those stated herein.
4.4 Taxes. Company’s fees do not include any taxes, levies, duties or similar governmental
assessments of any nature, including, for example, value-added, sales, use or withholding
taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Subscriber is
responsible for paying all Taxes associated with its purchases hereunder. If Company has the
legal obligation to pay or collect Taxes for which Subscriber is responsible under this Section
4.5, Company shall invoice Subscriber and Subscriber shall pay that amount unless Subscriber
provides Company with a valid tax exemption certificate authorized by the appropriate taxing
authority. Subscriber agrees to indemnify and hold Company harmless from any encumbrance,
fine, penalty or other expense which Company may incur as a result of Subscriber’s failure to
pay any Taxes required hereunder. For clarity, Company is solely responsible for taxes
assessable against Company based on its income, property and employees.
4.5 Purchases through Resellers. In the event Subscriber purchases the Services (including any
renewals thereof) through an authorized reseller of Company, the terms and conditions of this
Agreement shall apply and supersede any other agreement except for any terms and conditions
related to fees, payment or Taxes. Such terms and conditions shall be negotiated solely by and
between Subscriber and such authorized reseller. In the event Subscriber ceases to pay the
reseller, or terminates its agreement with the reseller, Company shall have the right to terminate
Subscriber’s access to the Service at any time upon thirty (30) days’ prior written notice to
Subscriber unless Subscriber and Company have agreed otherwise in writing.
Section
5.0 Services Term and Termination
5.1 Services Term. This Agreement will commence
on the Effective Date set forth on the Order Form and continues until all Service subscriptions
hereunder have expired or have been terminated (the “Services Term”). Thereafter, except as
stated on an applicable Order Form, the Services Term shall automatically renew for additional
periods equal to the expiring subscription term or one year, whichever is longer, unless either
party has provided written notice of its intent to terminate the Service subscription not less than
forty-five (45) days prior to the expiration of the then-current Services Term applicable to the
Service subscription.
5.2 Termination for Cause. Either party may terminate this Agreement (in whole or with respect
to an Order Form or purchased from a reseller) by notice to the other party if (i) the other party
commits a material breach of this Agreement and fails to cure such breach within thirty (30)
days (except in the case of a breach of Section 7 in which case no cure period will apply) or (ii)
the other party becomes the subject of a petition in bankruptcy or other similar proceeding.
Company may, at its option, and without limiting its other remedies, suspend (rather than
terminate) any Services if Subscriber breaches the Agreement (including with respect to
payment of Fees) until the breach is remedied.
5.3 Effect of Termination. Termination or suspension of an individual Order Form or reseller
purchase, will not terminate or suspend any other Order Form, reseller purchase or the
remainder of the Agreement unless specified in the notice of termination or suspension. If the
Agreement is terminated in whole, all outstanding Order Form(s) and reseller purchases will
terminate. If this Agreement, any Order Form or reseller purchase is terminated, Subscriber
agrees to pay all Fees owed up to the effective date of termination.
5.4 Survival. The following portions of this Agreement shall survive termination of this
Agreement and continue in full force and effect: Sections 1, 2.3, 5.3, 6, 7 and 8.
Section 6.0 Representations, Warranties and Disclaimers
6.1 Representations. Each party represents that: (i) it has full right, title and authority to enter
into this Agreement; and (ii) this Agreement constitutes a legal, valid and binding obligation of
Subscriber, enforceable against it in accordance with its terms.
6.2 Warranties.
(a) Company represents and warrants that during the applicable Subscription
Term that Service will perform materially in accordance with the applicable Documentation. For
any breach of this warranty in Section 6.2(a), Subscriber’s exclusive remedy and Company’s
entire liability shall be as described in Section 5.2.
(b) Company represents and warrants that all
such Professional Services shall be performed in a professional and workmanlike manner in
accordance with generally accepted industry standards. For any breach of this warranty in
Section 6.2(b), Subscriber’s exclusive remedy and Company’s entire liability shall be the
re-performance of the applicable Professional Services.
(c) SERVICE, CONTENT, DOCUMENTATION, STORED DATA AND BETA SERVICE ARE PROVIDED “AS-IS” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY. EXCEPT AS EXPRESSLY STATED HEREIN, THE PARTIES MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES OR ANY CONTENT, DOCUMENTATION, STORED DATA OR BETA SERVICES. PARTIES SPECIFICALLY DISCLAIM ALL REPRESENTATIONS OR WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
(d) Company’s Services have not been tested in all situations under which they may be used. Subscriber is solely responsible for determining the appropriate uses for the Services and the results of such use; Company will not be liable for the results obtained through Subscriber’s use of the Services. Company’s Services are not specifically designed or intended for use in (i) storage of sensitive, personal information, (ii) direct life support systems, (iii) nuclear facility operations, or (iv) any other similar hazardous
environment.
6.3 Indemnification.
(a) Indemnity by Company. Company shall defend and indemnify
Subscriber from any loss, damage or expense (including reasonable attorneys’ fees) awarded
by a court of competent jurisdiction, or paid in accordance with a settlement agreement signed
by Subscriber, in connection with any Third Party claim (each, a “Claim”) alleging that
Subscriber’s use of the Service as expressly permitted hereunder infringes upon any intellectual
property rights, patent, copyright or trademark of such Third Party, or misappropriates the trade
secret of such Third Party; provided that Subscriber (x) promptly gives Company written notice
of the Claim; (y) gives Company sole control of the defense and settlement of the Claim; and (z)
provides to Company all reasonable assistance, at Company’s expense. If Company receives
information about an infringement or misappropriation claim related to the Service, Company
may in its sole discretion and at no cost to Subscriber: (i) modify the Service so that it no longer
infringes or misappropriates, (ii) obtain a license for Subscriber’s continued use of the Service,
or (iii) terminate this Agreement (including Subscriber’s Service subscriptions and Account)
upon prior written notice and refund to Subscriber any prepaid Subscription Fee covering the
remainder of the Term of the terminated Service subscriptions. Notwithstanding the foregoing,
Company shall have no liability or obligation with respect to any Claim that is based upon or
arises out of (A) use of the Service in combination with any software or hardware not expressly
authorized by Company, (B) any modifications or configurations made to the Service by
Subscriber without the prior written consent of Company, and/or (C) any action taken by
Subscriber relating to use of the Service that is not permitted under the terms of this Agreement.
This Section 6.3(a) states Subscriber’s exclusive remedy against Company for any Claim of
infringement or misappropriation of a Third Party’s Intellectual Property Rights related to or
arising from Subscriber’s use of the Service.
(b) To the extent permitted by law, Subscriber shall defend and indemnify Company from any loss, damage or expense (including reasonable attorneys’ fees) awarded by a court of competent jurisdiction, or paid in accordance with a settlement agreement signed by Company, in connection with any Claim alleging that the Subscriber Data, or Subscriber’s use of the Service in breach of this Agreement, infringes upon any patent, copyright or trademark of such Third Party, or misappropriates the trade secret of
such Third Party; unless applicable laws prohibit public entities from such indemnification and provided that Company (x) promptly gives Subscriber written notice of the Claim; (y) gives Subscriber sole control of the defense and settlement of the Claim; and (z) provides to Subscriber all reasonable assistance, at Subscriber’s expense. This Section 6.3(b) states
Company’s exclusive remedy against Subscriber for any Claim of infringement of misappropriation of a Third Party’s Intellectual Property Rights related to or arising from the Subscriber Data or Subscriber’s use of the Service.
6.4 Limitation of Liability.
IN NO EVENT SHALL COMPANY, IN THE AGGREGATE, BE LIABLE
FOR DAMAGES TO SUBSCRIBER IN EXCESS OF THE AMOUNT OF SUBSCRIPTION FEES
PAID BY SUBSCRIBER TO COMPANY PURSUANT TO THIS AGREEMENT DURING THE
TWELVE MONTHS PRIOR TO THE FIRST ACT OR OMISSION GIVING RISE TO THE
LIABILITY. UNDER NO CIRCUMSTANCES SHALL COMPANY HAVE ANY LIABILITY WITH
RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS
OF PROFITS, OR CONSEQUENTIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR PUNITIVE
DAMAGES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT,
TORT, STRICT LIABILITY OR PRODUCTS LIABILITY. NOTHING IN THIS SECTION SHALL
LIMIT SUBSCRIBER’S PAYMENT OBLIGATIONS UNDER SECTION 4.
Section 7.0 Confidentiality
7.1 Definition of Confidential Information. “Confidential Information” means any non-public
information and/or materials maintained in confidence and disclosed in any form or medium by a
party under this Agreement (the “Disclosing Party”) to the other party (the “Receiving Party”),
that is identified as confidential, proprietary or that a reasonable person should have known,
was the Confidential Information of the other party given the nature of the circumstances or
disclosure, or as otherwise defined as Confidential Information, trade secrets, and proprietary
business information as provided under applicable state law and exempted from disclosure by
the applicable statute. Confidential Information may include without limitation: information about
clients, services, products, software, data, technologies, formulas, processes, know-how, plans,
operations, research, personnel, suppliers, finances, pricing, marketing, strategies, opportunities
and all other aspects of business operations and any copies or derivatives thereof. Confidential
Information includes information belonging to a Third Party that may be disclosed only under
obligations of confidentiality. Notwithstanding the foregoing, Confidential Information shall not
include information that Receiving Party can demonstrate: (a) is or becomes generally known to
the public without breach of any obligation by Receiving Party; (b) is received from a Third Party
without breach of any obligation owed to Disclosing Party; or (c) is or has been independently
developed by Receiving Party without the benefit of Confidential Information.
7.2 Protection of Confidential Information. The Receiving Party agrees that it shall: (i) use the
Confidential Information solely for a purpose permitted by this Agreement, (ii) use the same
degree of care as Receiving Party uses with its own Confidential Information, but no less than
reasonable care, to protect Confidential Information and to prevent any unauthorized access,
reproduction, disclosure, or use of any of Confidential Information; and (iii) restrict access to the
Confidential Information of the Disclosing Party to those of its employees, contractors and
agents who need such access for purposes consistent with this Agreement and who are
prohibited from disclosing the information by a contractual, legal or fiduciary obligation no less
restrictive than this Agreement. Receiving Party shall not use, reproduce, or directly or indirectly
allow access to the Confidential Information except as herein provided or export Confidential
Information to any country prohibited from obtaining such information under any applicable laws
or regulations.
7.3 Compelled Disclosure. If Receiving Party is required to disclose any Confidential Information
to comply with law, to the extent legally permitted, Receiving Party shall: (a) give the Disclosing
Party reasonable prior written notice to permit Disclosing Party to challenge or limit any such
legally required disclosure; (b) disclose only that portion of the Confidential Information as
legally required to disclose; and (c) reasonably cooperate with Disclosing Party, at Disclosing
Party’s request and expense, to prevent or limit such disclosure.
7.4 Records Requests. To the extent permitted by law, Subscriber shall treat as exempt from
treatment as a public record, and shall not unlawfully disclose in response to a request made
pursuant to any applicable public records law, any of Company’s Confidential Information. Upon
receiving a request to produce records under any applicable public records or similar law,
Subscriber shall immediately notify Company and provide such reasonable cooperation as
requested by Company and permitted by law to oppose production or release of such Company
Confidential Information.
7.5 Remedies. Receiving Party shall promptly notify Disclosing Party if it becomes aware of any
unauthorized use or disclosure of Disclosing Party’s Confidential Information and agrees to
reasonably cooperate with Disclosing Party in its efforts to mitigate any resulting harm.
Receiving Party acknowledges that Disclosing Party would have no adequate remedy at law
should Receiving Party breach its obligations relating to Confidential Information and agrees
that Disclosing Party shall be entitled to enforce its rights by obtaining appropriate equitable
relief, including without limitation a temporary restraining order and an injunction.
Section 8.0 Miscellaneous
8.1 Compliance with Laws. Each party will comply with all laws and applicable government rules
and regulations insofar as they apply to such party in its performance of this Agreement’s rights
and obligations.
8.2 Publicity. Company is permitted to: (i) include Subscriber’s name and logo in accordance
with Subscriber’s trademark guidelines; and (ii) list the Services selected by Subscriber, in
public statements and client lists. Subscriber agrees to participate in press releases, case
studies and other collateral using quotes or requiring active participation, the specific details of
which shall be subject to mutual consent.
8.3 Relationship of the Parties. Company is performing pursuant to this Agreement only as an
independent contractor. Company has the sole obligation to supervise, manage, contract, direct,
procure, perform or cause to be performed its obligations set forth in this Agreement, except as
otherwise agreed upon by the parties. Nothing set forth in this Agreement shall be construed to
create the relationship of principal and agent between Company and Subscriber. Company shall
not act or attempt to act or represent itself, directly or by implication, as an agent of Subscriber
or its affiliates or in any manner assume or create, or attempt to assume or create, any
obligation on behalf of, or in the name of, Subscriber or its affiliates.
8.4 Waiver. No failure or delay by either party in enforcing any of its rights under this Agreement
shall be construed as a waiver of the right to subsequently enforce any of its rights, whether
relating to the same or a subsequent matter.
8.5 Assignment. Subscriber shall have no right to transfer, assign or sublicense this Agreement
or any of its rights, interests or obligations under this Agreement to any Third Party and any
attempt to do so shall be null and void. Company shall have the full ability to transfer, assign or
sublicense this Agreement or any of its rights, interests or obligations under this Agreement.
8.6 Force Majeure. Subject to the limitations set forth below and except for fees due for Service
rendered, neither party shall be held responsible for any delay or default, including any
damages arising therefrom, due to any act of God, act of governmental entity or military
authority, explosion, epidemic casualty, flood, riot or civil disturbance, war, sabotage,
unavailability of or interruption or delay in telecommunications or Third Party services, failure of
Third Party software, insurrections, any general slowdown or inoperability of the Internet
(whether from a virus or other cause), or any other similar event that is beyond the reasonable
control of such party (each, a “Force Majeure Event”). The occurrence of a Force Majeure Event
shall not excuse the performance by a party unless that party promptly notifies the other party of
the Force Majeure Event and promptly uses its best efforts to provide substitute performance or
otherwise mitigate the force majeure condition.
8.7 Entity, Governing Law, Notices and Venue. All notices, instructions, requests, authorizations,
consents, demands and other communications hereunder shall be in writing and shall be
delivered by one of the following means, with notice deemed given as indicated in parentheses:
(a) by personal delivery (when actually delivered); (b) by overnight courier (upon written
verification of receipt); (c) by business mail (upon written verification of receipt); or (d) except for
notice of indemnification claims, via electronic mail to Subscriber at the e-mail address
maintained on Subscriber’s Account and to Company at info@mainsaver.com. The Company
entity entering into this Agreement, the address to which notices shall be directed under this
Agreement and the law that will apply in any dispute or lawsuit arising out of or in connection
with this Agreement shall depend upon where Subscriber is domiciled: (a) In the United States
and all other domiciles not otherwise mentioned, the Company entity is JB Systems dba
Mainsaver Software., a California corporation, notices shall be addressed to 10803 Thornmint
Road, Suite 200, San Diego, CA 92127, governing law shall be California and the courts with
exclusive jurisdiction shall be California without regard to the principles of conflicts of laws,
unless Subscriber is a public entity in which case this Agreement shall be governed by the state
law where it is domiciled.
8.8 Interpretation of Agreement. The Section headings contained in this Agreement are solely
for the purpose of reference, are not part of the agreement of the parties, and shall not affect in
any way the meaning or interpretation of this Agreement. Any reference to any federal, state,
local or foreign statute or law shall be deemed to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise.
8.9 No Third Party Beneficiaries. No person or entity not a party to the Agreement shall be
deemed to be a Third Party beneficiary of this Agreement or any provision hereof. 8.10
Severability. The invalidity of any portion of this Agreement shall not invalidate any other portion
of this Agreement and, except for such invalid portion, this Agreement shall remain in full force
and effect.
8.11 Entire Agreement. This Agreement, including any applicable Order Form, is the entire
agreement between Subscriber and Company regarding Subscriber’s use of the Service and
supersedes all prior and contemporaneous agreements, proposals or representations, written or
oral, concerning its subject matter. No modification, amendment, or waiver of any provision of
this Agreement shall be effective unless in writing and signed by the party against whom the
modification, amendment or waiver is to be asserted. The parties agree that any term or
condition stated in any purchase order or in any other order documentation is void. In the event
of any conflict or inconsistency between the documents, the order of precedence shall be (1) the
applicable Order Form, (2) any schedule or addendum to this Agreement, and (3) the content of
this Agreement.
8.12 Export Compliance. The Service, Professional Service, Content or other technology
Company may make available, and derivatives thereof may be subject to export laws and
regulations of the United States and other jurisdictions. Each party represents that it is not
named on any U.S. government denied-party list. Subscriber shall not permit any Account User
to access or use any Service, Content or other Company technology in a U.S.-embargoed
country or region or in violation of any U.S. export law or regulation.
8.13 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe,
kickback, payment, gift, or thing of value from an employee or agent of the other party in
connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary
course of business do not violate the above restriction. If Subscriber learns of any violation of
the above restriction, Subscriber shall immediately notify Company.
8.14 Cooperative Use. With Subscriber’s approval, the market research conducted by
Subscriber during its selection process for the Services may be extended for use by other
jurisdictions, municipalities, and government agencies of Subscriber’s state. Any such usage by
other entities must be in accordance with ordinance, charter, and/or procurement rules and
regulations of the respective political entity.
8.15 Modifications. Company may revise the terms of this Agreement from time-to-time and
shall post the most current version of this Agreement on its website. If a revision meaningfully
reduces Subscriber’s rights, Company shall notify Subscriber.
8.16 Exclusions/Suspensions. Company confirms that it has not been excluded, debarred or
suspended from participation in any governmental program, including but not limited to
Medicare, Medicaid, or Medi-Cal payor programs, and is not the subject of any investigation
regarding participation in such programs, and has not been convicted of any crime relating to
any governmental program. Company agrees to notify Subscriber immediately if Company
becomes aware of any adverse action related to Company’s eligibility to participate in a
governmental program.
8.17 USA Government Subscribers. The Service and its Documentation and Content are
“Commercial Items,” “Commercial computer software” and “Computer software documentation”
as defined in the Federal Acquisition Regulations (“FAR”) and Defense Federal Acquisition
Regulations Supplement (“DFARS”). Pursuant to FAR 12.211, FAR 12.212, DFARS 227.7202,
as revised, the U.S. Government acquires the Service and its Documentation and Content
subject to the terms of this Agreement.
Section 9.0 Definitions
As used in this Agreement, the following terms shall have the meanings
set forth below:
9.1 “Access Credentials” means any user name, identification number, password, license or
security key, security token, PIN or other security code, method, technology or device used,
alone or in combination, to verify an individual’s identity and authorization to access and use the
Service.
9.2 “Account” means Subscriber’s specific account where Subscriber subscribes to access and
use Service(s).
9.3 “Account User” means each employee, consultant and contractor of Subscriber that has
been granted Access Credentials.
9.4 “Affiliate” means, with respect to any legal entity, any other legal entity that (i) controls, (ii) is
controlled by or (iii) is under common control of such legal entity. A legal entity shall be deemed
to “control” another legal entity if it has the power to direct or cause the direction of the
management or policies of such legal entity, whether through the ownership of voting securities,
by contract, or otherwise.
9.5 “Beta Service” means Company Service or functionality that may be made available to
Subscriber to try at its option at no additional charge that is clearly designated as beta, pilot,
limited release, early adoption, non-production, sandbox, evaluation or a similar description.
9.6 “Content” means all of the Company audio and visual information, documents, content,
materials, products and/or software contained in, or made available through, the Service.
9.7 “Documentation” means the user documentation relating to the Service provided to
Subscriber by Company, including but not limited to descriptions of the functional, operational
and design characteristics of the Service.
9.8 “Mainsaver” or “Company” means JB Systems dba Mainsaver Software together with their
affiliates, successors and assigns.
9.9 “Company Data” means all data, information, Documentation and other Content provided by
or on behalf of Company to any of the Company Services.
9.10 “Intellectual Property Rights” means all ideas, concepts, designs, drawings, packages,
works of authorship, processes, methodologies, information, developments, materials,
inventions, improvements, software, and all intellectual property rights worldwide arising under
statutory or common law, including without limitation, all (i) patents and patent applications
owned or licensable by a party hereto; (ii) rights associated with works of authorship, including
copyrights, copyright applications, copyright registrations, mask work rights, mask work
applications and mask work registrations; (iii) rights related to protection of trade secrets and
Confidential Information; (iv) trademarks, trade names, service marks and logos; (v) any right
analogous to those set forth in clauses (i) through (iv); and (vi) divisions, continuations,
renewals, reissues and extensions of the foregoing (as and to the extent applicable) now
existing, hereafter filed, issued or acquired.
9.11 “Order Form” means Company’s ordering document or online purchasing form used to
order Company Services. By entering into an Order Form, Affiliate(s) agree to be bound by the
terms of this Agreement as if an original party. Company
9.12 “Professional Service” means the professional, technical, consulting and/or other services,
excluding support services, to be performed by Company that are ordered by Subscriber on an
Order Form or provided without charge (if applicable).
9.13 “Service” or “Services” means Company’s branded offerings of Software-as-a-Service
(SaaS) applications, products and services made available by Company, as updated, enhanced
or otherwise modified from time-to-time. Company
9.14 “Subscriber” means the legal entity identified on the Account, on behalf of itself and its
Affiliates, employees and subcontractors.
9.15 “Subscriber Data” means all data, information and other content provided by or on behalf of
Subscriber to the Service, including that which the Account Users input or upload to the Service.
9.16 “Subscriber-Hosted Software” means Company’s suite of Software-as-a-Service (SaaS)
software applications, as updated, enhanced or otherwise modified from time-to-time that are: (i)
ordered by Subscriber on an Order Form or provided without charge (if applicable) and made
available by Company, including mobile components, and (ii) granted a non-exclusive and
non-transferable license (with no right to sublicense) to install and use software for the Term.
9.17 “Subscription Fee” means the fee invoiced to Subscriber by Company prior to the Services
Term, which is required to be paid in order for Subscriber to be permitted to access and use the
Service.
9.18 “Third Party” means a party other than Subscriber or Company