THIS AGREEMENT (“AGREEMENT”) GOVERNS YOUR USE OF THE SERVICES. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” WILL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. YOU WILL NOT ENTER INTO THIS AGREEMENT UNDER A FALSE, MISLEADING, OR FICTITIOUS NAME OR CONTACT INFORMATION.
This Agreement was last updated on [October 20, 2014].
This Agreement is effective between You and Us as of the date You accept this Agreement.
“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Services” means the online, Web-based applications and platform provided by Us via http://www.sharenology.com and/or other designated websites as described in the User Guide, that you agree to use, including associated offline components but excluding Third Party Applications.
“Third-Party Applications” means online, Web-based applications and offline software products that are provided by third parties, interoperate with the Services, and are identified as third-party applications.
“User Guide” means the online user guide for the Services, accessible via http://www.sharenology.com, as updated from time to time. You acknowledge that You have had the opportunity to review the User Guide.
“Users” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents; or third parties with which You transact business.
“We,” “Us” or “Our” means the Sharenology LLC.
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means all electronic data or information submitted by You to the Services, excluding usernames, login credentials and passwords which are only Your Data for as long as you use the Services and which become our property immediately upon any termination of the Services or this Agreement.
2.1. Provision of Services. We will make the Services available to You pursuant to this Agreement during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
2.2. Subscriptions. Subscriptions are for designated for use by a single company or other legal entity and cannot be shared or used by more than one company or other legal entity. You may only use Subscriptions and the Services to process data in connection with your business.
3. USE OF THE SERVICES
3.1 Our Responsibilities. We will use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for: (i) any planned downtime during the hours from 9:00 p.m. Eastern time to 6:00 a.m. Eastern time on any day or any downtime of which We will give at least 8 hours’ notice, or (ii) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, any failure or delay of any service provided to us by a third-party that hosts the Service for us, any failure in your or your User’s hardware, software or Network connection, or your or your Users’ bandwidth restriction ((i) and (ii) “Permissible Downtime”). If during any one month, the Service is not available 99.9% of the time, you must provide us 48-hours’ notice of the unavailability or such period during which the Service was unavailable will be deemed “Permissible Downtime”. If the Service is not available 99.9% of the during a month, excluding Permissible Downtime, Your only remedy will be a service credit, pro-rated for the period of impermissible downtime in excess of 0.1%, against Your next payment to Us, which credit will not exceed 100% of the applicable monthly charge. You will provide Us reasonable access to all necessary personnel and your networks and hardware to answer questions about and assess any such problems reported by You regarding the Services.
3.2. Your Responsibilities. You will (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only for your own internal business and in accordance with the User Guide and applicable laws and government regulations. You will not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services 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, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks. The license granted to You is non-exclusive and nothing in this Agreement will prevent Us from offering the Services to any other party.
3.3. Usage Limitations. Services may be subject to other limitations, such as, for example, limits on storage space. Any such limitations are specified in the User Guide. The Services provide real-time information to enable You to monitor Your compliance with such limitations.
4. THIRD-PARTY PROVIDERS
4.1. Acquisition of Third-Party Products and Services. Any use or acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, even if they are offered by us and even if they are designated by Us as “certified” or otherwise. No purchase of third-party products or services is required to use the Services.
4.2. Third-Party Applications and Your Data. If You install or enable Third-Party Applications for use with Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We will not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers. The Services will allow You to restrict such access by restricting Users from installing or enabling such Third-Party Applications for use with the Services.
5. FEES AND PAYMENT FOR SERVICES
5.1. Subscription Fees. You will pay all fees specified on our website for your use of the Services. Except as otherwise specified herein, (i) fees are quoted and payable in United States dollars (ii) fees are based on services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the level of Subscription purchased cannot be downgraded. Subscription fees are based on annual periods that begin on the subscription start date and each annual anniversary thereof. All fees are non-refundable and non-creditable.
5.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Services for the term. Such charges will be made in advance annually. You are responsible for maintaining complete and accurate billing and contact information in the Services.
5.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future Subscriptions on payment terms shorter than those specified in Section 5.2 (Invoicing and Payment).
5.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Services is overdue or if you are in breach of any other provision of this Agreement or any other agreement with Us, We may, without limiting Our other rights and remedies, (i) accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable and /or (ii) suspend the Services until such amounts are paid in full. If we suspend any Services, you must pay our then current reinstatement fee as specified in the User Guide (in addition to any other amounts owed under this Agreement) before we will restore the Service, which we may or may not do in our sole discretion.
5.5. Payment Disputes. We will not exercise Our rights under Section 5.3 (Overdue Charges) or 5.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute made by you within five (5) business days of notification of the applicable charges and You are cooperating diligently to resolve the dispute. If You fail to dispute a charge with the period specified above, all disputes related to such charges will be waived and the deliverables or Services deemed acceptable.
5.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, the appropriate amount will be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
6. PROPRIETARY RIGHTS
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. Restrictions. You will not (i) permit any third party to access or use the Services, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
6.3. Ownership of Your Data. As between You and Us, You exclusively own all rights, title and interest in and to all of Your Data.
6.4. Suggestions and Feedback. If You or Your Users provide Us with any suggestions, enhancement requests, recommendations or other feedback relating to the operation of the Services (“Feedback”), you hereby agree that we will own all such Feedback and you hereby assign to us, for no additional consideration, all right, title and interest in and to the Feedback. If for whatever reason you are not able to assign such rights to us, you hereby grant us a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license, with the right to create sublicenses, to use or incorporate Feedback into the Services in any manner that we chose. We have no obligation to provide any credit or attribution to You for any Feedback.
6.5 Usage. You agree that we can use, share and sell or license usage statistics, analytics, reporting or results specific to your use of the Services as long as such statistics, analytics, reporting or results are compiled into an aggregated or anonymous format.
6.6. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
7.1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information will include Your Data and Our Confidential Information will include the Services. Confidential Information of each party will include business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party will limit access to 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 have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
7.3. Protection of Your Data. Without limiting the above, We will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We will not (a) modify Your Data unless requested to do so by You, (b) disclose Your Data except as compelled by law in accordance with Section 7.4 (Compelled Disclosure) or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
7.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
8. WARRANTIES AND DISCLAIMERS
8.1. Our Warranties. We warrant that (i) the Services will perform materially in accordance with the User Guide and (ii) the functionality of the Services will not be materially decreased during a subscription term. For any breach of either such warranty, you must notify us of the breach of such warranty within 48-hours of the breach and, if you do, we will use commercially reasonable diligence to correct verifiable and reproducible errors, bugs or defects in the Services that cause them to violate the above warranty and, if we cannot correct them, your exclusive remedies will be to terminate this Agreement as provided in Section 11.3 (Termination for Cause) or to receive a service credit, pro rated for the period of during which the Services were out of warranty against Your next payment to Us, which credit will not exceed 100% of the applicable monthly charge. If you fail to notify us within the above referenced 48-hour period, we will have no liability to you and you will not have any remedy. You will provide Us reasonable access to all necessary personnel to answer questions about any such problems reported by You regarding the Services.
8.2. Mutual Warranties. Each party represents and warrants that (i) it has the legal power to enter into this Agreement, and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code previously transmitted to the warranting party by the other party).
8.3. Disclaimer. WE DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE SERVICES WILL OPERATE ERROR FREE, WITHOUT INTERRUPTION, OR IN COMBINATION WITH OTHER SOFTWARE OR SERVICES (EXCEPT AS PERMITTED BY THIS AGREEMENT), OR THAT ALL PROGRAM DEFECTS ARE CORRECTABLE. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9.1. Indemnification by You. You will defend Us against any Claim made or brought against Us by a third party (i) alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the registered copyrights or issued patents of a third party or violates applicable law, or (ii) arising on account of Your modification or enhancement of the Services, and will indemnify Us for any damages finally awarded against, and for reasonable attorneys’ fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF $10,000 OR THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all Subscriptions granted in accordance with this Agreement have expired or been terminated.
11.2. Term of Subscriptions. Subscriptions purchased by You commence on the date You are deemed to have agreed to this Agreement and continue [until terminated]. [All Subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term]. The per-unit pricing during any such renewal term will be the same as that during the prior term unless We have given You written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase will be effective upon renewal and thereafter.
11.3. Termination. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; (iii) upon 60 days prior written notice to the other; or (iv) within five (5) business days after we provide you notice of any amendment to this Agreement or provide you with a new version of this Agreement, unless you use the Services during such period in which case You will not have the right to terminate under this Section 11.3(iv). Unless expressly set forth herein, you are not entitled to any refunds upon any termination.
11.5. Return of Your Data. Upon request by You made within 30 days after the effective date of termination of a Subscription, We will make available to You for download a file of Your Data in [XML format along with non-XML files in their native format]. After such 30-day period, We will have no obligation to maintain or provide any of Your Data and will thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.
11.6. Surviving Provisions. Section 5 (Fees and Payment for Services), 6 (Proprietary Rights), 7 (Confidentiality), 8.3 (Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Refund or Payment upon Termination), 11.5 (Return of Your Data), 13 (Miscellaneous) will survive any termination or expiration of this Agreement.
12.1 Telephone Support. We will provide reasonable technical telephone consultation relating to the operation of the Services at the level of support services selected by You. You will appoint individuals within Your organization to serve as registered primary contacts between Us to receive support through Our support center. All of Your support inquiries will occur through these contacts.
12.2 New Releases, Enhancements. We may, from time to time, issue new releases of the Services containing error corrections, bug fixes, patches, updates and enhancements. We will evaluate the development of enhancements, features or modifications requested by and for Your use. All such error corrections, bug fixes, patches, updates and new releases are and will be Our sole property.
12.3 Exclusions. We will have no obligation to provide support and maintenance to You for the Services as contemplated by this Schedule if: (i) the Service was not used in accordance with the User Guide; (ii) the Services were altered, modified or converted by You without our prior written consent; (iii) Your computer malfunctioned and the malfunction caused a defect in the Services; (iv) any other cause within Your control caused a defect in the Services.
14.1. Notices: Any notice required or permitted hereunder will be in writing and will be deemed to have been duly given (i) upon hand delivery, (ii) on the third day following delivery to the U.S. Postal Service as certified mail, return receipt requested and postage prepaid, (iii) on the first day following delivery to a recognized overnight courier service, fee prepaid and return receipt or other confirmation of delivery requested, (iv) upon confirmation of receipt by the party to receive such notice, of a fax sent to the fax number of such party, or (v) upon confirmation of receipt by the party to receive such notice, of an email sent to the email address of such party.
14.2. Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the State of New York, excluding its conflict of laws principles. In the event that any legal proceedings are commenced with respect to any matter arising under this Agreement, the parties specifically consent and agree that the courts of the State of New York and/or the Federal Courts located in the State of New York will have exclusive jurisdiction over each of the parties and over the subject matter of any such proceedings, and that the venue of any such action will be in Monroe County, New York and/or the U.S. District Court for the Western District of New York. Additionally, the party that loses any such proceeding will pay all costs and expenses incurred by the other party(s) in connection therewith, including all attorneys’ and other professional fees and expenses.
14.3. Assignment. You may not assign this Agreement without Our prior written consent. Any attempted assignment or delegation without Our prior written consent will be null and void.
14.4 Partial Invalidity. If any provision of this Agreement is held invalid or unenforceable by competent authority, that provision will be construed so as to be limited or reduced to be enforceable to the maximum extent compatible with the law as it will then appear. The total invalidity or unenforceability of any particular provision of this Agreement will not affect its other provisions and this Agreement will be construed in all respects as if the invalid or unenforceable provision were omitted.
14.5 Force Majeure. Neither party will be liable for any costs or damages due to nonperformance under this Agreement arising out of any cause not within the reasonable control of such party and without its fault or negligence. Neither party will be liable for any delay or failure in the performance of its obligations under this Agreement that directly results from any failure of the other party to perform its obligations as set forth in this Agreement.
14.6 Waiver. No waiver of a breach of any term of this Agreement will be effective unless in writing and duly executed by the waiving party. No such waiver will constitute a waiver of any subsequent breach of the same or any other term of this Agreement. No failure on the part of a party to exercise, and no delay in exercising, any of its rights hereunder will operate as a waiver thereof, nor will any single or partial exercise by a party of any right preclude any other or future exercise thereof or the exercise of any other right. No course of dealing between the parties will be deemed effective to modify, amend or discharge any part of this Agreement or the rights or obligations of any party hereunder.
14.7 Entire Agreement. This Agreement contains the entire understanding of the parties with respect to the transactions contemplated and supersedes any prior agreements or understandings among the parties with respect to the subject matter hereof. We may amend this Agreement by providing you notice of the amendment or providing you with a new version of this Agreement. Your use of Services after receiving such a notice will constitute your acceptance of the amendment or new version of the Agreement. If you do not agreement with any amendment or new version of this Agreement, you must not use the Services and terminate this Agreement. There are no representations, warranties, or obligations of any party not expressly contained herein. In the event of any conflict between the terms of this Agreement, the terms of this Agreement will control. No purchase order or any other document or terms and conditions which you may send us govern the Services and all such items are invalid and not a part of this Agreement.
14.9 Survival. The provisions of this Agreement that by their nature would survive its termination will survive indefinitely.
14.10 Publicity. We may issue a press release or public announcement concerning this Agreement and the fact that you are our customer and/or a user of the Services, without obtaining you prior written approval.
14.11 Messages and Promotions. By signing up for Services, and unless and until you opt out of receiving the same, you agree that we can send you messages, newsletters, offers and other promotional materials related to our company, the Services and other products and services we offer