END-USER LICENSE AGREEMENT
1. SAAS SERVICES
1.1 Company shall provide the selected serves in Agreement (“Services”) and grants to Customer a royalty-free, nonexclusive, nontransferable, worldwide limited term right to use the webhosted software as described.
1.2 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation, or data related to the Services. Nor will Customer modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company in writing or authorized within the Services).
1.3 Reasonable use limits apply to the capacity of the Services. If Customer exceeds these limits, it will be responsible for any overages. Most Customers will never exceed these capacity limits.
1.4 Customer shall be responsible for maintaining the security and use of its customer accounts, passwords (including but not limited to administrative and user passwords) and files. Company shall not be liable for any misuse of Customer accounts by Customer employees.
2. AGENCY SERVICES (IF APPLICABLE)
2.1 Company shall provide Search Engine Optimization (“SEO”) Services, social media, and other internet based agency services (collectively, “Agency Services”). Company is authorized to use specific keywords or phases provided by Customer for development, improving the ranking of, and/or positioning the contents of the Customer's URL(s) in search engines.
2.2 Customer shall provide Company with FTP access to its web sites for uploading new pages and making changes for the purpose of Agency Services. Customer authorizes Company use of Customer's logos, trademarks, Web site images, etc., only for use in creating informational pages and any other uses as deemed necessary by Company for Agency Services.
2.3 Customer Acknowledges that Company has no control over the policies of search engines or directories concerning the type of sites or content that they accept. Customer's web site(s) may be excluded from any search engine or directory at the sole discretion of the search engine or directory. Company will resubmit those pages that have been dropped. Some search engines and directories offer expedited listing services for a fee. Company encourages Customer to take advantage of these expedited services. Customer acknowledges that it is responsible for all expedited service fees. Company is not responsible for changes made to Customer's web site(s) by other parties that adversely affect the search engine or directory rankings of Customer's web site(s).
3. PAYMENT OF FEES
3.1 Customer shall pay Company the fee described in the Agreement (“Fee”). At the end of the Initial Service Term or renewal term Company may change the Fees or applicable charges and to institute new charges and Fees. Company shall provide Customer thirty (30) days prior notice (which may be sent by email).
3.2 Customer must contact Company no later than 60 days after the closing date on the first billing statement if Customer believes that Company has billed Customer incorrectly. Inquiries should be directed to Company’s customer support department.
3.3 Customer authorizes regularly scheduled charges to its account listed in the Agreement. Company shall email a receipt to Customer when the Fee is received. The charge will appear as an “ACH Debit.” Customer shall notify Company of termination of this authorization in writing at least 30 calendar days before the next billing date. If Customer fails to inform Company of any updated account information that results in nonpayment or if Customer's credit card is declined for any reason, Company may charge a $25 fee 5 business days after the Fee is due. In the case of an ACH Transaction being rejected for Non-Sufficient Funds (NSF) Company may attempt to process the charge up to 2 more times within 30 days, and agree to an additional $25 charge for each attempt returned NSF. Customer acknowledges that the origination of ACH transactions to their account must comply with the provisions of U.S. law.
4. TERM AND TERMINATION
4.1 Agreement is for the Initial Service Term, and will be automatically renewed for another period of the same duration as the Initial Service Term. Customer must provide notice of termination at least thirty (30) days prior to the end of the current term.
4.2 Either party may terminate this Agreement upon thirty (30) days’ notice (or without notice in the event of nonpayment), if the other party breaches any of the terms or conditions of this Agreement. Customer shall pay in full for the Services up to and including the last day on which the Services are provided.
5. RESTRICTIONS CONCERNING SOFTWARE
5.1 Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement.
5.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement and any other policies and all applicable laws and regulations. Customer hereby agrees to indemnify Company against any damages, losses, liabilities, and expenses (including reasonable costs and attorneys’ fees) in connection with anything that arises from an alleged violation or otherwise from Customer’s use of Services. Company may monitor Customer’s use of the Services and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
6. THIRD PARTY VENDORS
6.1 Customer’s interest in or obligations to any materials, software or data to be used by third party vendors, obtained with or without the assistance of Company, will be determined in accordance with any agreements or policies of such vendors.
7.1 Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (“Proprietary Information”). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect Proprietary Information, and (ii) not to use (except as permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following a disclosure or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
8. CUSTOMER DATA
8.1 Customer shall own all right, title and interest in Customer Data. Company shall own and retain all right, title and interest to: (a) the Services and Software; (b) any software, applications, inventions or other technology developed in connection with implementing the Services or support; (c) any data that is based on or derived from the Customer Data which may be provided by Company to Customer and third parties; and (d) all intellectual property rights related to any of the foregoing.
8.2 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to: (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings; and (b) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
8.3 Company shall adhere to reasonably appropriate administrative, technical, physical, organizational and operational safeguards and other security measures that ensure: (a) the safeguarding of Customer Data contained in both paper and electronic records; (b) the security and confidentiality of Customer Data in a manner consistent with applicable industry standards; (c) protect against reasonably anticipated threats or hazards to the security or integrity of Customer Data; and (d) protect against any actual or suspected unauthorized processing, loss, use, disclosure or acquisition of or access to any Customer Data.
9. DISCLAIMER OF WARRANTIES
9.1 Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control. Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” TO THE FURTHEST EXTENT PERMITTED BY LAW. COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
10. LIMITATION OF LIABILITY
10.1 NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. This Agreement is the complete statement of the mutual understanding of the parties and supersedes all previous written or oral agreements, communications, and other understandings relating to the subject matter of this Agreement. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect. This Agreement shall be governed by the laws of the State of North Carolina. Company will be entitled to recover costs and attorneys’ fees in any action or proceeding to enforce rights under this Agreement. Any controversy arising out of this contract must be settled by arbitration administered by the American Arbitration Association in Charlotte, North Carolina.