THESE TERMS OF SERVICE (“AGREEMENT”) GOVERN YOUR USE OF THE BEMO WEBSITES AND THE SERVICES, INCLUDING BETA TESTING, RISK FREE TRIAL, AND PURCHASED SERVICES.
BY VIEWING THE BEMO WEBSITES, CLICKING A BOX INDICATING YOUR ACCEPTANCE, SUBMITTING AN ORDER FORM, OR USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT INCLUDING THE SUPPLEMENT TO BEMO TERMS OF SERVICE ATTACHED AND CREATE A BINDING AGREEMENT BETWEEN YOU AND US.
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 THE ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE THAT 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 agree that we may modify this Agreement by posting a revised version on the BeMo Website and by notifying You by email. By clicking to accept the revised Agreement, or continuing to use or receive the Services, you agree to the revised Agreement. It is your responsibility to read and understand the entire Agreement and changes made to it. This Agreement was last updated on December 17, 2012.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
You may not view BeMo Websites or use the Services if You are under the age of 18. If BeMo determines that an account has been set up or used by anyone under 18, BeMo will terminate the account.
"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.
"BeMo Website" BeMo’s main website at http://www.bemopro.com/, any sub-domains under that main site, any web pages providing any part of any of the Services, and any localized versions of any of the foregoing in different languages or for different regions.
"Demo" means a demonstration environment provided to You at no or at extra cost, hosted on Our server and to be used for the sole purpose of conducting product evaluation, demonstration or training. Under no circumstance a Demo should be used for holding production or actual project data.
"BeMo Content Pack" means a demonstration environment pre-populated with sample data provided to You at no or at extra cost, hosted on Our server and to be used for the sole purpose of conducting product evaluation, demonstration or training. Under no circumstance a BeMo Content Pack should be used for holding production or actual project data.
"Malicious Code" means viruses, worms, time bombs, Trojan horses, spyware, and any other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means online order forms for purchases of Services. Order Forms are part of this Agreement.
"Purchased Services" means Services that You purchase, as distinguished from those provided for a beta test or risk free trial.
"Services" means Our online, Web-based applications, excluding Third Party Applications.
"Third-Party Applications" means online, Web-based applications and offline software, services, customizations, including but not limited to FluentPro WorkSpaces, Matan MasterLink, Nintex Workflow 2010 product family, UMT Project Financial Server and other products that interoperate with the Services but are provided by third parties.
"User Guide" means the online user guide, Frequently Asked Questions (FAQ) or Knowledge-Base (KB) articles for the Services at http://www.bemopro.com, as updated from time to time.
"Users" means individuals You authorize to use the Services You subscribe to (e.g., Your employees, consultants, contractors and agents; or third parties with which You transact business), and who have been supplied user identifications and passwords by You (or by Us at Your request).
"We," "Us" or "Our" means BeMo.
"You" or "Your" means the individual, 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 and Users to the Purchased Services.
2. BETA TEST, RISK FREE TRIAL or DEMO
2.1 Beta Test
We may make one or more Services available to You as part of a beta test of new or updated Services. We will determine the length of the beta test. Additional beta test terms and conditions may appear on the beta test registration web page. Any additional terms and conditions are part of this Agreement. Beta tests are confidential and You agree not to make any public statements regarding any Services provided as part of a beta test.
DATA YOU ENTER INTO THE SERVICES, AND CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING A BETA TEST TRIAL MAY NOT BE TRANSFERRED TO PURCHASED SERVICES.
DURING THE BETA TEST TRIAL SECTION 9.1 DOES NOT APPLY AND THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
You acknowledge that You have had the opportunity to review the User Guide during your beta test so that You may become familiar with the features and functions of the Services before You make Your purchase.
2.2 Risk Free Trial
We will make one or more Services available to You on a 7-day trial basis as part of a trial period for 1 (one) subscriber. Unless otherwise specified during registration, a risk free trial period last 7 days and means a single, 1-time only, pre-paid, 30 day subscription for You only with a money back guarantee if You cancel the Service during the trial period. If You do not cancel during the trial, then at the end of the trial period the Service will be automatically extended and become a Purchased Service. Any additional subscriptions purchased beyond Yours are not eligible for a money back guarantee. Additional trial terms and conditions may appear on the risk free trial registration web page. Any additional terms and conditions are part of this Agreement.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING A RISK FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES, PURCHASE UPGRADED SERVICES, OR EXPORT THE DATA, BEFORE THE END OF THE RISK FREE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE RISK FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE RISK FREE TRIAL; THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE RISK FREE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE RISK FREE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
You acknowledge that You have had the opportunity to review the User Guide during your risk free trial so that You may become familiar with the features and functions of the Services before You make Your purchase.
2.3 Promotional offers
Time to time, We may offer promotion and provide a rebate to You. The rebate is to be given in a form of a credit and may be subject to additional conditions. Promotional offers have no cash value. A promotional offer cannot be combined with other promotional offering or discount. Credit will be applied as per the terms of Our promotional offer. Account must be in good standing in order to qualify for any promotional offer. All Our promotions are subject to change or may end without any notice from Us.
2.4 Demonstration Environments
2.4.1 Demonstration environment for evaluation purpose
We may make one or more Services available to You for evaluation purpose. We will determine the length of those Services and additional terms and conditions which may appear on registration web page or supplemental information delivered to You are part of this Agreement.
Since Your demonstration environment for evaluation purpose may include additional customization provided by Us or Third-Party Applications providers and could involve manual configuration, it is not subject to Section 9.1 and 9.3 of this Agreement and the Services are provided “as-is” without any warranty.
Demonstration environments are subject to be reset, refreshed or re-imaged which may cause permanent loss of data you may have entered. Therefore demonstration environments are not to be used for holding production or actual project data.
DATA YOU ENTER INTO THE SERVICES, AND CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, IN A DEMONSTRATION ENVIRONMENT MAY NOT BE TRANSFERRED TO PURCHASED SERVICES.
2.4.2 BeMo Content Pack
BeMo Content Pack provides hands-on capability to train users on Microsoft Project Server and is also the perfect environment to demonstrate the capabilities of Microsoft Project Server. BeMo Content Pack offered as an option for BeMo Project Online.
Since BeMo Content Pack may include additional customization provided by Us or Third-Party Applications providers and could involve manual configuration, it is not subject to Section 9.1 and 9.3 of this Agreement and the Services are provided “as-is” without any warranty.
BeMo Content Pack environments are not to be used for holding production or actual project data.
The use of BeMo Content Pack requires You to display the Our brand elements in a conspicuous location. Our brand elements include all of the following: The message “hosted by” followed by Our company logo and Our company website URL www.bemopro.com. The combined size for all these elements must be at minimum 135 pixels wide x 75 pixels in height. The display of Your company logo on BeMo Content Pack is subject to Our written approval and its height must not exceed the total height of Our brand elements.
The use of BeMo Content Pack requires You not to mask the website address of Your BeMo Content Pack instance. You must therefore access the site through a URL ending with Our domain URL“.bemopro.com”.
2.5 30-day Free Trial
We will make one or more Services available to You on a 30-day trial basis as part of a trial period for up to 3 (Three) subscribers or less according to the term of the offer. Unless otherwise specified during registration, a 30-day free trial period last 30 calendar days and means a single, 1-time only, 30 day subscription for up to 3 (Three) subscribers, or less according to the term of the offer, including You. If You do not request to extend your trial and make it a Purchased Service, then at the end of the trial period, the Service will be automatically cancelled. Additional trial terms and conditions may appear on the 30-day free trial registration web page. Any additional terms and conditions are part of this Agreement.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING A 30-DAY FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES, PURCHASE UPGRADED SERVICES, OR EXPORT THE DATA, BEFORE THE END OF THE 30-DAY FREE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE 30-DAY FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE 30-DAY FREE TRIAL; THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE 30-DAY FREE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE 30-DAY FREE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
3. PURCHASED SERVICES
3.1 Provision of Purchased Services
We will make the Purchased Services available to You according to this Agreement and the applicable Order Forms. To access the Service You will be required to have a supported internet browser and Operating System components as specified by Microsoft. For more details see browser compatibility for Project Server 2010 SP1, SharePoint 2010 and SharePoint2013 and Project Server 2013.
3.2 User Subscriptions
Unless otherwise specified in the applicable Order Form: (i) Services are purchased as User subscriptions and may only be accessed by the specified number of Users; (ii) additional User subscriptions may be added during the subscription term at the same price as that for the pre-existing subscriptions, prorated for the remainder of the subscription term in effect when the additional User subscriptions are added; and (iii) the added User subscriptions will end on the same date as the pre-existing subscriptions. User subscriptions are for designated Users and may not be shared or used by more than one User.
4. USE OF THE SERVICES
4.1 Our Responsibilities
We will: (i) provide You with basic support for the Purchased Services at no additional charge, or upgraded support if purchased separately; (ii) use commercially reasonable efforts to make the Purchased Services available in accordance with the BeMo Service Level Agreement (“SLA”) except for: (a) planned downtime (as described in the SLA); (b) 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), or Internet service provider failures or delays; (c) custom hardware and software configurations; (d) configurations without automatic failover; or (e) Beta Test; (iii) provide the Services only in accordance with applicable laws and government regulations; (iv) provide reasonable level of protection against Malicious Code using industry standard anti-virus software and firewall protection; and (v) not purposely store or transmit Malicious Code through our Services.
4.2 Your Responsibilities
You will: (i) be responsible to ensure Users’ compliance with this Agreement and BeMo’s Acceptable Use Policy x; (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 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 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; or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
4.3 Usage Limitations
Services may be subject to other limitations, such as, for example, limits on disk storage space, on the number of calls You are permitted to make against Our application programming interface, and, for Services that enable You to provide public websites, on the number of page views by visitors to those websites. Limitations are specified in the User Guide.
5. THIRD-PARTY PROVIDERS
5.1 Third-Party Products and Services
Your use of third-party products or services, including Third-Party Applications, and any exchange of data between You and any third-party provider, is solely between You and the third-party. We do not warrant or support third-party products or services. No purchase of third-party products or services is required to use the Services.
5.2 Third-Party Applications Installed or Enabled by You.
If You install or enable Third-Party Applications, 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 access by Third-Party Application providers.
5.3 Third-Party Applications Installed or Enabled by Us.
If You order a Third-Party Application directly from Us, We will install or enable the Third-Party Application for You. In this case, You will be subject to additional terms and conditions for the Third-Party Application and You must agree to these additional conditions as found in the supplement of this Agreement. Also, You acknowledge that We do not warrant or provide application support for any Third-Party Applications installed or enabled by Us. Additionally, 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.
6. FEES AND PAYMENT FOR PURCHASED SERVICES
6.1 User Fees
You will pay all fees specified in all Order Forms. Except as otherwise specified in this Agreement or an Order Form: (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 number of User subscriptions purchased may not be decreased during the subscription term stated on the Order Form. Subscription fees are based on monthly periods that begin on the subscription start date and automatically renew on each monthly anniversary of the start date. For BeMo Project Online plans, fees for subscriptions added in the middle of a monthly period will be billed on a pro-rated basis. For any dedicated server plans, fees for subscriptions added during a month will be billed a pro-rated basis for the remainder of that month plus the next month.
6.2 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 as per sections 6.7 and 6.8 of this Agreement. If You provide credit card information to Us, You authorize Us to charge it for all fees for Purchased Services. Charges will be due in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due when invoiced. You are responsible for maintaining complete and accurate billing and contact information in the Services.
6.3 Overdue Charges
If any payment for Purchased Services is not received by the due date we may: (a) charge late fees based on the following schedule: $30 per month for each past due invoice under $1000; $50 per month for each past due invoice between $1000 and $2,499; $100 per month for each past due invoice of $2,500 and up (b) condition future subscription renewals and Order Forms on shorter payment terms.
6.4 Suspension of Service and Acceleration
If any amount You owe for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may accelerate Your unpaid fee obligations so that all Your payment obligations become immediately due and payable, and suspend Our services to You until your account is paid in full.
6.5 Payment Disputes
We will not exercise Our rights under Section 6.3 or 6.4 if the overdue charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
Our fees do not include any taxes, levies, duties or similar governmental assessments, (e.g., value-added, sales, use, or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction) (collectively, "Taxes"). You are responsible for paying any Taxes associated with Purchased Services You order. If We have the legal obligation to pay or collect Taxes for which You are responsible under this paragraph, we will invoice you for the amount due and You will pay it, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.7 Acceptable forms of payment for month-to month plans
For any month-to-month plans we accept major credit cards including Visa, MasterCard, American Express and Discover. Subject to Our approval, we may accept company checks drafted from a US bank account, ACH or wire transfer for single plan adding up to more than Two Thousand Dollars US Dollars ($2000 USD) in total billing per month.
6.8 Acceptable forms of payment covering for more than 1 month of service
Subject to Our approval, We will accept company checks drafted from a US bank account, ACH or wire transfer as a form of payment for service covering for a period longer than 1 month. We do not accept payment by credit card for payment covering for more than 1 month of service.
6.9 Payment by check
When You provide a check as payment, You authorize Us either to use information from Your check to make a one-time electronic fund transfer (EFT) from Your account or to process the payment as a check transaction. If We process Your payment by EFT, the funds may be withdrawn the same day we receive Your payment, and Your cancelled check will not be returned. Please contact firstname.lastname@example.org with questions.
6.10 Automated Recurring Billing
Payment to Us uses an automatic monthly payment feature. Therefore You authorize Us to withdraw from Your bank account or charge Your credit or debit card for the monthly charges associated with Your plan (including Your rate plan charge, add-on services selected, incidental purchases, plus applicable taxes, fees and surcharges). We will withdraw funds or charge Your card on the due date on Your plan. You may stop a withdrawal or charge by terminating Your Service as per section 12 of this Agreement. You have the right to receive notice of all varying transfers from Your bank account. We are not liable for losses of any kind as a result of an error in Your account or a delayed transfer or charge. You must promptly notify Us of any changes to Your payment information to avoid possible suspension of service as per section 6.4 of this Agreement and Our only liability is to make appropriate changes after we receive your updated information.
6.11 Data Storage fee
Your Service comes with a pre-defined storage quota as per Your Order Forms. If you exceed Your storage quota during any given calendar month, You will be billed for the excess as per the Order Form. Excess is calculated in GB whereas 1 GB equates to 1000MB and is based on Your peak SQL data size from which your quota has been subtracted.
7. PROPRIETARY RIGHTS
7.1 Reservation of Rights
We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. We grant You no rights other than to use the Services according to this Agreement.
You will not: (i) permit anyone other than Users to access the Services; (ii) create derivate works based on the Services; (iii) copy, frame or mirror any part or content of the BeMo Websites or 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 or the BeMo Websites.
7.3 Ownership of Your Data
As between You and Us, You exclusively own all rights, title and interest in and to all of Your Data. You are solely responsible for the accuracy of Your Data and for any information You provide to Us (e.g., email address, credit card information, etc.). In providing the Services, we rely on the information You provide to Us, and We will not be responsible for any interruption or failure of the Services caused by any inaccuracy in the information You provide to Us.
If You or any User give Us any suggestions, enhancement requests, recommendations or other feedback relating to the operation of the Services, You grant Us a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate it into the Services.
7.5 United States of America 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.
8.1 Definition of Confidential Information
"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 includes Your Data; Our Confidential Information includes the Services; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms, as well as 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) does 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.
8.2 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 in this Agreement.
8.3 Protection of Your Data
We will use industry standard administrative, physical, and technical safeguards to protect the security, confidentiality, and integrity of Your Data, in accordance with our Data Confidentiality Policy. We will not: (i) modify Your Data; (ii) disclose Your Data except as compelled by law in accordance with Section 8.4 or as expressly permitted in writing by You; or (ii) 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.
8.4 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.
9. WARRANTIES AND DISCLAIMERS
9.1 Our Warranties
We warrant that: (i) the Services will perform substantially 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, Your exclusive remedy will be as provided in Section 12.3 and Section 12.4.
9.2 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.
9.3 Disclaimer for provisioning time
Actual provisioning time for the Services may vary based on Your internet connection, the complexity of Your order and the number of concurrent orders being placed.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, 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.
9.5 Disclaimer for Third-party websites
Our websites are linked with the websites of third parties (“Third-Party Websites”), some of whom may have established relationships with Us and some of whom may not. We do not have control over the content and performance of Third-Party Websites. We have not reviewed, and cannot review or control, all of the material, including computer software or other goods or services, made available on or through Third-Party Websites. Accordingly, We do not represent, warrant or endorse any Third-Party Website, or the accuracy, currency, content, fitness, lawfulness or quality of the information material, goods or services available through Third-Party Websites. We disclaim, and You agree to assume, all responsibility and liability for any damages or other harm, whether to You or to third parties, resulting from Your use of Third-Party Websites.
10.1 Indemnification by Us
We will defend You against any claim, demand, suit, or proceeding ("Claim") made or brought against You by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and indemnify You for any damages finally awarded against You in connection with any such Claim (including reasonable attorney’s fees incurred); provided, that You: (i) promptly give Us written notice of the Claim; (ii) give Us sole control of the defense and settlement of the Claim; and (ii) provide Us all reasonable assistance, at Our expense.
10.2 Indemnification by You
You will defend Us against any Claim made or brought against Us by a third party alleging that Your Data, or Your use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify Us for any damages finally awarded against Us in connection with any such Claim (including reasonable attorney’s fees incurred); provided, that We: (ii) promptly give You written notice of the Claim; (ii) 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 (ii) provide to You all reasonable assistance, at Our expense.
10.3 Exclusive Remedy
This Section 10 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
11. Limitation of Liability
EACH PARTY'S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WILL BE LIMITED TO THE TOTAL AMOUNT PAID BY YOU UNDER THIS AGREEMENT OR, WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER OF FIFTY THOUSANDS US DOLLARS ($50,000.00) OR THE AMOUNT YOU PAID US FOR PURCHASED SERVICES IN THE 12 MONTHS PRECEDING THE INCIDENT. THIS SECTION 11 WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 6.
11.1 Exclusion of Certain Damages
NEITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, “COVER DAMAGES”, 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.
12. TERM AND TERMINATION
12.1 Term of Agreement
This Agreement begins on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If You elect to use the Services for a Beta test period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the Beta test period. If You elect to use the Services for risk free trial period and do not cancel before the end of the risk free trial, this Agreement will automatically renew and the trial will automatically convert to a Purchased Service as provided in Section 2.2. To cancel a Purchased Service you must submit a service request via our website.
12.2 Term of Purchased User Subscriptions
Subscriptions for Purchased Services begin on the start date specified in the applicable Order Form and continue for the subscription term specified in the Order Form. Except as otherwise specified in the applicable Order Form, all User subscriptions 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 1 month and 24 hours before the end of the relevant subscription term. The per-unit pricing during any renewal term will be the same as that during the prior term unless We have given You written notice of a price increase at least 30 days before the end of such prior term, in which case the price increase will be effective upon renewal and thereafter. The re-assignment of a subscription to a different user may be subject to restrictions and to additional charges in accordance to Microsoft SPLA licensing requirements.
12.3 Cancelling Your BeMo Cloud, BeMo Project Online or BeMo SP Cloud plan
Unless specified otherwise in your order, Your Service is a month-to-month offering and as per section 12.1, in order to effectively cancel Your plan You must submit a cancellation order at least 24 hours before it is set to renew automatically. In order to properly cancel your plan, You must: (i) Log on to www.bemopro.com and go to “My Account” page; (ii) Click on “Cancel Plan”; (iii) Submit your “Cancel Plan” request at least 24 hours before your subscription is set to renew automatically and (iv) Receive a confirmation from BeMo that your plan was cancelled. Failure to do so will result in an automatic renewal of Your subscriptions.
12.4 Cancelling Your dedicated server plan (including but not limited to BeMo PoC, BeMo Lite, BeMo Plus, BeMo Pro, BeMo Project PoC, BeMo Project AiO, BeMo Project Plus, BeMo Project Ultra, BeMo SP AiO, BeMo SP Plus, BeMo SP Ultra or any custom dedicated server)
Unless specified otherwise in your order, Your Service is a month-to-month offering and as per section 12.1, in order to effectively cancel Your plan You must submit a cancellation order at least 15 calendar-days before it is set to renew automatically. In order to properly cancel your plan, You must: (i) Log on to support.bemopro.com (ii) submit a new ticket to request the cancellation of your service; (iii) Submit your “Cancel Plan” request at least 15 calendar-days before your subscription is set to renew automatically and (iv) Receive confirming confirmation from BeMo that your plan was cancelled. Failure to do so will result in an automatic renewal of Your subscriptions.
CANCELLATION REQUESTS MADE BY PHONE OR EMAIL WILL NOT BE ACCEPTED DUE TO DATA SECURITY POTENTIAL ISSUES.
12.5 Termination for Cause
A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if the breach remains uncured at the expiration of that 30-day 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.
12.6 Termination or Suspension without Cause
We may suspend your right and license to use any or all Services, or terminate this Agreement in its entirety (and, accordingly, cease providing all Services to you), for any reason or for no reason, at our discretion at any time by providing you 60 days advance notice.
12.7 Refund or Payment upon Termination
Upon any termination for cause by You or termination without cause by Us, We will refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You will pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event will any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.8 Return of Your Data
Upon request by You made within 15 days before the effective date of termination of a Purchased Services subscription, and subject to a fee up to $300USD, We will make Your Data available to You for download. We will have no obligation to maintain or provide any of Your Data and may permanently delete all of Your Data in Our systems or otherwise in Our possession or under Our control beyond the effective date of the termination of A Purchased Services subscription.
12.9 Surviving Provisions
Sections 1, 7, 8, 9.3, 10, 11, 12.4, 12.5, 12.6, 13, and 14 will survive any termination or expiration of this Agreement.
13. Notices; Disputes; Governing Law
13.1 Notices From Us To You
We will post notices from Us to You that affect our customers generally (e.g., notices of updated fees. Changes to Terms of Service, etc.) on the BeMo Website and via the Your email address. We will send notices from Us to You specifically (e.g., notices of breach, suspension, etc.) to You at the email address You provide to Us in Your registration for the Services or in any updated email address You provide to Us in accordance with standard account information update procedures We may provide from time to time. It is Your responsibility to keep Your email address current. You will be considered to have received any email we sent to that regardless of whether or not You actually receive it.
13.2 Notices from You To Us
You will send notices to Us under this Agreement at this email address email@example.com
13.3 Language of Notices
All communications and notices must be written in English.
Any dispute relating to this Agreement (“Dispute”) will be resolved by binding arbitration according to the then-current rules of the American Arbitration Association. The existence, content (including all documents and materials submitted to the arbitrator), and results of any arbitration will be confidential. The arbitrator will be a neutral practicing attorney or retired judge with experience in similar cases. The arbitrator must agree in writing to maintain the confidentiality of the arbitration. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§1 et seq. The prevailing party will be entitled to recovery of arbitration expenses (including reasonable attorney’s fees). The arbitrator’s award will include provisions for this recovery. The arbitrator’s award will be binding and final. Any court with jurisdiction may enter a judgment upon the award. The arbitration will be in conducted in English and held in Seattle, WA. This Agreement is governed by, and the arbitrator will apply, the substantive laws of the State of Washington excluding its conflicts of law provisions.
14. GENERAL PROVISIONS
14.1 Export Compliance.
Each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and agrees to comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. You will not permit Users to access or use Services in violation of any U.S. export embargo, prohibition or restriction.
14.2 Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.3 No Third-Party Beneficiaries
There are no third-party beneficiaries to this Agreement.
14.4 Waiver and Cumulative Remedies
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided are not exclusive of any other remedies at law or in equity.
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.
14.6 Attorney Fees
You will pay on demand all of Our reasonable attorney fees and other costs incurred by Us to collect any fees or charges due to Us under this Agreement following Your breach of Section 6.2.
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph will be termination of this Agreement upon written notice to the assigning party. We will refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of that termination. This Agreement will bind the parties respective successors and permitted assigns.
14.8 Entire Agreement
This Agreement, including all Order Forms and the Supplement to BeMo Terms of Service attached, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Other terms or conditions (e.g., in a purchase order or other documentation provided by You) are not part of this Agreement and will have no effect. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of the Order Form will prevail.
This BeMo SharePoint EPM deployment is being provided for you by BeMo, a BrightWork partner. This Agreement concerns your use of the BrightWork software and of the "online" or electronic documentation used in conjunction with your BeMo SharePoint EPM Deployment (individually and collectively "BRIGHTWORK PRODUCTS"). Your right to use the BRIGHTWORK PRODUCTS in your BeMo SharePoint PM Deployment is subject to your understanding of, compliance with and consent to the following terms and conditions.
If you are using the BRIGHTWORK PRODUCTS in North America, this Agreement is between you and aimware, Inc., and if you are using BRIGHTWORK PRODUCTS anywhere else in the world this Agreement is between you and aimware, Ltd.
1. USE OF BRIGHTWORK HOSTED SOFTWARE
Subject to this Agreement, BRIGHTWORK grants to you the non-exclusive and non-transferable license to use and operate the BRIGHTWORK PRODUCTS for your own internal business use within the BeMo environment only. You may provide access to the BRIGHTWORK PRODUCTS for up to the maximum number of Users as you have purchased. In this Agreement a “User” is defined as a Named Person accessing the BRIGHTWORK PRODUCTS or using the BRIGHTWORK PRODUCTS in any way. You are responsible for the acts or omissions of all persons that you permit to use the BRIGHTWORK PRODUCTS.
Trial Versions. If you have been granted a trial version of the BRIGHTWORK PRODUCTS by BeMo, you are granted a limited, non-exclusive license to use the BRIGHTWORK PRODUCTS for the specific purpose of evaluating the BRIGHTWORK PRODUCTS for the number users specified by BeMo and for 30 days or such other period as BeMo may authorize in writing.
2. OWNERSHIP OF BRIGHTWORK PRODUCTS
All title and intellectual property rights in and to the BRIGHTWORK PRODUCTS (and the constituent elements thereof, including but not limited to any images, photographs, animations, video, audio, music, text and "applets" incorporated into the BRIGHTWORK PRODUCTS) are owned by BrightWork or its suppliers. The BRIGHTWORK PRODUCTS are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the BRIGHTWORK PRODUCTS does not transfer any ownership of the BRIGHTWORK PRODUCTS or any intellectual property rights to you.
You may not make any copies of the BRIGHTWORK PRODUCTS; you may not copy any printed materials accompanying the BRIGHTWORK PRODUCTS.
4. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY
You may not reverse engineer, decompile, or disassemble the BRIGHTWORK PRODUCTS, except and only to the extent that applicable law, notwithstanding this limitation expressly permits such activity.
5. NO RENTAL
You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute the BRIGHTWORK PRODUCTS to any third party, and you may not permit any third party to have access to and/or use the functionality of the BRIGHTWORK PRODUCTS.
Without prejudice to any other rights, BeMo may terminate your rights to use the BRIGHTWORK PRODUCTS if you fail to comply with these terms and conditions. In the event of termination or cancellation, you must stop using and/or accessing the BRIGHTWORK PRODUCTS, and destroy all copies of the BRIGHTWORK PRODUCTS and all of its component parts.
7. NO WARRANTIES, LIABILITIES OR REMEDIES BY BRIGHTWORK OR BeMo. NEITHER BRIGHTWORK NOR BeMo MAKE ANY WARRANTIES. ANY LIABILITY FOR DAMAGES AND REMEDIES, IF ANY, ARE ACCEPTED SOLELY BY YOU AND NOT BY BRIGHTWORK, BeMo, OR BRIGHTWORK'S AFFILIATES OR SUBSIDIARIES.
8. PRODUCT SUPPORT
First Line Product Support for the BRIGHTWORK PRODUCTS is provided to you by BeMo. In the event that BeMo Product Support Team determines that more specialized attention is needed for your issue, they will contact BRIGHTWORK on your behalf for Second Line Product Support. You agree to designate 2 Product Support Contacts for your Group and they shall be the only individuals who may contact PRODUCT SUPPORT on behalf of your Group. You agree that you will only use PRODUCT SUPPORT Services if the BRIGHTWORK PRODUCTS fail to work as set forth in the documentation or when the documentation is unclear and you will limit the number of Support Calls for your Group to no more than 10 per month. You agree to furnish descriptions of Errors in the form requested by BeMo and/or BrightWork staff. You also agree to assist in the duplication of a reported Error. Several online support and training resources will be available for your use. If the duration of your hosted site with BeMo is 6 months or longer, BrightWork will provide a 1 hour free Health Check for your project performed by a BrightWork Consultant.
9. NOT FAULT TOLERANT
THE BRIGHTWORK PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE BRIGHTWORK PRODUCTS COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
10. LIABILITY FOR BREACH
You agree that you will be legally responsible directly to BrightWork for any breach of these terms and conditions.
11. APPLICABLE LAW
If your Agreement is with aimware, Inc, the agreement is governed by the laws of the Commonwealth of Massachusetts and applicable U.S. federal law and the state and federal courts located in Boston, Massachusetts USA shall have exclusive jurisdiction and venue over any claim arising from this agreement, the BRIGHTWORK PRODUCTS or the relationship of the parties. If your Agreement is with aimware, Ltd, the agreement is governed by the Laws of Ireland.
These License Terms ("Agreement") govern the terms and conditions by which the person or entity that have purchased a right to use the Software Product ("Licensee") may do so.
A. Matan Computers, Operation & Management Ltd. ("Licensor") is the developer of that certain application generally known as Matan Masterlink (the “Software Product”). The Software Product includes certain software installed on network servers and on individual computers with access to the Software Product, in addition to any associated media, printed materials and “online” or electronic documentation, all of which are collectively referred to as the “Licensed Product”.
B. Licensee desires to obtain a limited, non-exclusive, non transferable and non assignable license to access and use the Licensed Product on a web based server, and Licensor desires to grant such license on the terms and conditions set forth in this Agreement.
C. The Software Product is a program management tool built on Microsoft Project Server 2010. To use the Software Product, You must use Microsoft Project Server 2010 through an authorized third party service provider hosting service (“Host”). You are responsible for any licenses, subscriptions, service agreements, and other arrangements necessary for Your use of Microsoft Project Server 2010, The Licensor do not provide Microsoft Project Server 2010 or act as Host. You may have been referred to Matan by a Host, or at Your request, Matan can refer you to, or assist You with arrangements with, a Host. We are not responsible for the Host, even if Matan make arrangements with the Host for You.
NOW THEREFORE, the parties agree as follows:
1. Grant of License
The Licensee may access and use the Licensed Product, but will have no right to receive a copy of the object code or source code of the Licensed Product.
Licensee will make no use of the Licensed Product for other than its intended uses that are directly related to the internal business operations of Licensee, and will not make any use thereof to offer the benefits or services to third parties, whether such arrangement is in the nature of a service bureau, out-sourcing service, joint development relationship or any other similar service or business nor will Licensee distribute, rent, lease, sell, license, or otherwise transfer rights in the Licensed Product to any person or entity;
1.3 Maximum users
The maximum number of users that may access and use the Licensed Product will not exceed the current number of licenses to the Licensed Product purchased form Licensor or its authorized vendors. This license is limited to the number of Users specified in the applicable Order Form. You may add additional Users by submitting and additional Order Form and paying the Host for the additional Users. You may also reduce the number of Users during a subscription period, by giving the Host 30 days written notice, that would include the number of users you wish to reduce. Subscriptions will renew as per the terms provided by the Host. All of Licensee's rights to use the Licensed Product are expressly stated herein; there are no implied rights.
2. Third Party Software
Licensee acknowledges that operation of the Licensed Product might require use of certain third party software and Licensor will not provide such third party software to Licensee, and that Licensee will have the sole responsibility to obtain valid licenses to such third party software, at Licensee’s sole expense.
3. Additional Restrictions
Licensee may not use, copy, modify, display, sublicense or print the Licensed Product, in whole or in part, except as expressly provided in this Agreement. Without limiting the generality of the foregoing, Licensee will abide by the following additional restrictions on the use and access of and to the Licensed Product:
3.1 No Modification
Licensee will make no modification to, or adaptation of, the Licensed Product nor merge it into any other programs or other materials, nor create derivative works based on the Licensed Product. Licensee will have no access to, or rights or license to modify, the source code for the Licensed Product. Licensee will not attempt, or allow others under its control to attempt, to obtain or derive information from or about the Licensed Product through disassembly, decompiling, reverse engineering or any other means.
3.2 Unauthorized Access
Licensee shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Licensed Product and in the event of any such unauthorized access or use, promptly notify the Licensor.
4. Proprietary Matters
Licensee acknowledges that the Licensed Product, including all associated copyrights, patents, trademarks, trade secrets and other intellectual property and proprietary rights with respect thereto, whether these are registered or unregistered, are, and at all times will be, the sole property of Licensor, even if suggestions made by Licensee are incorporated into subsequent versions of the Licensed Product.
4.2 Confidential Information
Licensee acknowledges that the Licensed Product, including without limitation all aspects of the Licensed Product (e.g., the source code, methods of processing, specific design and structure of individual programs and their interaction and unique programming techniques employed therein as well as screen formats), and benchmark results or other performance related measurements relating to the Licensed Product, constitute valuable trade secrets of Licensor. Licensee will hold the Licensed Product and any other information in respect of the Licensed Product and Licensor, including its business activities, technical information and trade secrets, as well as the terms of this Agreement, in strict confidence and will not disclose or reveal the same to third parties, except for any information generally available to or known to the public domain without breach of the above undertaking by Licensee, independently developed outside the scope of this Agreement, lawfully disclosed by a third party, or required to be disclosed to a tribunal, provided that in the case of required disclosures to tribunals, Licensee will notify Licensor prior to such disclosure to allow Licensor to obtain protective orders maintaining the confidentiality of such information.
5.1 Data Ownership
Licensee shall own all data, information or material that its users enter into the Licensed Product (“Licensee's Data”). Except as permitted in this Agreement, Licensor will not edit, delete or disclose the contents of Licensee's Data unless authorized by Licensee or unless Licensor is required to do so by law or in the good faith belief that such action is necessary to:
· Conform to applicable laws or comply with legal process;
· Protect and defend the rights or property of Licensor; or
· Enforce this Agreement.
Licensor may access Licensee's Data to respond to service or technical problems with the Licensed Product. Licensee is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of all Licensee's Data, and Licensor assumes no responsibility for the deletion, correction, destruction, loss, infringement or failure of the Licensed Product to store any Licensee's Data.
Licensee shall be responsible for maintaining an archive or back-up copy of all Licensee's Data, and Licensor shall have no liability for any loss of Licensee's Data, whether caused by Licensor or any third party service provider.
6. Term and Termination
The License granted hereunder and the provision of this Section shall continue for such period that Licensee paid license fee to Licensor or its authorized vendors.
In addition to any other right to terminate this Agreement, Licensor may terminate this Agreement, including the licenses granted under this Agreement, if Licensee fails to perform any of its material obligations hereunder or otherwise breaches this Agreement and fails to effect the cure of such failure or breach within fifteen (15) days after written notice thereof.
6.3 Effect of Termination
Termination of this Agreement or the licenses granted hereunder will not limit either party from pursuing any other remedies available to it under any agreement and/or applicable law, including injunctive relief, nor will termination relieve Licensee of its obligation to pay Licensor or its authorized vendors all fees and other amounts that accrued prior to the effective date of termination. Upon termination of the Licenses granted hereunder (i) Licensee will cease any and all use of the Licensed Product and will remove the materials relating to the Licensed Product from all hard drives, networks, and other storage media, and (ii) Licensor may destroy or otherwise dispose of any of the Licensee's Data in its possession. The following provisions of this Agreement will survive any termination of this Agreement or the License granted hereunder: Sections 4, 7 and 8.
7. Warranty & Liability
7.1 Non-infringement Warranty and Indemnity
Licensor represents and warrants that it has the right to license the Licensed Product on the terms and conditions set forth in this Agreement, and that use of the Licensed Product within the scope of such license does not infringe any copyright or misappropriate any trade secret of a third party. Licensor will indemnify and hold Licensee harmless from and against all damages, liabilities, costs and expenses (including reasonable fees of counsel and other professionals) incurred by Licensee arising out of a breach of the warranty in this Section 7, provided that Licensee promptly notifies Licensor of any third party claim or action which alleges such infringement or misappropriation, and grants Licensor the sole control of the defense of any such action, including all negotiations for its settlement or compromise. If Licensee is a defendant in such action, it may participate at its expense.
Licensor will use commercially reasonable efforts to mitigate any damages arising out of a judicial determination that use of the Licensed Product infringes third party copyrights or trade secrets by either (i) delivering a non-infringing version of the Licensed Product, (ii) obtaining a license from the third party such that the use of the Licensed Product as contemplated hereunder is no longer infringing, or (iii) if neither of the foregoing actions are commercially practicable, Licensor may terminate this Agreement and the license granted hereunder, in which case Licensor will refund to Licensee the portion of the fees actually paid to Licensor for the Licensed Product for the remainder of the period with respect to which such fees were paid.
7.2 No Other Warranty
EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO ANY ASPECT OF THE LICENSED PRODUCT OR ITS OPERATION, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CONDITION, CAPACITY, PERFORMANCE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
7.3 Limitation on Liability
Licensee acknowledges that Licensor has not priced the Licensed Product to contemplate the risks of reliance by Licensee on the Licensed Product or to have or assume substantial liability or responsibility for Licensee's decisions. Accordingly, IN NO EVENT WILL LICENSOR BE LIABLE TO LICENSEE FOR LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF SAVINGS, LOSS OF USE, LOSS OR CORRUPTION OF DATA OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER UNDER TORT, CONTRACT OR OTHER THEORIES OF RECOVERY, EVEN IF LICENSOR HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE EXCLUSIVELY BEARS FULL AND COMPLETE LIABILITY AND RESPONSIBILITY FOR ITS USE AND RELIANCE ON THE LICENSED PRODUCT, EVEN IF SUCH USE WERE TO PRODUCE INCORRECT INFORMATION OR ERRONEOUS RESULTS. IN NO EVENT WILL LICENSOR'S TOTAL LIABILITY UNDER THIS AGREEMENT OR AS A RESULT OF THE LICENSE AND USE OF THE LICENSED PROGRAM EXCEED THE AGGREGATE AMOUNT OF THE FEES ACTUALLY PAID UNDER THIS AGREEMENT BY LICENSEE TO LICENSOR TAKEN RATABLY FOR LICENSES IN USE BY LICENSEE IN THE YEAR PRECEDING A CLAIM. Licensee agrees that the foregoing represents a fair allocation of risk hereunder and is a material inducement to Licensor's entering into this Agreement.
8.1 Entire Agreement; Amendments
This Agreement constitutes the entire agreement of the parties concerning the subject matter hereof, superseding all prior and contemporaneous proposals, negotiations, communications and agreements, written or oral, with respect to the subject matter of this Agreement. No representation or promise relating to and no amendment or modification of this Agreement will be binding unless it is in writing and signed by an authorized representative of each party.
Except as specifically provided for herein, neither this Agreement, nor any right or license under this Agreement, nor any Licensed Product, may be assigned, sublicensed, distributed, sold, rented, leased or otherwise transferred by Licensee to a third party without Licensor's prior written consent. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and permitted assigns of Licensee and Licensor.
8.3 Government Uses
If Licensee is an agency of the U.S. Government, this Agreement will not be a valid or effective license unless Licensee will have executed and delivered to Licensor a Government Licensing and Contracting Addendum to this Agreement.
8.4 Lawful Use; Export
Licensee will comply with all applicable laws and regulations in its use of the Licensed Product. Licensee may not export, re-export or otherwise transfer the Licensed Product or the documentation provided in connection thereto to any territory, except with the prior written consent of Licensor, and then only in full compliance with the provisions of any legal restriction imposed by any applicable law.
8.5 Captions; Waiver; Etc.
The captions appearing in this Agreement are inserted only as a matter of convenience and in no way define, limit, construe or describe the scope or interpretation of this Agreement. Except for ’payment obligations, neither party will be liable for any failure to perform due to causes beyond the party’s reasonable control. No waiver by a party of any breach of any provision of this Agreement will constitute a waiver of any other breach of that or any other provision of this Agreement. In the event that any of the provisions contained in this Agreement are held to be unenforceable, such provisions will be narrowed (or deleted if necessary) to the minimum extent necessary to make them enforceable.
8.6 Injunctive Relief
Licensee hereby acknowledges that unauthorized disclosure or use of the Licensed Product or any other breach of this Agreement could cause irreparable harm and significant injury to Licensor that may be difficult to ascertain. Accordingly, Licensee agrees that Licensor will have the right to obtain immediate injunctive relief to enforce obligations under this Agreement in addition to any other rights and remedies it may have.
8.7 Independent Contractors
Each party will perform its obligations as an independent contractor and will be solely responsible for its own financial obligations. This Agreement will not create a joint venture, partnership, or principal and agent relationship between the parties. Neither party will have the authority or will represent that it has the authority to assume or create any obligation, express or implied on behalf of the other party, except as expressly provided herein.
1. Reservation of Rights
Nintex reserves all rights, title and interest in and to the Nintex Software, including all related intellectual property rights. We grant You no rights other than to use the Services according to this Agreement.
Nintex will provide You and BeMo technicians with support regarding the Nintex Software. You should contact BeMo support in the first instance for all support matters. Nintex support technicians will work with BeMo support to resolve Nintex related issues. You may also contact Nintex Support directly by email at firstname.lastname@example.org for critical issues or if You have been directed by BeMo support.
The Software has not been written to meet your individual requirements and is supplied on an “as is” basis. A failure of any part or the whole of the Software to be suitable for your requirements will not give rise to any right or claim against Nintex or BeMo.
The sole warranties in connection with the Nintex Software are that:
(a) it will work substantially in the manner described in the Nintex Software Documentation; and
(b) it does not infringe the IP of any person or entity.
For any breach of either such warranty, Your exclusive remedy will be as provided in Section 12.3 and Section 12.4 of the BeMo Terms of Service.
Nintex Software means the Nintex software product and includes the Software Documentation and all other associated material provided by Nintex or BeMo in relation to that software.
Nintex Software Documentation means any documentation provided by us which is incorporated in or associated with the Software.
UMT SOFTWARE END USER LICENSE TERMS
for UMT PROJECT FINANCIAL SERVER 2010, UMT PROJECT ESSENTIALS and UMT PROJECT ESSENTIAL PRO
UMT IS WILLING TO GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT TO USE THIS SOFTWARE PRODUCT (“SOFTWARE”) AND A LICENSE FOR THE CONTENT SPECIFIED HEREIN ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY USING THE SOFTWARE, YOU WILL INDICATE YOUR AGREEMENT WITH THEM. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS. IF YOU DO NOT AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY, THEN UMT IS UNWILLING TO GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES DELIVERED BY THIS PRODUCT.
AS DESCRIBED BELOW, USING SOME FEATURES ALSO OPERATES AS YOUR CONSENT TO THE TRANSMISSION OF CERTAIN STANDARD COMPUTER INFORMATION FOR INTERNET-BASED SERVICES.
If You comply with these license terms, You have the rights below:
This End User License Agreement (EULA) (“Agreement”) is a legal agreement between You (either an individual or a single entity) and UMT. This EULA governs the Software, which includes computer software (including online and electronic documentation) and any associated media and printed materials. This EULA applies to updates, supplements, add-on components, and Internet-based services components of the Software that UMT may provide or make available to You unless UMT provides other terms with the update, supplement, add-on component, or Internet-based services component. UMT reserves the right to discontinue any Internet-based services provided to You or made available to You through the use of the Software. This EULA also governs any product support services relating to the Software except as may be included in another agreement between You and UMT. An amendment or addendum to this EULA may accompany the Software. The Software may contain the following:
A. Server Software provides services or functionality on Your server (Your computers capable of running the Server Software are “Servers”), and
B. Client Software allows a device to access or use the Server Software.
2. GRANT OF LICENSE
UMT grants You the following non-exclusive, non-transferable license, pursuant to the terms and conditions set forth in this Agreement:
A. Server Software. You may install a copy of the Server Software on a single Server. An additional license is required if You install another copy of the Server Software on the same Server.
B. Subscription Client Access License (CAL): You must acquire a Subscription CAL for each individual person (“User”) or device that accesses or uses Server Software. Access or use of the Server Software means access, whether directly or through a “multiplexing service” which is defined as a software application or service accessing or using the Server Software at the request of or on behalf of a User or device.
C. Types of Subscription CALs. A Device Subscription CAL permits one device (used by any User) to access or use the Server Software. A User Subscription CAL permits one User (using any device) to access or use the Server Software. UMT’s Project Financial Server uses User CALs with the Server Software. You may reassign a Subscription CAL from one User to another User, provided the reassignment is made either
i. permanently away from the User, or
ii. the use of the CAL by a temporary worker while a regular employee is absent.
D. Additional CAL Requirements.
i. Single License. CALs that You acquire may not be used in conjunction with Server Software licensed to anyone other than You.
ii. Administration. Up to two Users or devices may simultaneously access or use the Server Software solely for administration of the Server Software, without acquiring any CALs.
3. INSTALLATION AND USE RIGHTS
Before You use the software under a license, You must assign that license to one device. That device is the “licensed device.” A hardware partition or blade is considered to be a separate device.
A. Licensed Device. You may install and use one copy of the software on the licensed device.
B. Separation of Components. The components of the software are licensed as a single unit. You may not separate the components and install them on different devices.
4. INTERNET-BASED SERVICES
UMT does not currently provide Internet-based services with the software. If this will change in the future, Your consent will be required. Currently no information is being sent back to UMT.
5. ADDITIONAL LICENSING REQUIREMENTS AND/OR USE RIGHTS
A. Remote Access. The single primary user of the licensed device may access and use the software installed on the licensed device remotely from any other device. You may allow other users to access the software to provide You with support services. You do not need additional licenses for this access. No other person may use the software under the same license at the same time for any other purpose.
B. Media Elements and Templates. You may copy and use images, clip art, animations, sounds, music, shapes, video clips and templates provided with the software and identified for such use in documents and projects that You create. You may distribute those documents and projects non-commercially. If You wish to use these media elements or templates for any other purpose, You must seek the written permission of UMT.
C. Multiplexing. Hardware or software You use to
i. pool connections, or
ii. reduce the number of devices or users that directly access or use the software (sometimes referred to as “multiplexing” or “pooling”), does not reduce the number of licenses You need.
D. Trial and Conversion. Some or all of the software may be licensed on a trial basis. Your rights to use trial software are limited to the trial period. The trial software and length of the trial period are set forth during the activation process. You may have the option to convert Your trial rights to subscription or perpetual rights. Conversion options will be presented to You at the expiration of Your trial period. After the expiration of any trial period without conversion, most features of the trial software will stop running.
E. Subscription Software. If You licensed the software on a subscription basis, Your rights to use the software are limited to the subscription period. You may have the option to extend Your subscription or convert to a perpetual license. If You extend Your subscription, You may continue using the software until the end of Your extended subscription period. See the software activation screens or other accompanying materials for subscription details. After the expiration of Your subscription, most features of the software will stop running.
6. MANDATORY ACTIVATION
Activation associates the use of the software with a specific device. During activation You will be asked to provide information about the software and the device to UMT. This information may include the version, the license version, language and the product ID of the software, and information derived from the hardware configuration. For more information, see www.projectfinancialserver.com. BY USING THE SOFTWARE, YOU CONSENT TO COMMUNICATING THIS INFORMATION. After the time recommended for activation expires, Your rights to use the software will be limited until the software is activated. This is to prevent its unlicensed use. You can activate the software by Internet or telephone; Internet and telephone service charges may apply. Some changes to Your computer components or the software may require You to reactivate the software.
A. If the software is not properly licensed, the functionality of the software may be affected. For example, You may need to reactivate the software, or receive reminders to obtain a properly licensed copy of the software, or not obtain certain updates, upgrades or services from UMT.
B. You may only obtain updates or upgrades for the software from UMT or authorized sources. For more information on obtaining updates from authorized sources, see www.projectfinancialserver.com.
8. SCOPE OF LICENSE
The software is licensed, not sold. UMT reserves all rights not expressly granted to You in this Agreement. Notwithstanding any other provision in this Agreement, neither this Agreement nor any CAL grants a license, under any UMT intellectual property, to implement any functionality contained in the Software (including without limitation communication protocols used by the Software) in any software installed on a device accessing or utilizing the Server Software. This agreement only gives You some rights to use the software. UMT reserves all other rights. You may use the software only as expressly permitted in this agreement. In doing so, You must comply with any technical limitations in the software that only allow You to use it in certain ways. You may not:
A. work around any technical limitations in the software;
B. reverse engineer, decompile or disassemble the software;
C. make more copies of the software than specified in this agreement;
D. publish the software for others to copy;
E. use the software in any way that is against the law;
F. rent, lease or lend the software; or
G. use the software for commercial software hosting services.
9. BACKUP COPY
You may make one backup copy of the software provided that such copies include all original copyright and other proprietary notices. You may use it only to reinstall the software. All copies, in whole or in part, of the software, as well as the original itself are the property of UMT.
Any person that has valid access to Your computer or internal network may copy and use the documentation for Your internal, reference purposes.
11. EXPORT RESTRICTIONS
The software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users and end use.
12. SUPPORT SERVICES
For the software generally, contact the installer for support options. Refer to the support number provided with the software. For updates and supplements obtained directly from UMT, UMT provides support as described at www.projectfinancialserver.com/support.
A. This Agreement may be terminated: (i) by UMT or You, immediately upon written notice to the other party if the other party becomes insolvent, seeks protection under any bankruptcy, receivership, trust, deed, creditors arrangement, composition or comparable proceeding, proceedings in bankruptcy or insolvency are instituted against the other party, or a receiver is appointed with respect to the other party, or if any substantial part of the other party's assets is the object of attachment, sequestration or other type of comparable proceeding, and such proceeding is not vacated or terminated within thirty (30) days after its commencement or institution; or (ii) by UMT upon written notice to You, in the event of a material breach by You that is not cured within thirty (30) days after receipt by You of written notice thereof.
B. This Agreement and license grant shall immediately terminate upon Your unauthorized use, transfer or copying of the UMT Software or Materials, or any portion thereof.
14. OWNERSHIP OF UMT SOFTWARE
The UMT Software and supporting materials, and any enhancements, adaptations and customizing thereto, and all copies thereof, shall at all times remain proprietary to UMT, and You shall have no right, title or interest therein. You acknowledge that the UMT Software and any enhancements, adaptations and customizing thereto, and all copies thereof, are UMT’s licensors proprietary information and trade secrets. Any third party software provided by UMT remains proprietary to the respective third party. You shall not remove, disfigure or alter any of the proprietary notices or trademarks incorporated into the UMT Software or supporting materials. Customizations, extensions, and integration performed by the Partner using the Project Financial Server Application Server Interface (ASI) outside of the Project Financial Server application are not subject to the above restrictions.
You will take all necessary steps, including establishing appropriate procedures to be followed by its employees and other persons with access to the UMT Software or supporting materials, to prevent the UMT Software or supporting materials, or copies thereof, from being acquired by unauthorized persons or put to unauthorized use and to prevent unauthorized copying of the UMT Software or supporting materials. You shall be responsible for any such unauthorized acquisition, use or copying.
You acknowledge that the UMT Software and supporting materials contain proprietary and confidential information. You will not disclose or show the UMT Software or supporting materials, or any part thereof, to anyone for any purpose other than in order to enable You to use the UMT Software and supporting materials in accordance with the terms of this Agreement. This Agreement (including any amendments or addenda thereto) is confidential information of UMT and shall not be disclosed by You.
17. DERIVATIVE RIGHTS
You shall not create derivative works from the UMT Software. Any rights in derivative works created by You will be deemed to be the property of and owned by UMT. This does not include extensions created with the UMT Project Financial Server API.
18. RESERVATION OF RIGHTS
You acknowledge that any right not specifically granted by UMT is expressly reserved and that nothing herein grants You any ownership rights to the UMT Software or any supporting materials, or any ownership rights or license to the trademarks, copyrights, trade secrets and patents of UMT other than as is necessary to execute the UMT Software as described above.
19. DISCLAIMER OF WARRANTY
THE SOFTWARE IS LICENSED “AS-IS.” YOU BEAR THE RISK OF USING IT. UMT GIVES NO EXPRESS WARRANTIES, GUARANTEES OR CONDITIONS. UMT SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY MATTER OR CLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT (WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT OR OTHERWISE) FOR MORE THAN THE AGGREGATE AMOUNTS PAID TO UMT UNDER OR RELATING TO THIS AGREEMENT DURING THE SIX-MONTH PERIOD PRECEDING THE DATE THE APPLICABLE CLAIM AROSE, REGARDLESS OF WHEN NOTICE OF SUCH CLAIM WAS GIVEN. YOU CANNOT RECOVER ANY OTHER DAMAGES, INCLUDING CONSEQUENTIAL, LOST PROFITS, SPECIAL, INDIRECT OR INCIDENTAL DAMAGES. WITHOUT LIMITING THE FOREGOING, THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT THAT APPLICABLE LAW PROHIBITS SUCH LIMITATION.
You shall indemnify and hold UMT harmless (and, if requested, defend UMT) from all losses, liabilities, expenses, costs and damages (including reasonable attorney’s fees) arising out of:
A. any claim or suit by a third party arising out of or related to use of the UMT Software or Materials by You or any other person in a manner not authorized by this Agreement;
B. any event that would cause the warranty in this Agreement to be inapplicable or void (whether during or after the Warranty Period), or
C. any claim that is not based on the most current release of the UMT Software.
21. CONSEQUENTIAL DAMAGES
UMT SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE OR PROFITS, LOST BUSINESS, WORK STOPPAGE OR COMPUTER FAILURE OR MALFUNCTION, EVEN IF UMT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHAT LEGAL OR EQUITABLE THEORY MAY BE ASSERTED, INCLUDING, WITHOUT LIMITATION, ANY CONTRACT, NEGLIGENCE, BREACH OF WARRANTY OR ANY OTHER LEGAL OR EQUITABLE THEORY.
This limitation applies to:
A. anything related to the software, services, content (including code) on third party Internet sites, or third party programs;
B. claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law; and
C. repair, replacement or a refund for the software does not fully compensate You for any losses.
22. INJUNCTIVE RELIEF
You acknowledge that any breach of its obligations under this Agreement with respect to UMT’s proprietary rights or confidential information will cause UMT and/or such third party irreparable injury for which there exists no adequate remedies at law, and therefore UMT shall be entitled to injunctive relief, without the posting of any bond, in addition to all other remedies provided by this Agreement or available at law.
23. ENTIRE AGREEMENT
This agreement, and the terms for supplements, updates, Internet-based services and support services that You use, are the entire agreement for the software and support services.
24. APPLICABLE LAW
A. United States. If You acquired the software in the United States, New York state law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles. The laws of the state where You live govern all other claims, including claims under state consumer protection laws, unfair competition laws, and in tort.
B. Outside the United States. If You acquired the software in any other country, the laws of that country apply.
If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect.
This Agreement may not be modified or amended in any way except in writing signed by duly authorized representatives of UMT and You or as otherwise provided herein.
A waiver of any breach or default under this Agreement shall not constitute a waiver of any other or subsequent breach or default. Failure or delay by either party to enforce compliance with any term or condition of this Agreement shall not constitute a waiver of such term or condition.
28. BINDING EFFECT; ASSIGNMENT
This Agreement shall be binding on and inure to the benefit of parties hereto and their respective successors and permitted assigns. You may not assign this Agreement or assign, sublicense or transfer any of its rights hereunder without the prior written consent of UMT.
UMT reserves the right to conduct, or have conducted, audits, during normal business hours and upon prior notice, to verify Your compliance with this Agreement; and You shall cooperate with such audits.
30. CAPTIONS AND HEADINGS
All captions, headings and titles contained in this Agreement are for convenience and reference purposes only and shall not be deemed a part of this Agreement.
31. RELATIONSHIP OF THE PARTIES
Nothing contained in this Agreement shall be construed to constitute either party as a partner, joint venturer, co-owner, employee or agent of the other party and neither party shall hold itself out as such.