Last Updated: May 5th, 2017
IMPORTANT - PLEASE CAREFULLY READ THE TERMS OF THIS TERMS OF SERVICE AGREEMENT (“AGREEMENT”). BY ACCEPTING THIS AGREEMENT, INSTALLING OR RUNNING THE LICENSED SOFTWARE, APP, HARDWARE OR SERVICE OR USING THE LICENSED SOFTWARE, APP, HARDWARE AND/OR SERVICE, (1) YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT, AND (2) YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY, OR IF YOU HAVE NAMED A COMPANY AS CUSTOMER, ON BEHALF OF THAT COMPANY (YOU OR ANY SUCH COMPANY, THE “CUSTOMER” OR “YOU”), AND TO BIND THE CUSTOMER TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU MAY NOT USE THE LICENSED SOFTWARE, APP, HARDWARE OR SERVICE.
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
- Agreement. This Agreement is a legal agreement between Customer and iboss, Inc. (the “Company”) and describes your rights to use the accompanying Company software product, hardware and/or service together with any associated media, printed materials and “online” or electronic documentation. Capitalized terms are generally defined in Section 28. The Company will provide only the Hardware that is listed on your Quote as being loaned to, or purchased by, you, otherwise you must provide all equipment and software necessary to connect to Company Properties, including but not limited to, Authorized Devices that are suitable to connect with and use Company Properties. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Company Properties.
- LICENSES. The Company offers its software to customers on a subscription basis but delivers the software through one or more of the following technical means: (i) direct download and installation of the software on your own Authorized Devices, (ii) software-as-a-service (“SaaS”), (iii) pre-installed software on a server provided to you by the Company, and/or (iv) the App which is available for download and installation to your mobile device. Depending on which of these methods you choose to access the software, the applicable following licenses in this Section 2 will apply to your subscription. Please read this Agreement and your Quote carefully to understand which license terms apply to your subscription. Customer acknowledges and agrees that Customer is solely responsible for reading and understanding this Agreement, and for complying with all applicable terms herein. In addition to the license which is applicable to your subscription, by entering into this Agreement, you are also bound by and subject to Sections 1 and 3 through 30.
2.1 Software Available for Download. In the event the Company or an authorized partner, distributor, or reseller has installed the Licensed Software on any Authorized Devices on your behalf or has made the Licensed Software available to your subscription for electronic download and installation directly onto your Authorized Devices, then the following terms apply to your subscription:
- License by Company. Subject to the terms and conditions of this Agreement and any restrictions set forth in the Quote, solely during the Term (as defined in Section 20), Company grants to Customer a non-exclusive, non-transferable, revocable, royalty-free, limited license (without the right to sublicense) to (i) install and execute one copy of, and use the Licensed Software (in Executable Code form) on each Authorized Device; (ii) access and use the Host Server solely for authentication and syncing purposes; and (iii) use the Licensed Software and Service solely for Customer’s internal business purposes and solely in accordance with the Acceptable Use Policy, Documentation and the limitations set forth in this Section 2.1 and Section 3.
i) Authorized Device Licenses. Customer may install and use one copy of the Licensed Software on each Authorized Device. In the event Customer wishes to increase the number of Authorized Devices beyond the maximum number of Authorized Devices set forth in the Quote, Customer shall be required to pay additional fees associated with the increased numbers of Authorized Devices.
2.2 Software as a Service. In the event you are accessing and using the SaaS version of the Licensed Software, then the following terms apply to your subscription:
- License by Company. Subject to the terms and conditions of this Agreement and any restrictions set forth in the Quote (including any limitation on the number of authorized users), solely during the Term, Company hereby grants to Customer a nonexclusive, nontransferable, non-assignable, right and license (without the right to sublicense) to access and use the Licensed Software and Service made available by the Host Server for Customer’s internal business purposes and solely in accordance with the Acceptable Use Policy, Documentation and limitations set forth in Section 3.
- Additional Licenses. Access to the Service may be used only on Authorized Devices and for the authorized number of users set forth on the Quote. If Customer wishes to add additional Authorized Devices or authorized users beyond the number authorized on the Quote, Customer shall be required to pay additional fees associated with the increased numbers of Authorized Devices and/or authorized users, as applicable.
2.3 Pre-Installed Server License Terms. In the event you are accessing and using the functionalities of the Licensed Software via a server provided to you by the Company, then the following terms apply to your subscription:
- License by Company. Subject to the terms and conditions of this Agreement and any restrictions set forth in the Quote, solely during the Term, Company hereby grants to Customer a nonexclusive, nontransferable, non-assignable, right and license (without the right to sublicense) to: (i) use any Hardware provided by the Company to Customer; (ii) access and use the Host Server solely for authentication and syncing purposes; and (iii) access and use the Licensed Software as installed on the Hardware and Service for Customer’s internal business purposes and solely in accordance with the Acceptable Use Policy, Documentation and limitations set forth in Section 3.
- Additional Licenses. Access to the Service may be used only on Authorized Devices. If Customer wishes to add additional Authorized Devices beyond the number authorized on the Quote, Customer shall be required to pay additional fees associated with the increased numbers of Authorized Devices.
2.4 Mobile Application Licenses. In the event you download and install an App, the following terms and conditions will apply to your subscription.
- App License. Subject to the terms and conditions of this Agreement and any restrictions set forth in the Quote, solely during the Term, Company grants you a non-exclusive, non-transferable, revocable, limited license to download, install and use a copy of an App on Authorized Devices that you own or control solely for your internal business purposes. Furthermore with respect to any App that you download though an App Store, you agree to comply with all applicable third party terms of the relevant App Store, such as the Apple App Store’s “Usage Rules”. In the event Customer wishes to increase the number of Authorized Devices beyond the maximum number of Authorized Devices set forth in the Quote, Customer shall be required to pay additional fees associated with the increased numbers of Authorized Devices.
- App Stores. You acknowledge and agree that the availability of the App is dependent on the mobile application marketplace (e.g. the Apple App Store (certain specific terms of which are in subsection (c) below), Google Chrome Store, or Google Play Marketplace) (each, an “App Store”) from which you received the App. You acknowledge that this Agreement is between you and Company and not with the App Store. The App Store is not responsible for an App, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance, or intellectual property infringement). You agree to pay all fees charged by the App Store in connection with an App (if any). You acknowledge that the App Store (and its subsidiaries) are third party beneficiaries of this Agreement and will have the right to enforce this Agreement.
- Accessing and Downloading the App from the Apple App Store.
- You acknowledge and agree that (1) this Agreement is concluded between you and the Company only, and not the App Store and (2) the Company, not the App Store, is solely responsible for the Software and content thereof. Your use of the App must comply with the applicable App Store’s terms of service governing the use of such App Store.
- You acknowledge that the App Store has no obligation whatsoever to furnish any maintenance and support services with respect to the App.
- In the event of any failure of the App to conform to any applicable warranty, you may notify the applicable App Store and the App Store will refund the purchase price for the App to you. To the maximum extent permitted by applicable law, the App Store will not have any other warranty obligation whatsoever with respect to the App. As between the Company and the App Store, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of the Company.
- You and the Company acknowledge that, as between the Company and the App Store, the App Store is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to: (1) product liability claims; (2) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (3) claims arising under consumer protection or similar legislation.
- You and the Company acknowledge that, in the event of any third party claim that the App or your possession and use of that App infringes that third party’s intellectual property rights, as between the Company and the App Store, the Company, not the App Store, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement.
- You and the Company acknowledge and agree that the App Store is a third party beneficiary of this Agreement, and has the right to enforce this Agreement as related to your license of the App against you as a third party beneficiary thereof.
- Without limiting any other terms of this Agreement, you must comply with all applicable third party terms of agreement when using the App.
2.5 Evaluation Licenses. If Customer is using the product for evaluation purposes, then the license granted in Section 2.1, 2.2, 2.3, and/or 2.4 only permits Customer to use the Licensed Software, Hardware, App and/or Service, as applicable, for thirty (30) days, or such longer period set forth in the Quote (“Evaluation Period”), for the sole purpose of evaluating the performance and functionality of the Licensed Software, Hardware, App and/or Service, as applicable (“Evaluation Software”), in accordance with the Documentation and Acceptable Use Policy. Evaluation Software may not be used in a production environment. Unless Customer has purchased a subscription to continue using the applicable Company Property, upon the expiration of the Evaluation Period, Customer must (i) discontinue using the Evaluation Software, and (ii) return the Licensed Software and Hardware, as applicable, to Company within seventy-two (72) hours. If Customer desires to extend the Evaluation Period, Customer must receive prior written consent from an authorized Company manager. If such consent for extension is not received and Customer continues using the Company Property after the expiration of the Evaluation Period, Company reserves the right to charge Customer at the then current price for such usage of Company Property. Licensed Software and/or Hardware returned after thirty (30) days of the expiration or termination date will not be accepted. Customer shall be liable to, and agrees to pay Company for the cost of replacing or fixing Licensed Software and/or Hardware lost or returned damaged, as determined in Company’s sole discretion, or attempted to be returned after thirty (30) days.
2.6 License by Customer. Subject to the terms and conditions of this Agreement, during the Term, Customer hereby grants to Company an unlimited, non-transferable, royalty-free license, to use any patents or intellectual property in connection with Customer Content, including rights to reproduce, create derivative works of, publicly display, publicly perform, distribute, digitally transmit, and otherwise use the Customer Content for the purpose of providing the Service to Customer and to fulfill Company’s obligations hereunder.
3. Restrictions. The rights granted to Customer in this Agreement are subject to the following restrictions: (a) Customer shall not license, sell, resell, rent, lease, transfer, assign, distribute, host, outsource, disclose or otherwise commercially exploit the Company Property, or make the Company Property available to any third party; (b) Customer shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Company Property, except and only to the extent that such activity is expressly permitted by applicable law; (c) Customer shall not access the Company Property in order to build a similar or competitive product or service or extend term of the license granted hereunder; (d) except as expressly stated herein, no part of the Company Property may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording or other means; (e) Customer shall not interfere with, disrupt, alter, translate, or modify the Company Property, or create an undue burden on the Service or networks or services connected to the Service; (f) Customer shall not sublicense any of its rights under this Agreement or use or allow the use of the Company Property for rental or in the operation of a service bureau or time-sharing arrangement; (g) Customer may not, and shall not allow or assist third parties to, publish, distribute or disclose the results of any benchmark tests performed on the Company Property without Company’s prior written approval, such approval to be withheld, delayed or conditioned in Company’s sole discretion; and (h) use the Company Property on any mobile devices or other computers for which Customer has not received the necessary consent(s). Customer shall preserve all copyright and other proprietary rights notices in the Company Property and all copies thereof.
4. CUSTOMER OBLIGATIONS. Customer agrees to take all reasonable steps to safeguard the Company Property to ensure that no unauthorized person has access thereto and that no unauthorized copy, publication, disclosure or distribution, in whole or in part, in any form is made. Customer hereby acknowledges and agrees that the Company Property contains valuable, confidential information and trade secrets and that unauthorized use and/or copying of same would be harmful to Company. Customer hereby represents and warrants that it will comply with all laws, rules and regulations which apply to its use of the Company Property. Customer agrees to cause all its End-Users to comply with the Acceptable Use Policy. Customer hereby further represents and warrants that the Company Property will not be used to filter, screen, manage or censor Internet content for End-Users without permission from the affected End-Users, and Customer agrees to indemnify Company for any claims regarding such activities. Customer hereby acknowledges and agrees that the use of features, including, but not limited to detection, measurements and control relay (DMCR), logging, and alerts, are subject to all state, local, and federals laws and regulations applicable within the country of deployment. Customer hereby agrees to comply with all such restrictions and required disclosures and hereby agrees to hold Company harmless of any and all claims and other damages arising from Customer’s failure to abide by same.
5. HARDWARE PRODUCTS. Company will ship Hardware that have the functionality and performance of the Hardware ordered, but differences between Hardware shipped and Hardware described in a specification sheet are possible. Parts for Hardware may be new or refurbished. Spare parts also may be new or refurbished. System capacity as set forth in the specifications nevertheless may vary based on Customer configuration options or Internet usage conditions. The warranty limitations and restrictions set forth in 16 below apply to Hardware purchased or loaned from the Company. If you elect to receive Hardware from the Company on a loaned basis, when this Agreement expires or is terminated, Customer must return any Hardware borrowed from the Company within seventy-two (72) hours. Hardware returned after thirty (30) days of the expiration or termination date will not be accepted. Customer shall be liable to, and agrees to pay Company for the cost of replacing or fixing Hardware lost or returned damaged, as determined in Company’s sole discretion, or attempted to be returned after thirty (30) days.
6. SUPPORT. Subject to the terms of this Agreement and payment of any applicable fees, during the Term, Company will provide support services to Customer in accordance with the Service Level Agreement available at https://www.iboss.com/service-level-agreement, as may be amended by the Company from time to time (“Service Level Agreement”). Company shall only be responsible for providing support for the current and next most recent prior release of the Company Property.
7. updates. Company’s policy is one of on-going product update and revision. Company may revise, update, upgrade or discontinue any Company Property at any time, without prior notice to Customers. If during the Term, Company ceases to provide the subscription service to Customer due to a discontinuance by the Company of the applicable subscription service, Company will provide a pro rata refund to Customer for any prepaid fees paid by Customer to Company for the applicable subscription service based on the amount of time remaining in the applicable Term. During the Term, Company may, in its sole discretion, provide Customer with updates or upgrades. Company and its suppliers are not obligated to provide any updates or upgrades to the Licensed Software, App, Hardware or Service. Any future release, update, or other addition to functionality of the Licensed Software, App, Hardware or Service shall be subject to the terms of this Agreement, unless Company expressly states otherwise.
8. RETURN AND REFUND POLICIES. Except for Company Properties loaned by Company to you which must be returned in accordance with this Agreement, the Company does not accept returns on any Company Property. Unless otherwise expressly set forth in writing by Company, all fees are non-refundable.
9. EXCHANGES. From time to time, Company may, in its sole discretion, exchange Hardware or portions of Hardware for a Customer for any reason. Any exchanges will be made in accordance with Company’s exchange policies in effect on the date of the exchange.
10. subscription fees and payment.
10.1 Fees. In consideration for the access rights and licenses granted to Customer and the services performed by Company under this Agreement, Customer will pay to Company all fees to Customer’s account as required pursuant to the Quote. If Customer elects to pay by credit card, (i) Company will automatically renew and bill Customer’s credit card periodically in accordance with the Quote and (ii) Customer hereby authorizes Company to charge such credit card in accordance with the Quote and the terms of this Agreement. If Customer elects to pay by another payment method, Company will invoice Customer for all applicable fees in accordance with the Quote and the terms of this Agreement. After the initial subscription term set forth on the Quote, Company reserves the right to increase fees at any time upon prior notice to Customer.
10.2 Payment Terms. All payment obligations are non-cancellable and all amounts paid are non-refundable. All payments are due from Customer net thirty (n/30) days from the date of Company’s invoice. Past due invoices are subject to a monthly charge equal to the lesser of: (a) one and one-half percent (1.5%) per month; or (b) the highest rate of interest permitted by applicable law. If any invoice remains unpaid after sixty (60) days from the invoice date, notwithstanding any agreement or course of dealing between Company and Customer, (i) all subsequent orders will be accepted only on a C.O.D. or cash-with-order basis until satisfactory credit is reestablished (in Company’s sole discretion), and (ii) Company may suspend Customer’s access to and use of the Company Property until all outstanding invoices are paid. If Customer purchases Hardware or a subscription Service from Company, within sixty (60) days of the original purchase date of such Hardware or Service, Customer may elect to upgrade the Hardware model or subscribe to a higher level subscription Service and Company will credit the original purchase towards to the upgraded purchase price subject to the return of any Hardware provided for which the credit is given within thirty (30) days of the upgrade, if applicable. Delinquent amounts owed by Customer may be referred to a collection agency, and will be subject to additional fees.
11. TAXES. Unless otherwise stated in writing by Company, all such prices are exclusive of transportation, insurance, federal, state, local, excise, value-added, use, sales, property (ad valorem) and similar taxes or duties now in force or hereafter enacted. Customer will pay all taxes, fees or charges of any nature whatsoever imposed by any governmental authority on, or measured by, the transaction between Customer and Company. If Company is required to collect any of the foregoing, such amounts will be separately stated on the invoice, and must be paid by Customer unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer agrees to provide Company with a valid resale certificate for any Licensed Software or Hardware purchased for resale.
12. Shipment/delivery. In the absence of specific shipping instructions, Company will ship Licensed Software or Hardware by the method it deems most advantageous, using standard commercial packaging. Customer agrees to pay all transportation charges and costs associated with shipment of the Licensed Software or Hardware, including any special or export packaging requested or required under the circumstances, as determined by Company. Customer is also responsible for obtaining insurance against damage to the Licensed Software or Hardware during shipment. Title and risk of loss for the Licensed Software or Hardware shipped shall pass to Customer at the time the Licensed Software or Hardware is picked up at the delivery location.
13. Ownership. All right, title, and interest, including all Intellectual Property Rights, in and to the Company Properties shall be owned and retained by Company or its suppliers. Any rights not expressly granted by Company in the Agreement are reserved. Customer acknowledges that it acquires no ownership interest in the Company Properties. Company acknowledges and agrees that Customer is the sole and exclusive owner of all Customer Content. Any third party software included in the Company Properties may only be used in conjunction with such product or service, and is not licensed for use independent from such product or service.
14. CUSTOMER MARKS. During the Term, Customer hereby grants Company permission to use Customer’s logo and trademarks on Company’s website, or any other marketing material, when referring to Customer. Customer will retain all title and rights to such logos and trademarks.
15. Open Source Software. Certain items of software may be provided to Customer with the Licensed Software or App and are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Section 2. Instead, each item of Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable license for the Open Source Software. If required by any license for particular Open Source Software, Company makes such Open Source Software, and Company’s modifications to that Open Source Software, available by written request at the notice address specified below.
16. LIMITED WARRANTY. For purchased or loaned Hardware, the only warranty is the Hardware Limited Warranty Policy available at https://www.iboss.com/hardware-limited-warranty-policy. For the avoidance of doubt, regardless of whether the Hardware is purchased or loaned from the Company, no warranty is provided with respect to the Licensed Software.
17. Disclaimer of Warranties. Except for the EXPRESS LIMITED warrantY REGARDING PURCHASED HARDWARE SET FORTH IN SECTION 16, the COMPANY PROPERTIES ARE provided TO CUSTOMER ON AN “AS-IS” BASIS. ADDITIONALLY, NO WARRANTIES WILL BE EFFECTIVE, AND COMPANY WILL NOT BE OBLIGATED TO HONOR ANY WARRANTIES, UNLESS AND UNTIL COMPANY RECEIVES PAYMENT IN FULL FOR THE APPLICABLE LICENSED SOFTWARE, HARDWARE, APP OR SERVICE. Company AND ITS SUPPLIERS disclaim all express, implied or statutory warranties relating to the Licensed Software, APP, HARDWARE and service, including but not limited to, merchantability, fitness for a particular purpose, TITLE, and non-infringement. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE COMPANY PROPERTIES OR ANY NETWORKS, SOFTWARE, OR SYSTEMS USED WITH SUCH PRODUCTS WILL BE FREE FROM VULNERABILITY, INTRUSION, ATTACK, OR OTHER DAMAGE. Certain states and/or jurisdictions do not allow the exclusion of CERTAIN WARRANTIES so the exclusions set forth above may not apply to YOU.
18. Limitation of Remedies and Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER Company NOR ITS SUPPLIERS shall be responsible or liable to CUSTOMER FOR any indirect, incidental, SPECIAL, PUNITIVE, EXEMPLARY, or consequential damages including, but not limited to loss of revenues and loss of profits even if advised of the possibility of such damage. TO THE MAXIMUM EXTENT PERMITTED BY LAW, Company’s aggregate cumulative liability FOR ANY CAUSE WHATSOEVER hereunder shall NOT exceed the greater of fifty dollars ($50.00) or the amount paid by customer for the licensed software, APP, Hardware and/or Service during the 12 months immediately prior to the date on which customer alleges the events that caused such damage occurred. Certain states and/or jurisdictions do not allow the exclusion of CERTAIN LIABILITIES so the exclusions set forth above may not apply to YOU.
19. Basis of Bargain. The warranty disclaimer and limitation of liability set forth above are fundamental elements of the basis of the agreement between Company and Customer. Company would not be able to provide the Licensed Software on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Company’s suppliers.
20. Term and Termination. Unless otherwise stated in the Quote, this Agreement and the licenses granted hereunder are effective upon the earlier of the date Customer downloads the Licensed Software or App, first uses the Hardware or Service or accepts this Agreement, and shall continue for the period set forth on the Quote unless and until this Agreement is terminated by either party pursuant to this Section (the “Term”). Company may terminate this Agreement immediately upon written notice to Customer at any time for any reason. If Company terminates this Agreement for convenience, Company shall provide Customer a pro rata refund for any amounts pre-paid for the remainder of the then current term. Company may terminate this Agreement immediately upon notice to Customer in the event that Customer materially breaches any of the terms hereof, including any breach by Customer of its payment obligations. Company may immediately terminate this Agreement and the license granted to Customer hereunder if: (a) the Licensed Software, Hardware, Service or App has been altered by or on behalf of Customer, (b) the Licensed Software or App has not been installed, operated, repaired, or maintained in accordance with instructions supplied by Company, or (c) the Hardware has not been operated, repaired or maintained in accordance with instructions supplied by Company. If Company terminates this Agreement for cause, Customer all amounts set forth in the Quote shall become immediately due and payable and Customer shall not be entitled to any refunds for any pre-paid amounts. Customer may terminate its account at any time after the end of the applicable subscription period. Company is not responsible or liable for any records or information that is made unavailable to Customer as a result of Customer’s termination of its account. CUSTOMER AGREES THAT COMPANY WILL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR ANY TERMINATION OF CUSTOMER’S ACCESS TO THE LICENSED SOFTWARE, APP OR SERVICE. Upon termination, the license(s) granted hereunder shall terminate and Customer shall immediately cease all use of the Service and destroy any copies of the Licensed Software or App in its possession, if any. Notwithstanding any termination of this Agreement, Sections 1, 3, 4, 8, 10, 11, 13, and 15 through 30 will remain in effect.
21. Export. Customer acknowledges that the Company Property, technical data, and performance of support services (received from Company in accordance with the terms of this Agreement) may be subject to export and import controls of the United States, the jurisdiction in which you obtained the Company Properties, and any other applicable jurisdictions including but not limited to the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774, and Customer shall at all times strictly comply with all laws, regulations and orders, and agrees to commit no act which, directly or indirectly, would violate any United States or other applicable law, regulation or order, including, without limitation, tax, export and foreign exchange laws, import controls, and export controls imposed by the U.S. Export Administration Act of 1979 as amended. Customer expressly agrees that, without the prior written authorization of Company and the United States government, Customer shall not, and shall cause its representatives (if any) not to (i) export, re-export, divert or transfer Company Property or any direct product thereof to any Embargoed Countries or Individuals, or (ii) disclose any data derived from Company Properties or any direct product thereof to any Embargoed Countries or Individuals when such disclosure is restricted or prohibited by the United States export controls. Additionally, Customer agrees that none of the Company Properties are being, or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to any Embargoed Countries or Individuals, nor be used for any purpose prohibited by United States law, including but not limited to, nuclear activities, chemical/biological weapons, or missile projects unless authorized by the United States government. For purposes of this Section 2, “Embargoed Countries or Individuals” shall mean any destination, company or person restricted or prohibited by the United States export controls, including (a) any country subject to sanctions or embargoes imposed by the United States government, or (b) any individual or entity identified on the most current United States government restricted or prohibited parties lists, including (A) the List of Specially Designated Nationals & Blocked Persons, administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”); (B) the List of Foreign Sanctions Evaders, administered by OFAC; (C) the Sectoral Sanctions Identifications List, administered by OFAC; (D) the Denied Persons List, administered by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”); (E) the Entity List, administered by BIS; and (F) the Unverified List, administered by BIS. Company provides multiple versions of the Licensed Software and App targeted for specific geographic regions. The North American version is designed to operate only in North America and may not include all of the features or regulatory approvals for providing protections in other regions. The subscription update service may not function properly if a North America version is exported and Company will be unable to support such exported versions. Any upgrade to an international version will be at Company’s sole discretion and subject to additional fees. Customer will indemnify and hold Company harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by Customer of its obligations under this Section. Customer will indemnify and hold Company harmless from any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including attorney’s fees) arising from or relating to any breach by Customer of its obligations under this Section 21.
22. DISPUTE RESOLUTION. Excluding any claims arising from or related to the infringement or misappropriation of Company Property, the parties will attempt to resolve any claim, or dispute or controversy (whether in contract, tort or otherwise) against Company, its agents, employees, successors, assigns or affiliates arising out of or relating to this Agreement, Company advertising or marketing materials, or any Company Property (a “Dispute”) through face-to-face negotiation with persons fully authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator, rather than through litigation. If the parties are unable to resolve the Dispute through negotiation or mediation within a reasonable time period after written notice from one party to the other that a Dispute exists, the Dispute will be settled by binding arbitration in accordance with the then current CPR Rules for Non-Administered Arbitration (“Arbitration”). The arbitration hearing shall take place in Boston, Massachussets. There is no judge or jury in arbitration. Arbitration procedures are simpler and more limited than rules applicable in court and review by a court is limited. YOU AND COMPANY AGREE THAT ANY SUCH ARBITRATION SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Notwithstanding any provision in this Agreement to the contrary, if the class-action waiver in the prior sentence is deemed invalid or unenforceable, however, neither you nor Company are entitled to arbitration. This arbitration agreement is subject to the Federal Arbitration Act. The arbitrator’s award may be entered in any court of competent jurisdiction. Notwithstanding any provision in this Agreement to the contrary, Company agrees that if Company makes any future material change to this dispute resolution provision, it will not apply to any individual claim(s) for which you had already provided notice of to Company. The existence or results of any negotiation, mediation or arbitration will be treated as confidential.
This Agreement is governed by the laws of the Commonwealth of Massachussetts without regard to conflict of law principles. If the arbitration in this section provision is found unenforceable or not to apply for a given dispute, then the proceeding must be brought exclusively in a court of competent jurisdiction in Boston, Massachussets.
23. Force Majeure. Neither party will be liable to the other for failure to fulfill obligations hereunder if such failure is due to causes beyond its control, including, without limitation, acts of God, earthquake, fire, flood, embargo, catastrophe, sabotage, utility or transmission failures, governmental prohibitions or regulations, national emergencies, insurrections, riots or wars, acts of terrorism, Internet or power outages, or viruses which did not result from the acts or omissions of such party (“Force Majeure Event”). The time for any performance required hereunder will be extended by the delay incurred as a result of such Force Majeure Event.
24. HEADINGS; INTERPRETATION. The section headings used herein are for convenience of reference only and do not form a part of this Agreement. No construction or inference shall be derived therefrom. All references to “including” mean “including without limitation”.
25. WAIVER. The failure of Company to enforce at any time or for any period of time the terms of this Agreement shall not be construed as a waiver of same or the rights of Company thereafter to enforce same.
26. AMENDMENT; CONFLICTS. This Agreement shall NOT be altered, supplemented, amended or otherwise modified by the use of any other document(s) (e.g., any pre-printed terms on a purchase order or similar document). Any attempt to alter, supplement amend or otherwise modify the Agreement or to enter an order that purports to be subject to additional or modified terms and conditions will be null and void, unless otherwise agreed to in a written agreement signed by both Customer and Company (e.g. a Quote). In the event of a conflict between a written agreement signed by both Customer and Company and this Agreement, the terms of the mutually executed written agreement shall supersede the terms of this Agreement.
27. SEVERABILITY. If any term or condition of this Agreement is held void or unenforceable, it shall be severed, and every other provision shall be enforced as if the void or unenforceable term or condition had never been a part hereof.
28. DEFINITIONS. The following terms will have the meaning set forth below:
“Acceptable Use Policy” means the Company’s general rules and regulations governing Customer’s and each End-User’s use of the Company Property available at http://www.iboss.com/acceptable-use-policy.
“App” means any mobile software application offered by Company.
“Authorized Device” means the number of nodes and/or any mobile device, computer, or computer system of Customer as may be authorized by a Quote to use the Licensed Software in accordance with the terms of this Agreement.
“Company Property” means the App, Licensed Software, Host Server, Hardware and Service.
“Customer Content” means any information and other content uploaded by Customer to the Service.
“Documentation” means the manuals provided to Customer along with the Licensed Software.
“End-User” means an end-user whose mobile devices, computers, or computer systems, whether corporate owned or personal, have been registered with the Company Property.
“Error” means a reproducible error of the Licensed Software, App, Hardware and/or Service, as applicable, to substantially conform to the Documentation in all material respects.
“Executable Code” means the fully compiled binary version of a software program that can be executed by a computer and used by an End-User without further compilation.
“Hardware” means any physically tangible electro-mechanical system or sub-system and any related equipment provided by the Company to Customer.
“Host Server” means the server(s) on which Company has installed the Licensed Software and/or necessary components and services for utilizing Licensed Software or App for Customer’s use.
“Intellectual Property Rights” means all copyrights, trade secrets, patents, patent applications, moral rights, contract rights and other proprietary rights.
“Licensed Software” means the software program or programs described in the Quote or any software or firmware incorporated into the Hardware, and any modified, updated, or enhanced versions of such programs that Company may provide to Customer pursuant to this Agreement, or a separate maintenance and support agreement.
“Quote” means the written or electronic form evidencing the initial license for the Licensed Software and/or the Service executed between the parties electronically or in writing.
“Service” means the services ordered by Customer through a Quote.
“Source Code” means the human-readable version of a software program that can be compiled into Executable Code.
29. QUESTIONS OR ADDITIONAL INFORMATION. If you have questions regarding this Agreement, or wish to obtain additional information, please send an e-mail to email@example.com or write to us at 4110 Campus Point Court, San Diego, CA 92121 or any new address indicated on website www.iboss.com.
30. CHANGES TO THIS AGREEMENT. From time to time, Company may revise this Agreement. To help you stay current of any changes, Company notes the date this Agreement was last updated below. Your use of the Company Property following the posting of any revised Agreement shall be deemed acceptance of the revised Agreement. Company strongly recommends checking this Agreement periodically.
If you disagree with the provisions of this Agreement at any time, your sole remedy is to terminate your use of the Service and inform us of such termination as described in this Agreement. Continued use of the Company Property constitutes your agreement to the Agreement as in effect.