User Agreement
This User Agreement (“Agreement”), is made between NOMO HUB, LLC, (“Company”) and any person (“You” or “Your”) who completes the registration process to open and maintain an account to access the Roofing Redline website, digital application, or any associated technology or software client (the “Services”).
BY UTILIZING THE SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND COMPANY AND SETS FORTH THE TERMS THAT GOVERN YOUR USE OF THE SERVICES PROVIDED TO YOU HEREUNDER. IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT, YOU ARE PROHIBITED FROM USING THE SERVICES AND MUST DISCONTINUE USE IMMEDIATELY.
Company may modify this Agreement from time to time and will provide You the most up-to-date version. Your continued use of the Services following modifications and updates to the Agreement constitutes Your consent to be bound by the Agreement as modified.
1. Definitions. Capitalized Terms used, but not defined herein, shall have the respective meanings set forth in Appendix 1 attached hereto.
2. Provision of Services.
2.1. Services Access. Upon payment of fees and subject to continuous compliance with this Agreement, Company hereby grants You a limited, nonexclusive, non-transferable right to access, use, and install (if applicable) the SaaS IP, Services, Software, and Documentation during the Term (defined below). You may provide, make available to, or permit Your Users to use or access the SaaS IP, Services, the Software, or Documentation, in whole or in part. You agree that Company may deliver the SaaS IP, Services or Software to You with the assistance of its Affiliates, licensors, and/or service providers. During the Term, Company may update or modify the SaaS IP, Services or Software or provide alternative SaaS IP, Services or Software to reflect changes in, among other things, laws, regulations, rules, technology, industry practices, patterns of system use, and availability of a third-Party program, but such changes shall not impact the performance standards set forth in performance section attached hereto. Company updates or modifications to the SaaS IP, Services or Software or provisions of alternative SaaS IP, Services or Software will not materially reduce the level of performance, functionality, security, or availability of the SaaS IP, Services or Software during the Term. If Company decides to end of life the SaaS IP, Services or Software, then it shall be in accordance with its established End of Life Plicy.
2.2. Upgrading/Downgrading Account Type. If applicable to Your right to access and use, You may, at any time, upgrade or downgrade Your account type. The change will take effect immediately. After an upgrade, You will be billed immediately for the additional fees due under the upgraded account type for the remaining time of the applicable Term. The amount due and owing for the upgraded account type will be reduced by the amount You have already paid for the applicable Term. After the initial Term, You may downgrade, within the parameters communicated to You by Company, upon thirty (30) days prior written notice to Company. Any modification in the amount due to Company will take effect after the thirty (30) day notice period, unless otherwise agreed upon by Company. In regard to a downgraded account type, You will be billed the fees due for the downgraded account type at the commencement of the Renewal Term. Downgrading Your right to access and use may cause loss of content, features, or capacity as available to You under Your previous right to access and use, and Company does not accept any liability for such loss.
3. Usage Restrictions; Obligations.
3.1. Usage Restrictions. You will not, will not attempt to, and will use commercially reasonable efforts to not allow any User or third party to (i) provide, make available to, or permit individuals other than Users to use or access the SaaS IP, Services, Software, or Documentation, in whole or in part; (ii) copy, reproduce, republish, upload, post, or transmit the SaaS IP, Services, Software, or Documentation (except for backup or archival purposes, which will not be used for transfer, distribution, sale, or installation on Your Devices); (iii) sublicense, assign, license, sell, resell, rent, lease, transfer, distribute, or otherwise transfer rights to the SaaS IP, Services, Software, or Documentation except as authorized in this Agreement; (iv) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any Software component of any of the SaaS IP, Services, Software, or Documentation is compiled or interpreted, or apply any other process or procedure to derive the source code of any Software in the SaaS IP, Services, Software, or Documentation, or attempt to do any of the foregoing, and You acknowledge that nothing in this Agreement will be construed to grant You any right to obtain or use such source code (v) create, market, distribute add-ons or enhancements or incorporate into another product the SaaS IP, Services or Software without prior written consent of Company; (vi) remove, obscure or alter any proprietary notices or labels appearing on or contained within the SaaS IP, Services, Software, or Documentation, unless authorized by Company; (vii) grant access to the SaaS IP, Services, Software, or Documentation (a) if You (or any of Users) are a direct competitor of Company; (b) for the purposes of monitoring the availability, performance, or functionality of the Services or Software or (c) for any other benchmarking or competitive purposes; (viii) use the SaaS IP, Services or Software to store or transmit infringing, libelous, unlawful, or tortious material or to store or transmit material in violation of third party rights, including privacy rights; (ix) use the SaaS IP, Services or Software to violate any rights of others; (x) use the Services or Software to store or transmit malicious code, trojan horses, malware, spam, viruses, or other destructive technology; (xi) interfere with, impair, or disrupt the integrity or performance of the Services or Software or any other third partys use of the Services or Software; (xii) use the Services or Software in a manner that results in excessive use, bandwidth, or storage; (xiii) alter, circumvent, or provide the means to alter or circumvent the SaaS IP, Services or Software, including but not limited to, technical limitations, recurring fees, or usage limits; (xiv) use the SaaS IP, Services or Software for purposes of providing third-Party hosting or third-Party application integration, service bureau, subscription or application service provider-type Services; (xv) modify, alter, tamper with or repair any of the SaaS IP, Services, Software, or Documentation or create any derivative product from any of the foregoing, or attempt to do any of the foregoing; or (xvi) use the SaaS IP, Services, Software, or Documentation in violation of the Terms of this Agreement. You will not use any of the SaaS IP, Services, Software, or Documentation except in compliance with Company’s obligations to any third party, provided that Company has notified You of such obligations.
3.2. Suspension. Notwithstanding anything to the contrary in this Agreement, Company may temporarily suspend Your or any Users access to any portion or all of the SaaS IP, Services, Software, or Documentation if Company reasonably deTermines that (a) there is a threat or attack on any of the SaaS IP, Services, Software, or Documentation; (b) use of the SaaS IP, Services, Software, or Documentation disrupts or poses a security risk to the SaaS IP, Services, Software, or Documentation or any other Users or vendor of Company; (c) anyone is using the SaaS IP, Services, Software, or Documentation for fraudulent or illegal activities; (d) subject to applicable law, You have ceased to continue Your business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding; (e) Company’s provision of the SaaS IP, Services, Software, or Documentation to anybody is prohibited by applicable law; (f) nonpayment of an obligation set forth herein or any Order Form or (g) any vendor of Company has suspended or Terminated Company’s access to or use of any third party Services or products required to enable access to the SaaS IP, Services, Software, or Documentation (each such suspension, in accordance with this section 3.2, a service suspension). Company will make commercially reasonable efforts, circumstances permitting, to provide written notice of any service suspension to You (including notices sent from Company’s registered email address) and to provide updates regarding resumption of access to the SaaS IP, Services, Software, or Documentation following any service suspension. . 3.3. Your obligations. You acknowledge, agree, and warrant that: (i) You will be responsible for Your and Your Users activity and compliance with this Agreement, and if You become aware of any violation, You will immediately Terminate, or take all necessary steps to Terminate, the offending Partys access to the SaaS IP, Services, Software, and Documentation and notify Company; (ii) You and Your Users will comply with all applicable local, state, federal, and international laws and not use or compile any of the SaaS IP, Services, Software or Documentation for the purpose of any illegal activities; (iii) You will establish a constant internet connection and electrical supply for the use of the SaaS IP, Services and Software, ensure the Software is installed on a supported platform as set forth in the Documentation, and the SaaS IP, Services and Software are used only with public domain or properly licensed third party materials; (iv) You will install the latest version of the Software on Devices accessing or using the Services; (v) You are legally able to process Your Data and legally able to provide Your Data to Company and its Affiliates, including obtaining appropriate consents or rights for such processing, as outlined further herein, and have the right to access and use Your infrastructure, including any system or network, to obtain or provide the SaaS IP, Services and Software and will be solely responsible for the accuracy, security, quality, integrity, and legality of the same; and (vi) You will keep Your registration information, billing information, passwords and technical data accurate, complete, secure and current for as long as You subscribe to the SaaS IP, Services, Software and Documentation.
4. Proprietary Rights.
4.1. Ownership of Company intellectual property. You acknowledge that, as between You and Company, Company and its licensors own all right, title, and interest in and to, including all Intellectual Property Rights, the SaaS IP, Services, Software and Documentation (including all components thereof), and Company expressly reserves all rights not expressly granted to You in this Agreement. You shall not engage in any act or omission that would impair Company’s and/or its licensors Intellectual Property Rights in the SaaS IP, Services, Software or Documentation and any other materials, information, processes, or subject matter proprietary to Company. Access is being granted to the SaaS IP, Services, Software, and Documentation, they are not being sold. Use of purchase in conjunction with such access rights of the SaaS IP, Services, Software and Documentation shall not imply a transfer of ownership. Except for the limited rights expressly granted by Company to You, You acknowledge and agree that all right, title and interest in and to all copyright, trademark, patent, trade secret, intellectual property (including without limitation algorithms, business processes, improvements, enhancements, modifications, derivative works, information collected and analyzed in connection with the SaaS IP, Services, Software or Documentation) and other proprietary rights, arising out of or relating to the SaaS IP, Services, Software, or Documentation, the provision of the SaaS IP, Services, Software, or Documentation, belong exclusively to Company or its suppliers or licensors. All rights, title, and interest in and to content, which may be accessed through the SaaS IP, Services, Software, or the Documentation, is the property of the respective owner and may be protected by applicable intellectual property laws and treaties. This Agreement gives You no rights to such content, including use of the same. Company is hereby granted a royalty-free, fully-paid, worldwide, exclusive, transferable, sub-licensable, irrevocable and perpetual license to use or incorporate into its products and Services any information, data, suggestions, enhancement requests, recommendations or other feedback provided by You, Users, or data integrations to support Your usage relating to the SaaS IP, Services, Software, or Documentation. All rights not expressly granted under this Agreement are reserved by Company.
4.2. Ownership of Your Data. Subject to a lien for unpaid amounts owed to Company, You and Your Users retain all right, title, and interest in and to all copyright, trademark, patent, trade secret, intellectual property and other proprietary rights in and to Your Data. Company’s right to access and use the same are limited to those expressly granted in this Agreement. No other rights with respect to Your Data are implied.
5. Term; Termination.
5.1. Term. Unless Terminated earlier in accordance with this section, this Agreement will begin on the effective date and will continue for one (1) month (the initial Term). You authorize Company to automatically renew this Agreement for additional Terms of one (1) month, upon the expiration of the initial Term (a Renewal Term), and the expiration of any Renewal Term (each a Renewal Term, and collectively with the initial Term, the Term).
5.2. Your Termination Rights. You may Terminate this Agreement at the end of the initial Term or Renewal Term, as the case may be, by providing Company with written notice of Your intention to Terminate the Agreement.
5.3. Company Suspension or Termination Rights. Company may suspend or Terminate this Agreement immediately if a) You become subject to bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors; b) You infringe or misappropriate Company intellectual property; c) You breach this Agreement or Order Form, including failure to pay fees when due; or d) pursuant to the receipt of a subpoena, court order, or other request by a law enforcement agency.
5.4. Effect of Termination. Termination shall not relieve You of the obligation to pay any fees or other amounts accrued or payable to Company through the end of the initial Term/Term. You shall not receive a credit or refund for any fees or payments made prior to Termination. Without prejudice to any other rights, upon Termination, You must cease all use of the SaaS IP, Services, Software, and Documentation and destroy or return (upon request by Company) all copies of the SaaS IP, Services, Software, and Documentation. Unless in accordance with our internal policies, contractual, legal, or other obligation, You acknowledge and agree that Company has the right to delete Your Data, including any and all copies thereof. Your Data, once deleted, will not be able to be recovered. Sections 1, 3, 4, 5.4, 6, 7, 9, 10, 11, 12, 13 and 14 shall survive any Termination or expiration of this Agreement.
6. Fees and Payment; Taxes.
6.1. Fees and Payment. Acceptance of the Services by You, and all subsequent orders placed by You will be considered final upon acceptance by Company. Fees will be due and payable as set forth on the fee schedule (the fee schedule). Unless otherwise set forth herein, fees shall be at Company’s then-standard rates at the time of payment, invoice, or if applicable, as set forth in the fee schedule. If You fail to pay, Company shall be entitled, at its sole discretion, to: (i) suspend provision of the Services until You fulfill Your pending obligations; (ii) charge You an interest rate designated by Company at the time of invoice; and/or (iii) Terminate this Agreement. If applicable, if You exceed the usage rights designated by Company, or in an Order Form presented by You, in addition to Company’s other remedies, You will be charged additional fees, which will be reflected in Your invoice. Unless otherwise stated, all payments made under this Agreement shall be in united states dollars. Fees are non-refundable.
6.2. Taxes. All fees are exclusive of taxes, and You shall pay or reimburse Company for all taxes arising out of transactions contemplated by this Agreement. If You are required to withhold any tax for payments due, You shall gross Your payments to Company so that Company receives sums due in full, free of any deductions. As reasonably requested, You will provide Documentation to Company showing that taxes have been paid to the relevant taxing authority. Taxes means any sales, vat, use, and other taxes (other than taxes on Company’s income), export and import fees, customs duties and similar charges imposed by any government or other authority. You hereby confirm that Company can rely on the name and address that You provide to Company when You agree to the fees or in connection with Your payment method as being the place of supply for sales tax and income tax purposes or as being the place of supply for vat purposes where You have established Your business.
7. Data; Protection of Your Data.
7.1. Your Data. Company and its Affiliates may remove Your Data or any other data, information, or content of data or files used, stored, processed or otherwise by You or Your Users that Company, in its sole discretion, believes to be or is: (a) a virus; (b) illegal, libelous, abusive, threatening, harmful, vulgar, pornographic, or obscene; (c) used for the purpose of spamming, chain letters, or dissemination of objectionable material; (d) used to cause offense, defame or harass; or (e) infringing the Intellectual Property Rights or any other rights of any third party. You agree that You and Your Users are responsible for maintaining and protecting backups of Your Data directly or indirectly processed using the SaaS IP, Services and Software and that Company is not responsible for exportation of, the failure to store, the loss, or the corruption of Your Data. You agree that Company and its Affiliates will process configuration, performance, usage, and consumption data about You and Your Users use of the SaaS IP, Services and Software to assist with the necessary operation and function of the SaaS IP, Services and Software and to improve Company products and Services and Your and Your Users experience with Company and its Affiliates, pursuant to the Company privacy notice. You represent and warrant that, in regards to the processing of Personal Data hereunder, You and Your Users act as the controllers (as defined in the california consumer privacy act (ccpa) of the Personal Data. Company acts as a processor (as defined in the ccpa) of the Personal Data it processes under this Agreement.
7.2. Protection of Your Data. Each Party shall comply with its respective obligations under applicable data protection laws. Each Party shall maintain appropriate administrative, physical, technical and organizational measures that ensure an appropriate level of security for confidential information (defined below) and Personal Data. Company and its Affiliates will process Personal Data in accordance with the Data Processing Addendum. You are responsible for ensuring that the security of the SaaS IP, Services and Software is appropriate for Your intended use and the storage, hosting, or processing of Personal Data.
8. Confidential Information. As used in this Agreement, confidential information means any nonpublic information or materials disclosed by either Party to the other Party, either directly or indirectly, in writing, orally, or by inspection of tangible objects that the disclosing Party clearly identifies as confidential or proprietary or is understood to be confidential or proprietary given the circumstances of its disclosure. For clarity, confidential information includes Personal Data, and Company confidential information includes the SaaS IP, Services, Software, Documentation and any information or materials relating to the SaaS IP, Services, Software or Documentation (including pricing), or otherwise. Confidential information may also include confidential or proprietary information disclosed to a disclosing Party by a third party. The receiving Party will: (i) hold the disclosing Partys confidential information in confidence and use reasonable care to protect the same; (ii) restrict disclosure of such confidential information to those employees or agents with a need to know such information and who are under a duty of confidentiality respecting the protection of confidential information substantially similar to those of this Agreement; and (iii) use confidential information only for the purposes for which it was disclosed, unless otherwise set forth herein. The restrictions will not apply to confidential information, excluding Personal Data, to the extent it (i) is (or through no fault of the recipient, has become) generally available to the public; (ii) was lawfully received by the receiving Party from a third party without such restrictions; (iii) was known to the receiving Party without such restrictions prior to receipt from the disclosing Party; or (iv) was independently developed by the receiving Party without breach of this Agreement or access to or use of the confidential information. The receiving Party may disclose confidential information to the extent the disclosure is required by law, regulation, or judicial order, provided that the receiving Party will provide to the disclosing Party prompt notice, where permitted, of such order and will take reasonable steps to contest or limit the steps of any required disclosure. The Parties agree that any material breach of section 3 (usage restrictions; obligations”) or this section 8 (confidential information) will cause irreparable injury and that injunctive relief in a court of competent jurisdiction will be appropriate to prevent an initial or continuing breach of these sections in addition to any other relief to the applicable Party may be entitled.
9. Disclaimer.
9.1. The SaaS IP, Services, Software, Documentation, and all other products and Services provided hereunder, including third party hosted Services, are provided on as is and as available basis. Company disclaims all representations and warranties of any kind, express, implied, or statutory, including any warranties of merchantability, fitness for a particular purpose, title, non-infringement, accuracy, reliability, security, loss or corruption of Your Data, continuity, or absence of defect relating to the SaaS IP, Services, Software, Documentation, any other product or Services, or results of the same provided to You under this Agreement. Company does not warrant that the specifications or functions contained in the Services or Software will meet Your requirements or that defects in the Services or Software will be corrected. Each Party specifically disclaims responsibility of third-Party products and Services with which You may utilize the Services and Software, and each Party specifically disclaims and waives any rights and claims against the other Party with respect to such third-Party products and Services.
10. Indemnification.
10.1. Company Indemnification. Company will indemnify, defend, and hold You harmless from any third party claim brought against You that the SaaS IP, Services, Software or Documentation, as provided by Company, infringe or misappropriate any u. S. Patent, copyright, trademark, trade secret, or other Intellectual Property Rights of a third party, provided (i) use of the SaaS IP, Services or Software by You is in conformity with this Agreement and Documentation; (ii) the infringement is not caused by modification or alteration of the SaaS IP, Services, Software or Documentation; and/or (iii) the infringement was not caused by a combination or use of the SaaS IP, Services or Software with products not supplied by Company. Company’s indemnification obligations are contingent upon You: (i) promptly notifying Company in writing of the claim; (ii) granting Company sole control of the selection of counsel, defense, and settlement of the claim; and (iii) providing Company with reasonable assistance, information and authority required for the defense and settlement of the claim. This section states Company’s entire liability (and shall be Your sole and exclusive remedy) with respect to indemnification to You.
10.2. Your Indemnification. You agree to indemnify, defend, and hold harmless Company and its Affiliates, and their respective directors, managers, employees, and agents from and against any claims arising out of or due to: (i) Your Data; (ii) Your (or Your Users) breach of this Agreement; (iii) Your (or Your Users) use of the SaaS IP, Services, Software, or Documentation, including without limitation any use in violation of third party rights, including any intellectual property or privacy rights, or any applicable laws; (iv) Your (or Your Users) misuse of the SaaS IP, Services, Software, or Documentation; or (v) Your (or Your Users) negligence or willful misconduct.
11. Limitation of Liability. To the maximum extent permitted by applicable law, (i) in no event will Company and its Affiliates, and their respective directors, managers, employees, or agents have any liability, contingent or otherwise, for any indirect, special, incidental, consequential, punitive, statutory or exemplary damages arising out of or relating to this Agreement, the SaaS IP, Services, Software, Documentation, or any other products or Services provided hereunder, including, but not limited to lost profits, lost or corrupted data, loss of goodwill, work stoppage, equipment failure or malfunction, property damage or any other damages or losses, even if a Party has been advised of the possibility thereof, and regardless of the legal or equitable theory (contract, tort, statute, indemnity or otherwise) upon which any such liability is based; and (ii) the aggregate liability of Company and its Affiliates, and their respective directors, managers, employees, and agents, and the sole remedy available to You arising out of or relating to this Agreement, the SaaS IP, Services, Software, Documentation or any other products or Services provided hereunder shall be limited to Termination of this Agreement and damages not to exceed the sum of one thousand dollars ($1,000.00).
12. Third-Party Programs. You may receive access to third-Party programs through the Services or Software, or third-Party programs may be bundled with the Services or Software. These third-Party Software programs are governed by their own license Terms, which may include open source or free Software licenses, and those Terms will prevail over this Agreement as to Your use of the third-Party programs. Nothing in this Agreement limits Your or Your Users rights under, or grants You or Your User rights that supersede, the Terms of any such third-Party program.
13. Support. If applicable to You, Company shall, during the Term, provide You with Support. You agree to: (i) promptly contact Company with all problems with the SaaS IP, Services or Software; and (ii) cooperate with and provide Company with all relevant information and implement any corrective procedures that Company requires to provide Support. Company will have no obligation to provide Support for problems caused by or arising out of the following: (i) Your or Users’ configuration changes to the SaaS IP, Software or Services; (ii) use of the SaaS IP, Software or Services not in accordance with this Agreement or Documentation; or (iii) third-Party products that are not authorized in the Documentation or, for authorized third-Party products in the Documentation, problems arising solely from such third-Party products.
14. General.
14.1. Notices. All notices must be in writing and shall be sent via email to support@roofingredline.com (with evidence of effective transmission).
14.2. Entire Agreement. This Agreement constitutes the entire Agreement between the Parties relating to the SaaS IP, Services, Software, and Documentation provided hereunder and supersedes all prior or contemporaneous communications, Agreements and understandings, written or oral, with respect to the subject matter hereof. If other Company Terms or conditions conflict with this Agreement, this Agreement shall prevail and control with respect to the SaaS IP, Services, Software, and Documentation provided hereunder. In addition, any and all additional or conflicting Terms provided by You, whether in a purchase order or otherwise, shall be void and shall have no effect.
14.3. Export Control Laws. The SaaS IP, Services, Software, and Documentation delivered to You under this Agreement are subject to export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was accessed, used, or obtained, if outside those jurisdictions. You shall abide by all applicable export control laws, rules, and regulations applicable to the SaaS IP, Services, Software, and Documentation. You agree that You are not located in or are not under the control of or a resident of any country, person, or entity prohibited to receive the SaaS IP, Services, Software, or Documentation due to export restrictions and that You will not export, re-export, transfer, or permit the use of the SaaS IP, Services, Software, or Documentation, in whole or in part, to or in any of such countries or to any of such persons or entities.
14.4. Modifications. Unless as otherwise set forth herein, this Agreement shall not be amended or modified by You except in writing signed by authorized representatives of each Party.
14.5. Severability. If any provision of this Agreement is held to be unenforceable, illegal, or void, that shall not affect the enforceability of the remaining provisions. The Parties further agree that the unenforceable provision(s) shall be deemed replaced by a provision(s) that is binding and enforceable and that differs as little as possible from the unenforceable provision(s), with considerations of the object and purpose of this Agreement.
14.6. Waiver. The delay or failure of either Party to exercise any right provided in this Agreement shall not be deemed a waiver of that right.
14.7. Force Majeure. Company will not be liable for any delay or failure to perform obligations under this Agreement due to any cause beyond its reasonable control, including but not limited to, acts of god; labor disputes; industrial disturbances; systematic electrical, telecommunications or other utility failures; earthquakes, storms, or other elements of nature; blockages; embargoes; riots; acts or orders of government; acts of terrorism; pandemics and war.
14.8. Construction. Paragraph headings are for convenience and shall have no effect on interpretation.
14.9. Governing Law. This Agreement shall be governed by the laws of the state of California and of the United States, without regard to any conflict of law provisions, except that the United Nations Convention on the International Sale of Goods and the provisions of the Uniform Computer Information Transactions Act shall not apply to this Agreement. You hereby consent to jurisdiction of the state and federal courts of California. If this Agreement is translated into a language other than English and there are conflicts between the translations of this Agreement, You agree that the English version of this Agreement shall prevail and control.
14.10. Third Party Rights. Other than as expressly provided herein, this Agreement does not create any rights for any person who is not a party to it, and no person not a party to this Agreement may enforce any of its terms or rely on an exclusion or limitation contained in it.
14.11. U. S. Government Use. Company’s SaaS IP, Services, Software and Documentation were developed exclusively at private expense and are a commercial item as defined in federal acquisition regulation (FAR) 2.101, and any supplement is provided with no greater than restricted rights. Such SaaS IP, Services, Software, Documentation, and related items consist of commercial computer Software, commercial computer Software Documentation, and commercial technical data as defined in the applicable acquisition regulations, including far 2.101 and far part 12. Use, duplication, release, modification, transfer, or disclosure (“use”) of the SaaS IP, Services, Software, and Documentation are restricted by this Agreement and in accordance with defense federal acquisition regulation supplement (DFARS) section 227.7202 and FAR section 12.212, and the SaaS IP, Services, Software, and Documentation are licensed (if applicable) (i) only as commercial items; and (ii) with only the rights granted to commercial end Users pursuant to this Agreement. Such use is further restricted by far 52.227-14, 252.227-7015, or similar acquisition regulations, as applicable and amended. Except as described herein, all other use is prohibited. This section is in lieu of, and supersedes, any other FAR, DFARS, or other clause addressing government rights under this Agreement or any other contract under which the SaaS IP, Services, Software, or Documentation is acquired or licensed.
14.12. 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.
15. Product Addenda.
15.1. Backup Services disclaimer. In addition to the other Terms and conditions herein, You expressly acknowledge and agree that Your Data may not be available or restorable if (1) You utilize the SaaS IP, Services or Software in excess of the amount You ordered; (2) a copy of Your Data was not completed; (3) You attempt to back up Devices, files, folders, or drives not supported by the SaaS IP, Services or Software as set forth in the Documentation; (4) You deselect or delete a device, file, folder, or drive from Your Company account, from Your device, or from being backed up by the SaaS IP, Services or Software; (5) You modify Your operating system in a manner that breaks compatibility or inhibits the functionality of the SaaS IP, Services or Software; (6) Your computer is unable to access the internet or Company infrastructure; (7) You fail to comply with this Agreement or Documentation; (8) You Terminate or fail to renew Your subscription to the SaaS IP, Services or Software; or (9) outages or availability of Your third-Party data Services or integrations.
Appendix 1: Definitions
Affiliates means an entity controlled by, under common control with, or controlling such Party, where control is denoted by having fifty percent (50%) or more of the voting power (or equivalent) of the applicable entity. Subject to the Terms and conditions of this Agreement, Your Affiliates may access and use the SaaS IP, Services and Software as granted hereunder.
Agreement means the Software-as-a-service Agreement, any applicable Product Addendum, the Data Processing Addendum, and Order Form.
Data Processing Addendum(s) means the Terms of the Data Processing Addendum, which are incorporated herein by reference.
Devices means (whether physical or virtual) a server, system, workstation, computer, mobile device, device used to access Company’s websites, or end point upon which or through which the Services are used and/or on which the Software is installed.
Documentation means the official User Documentation prepared and provided by Company to You on the use of the SaaS IP, Services or Software (as updated from time to time). For the avoidance of doubt, any online community site, unofficial Documentation, videos, white papers, or related media, or feedback do not constitute Documentation.
Intellectual Property Rights means all patent, copyright, trade secret, moral rights, mask work rights, and other Intellectual Property Rights.
Order Form means the Company order page, product information dashboard, or other Company ordering document that specifies Your purchase of the Services, pricing, and other related information.
Personal Data means any information that can be used to identify an individual as that Term is defined under regulation (eu) 2016/679 (general data protection regulation or gdpr).
Product Addendum(s) means additional Terms and conditions set forth in section 15 that relate to the applicable SaaS IP, Services, Software, or Documentation.
SaaS IP means any and all Intellectual Property Rights provided to You and/or any applicable Users in connection with the Services, Software or Documentation.
Software means the object code versions of any downloadable Software provided by Company solely for the purpose of accessing the Services, including but not limited to an agent, together with the updates, new releases or versions, modifications or enhancements, owned and provided by Company to You pursuant to this Agreement.
Support means the standard maintenance or support provided by Company or its designated agents relating to the Services.
User means an individual with an active account to use the SaaS IP, Services, Software, and Documentation. User(s) may only include Your employees, consultants, and contractors.
Your Data or Data means data, files, or information, including data, files, or information that include Personal Data, accessed, used, communicated, stored, or submitted by You or Your Users related to Your or Your Users use of the SaaS IP, Services or Software.
Fee Schedule
Payment from Subscriber to Company for Services shall be made as follows:
1. Payment will be processed through an online payment system with a link provided by Company. Payments will start on the effective date or the first day after any applicable trial period.