This Service Agreement (“Agreement”) is made and effective upon accepting the terms within the purchase summary by and between Record360, Inc. (“R360”) and company accepting the purchase summary (“Customer”).
TERMS AND CONDITIONS
1. Subject to the terms and conditions contained herein, R360 agrees to provide to Customer, during the term of this Agreement the following Services:
SERVICES TO BE PROVIDED:
Access to the Record360 solution.
2. TERM: This Service Agreement is in effect for twelve (12) months from the effective date and shall renew automatically unless terminated upon thirty days’ notice by either party prior to the end of the Term.
3. R360 agrees to provide its proprietary software (“The Software”) solely for Customer’s own business purposes. Subject to the terms of this Agreement R360 hereby grants a non-exclusive, non-transferable license to use the R360 proprietary Software as installed by R360.
3.1 Customer agrees it shall not or permit others to modify, customize, reverse engineer the Software or any part thereof.
3.2 Customer agrees that it is acquiring the right to use the R360 Software during the term of this Agreement and that R360 shall retain all intellectual property rights of ownership of the Software, including but not limited to patent, trademark and copyright rights (including modifications). In no event shall Customer acquire any ownership rights to the Software. Customer further agrees that it shall copy or use the Software except as expressly set forth in this agreement. Any rights not expressly granted to the Customer shall be retained by R360.
4. Customer warrants and agrees that in utilizing the data storage facilities of R360 it shall not place any data that 1. Infringes the intellectual property rights of any third party. 2. Violates any State, Federal or local law, ordinance or regulation. 3. Contains any computer virus, Trojan horse, worms or any program that can damage, destroy, expropriate or otherwise interfere with any R360 system or third party data or information. Customer further agrees that it shall defend, indemnify and hold R360 harmless against any third party claim, suit or proceeding arising out of the provisions of this section.
5. Restrictions on use of licensed Software.
Customer shall not modify, copy, duplicate, reproduce, license or sublicense the Software, or transfer or convey the Software or any right in the Software to anyone else without the prior written consent of Developer; provided that Licensee may make one copy of the Software.
Payment of the license fee shall be made upon delivery of the Software. R360 may charge a late fee at a rate equal to the lesser of 1.5% per month or the maximum rate allowed by law.
To the extent any sales or use taxes are imposed by a government entity, Customer shall be responsible for such taxes.
8. Software Maintenance.
Standard maintenance: During the License, R360 shall provide to Customer any new, corrected or enhanced version of the Software as created by R360. Such enhancement shall include all modifications to the Software which increase the speed, efficiency or ease of use of the Software, but shall not include any substantially new or rewritten version of the Software.
Custom upgrade or maintenance: Customer, may request an upgrade or modification to R360 software tailored to the needs of the Customer. Any such upgrades or maintenance shall require an additional fee dependent upon the scope of additional services to be provided.
9. LIMITATION OF LIABILITY.
9.1 R360 shall not be responsible for, and shall not pay, any amount of incidental, consequential or other indirect damages, whether based on lost revenue or otherwise, regardless of whether R360 was advised of the possibility of such losses in advance. In no event shall Developer’s liability hereunder exceed the amount of fees paid by Customer, regardless of whether Customer’s claim is based on contract, tort, strict liability, product liability or otherwise.
9.2 If Customer provides reasonable notice of an alleged defect in the provided Software, R360 shall use reasonable commercial efforts to correct any defects in the software provided to Customer or replace the Software as needed. If R360 is unable to correct any defects in its software after making reasonable commercial efforts or replacing said Software, Customer may terminate the Agreement and receive a pro rated refund of amounts paid following notice of alleged defect.
9.3 Except for the provisions set forth in the above paragraph 9.2, R360 makes no express or implied warranties regarding its services or software including but not limited to warranties of merchantability and fitness for a particular purpose. In no event shall R360 be liable for any consequential, indirect, exemplary, special or incidental damages, including loss of data or lost profits arising from or relating to this agreement.
10. Warranty Disclaimer: User acknowledges and agrees that Record360 may in its sole discretion from time to time make additions to, deletions from, modifications to, or changes the nature of the Data. THE API AND THE DATA ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, RECORD360 AND ITS LICENSORS EACH DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE API AND THE DATA, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT. FURTHER, RECORD360 DISCLAIMS ANY WARRANTY THAT USERS OF THE API OR THE DATAWILL BE UNINTERRUPTED OR ERROR FREE.
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services.
11. Governing Law.
This Agreement shall be construed and enforced in accordance with the laws of the state of Washington.
12. No Assignment.
Neither this Agreement nor any interest in this Agreement may be assigned by Licensee without the prior express written approval of R360.
In the event a dispute shall arise between the parties to this agreement, it is hereby agreed that the dispute shall be referred to the American Arbitration Association for arbitration Seattle, Washington. The arbitrator’s decision shall be final and binding and judgment may be entered thereon. In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator’s award, or fails to comply with arbitrator’s award, the other party is entitled to its costs of suit including a reasonable attorney’s fee for having to compel arbitration or defend or enforce the award.
14. Final Agreement.
This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties. This Service Agreement constitutes the complete and exclusive understanding of the parties and supersedes all prior agreements, proposals, term sheets, and other representations or communications. If a conflict arises between this Service agreement and any other prior agreement made between the parties, the terms of this Service Agreement shall be controlling. This agreement may not be modified unless agreed to in writing by an authorized representative of each party.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.
IN WITNESS WHEREOF, Developer and Licensee have executed this Software License Agreement on the day and year of the acceptance of the terms within the purchase summary.
Your download, installation, and use of the Record360 Application (the “Record360 Application” or the “Application”) and/or and the Record360 website at https://www.record360.com (the “Website”) is subject to and expressly conditioned on the terms set forth below, which may be amended or modified from time to time by Record360, Inc. (“Record360”) in its sole discretion. Any such amendments or modifications shall become effective and legally binding upon you upon the posting of the same by Record360. If you do not agree with all of the terms of this agreement, you are not permitted to download the Record360 Application or use it or the Website in any manner. Please check this page regularly for updates.
The term “Record360 Application” includes the software, any updates or modifications to the Record360 Application, online and/or electronic documentation, associated media, printed materials, computer code, and other associated materials and components provided by Record360 in its sole discretion. You are solely responsible for any and all telecommunications or other connectivity charges incurred through your use of the Record360 Application and the Website.
Authorized User means a person or user account that is licensed to use the Product, regardless of whether that person is an employee, contractor, subcontractor, vendor, partner or customer of the Licensee. This agreement is between you and Record360, not Apple, Inc. (“Apple”). Record360 is solely responsible for the Record360 Application, the Website, and the content thereof.
Apple bears no responsibility for the investigation, defense, settlement or discharge of any such claims.
License / Permitted Use
Subject to the terms and conditions set forth in this agreement, Record360 grants you a personal, limited, non-transferable, non-exclusive, and revocable license to use the Record360 Application on any mobile or similar device that you own or control and as permitted by the Usage Rules set forth in the App Store Terms and Conditions (the “Usage Rules”). The Record360 Application is made available only for use by an Authorized User. Authorized User means a person or user account that is licensed to use the Product, regardless of whether that person is an employee, contractor, subcontractor, vendor, partner or customer of the Licensee. This license does not allow you to distribute or make the Record360 Application available over a network or otherwise in a manner it could be used by multiple devices at the same time. You may not copy, disassemble, decompile, attempt to derive the source code of, modify, reverse engineer, or create derivative works of the Record360 Application, including any updates, or any part thereof.
Except as expressly mandated by law, you may not, without our prior written permission: (i) post, transmit, copy, modify, create derivative works from, distribute, sell, or republish anything you obtain or download from the Website or Application; or (ii) engage in systematic retrieval of data or other content from the Website or Application.
Ownership / Copyrights and Trademarks
Except where otherwise indicated all title, ownership rights, and intellectual property rights in and to the Website and the Record360 Application are owned by Record360 and/or its licensors. The Website and the Record360 Application must not be used in any manner or for any purpose that is either unlawful or unauthorized by Record360.
The Record360 logo and other Record360 trademarks and service marks are owned by Record360 and/or its affiliates or licensors and are protected by international copyright and trademark laws. Except as provided herein, you shall not use any portion of the Website or the Record360 Application, or any other intellectual property of Record360, on any other application or Web site, in the source code of any other application or Web site, or in any other printed or electronic materials without the express written consent of Record360.
The license granted herein does not grant or confer any ownership right or title to the Record360 Application. All rights not expressly granted under this agreement are reserved by Record360.
Consent to Use of Data / Privacy
Record360 may collect and use information from the Website and the Application in order to better understand the Website and Application usage, improve the user experience, and facilitate the provision of updates, support, and other services to you. The following anonymous information is transmitted back to Record360 for the uses described above:
Some portions of the Website and Application are protected and require a user identification code (“User ID”) and password for access. Unauthorized access or use of such portions of the Website is prohibited. You agree that you will notify Record360 immediately if you believe that a third party has obtained your User ID or password, or if you believe that any unauthorized access or use may occur or has occurred. For your protection, if Record360 believes that any unauthorized access may occur or has occurred, Record360 may terminate such access without prior notice to you. You also agree that Record360 is permitted to act upon any instructions received using your User ID and password and to consider such instructions as authorized by you.
Services, Third Party Materials
The Website and the Record360 Application may contain links to or enable access to Record360’s and third party services and web sites (collectively and individually, “Services”). Your use of Services may require Internet access and that you accept additional terms of service. In order to use certain features of the Website and the Record360 Application, you may be required to have a registered account with Record360.
Certain Services may display, include or make available content, data, information, application, or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Services, you acknowledge that Record360 is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect of such Third Party Materials or websites. Record360 does not warrant or endorse and does not assume and will not assume and will not have any liability or responsibility to you or any other person for any third party Services, Third Party Materials or websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you.
Location data, if provided by any Services, is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Location data may not be accurate. Neither Record360, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data displayed by any Services.
You agree that any Services may contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that you will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and you shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Record360 is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that you may receive as a result of using any of the Services.
In addition, third party Services and Third Party Materials that may be accessed from, displayed on or linked to from the iPhone, iPad, or iPod touch are not available in all languages or in all countries. Record360 makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent you choose to access such Services or Materials, you do so at your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Record360, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Record360 be liable for the removal of or disabling of access to any such Services. Record360 may also impose limits on the use of or access to certain Services, in any case and without notice or liability.
Limited Warranty / Limited Liability
In no event shall Record360’s total liability to you for all damages exceed the cost of replacement or repair of the application.
Further, it is understood by the licensee that Record360 shall be under no obligation to repair or replace the allegedly defective product(s) unless the licensee or its representative provides complete details in writing within 10 days of discovery of each alleged defect and adequate time is allowed for repair or replacement.
User acknowledges and agrees that Record360 may in its sole discretion from time to time make additions to, deletions from, modifications to, or change the nature of the Data. THE API AND THE DATA ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. EXCEPT TO THE EXTENT REQUIRED BY APPLICABLE LAW, RECORD360 AND ITS LICENSORS EACH DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, REGARDING THE API AND THE DATA, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, RESULTS OF USE, RELIABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, INTERFERENCE WITH QUIET ENJOYMENT, AND NON-INFRINGEMENT. FURTHER, RECORD360 DISCLAIMS ANY WARRANTY THAT USERS OF THE API OR THE DATA WILL BE UNINTERRUPTED OR ERROR FREE.
You agree to indemnify, defend, and hold harmless Record360, its affiliates, officers, directors, employees, agents and contractors harmless from all damages, losses, and expenses (including attorneys’ fees and costs) arising directly or indirectly from your acts or omissions in using the Record360 Application pursuant to the terms and conditions set forth in this agreement.
Jurisdiction, Enforceability, and Termination
This agreement and your use of the Record360 Application are governed in all respects by the laws of the State of California, without giving effect to any principles of conflicts of laws that would result in the application of the laws of another jurisdiction. Any dispute concerning the Record360 Application or this agreement shall be subject to the exclusive venue of a court of competent jurisdiction in Los Angeles County, California.
In the event that a court of competent jurisdiction holds any provision of this agreement to be invalid or unenforceable, then such provision shall be severable from and shall not affect the validity or enforceability of the remaining provisions.
The terms of this agreement are effective until terminated by Record360. Record360 may terminate this agreement and/or the Record360 Application, or any part thereof, at any time without notice, including and without limiting the foregoing, if Record360 determines or believes, in its sole judgment, that you have breached any term or condition of this agreement. Upon termination, you shall cease all use of the Record360 Application, and destroy all copies, full or partial, of the Record360 Application.
This agreement states the entire agreement with regard to the items discussed above.
Effective Date: January 15, 2014
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