Software Service Agreement
Section 1 - Object of the Agreement: Licensed Software
The object of this Agreement is the making available of the software specified in Licensee’s order to which this Agreement refers (hereinafter referred to as “Order”) for Licensee’s use through an internet connection. Such software together with any copies, revisions, modifications, updates, upgrades or enhancements thereto, as may be made available from time to time by Comindware to Licensee under this Agreement, shall hereinafter be referred to as “Licensed Software”. Together with granting access to Licensed Software Comindware intends to make available to Licensee certain virtual storage space for Licensee to store data (hereinafter referred to as “Licensee Content”) in connection with Licensee’s use of the Licensed Software (hereinafter referred to as “Storage Space”). The making available of Licensed Software and of Storage Space in accordance with this Agreement shall hereinafter be referred to as “Service(s)”.
Section 2 - Making Available of Licensed Software
(1) Subject to an average of 99.0 % network availability during one (1) calendar year as defined in sub-section (2) below (hereinafter referred to as “Annual Uptime Percentage”), Comindware shall make available to Licensee the Licensed Software on a server operated by Comindware or a third party authorized by Comindware to host the Licensed Software (hereinafter referred to as “Server”). Comindware may at any time amend, modify, update or upgrade the Licensed Software, provided the implementation of such new version is reasonable and takes due account of Licensee’s interests.
(2) The Annual Uptime Percentage is calculated by subtracting from 100% the percentage of 5 minute periods during one calendar year in which Licensee’s running instances have no external connectivity and Licensee is unable to launch replacement instances. If in a given calendar year Licensee has been using Licensed Software for less than 365 days, the Annual Uptime Percentage shall be calculated pro rata temporis. Annual Uptime Percentage measurements exclude downtime resulting from one of the following events:
§ Scheduled Maintenance as set forth in Section 6 (1) below
§ A suspension described in Section 8 below
§ Internet access or related problems beyond the demarcation point of the Server hosting provider
§ A termination of Licensee’s right to use Licensed Software
§ Modifications of the Licensed Software made by Licensee or on Licensee’s behalf if such downtime would not have arisen but for such modifications or
§ Combination or use of Licensed Software with other products if such downtime would not have arisen but for such combination or use.
(3) Comindware does not owe to Licensee the installation or maintenance of an internet connection from Licensee’s computer to the exchange node operated and designated by Comindware or its contractors. Subject to reasonable prior notice to Licensee, Comindware or its contractors may change such exchange node at any time.
Section 3 - License Terms; Subscriptions
(1) Subject to the terms and conditions of this Agreement and the Comindware Terms of Services and End User License Agreement (hereinafter referred to as “ EULA”), Comindware hereby grants to Licensee a non-exclusive, non transferable license to use the Licensed Software on the Server designated by Comindware (hereinafter referred to as “License”). Notwithstanding the above, Licensee shall accept the EULA during theregistration process prior to utilizing the Licensed Software. A copy of the EULA is available at http://www.comindware.com/support/resources/ . In the event of a conflict between the provisions of this Agreement and the EULA, the terms and conditions of this Agreement shall control.
(2) If not terminated earlier in accordance with this Agreement, the duration of the License shall begin on the date the Licensed Software is activated, and shall continue for the period of time set forth in the Order or until the end of any subsequent renewal period, as applicable (hereinafter referred to as “Active Subscription Period(s)”). Comindware will take reasonable effort to notify Licensee of the upcoming subscription expiration butit is recommended that Licensee either ensures regular manual subscription renewals or sets up an automatic renewal sequence through Licensee’s account at www.comindware.com.
(3) Comindware employs a model according to which all product subscriptions on a single customer account must share a common expiration date. This is made through aligning the end dates of all the subscriptions at the time of a license purchase. When Licensee purchases new product licenses in addition to the existing ones, Comindware will re-calculate the shopping cart in such a way that the existing subscriptions get the corresponding alignment increment payments. The mechanism is described in more detail in Comindware’s knowledge base at: http://kb.comindware.com
Section 4 - Web Hosting; Data Retention
(1) During the Active Subscription Period, Comindware shall, subject to the Annual Uptime Percentage, make available Storage Space, the size of which shall be specified by Comindware in its reasonable discretion. Specification of Storage Space is available in this article.
(2) Licensee hereby grants to Comindware and its third party providers a non-exclusive, non transferable license to reproduce Licensee Content, to the extent that such reproduction is necessary for Comindware to fulfill its obligations under this Agreement. Such license may include the reproduction of data in a reserve data processing centre.
(3) Throughout the duration of the Active Subscription Period Licensee Content will be made available to authorized users of the Services according to the permission settings specified by Licensee.
(4) After Licensee’s Active Product Subscription runs out and before Licensee activates a new subscription to the service Comindware will provide a grace period of thirty (30) days during which Licensee Content is retained on a Server. During that period the Licensee Data can be accessed in read-only mode and downloaded only by the administrator of Licensee’s account within the product. If Licensee does not activate a new subscription within the grace period, the Licensee Data will become inaccessible and will not be retained for further use even if Licensee activates a new subscription thereafter.
(5) Data entered into the system during the trial period of any Service is retained for 14 days after the trial period runs out. During that period Licensee Data generated during the trial period cannot be accessed and Licensee won’t have access to the product interface. However if Licensee activates a subscription to the product during the trial period or during 14 days thereafter, all Licensee Data entered into the Storage Space will be retained for further use.
Section 5 - Access to Server; Security Measures; Collection of Data
(1) In order to start using the Services, Licensee must create a Comindware account at https://www.comindware.com/. The account stores the data provided by Licensee when creating or editing an account, and when purchasing, registering and activating products to it. This data is available to Licensee after logging into Licensee’s account and it will also be used by Comindware personnel to identify Licensee as a Comindware customer and ensure fulfillment of this Agreement and the EULA by Comindware.
(2) To allow Licensee access to the Server for the purpose of using the Services in accordance with this Agreement, Comindware shall provide to Licensee an access authorization which may consist of a user name and password or any other authorization tool as reasonably requested by Comindware.
(3) When you use the Service, you agree that we and our third party service providers may copy and store your data as part of the Service. You understand that electing to access your data from a third party computer may cause the contents of the data to become accessible to individuals other than you and that you accept this risk. You further acknowledge that depending upon the Service accessing your data from any Internet enabled computer many not be possible. In addition, any Licensee Content that you transmit or store through the Service may be transferred to a Comindware group in the United States or other countries that may have less data protection laws than the region in which you are situated (including outside the European Economic Area).
Section 6 - Scheduled Maintenance
(1) Regularly scheduled maintenance time shall encompass time which is regularly and reasonably required to maintain the due operation of the Server (hereinafter referred to as “Regularly Scheduled Maintenance”). Regularly Scheduled Maintenance shall be communicated by Comindware to Licensee at least two full business days in advance and shall be scheduled to occur at night or on the weekend. Such notice may be provided at Licensee’s product access page. Comindware hereby provides notice that every Saturday 3:00am ‐ 3:20am Eastern Standard Time (GMT-0500) is reserved for routine scheduled maintenance for use as needed.
(2) Comindware may also take the Service down for unscheduled maintenance and in that event will undertake reasonable efforts to notify Licensee in advance. Such unscheduled maintenance will be counted against the Annual Uptime Percentage.
Section 7 - Acceptable Use; Security; Back Up
(1) Licensee shall not use the Services (i) to offer, for sale or otherwise, or to sell, any illegal or unlawful items or service which would be illegal or unlawful to sell in the jurisdiction in which it is sold or offered, (ii) to provision any content into the Storage Space that contains or constitutes illegal or unlawful content or promotes hate or incitements to violence, or (iii) to perform any act which, directly or indirectly, causes to be transmitted to, uploaded by or downloaded by, the Storage Space or any end user any “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other like form of solicitation. If Licensee becomes aware of any violation of this Section 7 (1), Licensee shall immediately notify Comindware and provide Comindware with assistance, as reasonably requested, to stop or remedy the violation.
(2) Licensee shall maintain, and shall procure that any of its personnel accessing the Server maintain, an adequate level of security measures in order to prevent unauthorized access to the Licensed Software and Licensee Content. If Licensee obtains attention of an unauthorized access to the Licensed Software or Licensee Content, Licensee shall promptly notify Comindware and provide Comindware with assistance, as reasonably requested, to stop or remedy such access. In the event Licensee cannot satisfactorily resolve any issue of unauthorized access, Comindware may, in conjunction with any other remedies it may have under this Agreement or under statutory laws, suspend Licensee’s access to the Licensed Software until the issue is resolved.
(3) Licensee shall be responsible for maintaining appropriate security, protection and backup of Licensee Content, which may include routine archiving and the use of encryption technology to protect such content from unauthorized access.
(4) Comindware assumes no responsibility for the deletion of Licensee Content, loss of data or the failure to store Licensee Content. Comindware will not access your files unless i) it reasonably believes that it must do so to troubleshoot problems with the Service or ii) it reasonably believes it must do so in order to comply with any law, subpoena, warrant, order, or regulation. Comindware may also provide access to your data to government authorities if Comindware suspects or believes that the data contains prohibited data or that data is being used for illegal purposes. You acknowledge that Comindware, its third party service providers or Comindware affiliates may use servers and other equipment to provide the Service that are located in the United States or in other countries where litigants, law enforcement, courts, and other agencies of the government may have the right to access data stored within their jurisdictions upon terms and conditions provided by local law, and that as a result, they may gain access to your data as provided by applicable local law. Comindware has no obligation to monitor the use of the Service and/or Licensee Content transmitted or stored through the Service. To the maximum extent possible under applicable law and notwithstanding the provisions of this Agreement, Comindware reserves the right at all times to monitor, review, retain and/or disclose any Licensee Content or other information as necessary to satisfy any applicable law, regulation, legal process or governmental request, or to investigate any suspected breach of these Terms and Conditions. You agree to indemnify, defend, and hold harmless Comindware, its officers, directors, employees and its suppliers from any and all loss, cost, liability, and expense arising from or related to your Licensee Content, your use of the Service, or your violation of these terms. You agree to reimburse Comindware for any costs or fees related to its enforcement of this Agreement, including without limitation the expert fees and attorney fees regularly charged by the experts and legal counsel chosen by Comindware.
Section 8 - Temporary Suspension
(1) Notwithstanding Comindware’s right of temporary suspension under other provisions of this Agreement and under the applicable law, Licensee’s right to access or use any portion or all of the Services may be suspended immediately upon notice to Licensee if:
(a) Licensee’s use of or registration for the Services (i) poses a security risk to the Services or any third party, (ii) may adversely impact the Services or the systems or content of any other customer of Comindware or third party provider, or (iii) may subject Comindware or any third party to liability;
(b) Licensee is in material breach of this Agreement or the EULA, which would entitle Comindware to terminate such agreement; or
(c) Licensee has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
In addition, the Service is designed to serve the needs of particular types of users, i.e. individual consumers or business accounts. If you have purchased a Service that is inappropriate for your actual usage, Comindware may require you to switch to an appropriate Service. Comindware may, in our sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of the Service and to prevent abuses. As part of these practices, we reserve the right to monitor our system to identify excessive consumption of network resources and to take such technical and other remedies as we deem appropriate. Your consumption of the Service may be deemed excessive if, within any month, your usage greatly exceeds the average level of monthly usage of Comindware’ customers, generally. In the event you are deemed to have violated this policy, we reserve the right to offer an alternative pricing plan or Service that will permit you to continue to use the Service.
(3) Comindware’s right to suspend Licensee’s right to access or use the Services is in addition to Comindware’s right to terminate this Agreement pursuant to Section 12.
Section 9 - Data Protection
In the event Licensee processes personal data when using Licensed Software or the virtual storage space provided by Comindware under this Agreement, Licensee shall comply with the provisions of all applicable data protection laws. The Parties agree that Licensee is the controller of such personal data. Comindware shall also comply with all applicable data protection laws in connection with its obligations hereunder.
Section 10 - Confidentiality
The Service is proprietary to Comindware and contains valuable trade secrets of Comindware and its licensors. You will exercise no less than reasonable care to protect the Service and any software provided in connection therewith from unauthorized disclosure.
Section 11 - Disclaimer; Limitation of Liability
(1) THE SERVICE AND ANY THIRD PARTY SOFTWARE AND SERVICES ARE PROVIDED ""AS IS,"" WITH NO WARRANTIES WHATSOEVER. COMINDWARE AND SUCH THIRD PARTIES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SERVICE AND SUCH THIRD PARTY SOFTWARE OR SERVICES. COMINDWARE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICE WILL MEET YOUR REQUIREMENTS THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. COMINDWARE DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY OR OTHERWISE. COMINDWARE DOES NOT REPRESENT OR WARRANT THAT USERS WILL BE ABLE TO ACCESS OR USE THE SERVICES AT TIMES OR LOCATIONS OF THEIR CHOOSING, OR THAT COMINDWARE WILL HAVE ADEQUATE CAPACITY FOR ANY USER'S REQUIREMENTS. NO ORAL OR WRITTEN STATEMENT, INFORMATION OR ADVICE GIVEN BY COMINDWARE, OR ITS RESPECTIVE EMPLOYEES, DISTRIBUTORS, DEALERS, OR AGENTS SHALL CREATE ANY WARRANTIES. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE, AND ALL THIRD PARTY SOFTWARE OR SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SERVICE, IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE AND SUCH THIRD PARTY SOFTWARE AND SERVICES. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
UNDER NO CIRCUMSTANCES SHALL COMINDWARE, OR ITS SUPPLIERS, RESELLERS, PARTNERS OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SERVICE, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF ANY SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). WITHOUT LIMITING THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF COMINDWARE, AND ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT, IF ANY, PAID BY YOU TO COMINDWARE FOR THE SERVICE. IF THE SERVICE IS PROVIDED WITHOUT CHARGE, THEN COMINDWARE AND ITS SUPPLIERS SHALL HAVE NO LIABILITY TO YOU WHATSOEVER IN EXCESS OF $100.00. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE OR SERVICE, FROM INABILITY TO USE THE SERVICE, TO USE OR RETRIEVE ANY BACKUP DATA, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR DIRECT DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU. THE SERVICE IS NOT INTENDED FOR USE IN CONNECTION WITH ANY NUCLEAR, AVIATION, MASS TRANSIT, OR MEDICAL APPLICATION OR ANY OTHER INHERENTLY DANGEROUS APPLICATION THAT COULD RESULT IN DEATH, PERSONAL INJURY, CATASTROPHIC DAMAGE, OR MASS DESTRUCTION, AND YOU AGREES THAT COMINDWARE WILL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE SERVICE. COMINDWARE SHALL NOT BE LIABLE FOR DAMAGES TO YOUR HARDWARE AND SOFTWARE, LOSS, DESTRUCTION OR CORRUPTION OF YOUR DATA, LOSS OF REVENUE OF PROFITS AS A RESULT OF YOUR USE OF THE SERVICE.
Section 12 - Termination
(1) This Agreement shall become effective upon acceptance of Licensee’s Order (“Effective Date”) and shall remain in effect until terminated by either Party in accordance with Section 12 (2).
(2) Either Party may terminate this Agreement for any reason at the end of each Active Subscription Period by providing the other Party 14 days prior written notice.
(3) Upon termination of this Agreement all Services acquired by Licensee under this Agreement shall automatically terminate on the next available expiry date and not renew. The terms and conditions of this Agreement shall continue to apply to such Services until their respective expiry date.
(4) Nothing in this Agreement shall affect each Party’s right to immediately terminate this Agreement for the other Party’s material breach.
(5) Sections 10, 11, 12 (3) and (5), and 13 shall survive the termination of this Agreement.
Section 13 - Final Provisions
(1) Neither this Agreement nor any rights and/or obligations thereunder may be assigned by Licensee without Comindware’s prior written consent, and any such assignment shall be void. Comindware may freely assign this Agreement and any of its rights and/or obligations thereunder upon written notice to Licensee, to any of its affiliates or to an entity with or into which it is merged or consolidated or to which it sells all or substantially all its capital stock or assets associated with the operations related to this Agreement.
(2) This Agreement shall be governed by the laws of the State of California with the exception of its conflict of laws rules. The rights and obligations of the Parties under this Agreement shall not be governed by the UN Convention on contracts for the International Sale of Goods.
(3) If any provision of this Agreement is or will be found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of the agreement will remain in full force.
(4) This Agreement, and any exhibits thereof, form the complete agreement between the Parties with respect to the subject matter hereof, superseding and replacing any and all prior agreements, communications, and understandings (both written and oral) regarding such subject matter. This Agreement may only be modified, or any rights under it waived, by a written document executed by both Parties.
(5) You agree to comply with all United States export laws and regulations, and you shall not and shall not allow any third-party to remove or export from the United States or allow the export or re-export of any part of the Service or any direct product thereof: (i) into (or to a national or resident of) any embargoed or terrorist-supporting country; (ii) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals; or (iii) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval. You warrant that you are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list. The Service is further restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology, or for terrorist activity, without the prior permission of the United States government. You assume sole responsibility for any required export approval and/or licenses and all related costs and for the violation of any United States export law or regulation.