Legal
Your Data & Privacy is Our Responsibility
Our internal privacy processes and procedures are communicated transparently, so you can rest assured your data is handled with the utmost care.
What this policy covers
Your privacy is important to us, and so is being transparent about how we collect, use, and share information about you.
This Privacy Policy applies to any user or visitor of Wefivesoft (“Wefivesoft”, "" “we,” “us” or “our”) product and services
(“MarkersPro”, “Sites”, “Applications”, “Products”, or “Services”). We take your privacy seriously. This Privacy Policy informs you
of our policies and practices regarding the collection and use of your personal information, and it sets forth your privacy rights.
This policy is intended to help you understand:
Please read this policy carefully to understand our policies and practices regarding your information and how we will treat it. If you
do not agree with the provisions of this Privacy Policy, please do not use our Sites and Applications.
By accessing or using our Sites
and Applications, you agree to the terms of this Privacy Policy. Our Privacy Policy applies to all visitors and users (“you,” “customer”, “school” or “user”)
of our Sites and Applications.
What information we collect about you
Corporate and Product Sites
Site visitors are classified as visitors of our Wefivesoft corporate and product websites which are targeted at providing and collecting information about our company and product, for the purposes of marketing. These websites ordinarily are not required to be visited by users (E.g. teachers, parents and students) of our Products and Services as they can visit and consume our Applications through separate endpoints without ever needing to visit our Corporate and Marketing Sites.
Personal Information
We collect personal information from you that, directly or indirectly, identifies you such as your name, title, employer, address, telephone number, and email address (“personal information”). We collect such personal information when you (i.e., school administrator) request or subscribe to information related to our company, Products, and/or Services via forms.
Automated Information
As is true of most other web sites and applications, Wefivesoft Sites and Applications collect certain information automatically and stores it in log files. The information may include internet protocol (IP) addresses, the region or general location where your computer or device is accessing the internet, browser type, operating system and other usage information about the use of our Sites, including a history of the pages you view.
Cookies and Other Similar Technologies
“Cookies” include commonly used pieces of information in the form of small files that are placed on an individual’s device to enable the individual to more easily communicate and interact with websites. When you visit our Sites, we may send one or more cookies to your device. They enable us to store information about your device which helps us, amongst other things, to provide you with a good experience when you browse our Sites and enhance the level of services and functions provided. We also use third parties to serve advertisements for our Products and Services on other websites that may be of interest to you, based on information collected about your use of our Sites and other websites. To do so, these companies may place or recognize a unique cookie or similar on your browser.
Products and Services
Products and Services are classified as information collected from school, student, and parent users of our MarkersPro Applications (E.g. MarkersPro) and Services (E.g. Technical Support).
For purposes of this Privacy Policy, the school determines what information we collect through the Wefivesoft Products and Services and how such information is used, and we process the student and parent information according to the school’s instructions and the terms of our contract with your school. Wefivesoft is a data processor (“data processor”) with respect to student or parent personal information, and the school is the data controller (“data controller”). The school enters into an agreement with Wefivesoft to provide products and services to the school. The school acknowledges and agrees that Wefivesoft is a data processor with respect to personal information received from that school, student or parent in connection with Wefivesoft’ Products and Services.
If you are a parent or student (“you”, “parent”, “student” or “user”), please visit your school’s website to read more about your privacy rights.
Personal Information
We collect personal information from you that, directly or indirectly, identifies you such as your name, title, employer, address, telephone number, and email address (“personal information”). We collect such personal information when you (i.e., school administrator) establish a user account on our Sites and Applications.
Account Information
The account information we collect from you will depend on the product and services you choose. Such might include pupil records of students and parents of students enrolled in your school, such as directory information, email addresses, student IDs, account credentials, courses students are enrolled in, health information kept in student records.
Employee Information
We also collect employee account information including usernames, email addresses and titles to initially set up products and services for you.
Financial Information
Depending on your needs as a customer, we may also collect financial information of students and parents of students as you make available to us in order to provide services.
Automated Information
As is true of most other web sites and applications, Wefivesoft Sites and Applications collect certain information automatically and stores it in log files. The information may include internet protocol (IP) addresses, the region or general location where your computer or device is accessing the internet, browser type, operating system and other usage information about the use of our Sites and Applications, including a history of the pages you view.
Cookies and Other Similar Technologies
“Cookies” include commonly used pieces of information in the form of small files that are placed on an individual’s device to enable the individual to more easily communicate and interact with websites. When you visit our Sites, we may send one or more cookies to your device. They enable us to store information about your device which helps us, amongst other things, to provide you with a good experience when you browse our Sites and enhance the level of services and functions provided.
Our Sites do not support Do Not Track settings (“DNT”) at this time. DNT is a privacy preference you can set in your web browser to indicate that you do not want certain information about your website visits collected across websites when you have not interacted with that service on a page.
Student and Parent Personal Information Our Customer Collects.
Student and parent information relating to this Privacy Policy is provided for informational purposes and describes how parent and student personal information is used when Wefivesoft products and services are provided through our customer. All student and parent personal data remains the property of and is solely owned, and thereby controlled, by the school.
Wefivesoft products and services integrate with our customer’s systems. The specific information that is collected from the school depends upon the Wefivesoft product or service, but in general, this information includes but is not limited to student and parent personal information such as: name, age, email address, student ID, account credentials, academic and student records, certain health information kept in student records, courses a student is enrolled in when we initially set up the products, and additional records as requested by the school. Depending on the school’s request, we may also collect financial information of students and parents of students as is made available to us in order to provide services. Wefivesoft will receive regular updated information to keep account information accurate and up to date. Please carefully review your agreement with your school regarding your personal information.
You grant Wefivesoft a non-exclusive, royalty free license, to use equipment, software, your data or other material of yours solely for the purpose of providing, maintaining, and supporting you and other licensees with Wefivesoft products and services.
How we use the information we collect
Corporate and Product Sites
We may use your personal information to communicate with you regarding our products and services. We may use your personal information and data to:
- Contact you using information that you provided us regarding our products and services
- Resolve service issues; troubleshoot problems
- Respond to your interest, requests and inquiries about our product and services
- Send you Wefivesoft product marketing communications that we believe may be of interest to you.
- Provide you with system or administrative messages
Products and Services
We will not use your personal information for any purpose other than the purpose for which it was originally obtained without your prior consent. We use your personal information to communicate with you, and to provide support regarding our products and services. We may use your personal information and data to:
- Resolve service disputes; troubleshoot problems
- Provide you with system or administrative messages
How we store and secure the information we collect
Data Storage and Retention
Your personal information is stored by Wefivesoft on cloud-based service providers which Wefivesoft engages, located in the United States or a customer agreed upon data locality. We will retain and use your personal information for as long as your account is active, as needed to provide you services, or as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements.
For more information on where and how long your personal information is stored, and for more information on your rights of erasure and portability, please contact Wefivesoft’ data protection officer at support@Wefivesoft.com.
Data Security
The security of your personal information is important to us. To help protect privacy and personal information you transmit through use of our Sites and Applications, we maintain physical, technical and administrative safeguards in accordance with ISO 27001, FERPA, COPPA, and HIPAA standards where applicable. We take reasonable and appropriate measures to protect your personal information from loss, misuse and unauthorized access, disclosure, alteration and destruction by taking into due account the risks involved in the processing and the nature of the personal data. For example, we encrypt your credit card number when you provide such information to us for processing your orders.
We restrict access to your personal information to those employees and authorized consultants and contractors who need to know that information to provide benefits or services to you. In addition, we train our employees about the importance of confidentiality and maintaining the privacy and security of your information. However, because no security system can be 100% effective, we cannot completely guarantee the security of any information we store, process or transmit.
How to access and control your information
Right to Review and Rectify Your Personal Information
You may access your account at any time to correct, update, or delete inaccuracies by logging into your account through our Sites and Applications. If additional assistance is required to change or delete inaccuracies within your personal information or you would like to know what information about you was collected, please contact us at support@wefivesoft.com. We reserve the right to charge for copies of data requested.
Right to Remove or Withdraw Consent
You have the right to withdraw consent where such consent is required to share or use data, however, you will not be able to opt-out on via our Sites and Applications. You may request that we delete your personal information. If you receive communications from us and no longer wish to receive them, please follow the opt out or removal instructions in the email. To delete your account, you must contact us at support@wefivesoft.com if you are the Customer/School, or by contacting your School if you are a User, Parent or Student. Since your personal information is required for us to provide the services or to you, deleting it will also terminate your access to the services. We may be required by law, to retain it to exercise or defend legal claims, or contractual obligations with our customers to retain some information in connection with our obligation to provide the services. We may de-identify and anonymize some data for purposes of retaining it.
Data Portability
If you would like us to transmit your personal information to another company providing similar services and we are required to so by law, we will work with them to do so upon request and verification of such request with both the requestor and the company receiving the personal information.
Communication
We will provide you reasonable mechanisms to exercise your choice regarding receipt of information from Wefivesoft. When you receive an email from us, you may opt-out from receiving future emails from Wefivesoft by clicking on the unsubscribe link contained in the e-mail, by writing to us at the address provided in the email, or by contacting us at support@Wefivesoft.com.
How to transfer information we collect internationally
If you provide personal information to us directly, we will transmit your data, including all your personal information, to the United States by default in order to fulfill our contractual obligations to you unless an alternate customer data locality has been agreed upon.
Other important privacy information
Changes and notification
As our company changes from time to time, this Privacy Policy is expected to change as well. We reserve the right to amend the Privacy Policy, for any reason, without notice to you, other than the posting of the amended Privacy Policy. We may send you an email reminder of our notices and material changes, but you should check our Site/Apps frequently to see the current Privacy Policy is in effect and any changes that may have been made to it.
FERPA and COPPA
We do not knowingly collect or solicit personal information from anyone under the age of 13 unless that student’s school and/or teacher has agreed to obtain parental consent for that child to use our Sites and Applications and disclose personal information to us, in connection with the student’s learning environment. Our Sites and Applications conform to the Children's Online Privacy Protection Rule (COPPA) and the Family Educational Rights and Privacy Act (FERPA).
Software-as-a-Service Terms of Service
This Software-as-a-Service ("SaaS") Terms of Service Agreement (the “Agreement”) is entered into between WEFIVESOFT, LLC, a Delaware limited liability company with its principal place of business located at 3655 Research Road, Building B, Suite 113, Las Cruces, New Mexico 88005 (the “Company”) and the Customer ("you", "your"), who is a user or subscriber of the Company's software-as-a-service products, incorporated by reference herein. Your use of the Company's softare-as-a-service products ("the Products") is subject to all terms and policies posted on the Company's website legal page ("the Site", "www.wefivesoft.com/legal") (including the Privacy Policy, Terms of Service, collectively referred to as “Terms of Service”). The Terms of Service may be revised from time to time through an updated posting, and therefore you should check the Terms of Service periodically. Revisions are effective upon posting and your continued use of the Company's Products following the posting of revisions to the Terms of Use will indicate your acceptance of such revisions.
Definitions
- “Authorized Users” means the number of identifiable unique persons consisting of Customer’s personnel and outside consultants who are authorized to access and use the Products and Services, as specified in the applicable Order Form. Authorized Users may include Customer’s third-party consultants, outsourcers, contractors, and other service providers.
- “Confidential Information” means any and all information disclosed by a party (“Discloser”) to the other party (“Recipient”) in confidence that is labeled or identified as “confidential” or “proprietary”; and if disclosed orally or otherwise in tangible form, is confirmed as such in writing within 30 days of such disclosure; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary under the circumstances. Confidential Information includes, without limitation, business and financial information, software, source code and specifications, trade secrets, technical information, business forecasts and strategies, personnel information, and proprietary information of third parties.
- “Customer Data” means the Customer’s information or other data processed, stored, or transmitted by, in, or through the Products and Services, including, but not limited to, personal information relating to the Customer’s personnel, data uploaded to SaaS, including but not limited to PII, output from Customer’s user of SaaS, end users, and prospective end users.
- “Order Form” means a written form, incorporating the terms of this Agreement, by which a Customer selects and commences Services, either as part of a Pilot Agreement or other Software As A Service Agreement between the parties.
- “Participants” means the Customer’s Participants who use the Products and Services.
- “PII” means personal information that is, without limitation, names, phone numbers, mailing addresses, credit card information, social security numbers, and/or account or financial information of Customer that is hosted in the SaaS environment.
- “Proprietary Rights” means any and all rights, whether registered or unregistered, in and with respect to patents, copyrights, confidential information, know-how, trade secrets, moral rights, contract or licensing rights, confidential and proprietary information protected under contract or otherwise under law, trade names, domain names, trade dress, logos, animated characters, trademarks, service marks, and other similar rights or interests in intellectual or industrial property.
- “Products and Services” means MarkersPro applications (e.g., MarkersPro) and related support services (e.g., technical support), and any updates or upgrades to such applications or services that may be generally released by the Company to all customers from time to time. These Products and Services may change by mutual consent of the Parties, as recorded through the Order Form.
- “SaaS” means the provision of software Product(s) by the Company to Customer as a service hosted by or on behalf of the Company under this Agreement, or under a Pilot Agreement or other Software As A Service Agreement between the parties, which may include, but is not limited to, hosting, management and maintenance of the applicable software Product(s) made available in the hosted environment.
- “Technology” means the computer hardware, software, and other tangible equipment and intangible computer code necessary to deploy and serve the Products and Services.
Subscription Fees
- Payment for Products and Services. The Customer shall pay to the Company the periodic subscription fees for the Products and Services and technical support services provided in its Pilot Agreement or Software As A Service Agreement in accordance with the applicable Order Form.
- Subscription Cancellation. If the Company is unable to charge a Customer using the form of payment indicated on the Order Form, the Company may terminate this Agreement and access to the Products and Services within 30 days or as otherwise specified in a Customer’s particular written agreement.
- No Refunds. If access to the Products and Services are cancelled or terminated, the Customer is not entitled to any proration or refund of any unused subscriptions.
Taxes
All fees exclude tax and duties. If the Company is required to pay or collect any federal, state, local, value added, tax, or duty on any fees charged under this Agreement, or any other similar taxes or duties levied by any governmental authority, excluding taxes levied on the Company’s net income, such taxes and/or duties will be billed to and paid by the Customer immediately upon receipt of the Company’s invoice and supporting documentation for the taxes or duties charged.
Informed Consent
It is the sole responsibility of the Customer to obtain the informed consent of the Participants to whom you grant access to the Products and Services. In addition, if the Participant is under the age of 18, it is the responsibility of the Customer to determine whether the law requires it to obtain the consent of the parent or guardian before granting the minor Participant access to the Products and Services.
Customer Data
Customer Data shall be managed pursuant to the Company’s Privacy Policy, which Customer shall be bound by and which is incorporated by reference into the terms of the Pilot Agreement, Software as a Service Agreement, and/or Order Form, as applicable, and this Agreement.
Pilot
A pilot version of the Products and Services gives the Customer access to the Products and Services for a limited amount of time (the “Pilot Term”) as described in the Order Form. At the end of the Pilot Term, the Customer will have no access to any Customer Data acquired or created during this Pilot Term unless the Customer has upgraded to a paid version of the Products and Services.
Use Restrictions
- The Customer covenants and agrees that its use of the Products and Services will be in a manner consistent with this Agreement and with all applicable laws and regulations, including trade secret, copyright, trademark, and export control laws. Without limiting the generality of the foregoing, the Customer shall not, nor shall it permit or assist others, (i) to abuse or fraudulently use the Products and Services; (ii) to process or permit to be processed the data of any third party that is not expressly authorized herein to access and use such Products and Services; and (iii) to attempt to copy, reverse engineer, decompile, disassemble, create a derivative work from, or otherwise attempt to derive the source code of any part of the Products and Services, or Technology; or (iv) to access, alter, or destroy any information of any customer of the Company by fraudulent means or device, or attempt to do so.
- The Customer covenants and agrees that it will not use either the pilot version or the paid version of the Products and Services for competitive analysis purposes. The Customer’s use of the Products and Services for competitive analysis is a breach of this Agreement and will result in automatic, immediate termination of the Products and Services.
- Not for Emergency Use. The Customer shall not use the Products and Services for medical emergencies or other emergency use cases. The Customer shall instruct Participants to call 911 or other first responders in case of serious emergencies. The Company is not liable for any failures or communications or response issues.
Communications sent via SMS or email
In addition to the internal communication mechanisms internal to the Products and Services, the Products and Services also facilitate communication via SMS (i.e., text messages) and email between Participants and Customers. You are advised not to send confidential information, personal information, or health information by SMS or email. Also, be aware that many email systems electronically filter for “spam” and/or “viruses.” That filtering process may result in email communications being quarantined (i.e., potentially not being received by the intended party) and/or delayed in reaching the intended party. Therefore, we cannot guarantee that the intended party will receive email communications at all or that they will receive the communications in a timely manner.
Security
The Customer will be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of its link to the Internet. Security of Customer Data shall be provided pursuant to the terms of the Company’s legal policies, which are located at https://www.wefivesoft.com/legal, and incorporated by reference herein.
Accounts for Services
The Company will permit access to the Products and Services only over the Internet using account information assigned by the Company. Account information will be deemed the Confidential Information of both Parties.
Technical Requirements for Services
- Capacities The Products and Services will be rendered in a manner that will support the Authorized User requirements and other requirements provided in the applicable Order Form.
- Scalability The Products and Services will be scalable in a manner that allows the Products and Services to meet any forecasted increase provided in the applicable Order Form.
- Internet Data Centers The Products and Services will be provided through Internet Data Centers that are configured consistent with the prevailing industry standards for fireproofing, power and backup generation, structural integrity, seismic resistance and resistance to other natural and man-made disruptions. In addition, the facility will be secured against physical and electronic intrusion in a manner consistent with prevailing industry standards. The Company may outsource its Internet Data Center operations to subcontractors; provided, however, that the Company shall be responsible for the performance of such subcontractors, and the Company shall be liable for any action or inaction by such subcontractors as if performed by the Company.
- Monitoring of Customer’s and Participant’s Use The Company has no obligation to monitor posts by the Customers or its Participants or to exercise editorial control over such posts; however, the Company reserves the right to review such posts and to remove any material that, in the Company’s judgment, is not appropriate.
Confidentiality
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Recipient agrees:
- to hold Discloser’s Confidential Information in strict confidence;
- not to disclose the Discloser’s Confidential Information to any third parties, except as described below; and
- not to use any Confidential Information except to perform its obligations and exercise its rights under this Agreement.
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Recipient may:
- disclose Discloser’s Confidential Information to its officers, directors, employees or agents;
- Recipient agrees to take reasonable measures to maintain the Confidential Information in confidence;
- Recipient will disclose Confidential Information only to those of its employees and contractors as are necessary for the use expressly and unambiguously set forth in the Agreement, and only after such employees and contractors have agreed in writing to be bound by the terms no less restrictive than the provisions of this Agreement; and
- Customer will not remove or export the Products and Services or any Confidential Information or any direct product thereof in violation of any applicable law or regulation.
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The restrictions set forth in this section shall not apply to any Confidential Information that the Recipient can demonstrate:
- was known to it prior to its disclosure by the Discloser;
- is or becomes publicly known through no wrongful act of the Recipient;
- has been rightfully received from a third party authorized to make such disclosure without restriction;
- is independently developed by the Recipient; or
- has been approved for release by the Discloser’s prior written authorization.
- The parties agree that a breach of this section may cause immediate and irreparable harm for which monetary damages would be an inadequate remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the Discloser shall be entitled to seek equitable relief, including injunctive relief, from any court having jurisdiction, to protect its rights and interest pursuant to this section.
Purchase of Additional Services
The Customer may elect to purchase rights for additional Authorized Users and/or additional services by Order Form from time to time. Such additional purchases will be governed by the terms and conditions in this Agreement. The Customer agrees that, absent the Company’s express written acceptance thereof, the terms and conditions contained in any Order Form or other document issued by the Customer to the Company for the additional purchases, will not be binding on the Company if such terms and conditions are additional to or inconsistent with those contained in this Agreement.
Technical Support, Training, and Consulting Services
During the term of this Agreement, the Company will provide technical support in the form of responses to questions by e-mail or telephone at no additional charge. The support time typically will be 8:00AM-5:00PM MST Monday – Friday. Consulting Services will be negotiated by the Parties and agreed upon in writing.
Technical Contacts
The Customer shall designate one of its employees as its principal contact for communicating with the Company regarding technical issues. The Customer may change its technical contact by written notice to the Company.
Proprietary Rights Ownership
Ownership of the Proprietary Rights embodied in the Products and Services, and the Technology will remain exclusively vested in and be the sole and exclusive property of the Company and its licensors. In addition, the Customer hereby transfers and assigns to the Company, any rights the Customer may have to any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by the Customer relating to the Products and Services. The markerspro.com domain name, product names, and logos associated with the Products and Services are trademarks of the Company or third parties, and no right or license is granted to use them.
Customer Representations and Warranties
- The Customer represents and warrants that it is not located in a country that is subject to a U.S. Government embargo, or that it has been designated by the U.S. Government as a “terrorist-supporting” country, and it is not listed on any U.S. Government list of prohibited or restricted parties.
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The Customer represents and warrants that:
- the performance of its obligations and use of the Products and Services (by Customers and its Authorized Users) will not violate any applicable laws or regulations including, but not limited to, any and all laws and regulations regarding the transfer to personal information of residents of the European Union outside the European Union or
- cause a breach of any agreements with any third parties or unreasonably interfere with the use by other customers of the Products and Services.
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The Customer acknowledges that :
- the Company is not required to monitor the content of information passing through the Products and Services for purposes of verifying accuracy or legal compliance and
- the Customer shall use commercially reasonable efforts to ensure that the information it and its Authorized Users transmit thereby complies with all applicable laws and regulations, whether now in existence or hereafter enacted and in force.
- In the event of breach by the Customer of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, the Company will have the right to suspend immediately any Products and Services if the Company deems it reasonably necessary to prevent any harm to the Company and its business. The Company shall provide notice to the Customer and an opportunity to cure, if practicable, depending on the nature of the breach. Once cured, the Company shall promptly restore the Products and Services.
Company Representations and Warranties
The Company represents and warrants that:
- it has the legal right to enter into this Agreement and perform its obligations under this Agreement, and
- the performance of its obligations and delivery of the Products and Services to the Customer will not violate any applicable laws or regulations of the United States or cause a breach of any agreements between the Company and any third parties. In the event of a breach by the Company of the foregoing warranties, the Customer’s sole remedy is termination of this Agreement upon written notice to the Company.
DMCA Notice
The Company respects the intellectual property rights of others and expects the Customer to do the same. The Company will remove all infringing content if properly notified that it infringes third-party copyrights, and may do so at its sole discretion, without prior notice at any time. Under the United States Digital Millennium Copyright Act of 1998 (the “DMCA”), it is the Company’s policy to respond expeditiously to copyright owners who believe content infringes their rights. The Company reserves the right to remove any content without prior notice to the Customer, any Participant, or any third party. If the Customer believes that content made available through the Products and Services infringes its copyright, the Customer may send the Company a notice requesting that it be removed or that the Company block access to it. If the Customer believes that such a notice has been filed wrongfully against it, the DMCA allows the Customer to send the Company a counter notice. Notices and counter notices must meet DMCA’s requirements. The Company recommends that the Customer consult its legal advisor before filing a notice or counter notice. There can be substantial penalties for false claims. Notice and counter notices may be sent to the Company’s agent at 3655 Research Rd., Bldg. B, Ste. 113, Las Cruces, NM 88003 or support@wefivesoft.com. It is the Company’s policy, in appropriate circumstances, to terminate the account of any Customer or Participant who has committed multiple infringements.
Limited Warranty
The Company represents and warrants that the Products and Services will:
- conform to all material operational features as described in the applicable Order Form and
- be free of errors and defects that materially affect the performance of such features (“Limited Warranty”), provided that the Customer notifies the Company of any such non-conformity, error, or defect. The Customer’s sole and exclusive remedy for breach of this Limited Warranty will be the prompt correction of material, non-conforming Products and Services at the Company’s expense.
Warranty Disclaimers
Except for the Limited Warranty provided above, neither the Company nor any of its suppliers or resellers makes any warranty of any kind, express or implied, and the Company and its suppliers specifically disclaim the implied warranties of title, non-infringement, merchantability, fitness for a particular purpose, system integration, and data accuracy, in all jurisdictions in which such disclaimers apply. The Customer acknowledges that no representations other than those contained in this Agreement have been made respecting the Products and Services and that the Customer has not relied on any representation not expressly set out in this Agreement. The Company does not warrant that the Products and Services will operate in combinations which the Customer may select for use, or that the operation of the Products and Services will be uninterrupted or error-free. Furthermore, the Customer acknowledges and agrees that the Company has no control over the Internet, and that the Company is not liable for the discontinuance of operation of any portion of the Internet or possible regulation of the Internet which might restrict or prohibit the operation of the Products and Services.
Disclaimer of Actions of Third Parties
The Company does not and cannot control the flow of data to or from the Company’s Technology and other parts of the Internet. Such flow of data depends on the performance of the Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer’s connections of the Internet (or portions thereof). Although the Company will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, the Company cannot guarantee that such events will not occur. The Company disclaims any and all liability resulting from or related to the performance or non-performance of Internet services, software components, or operation systems provided or controlled by third parties, including, but not limited to, Apple and Android, which are not the Company’s subcontractors.
Intellectual Property Indemnity
Except for third-party software including, but not limited to, open source software, the Company shall indemnify, defend, and hold harmless the Customer from and against any lawsuit, liabilities, loss, cost, or expense arising out of a third-party claim made against the Customer that the Technology or Products and Services infringe on any U.S. intellectual property right of a third party; provided, however, that the Company is notified in writing of such claim promptly after such claim is made upon the Customer. The Company will have the right to control any defense of the claim. In no event shall the Customer settle any such claim without the Company’s prior written approval. The Company will have no liability or obligation if the claim arises from:
- any alteration or modification to the Technology or Products and Services other than by the Company,
- any combination of the Technology or Products and Services by the Customer with other programs or data not furnished by the Company, or
- any use by the Customer of the Technology or Products and Services that is prohibited by this Agreement or otherwise outside the scope of use for which the Technology or Products and Services are intended.
Options for Infringement Claims
If any party is enjoined from using the Technology, or if the Company believes that the Technology may become the subject of a claim of intellectual property infringement, the Company, at its option and expense, may:
- procure the right for the Customer to continue to use the Products and Services;
- replace or modify the Technology so as to make it non-infringing; provided, however, that the Products and Services continue to conform to the descriptions and/or specifications provided in the applicable Order Form; or
- terminate this Agreement, in which case the Company shall refund to the Customer any and all subscription fees paid in advance by the Customer for those Products and Services not provided by the Company and provide, at the Customer’s request and free of charge, the Customer Data in a database document format. This Section and the preceding Section set forth the entire liability of the Company to the Customer for any infringement by the Technology or Products and Services of any intellectual property of a third party. Despite the foregoing, this Section does not apply to third-party software including, but not limited to, open source software.
Disclaimer of Incidental and Consequential Damages
Except for indemnity obligations expressly provided in this Agreement and any violation of confidentiality obligations, to the fullest extent permitted by law, the Company is not liable for any direct, indirect, punitive, special, incidental, consequential, or exemplary damages (whether in contract, tort (including negligence), or otherwise) which includes, but is not limited to, damages for personal injury or wrongful death, damages resulting from lost data, failures in communication or response issues regarding medical emergencies, or the use or inability to use the Products and Services, arising out of or in connection with the Products and Services, even if the Company has previously been advised of, or could have reasonably foreseen, the possibility of such damages. These limitations will apply notwithstanding any failure of the essential purpose of any limited remedy. Because some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitations may not apply to you. In no event will the Company’s total liability to you for all damages, losses, and cause of action, whether in contract, tort (including, but not limited to negligence), or otherwise exceed $1,000. You and the Company agree that the warranty disclaimers and limitations of liability in this Agreement are material, bargained-for bases of this Agreement, and that they have been taken into account in determining the consideration to be given by each party under this Agreement and in the decision by each party to enter into this Agreement. You and the Company agree that the warranty disclaimers and limitations of liability in this Agreement are fair and reasonable.
Liability Cap
Except for the Company’s indemnity expressly provided for by this Agreement and the Company’s confidentiality obligations, in no event will the Company’s aggregate liability, if any, including liability arising out of contract, negligence, strict liability in tort or warranty, or otherwise, exceed $1,000 or as otherwise specified in Customer’s written agreement.
Term and Termination
- Term of Agreement. The initial term of this Agreement will commence as of the Effective Date and will continue until such termination date as provided in the Order Form. The initial term will automatically renew pursuant to the Order Form. Both the initial term and any renewal term are subject to earlier termination as otherwise provided for by this Agreement. Either Party may choose not to renew this Agreement without cause for any reason.
- Term of Order Form. Any Order Form created under this Agreement will commence immediately upon execution by both Parties and will continue thereafter as provided in the Order Form.
- Automatic Termination. Unless the Company promptly upon discovery of the relevant facts notifies the Customer to the contrary, in writing, this Agreement and all Order Forms will terminate immediately, without notice, upon the institution of insolvency, bankruptcy, or similar proceedings by or against the Company, any assignment or attempted assignment by the Company for the benefit of creditors, or any appointment, or application for such appointment, or a receiver for the Company.
- Termination for Cause. If either Party fails to comply with any of the material terms and conditions of this Agreement or Order Form including, but not limited to, the payment of any subscription fee or reimbursement due and payable to the Company under this Agreement, the non-defaulting Party may terminate this Agreement and/or all Order Forms upon twenty (20) days’ written notice to the defaulting Party specifying any such breach, unless within the period of such notice, all breaches specified have been remedied.
- Effect of Termination. Upon any termination of this Agreement, the Customer will be denied access to the Products and Services. Termination will not relieve the Customer of its obligation to pay any undisputed fees accrued or payable to the Company prior to the effective date of termination. Under no circumstances will the Company refund any fees already paid by the Customer.
- Termination by the Company for End of Life. The Company intends to continue to provide and support the Products and Services for as long as the Customer renews in accordance with the applicable Order Form; provided, however, if the Company determines, in its sole discretion, that it is no longer feasible to support the Products and Services, the Company may terminate this Agreement for end-of-life at any time by providing thirty (30) days’ written notice to the Customer. In the event of such termination, the Company shall reimburse, on a prorated basis, any subscription fees paid by the Customer.
Transition Services
If the Customer is current in all payments due to the Company at the time of expiration or termination of this Agreement, the Company shall provide to the Customer its Customer Data in a standard database document format readily available to the Company at no additional charge. If the Customer requests the Customer Data in a non-standard format, the Customer shall pay the Company a reasonable fee for technical services as determined by the Company.
Designed for Use Only Within Legal Jurisdictions
Access to the Products and Services from locations where its use or contents are illegal is not authorized. The Customer acknowledges and agrees that its access and use of the Products and Services is of its own volition and it is responsible for compliance with local law.
User Suggestions to Company
The Company welcomes the Customer’s feedback with regard to the Products and Services. However, the Company will not accept any creative ideas, suggestions, inventions, or materials other than those the Company has specifically requested (“Suggestions”). If the Customer submits these Suggestions regardless of this stated policy, the Suggestions will automatically become the property of the Company. None of the Suggestions will be subject to any obligation of confidentiality and the Company shall not be liable for its disclosure or use. The Company will have exclusive ownership of all now known or later discovered rights to the Suggestions and will be entitled to unrestricted use of the Suggestions for any purpose whatsoever, commercial or otherwise, without compensation to the Customer.
Severability
If any part of this Agreement is held to be unenforceable for any reason, the remainder of this Agreement will continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provisions would make the provision valid, then such provision will be deemed to be construed as so limited.
Entire Agreement
This Agreement constitutes the entire agreement between the Parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings, or other agreements, whether oral or written, relating to the subject matter of this Agreement. This Agreement may be modified in writing and must be signed by both Parties.
Governing Law
This Agreement and the rights and obligations of the Parties under it are governed by and interpreted in accordance with the laws of the State of New Mexico without regard to principles of conflicts of law.
Dispute Resolution
Except for actions to protect Proprietary Rights and to enforce an arbitrator’s decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach of this Agreement will be submitted to and finally decided by arbitration under the rules of the American Arbitration Association (“AAA”) then in effect. There will be one arbitrator, and the arbitrator will be chosen by mutual agreement of the Parties in accordance with AAA rules. The arbitration will take place in Las Cruces, New Mexico. The arbitrator will apply the laws of the State of New Mexico to all issues in dispute. The findings of the arbitrator will be final and binding on the Parties and may be entered in any court of competent jurisdiction for enforcement. Legal fees will be awarded to the prevailing Party in the arbitration.
Venue and Jurisdiction
The Parties are required by the terms of this Agreement to resolve claims through binding arbitration. Nonetheless, if suit is to be entered, the Parties agree to jurisdiction in New Mexico’s Third Judicial District sitting in Las Cruces, New Mexico. Similarly, if jurisdiction lies in the Federal Court, the complaint will be filed in the United States District Court for the District of New Mexico. Each Party waives the right to institute or maintain any suit, action, or proceeding in any other court or forum. Each Party, by executing this Agreement, consents and submits to the personal jurisdiction of such Court.
Attorneys’ Fees
In the event of any suit or action to enforce or interpret any provision of this Agreement (or that is based on this Agreement), the prevailing Party is entitled to recover, in addition to other costs, reasonable attorney fees in connection with the suit, action, or arbitration, and in any appeals. The determination of who is the prevailing party and the amount of reasonable attorneys’ fees to be paid to the prevailing party will be decided by the court or courts, including any appellate court, in which the matter is tried, heard, or decided.
Notices
Any notices required or permitted to be given under this Agreement will be given in writing and will be delivered:
- in person,
- by certified mail, postage prepaid, return receipt requested, or
- by commercial overnight courier that guarantees next day delivery and provides a receipt, and such notices will be addressed to the address of the Party as specified in this Agreement or to such other address as the Party may specify in writing.
Assignment
The Customer shall not assign this Agreement or any right or interest under this Agreement, nor delegate any work or obligation to be performed under this Agreement, without the Company’s prior written consent. Any attempted assignment or delegation in contravention of this Section will be void and ineffective.
Continuing Obligations
The following obligations will survive the expiration of termination of this Agreement and the distribution grace period provided above:
- any and all warranty disclaimers, limitations of liability, and indemnities granted by either Party,
- any covenant granted in this Agreement for the purpose of determining ownership of, or protecting, the Proprietary Rights including, but not limited to, the Confidential Information of either Party, or any remedy for breach thereof, and
- the payment of taxes, duties, or any money to the Company owed under this Agreement.
Force Majeure
Neither Party shall be liable for damages or any delay or failure of delivery arising out of causes beyond its reasonable control and without its fault or negligence including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, pandemics, or communications failures. Despite any other provision of this Agreement, if either Party is unable to perform under this Agreement for a period of thirty (30) consecutive days, the other Party may terminate this Agreement immediately, without liability, by ten (10) days’ written notice to the other.
Government End-Users
The software Product and SaaS environment is comprised of “commercial items”, “commercial computer software”, and “commercial computer software documentation” as such terms are defined in FAR 2.101 and DFARS 252.227-7014(a)(1). The software is provided to any federal, state or local government agency only subject to the terms and conditions of this Agreement and such additional terms as are agreed by the parties in a properly executed writing and that are consistent with :
- the policies set forth in 48 C.F.R. 227.7202-1
- 22.7202-3 for (units of the Department of Defense).
