Updated: October 1, 2018
PLEASE READ THIS SOFTWARE-AS-A-SERVICE AGREEMENT (“Agreement”) CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE “I ACCEPT” CHECK BOX OR OTHERWISE SUBSCRIBING TO AND/OR USING THE SERVICE, YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU SHOULD NOT SUBSCRIBE TO OR USE THE SERVICE.
This Agreement is entered into between you (“Subscriber”) and Lotpath, Inc. (“Licensor”) and governs your use of the Brio Software System described below. [For purposes of this Agreement, Subscriber and Licensor each will be referred to individually as a “Party” and together as the “Parties.”]
For valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
“Agreement” shall mean these terms and conditions, and any amendments thereto.
“Authorized Users” shall mean Subscriber’s employees and independent contractors working for Subscriber in the ordinary course of Subscriber’s business who: (i) agree to be bound by the terms of this Agreement; and (ii) are specifically authorized by Subscriber to access the Service.
“Display Devices” shall mean any display device used to access and display the Service.
“Data” shall mean information provided by Subscriber provided to Licensor in connection with the performance and use of its Service.
“Brio Software System” or “Service” shall mean the online and mobile software farm data management system, including any updates thereto, and any derivative works or associated applications provided by Licensor.
“Service Start Date” shall mean the date from which Subscriber receives the applicable Service.
“Fees” shall mean the fees payable pursuant to Section 3 hereof.
“Term” shall mean the period beginning when the Subscriber gains access to the Service and/or signs up for an account and expires when either the Subscriber or Licensor cancels the account.
“User” or “Users” shall mean an individual or individuals who are authorized by Subscriber to use the Services, to whom Subscriber (or Licensor) have supplied a user identification and password.
Use of Services.
Grant. During the Term of this Agreement, Licensor hereby grants Subscriber a limited, non-exclusive and non-transferable license, without right of sublicense, to access and use the Service subject to Subscriber’s obligation to pay and the other terms and conditions of this Agreement. Subscriber and its Users agree to use the Service in accordance with the Licensor’s instructions and this Agreement.
Scope. Subscriber will have the ability to create “User” accounts as part of its subscription to the Service. It will be Subscriber’s responsibility to manage any and all User accounts through the Term of the Agreement. Subscriber and its Users shall use the Services exclusively for authorized and legal purposes. Subscriber is solely responsible for the activity occurring under Subscriber’s User accounts and shall ensure that its Users abide by the terms of this Agreement, Licensor’s acceptable use policies, and all applicable local, state, national and foreign laws, treaties and regulations in connection with Subscriber and its Users’ use of the Services, including, without limitation, those related to data privacy, international communications and the transmission of technical or personal data.
Restrictions On Use. Subscriber shall not edit, alter, abridge or otherwise change in any manner the content of the Service, including, without limitation, all copyright and proprietary rights notices. Subscriber may not, and may not permit others to:
reverse engineer, decompile, decode, decrypt, disassemble, or in any way derive source code from, the software or Service;
modify, translate, adapt, alter, or create derivative works from the Service;
copy (other than one back-up copy), distribute, publicly display, transmit, sell, rent, lease or otherwise exploit the Service; or
distribute, sublicense, rent, lease, loan [or grant any third party access to or use of] the Service to any third party.
Enforcement. Subscriber shall promptly notify Licensor of any suspected or alleged violation of the terms and conditions of this Agreement and shall cooperate with Licensor with respect to: (a) investigation by Licensor of any suspected or alleged violation of this Agreement and (b) any action by Licensor to enforce the terms and conditions of this Agreement. Subscriber shall: (a) take all steps reasonably required to ensure that all Passwords are used in accordance with this Agreement, and that no User or other personnel of Subscriber assists or allows another individual to use a Password without authorization or provides false identity information to gain access to or use the Services; and, (b) notify Licensor immediately of any unauthorized use of any Password or account or any other known or suspected breach of security. Licensor may suspend or terminate any User’s and Subscriber’s access to the Services without prior notice to Subscriber in the event that Licensor reasonably determines that there has been a violation of the terms and conditions of this Agreement.
Fees. Licensor will provide the Services to Subscriber at the rates and the fees (“Fees”) described on the Pricing Page. Licensor may revise the Fees at any time. However, Licensor will provide Licensor with at least 30 days’ advance notice before revisions become applicable.
Taxes. Subscriber shall pay or reimburse Licensor for all sales taxes and other taxes, however characterized by the taxing authority, based upon the Fees charged under this Agreement or otherwise incurred on account of Subscriber’s use of the Service, except for taxes based on Licensor’s net income or gross receipts or for any franchise or excise taxes owed by Licensor.
Data and Privacy.
Data. Subscriber shall own and retain all right, title and interest in and to its Data. Subscriber hereby grants to Licensor a non-exclusive, non-transferable license to access, use, reproduce and prepare derivative works based on Subscriber’s Data for the purpose of providing the Services hereunder and to improve or enhance the Services, and for improving or enhancing products and services provided to its affiliates. This license includes use of Subscriber’s Data to compile, use and disclose anonymous, aggregated statistics that include its Data, provided that no such information will directly identify and cannot reasonably be used to identify Subscriber or any of its Users or employees. Subscriber shall be solely responsible for ensuring that it has obtained all necessary Third Party consents and made all required disclosures in connection with the foregoing grant. Subscriber agrees to use best efforts to provide true and accurate data to the Services and keep Subscriber’s Data true and accurate if any of its Data changes.
Privacy. Licensor shall maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Subscriber’s Data. Licensor agrees that it will not sell or share any Data, including financial Data with any third parties who are not Users of the Service.
Copyright Protection and Use Restrictions.
Subscriber agrees that the Service specifications, including without limitation the editorial coding and metadata contained therein, are the property of Licensor. The works and databases included in the content of the Service are protected by applicable copyright laws. Subscriber agrees that only Authorized Users shall be permitted access to the Service. Except as set forth herein, no clients or other persons or entities who are not legal employees of Subscriber or independent contractors consulting for Subscriber in the ordinary course of Subscriber’s business may be Authorized Users. Subscriber shall not reverse engineer, decompile or disassemble any part of the Service. Subscriber further agrees that neither Subscriber nor any Authorized User shall store (except as permitted under Section 1(d)(ii) for retrieval and display purposes only), copy, reproduce, retransmit, disseminate, sublicense, sell, distribute, publish, broadcast, circulate, create derivative works (including, without limitation, trading algorithms), test algorithms in conjunction with, or distribute by any means the Service in whole or in part to anyone, including, but not limited to, other employees of Subscriber, without Licensor’s express prior written consent; provided, however, that Authorized Users may on an occasional basis in the normal course of business include limited portions of the Service (a) in oral and (with proper attribution to the respective Service) non-electronic written communications with clients and other employees, and (b) in email and instant messaging communications with other employees and/or securities professionals. Without limiting the foregoing, under no circumstances shall distribution under this Section by Subscriber be permitted if such distribution may be viewed as a substitute for a subscription to the Service itself. Subscriber agrees that when using the Service in this way, the facts, content and intent of the Service will not be changed in form or in spirit or otherwise in any way be prejudicial to the integrity of the Service or Licensor.
Without limiting the foregoing, by posting, downloading, displaying, performing, transmitting, or otherwise distributing information or other content (“User Content”) to the Service, Subscriber is granting Licensor, and its affiliates, officers, directors, employees, consultants, agents, and representatives a worldwide, non-exclusive, royalty-free, irrevocable, sub-licensable, and transferable license to use User Content in connection with providing Subscriber with the Services and our business, including without limitation, a right to copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, translate, and reformat User Content. By posting User Content on the Service, Subscriber warrants and represents that it owns the rights to the User Content or is otherwise authorized to post, distribute, display, perform, transmit, or otherwise distribute User Content. Subscriber agrees to abide by any and all laws of the jurisdiction regarding the use of any and all User Content, and shall be solely responsible for any violations of any relevant laws and for any claims by a third party caused by any Subscriber who provides or transmits User Content in connection with its use of the Service. The burden of proving that any Content does not violate any laws or third party rights rests solely with Subscriber.
SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SERVICE(S), THE CONTENTS THEREIN, AND ANY ACCOMPANYING DOCUMENTATION ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” BASIS AND LICENSOR DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
Subscriber Infringement Indemnity. Subscriber, at its expense, will defend, indemnify, and hold harmless Licensor and its subsidiaries, affiliates, shareholders, directors, officers, board members, and employees from and against any and all third party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys’ fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Licensor which directly relate to a claim, action, lawsuit, or proceeding made or brought against Licensor by a third party alleging the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark (each a “Licensor Claim”) by way of Licensor’s use of any Subscriber Content that Subscriber provides to Licensor and Licensor uses in the provision of any Services.
Licensor Infringement Indemnity. Licensor, at its expense, will defend, indemnify, and hold Subscriber harmless from and against any and all third party claims for damages (whether ordinary, direct, indirect, incidental, special, consequential, or exemplary), judgments, liabilities, fines, penalties, losses, claims, costs, and expenses including, without limitation, reasonable attorneys’ fees, finally awarded by a court of competent jurisdiction, after all rights of appeal are exhausted, against Subscriber which directly relate to a claim, action, lawsuit, or proceeding made or brought against Subscriber by a third party alleging the infringement or violation of such third party’s registered patent, trade secret, copyright, or trademark (each a “Subscriber Claim”) by way of Subscriber’s use of the Service that Licensor provides to Subscriber.
Limitation of Liability
LICENSOR AND ITS SUBSIDIARIES, AFFILIATES, SHAREHOLDERS, DIRECTORS, OFFICERS, BOARD MEMBERS, EMPLOYEES AND ASSIGNS (“THE PARTIES”) WILL NOT BE LIABLE (JOINTLY OR SEVERALLY) TO SUBSCRIBER, AUTHORIZED USERS, OR ANY THIRD PARTY, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST SAVINGS AND LOST REVENUES (COLLECTIVELY, THE “EXCLUDED DAMAGES”), WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT, OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES, AND IRRESPECTIVE OF ANY FAILURE OF AN ESSENTIAL PURPOSE OF A LIMITED REMEDY. IN NO EVENT WILL THE LIABILITY OF THE PARTIES ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT EXCEPT FOR INTELLECTUAL PROPERTY INFRINGEMENT OR THE SUBJECT MATTER HEREOF EXCEED THE AGGREGATE AMOUNT PAID BY SUBSCRIBER HEREUNDER IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE UNENFORCEABLE, THEN THE PARTIES’ LIABILITY WILL BE LIMITED TO THE FULLEST POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW. SUBSCRIBER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS LICENSOR FOR ANY LOSS, DAMAGE OR COST IN CONNECTION WITH ANY CLAIM OR ACTION WHICH MAY BE BROUGHT BY ANY THIRD PARTY AGAINST LICENSOR RELATING TO ANY BREACH OF THIS AGREEMENT BY SUBSCRIBER.
Term and Termination.
Term. The Term of this Agreement shall become effective when Subscriber creates an account with Licensor and/or gains access to the Service. The Term shall end when the Subscriber or Licensor cancels the account or relinquishes access.
Termination. This Agreement may be terminated as follows: (a) by any party at any time without cause; (b) if either party commits a breach of any provision of this Agreement and fails to remedy such breach within thirty (30) days of receiving written notice thereof by the non-breaching party (“Notice of Breach”), the party giving such notice may then deliver a second written notice to the breaching party terminating this Agreement, in which event this Agreement, and the licenses granted hereunder, will terminate on the date specified in such second notice; or (c) if a receiver is appointed over any assets of either party or if either party makes any arrangement with its creditors or becomes subject to an administration order or goes into liquidation or anything equivalent to the foregoing under any jurisdiction or ceases to carry on business, the other may terminate by giving written notice with immediate effect.
In the event this Agreement is terminated by Subscriber, Subscriber shall still be liable for any and all fees and costs incurred pursuant to Section 3 up until the point of termination. Upon termination, Subscriber shall cease all use of the Service. Licensor, at its discretion, may choose to retain or permanently delete Subscriber’s data stored within the Service.
Subscriber and Licensor understand and agree that in the performance of this Agreement each party may have access to private or confidential information of the other party which is marked “confidential” or the receiving party should reasonably know under the circumstances that such information is confidential and/or proprietary information of the other party. Each party shall hold such information in confidence and not, without the consent of the other, disclose it to a third party or use it for any purpose other than in performance of this Agreement. This obligation of confidentiality shall not apply to information that is generally available to the public through no act or omission of the receiving party or becomes known to the receiving party through a third party with no obligation of confidentiality, or is required to be disclosed by law, court or by any government or regulatory authority. If any Confidential Information is required to be disclosed by statute, rule, regulation or order of any court of competent jurisdiction, before any such disclosure the receiving party will provide notice to the disclosing party reasonably sufficient to allow the disclosing party the opportunity to apply for a protective order or other restriction regarding such disclosure.
Notice. All notices to a party hereunder shall be in writing, and delivered by email, certified mail, return receipt requested, overnight courier service, or by facsimile with confirmation by the above described mailing methods to address provided by the party at the beginning of the Term. Notice will be deemed delivered and received on the date it is actually received.
Amendment. The parties acknowledge that Subscriber is responsible for notifying Licensor directly of any Licensor or Service-related issues. This Agreement may be amended by Licensor at any time with notice provided to Subscriber.
Assignment. This Agreement is not transferable, assignable, delegable, or sublicenseable by Subscriber in whole or in part, without the prior written permission of Licensor. This Agreement will be binding upon and inure to the benefit of the parties and their respective successors, trustees, administrators, and assigns.
Binding Effect and Third-Party Beneficiary. Except if specifically stated in this Agreement, neither party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other party. No third party is a beneficiary of this Agreement.
Waiver of Rights. Except where specifically stated to the contrary, all remedies available to either party for breach of this Agreement under this Agreement, at law, or in equity, are cumulative and nonexclusive. A waiver or failure of either party at any time to require performance by the other party of any provision hereof will not affect the full right to require such performance at any time thereafter.
Injunctive Relief. If Subscriber breaches Section 2 of this Agreement, Licensor will be entitled, in addition to any other rights available under this Agreement or at law or in equity, to apply for immediate injunctive relief without any requirement to post a bond or other security and Subscriber acknowledges and agrees to not contest such application.
Severability. If any provision or portion thereof of this Agreement or its application in a particular circumstance is held to be invalid or unenforceable to any extent in any jurisdiction, such provision or portion thereof will, as to such jurisdiction only, be ineffective to the extent of such unenforceability, all other provisions and portions thereof of this Agreement will not be affected thereby and will be valid and enforced to the fullest extent permitted by law.
Choice of Law and Venue. This Agreement, as well as any and all tort claims arising from this Agreement or arising from any of the proposals, negotiations, communications or understandings regarding this Agreement, will be governed by and construed in accordance with the laws of the State of California, United States of America (“California”), applicable to contracts made entirely within California and wholly performed in California, without regard to any conflict or choice of law principles. The sole jurisdiction and venue for any litigation arising out of this Agreement will be an appropriate federal or state court located in Fresno County, California.
Force Majeure. Any failure or delay by Licensor in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to computer or Internet or telecommunications breakdowns, denial of service attacks, fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil unrest, rebellions or revolutions in the United States or any nation where the obligations under this Agreement are to be executed, strikes, supplier and third party failure, lockouts, or labor difficulties, or any similar cause beyond the reasonable control of Licensor.
Entire Agreement. This Agreement contains the final and entire agreement of the parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the Agreement’s subject matter.
All provisions of this Agreement that give rise to a party’s ongoing obligation will survive termination of this Agreement, including Sections: 1,2,4,3b,4,5,7,10 and 11 of this Agreement and any payment obligations of Subscriber that accrue prior to such termination or expiration.