EasyTerritory INC. (EZT)
ONLINE SERVICES AGREEMENT FOR EASYTERRITORY
Last Update: July 1, 2016
PLEASE READ THIS ONLINE SERVICES AGREEMENT (“AGREEMENT”) CAREFULLY BEFORE USING EASYTERRITORY. BY USING EASYTERRITORY THE LICENSEE (“YOU” OR “YOUR” OR “CUSTOMER”) AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE EASYTERRITORY. BY AGREEING TO THESE TERMS AND CONDITIONS, YOU ALSO AGREE TO ENSURE THAT ANY PERSON ENTITLED TO USE EASYTERRITORY, SUCH AS YOUR EMPLOYEES AND/OR CONSULTANTS, WILL ALSO ABIDE BY THE TERMS OF THIS AGREEMENT, AND YOU WILL INDEMNIFY EZT CORPORATION AGAINST ANY BREACH OF THIS AGREEMENT BY SAID EMPLOYEES AND/OR CONSULTANTS.
a. “Confidential Information” of a Party means any information in a tangible form that is disclosed by that Party pursuant to this Agreement and that (a) is identified “Confidential,” “Proprietary” or in some other manner to indicate its confidential nature; or (b) would reasonably be considered to be confidential. This Agreement and its contents shall also be considered Confidential Information.
b. “Documentation” means any standard EZT documentation distributed by EZT as a part of the Software.
c. “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
e. “EasyTerritory Cloud” is the EasyTerritory Services located at or below the universal resource location http: (or https)//www.easyterritory.com
f. “Proprietary Rights” means all rights to the Software, Documentation, and EZT’s Confidential Information, including, but not limited to, patents, copyrights, trademarks, trade names, trade secrets, or rights to apply for any of the same, irrespective of whether such rights arise under Canadian, U.S., or international laws
g. “Support Services” shall have the meaning set forth in Section 4.
h. “Subscriber Data” means any electronic data provided by Subscriber to EZT via the EasyTerritory Services.
i. “Subscription” shall have the meaning set forth in Section 11.
j. “Subscription Fees” means the fees payable by Subscriber for the Subscription.
k. “Subscription Term” means the period of time for which Subscriber paid the Subscription Fees.
l. “User” means each person who is authorized by Subscriber to access or use EasyTerritory Services, directly or indirectly.
2. GRANT OF LICENSE
a. License. Subject to the terms and conditions of this Agreement, EZT agrees to provide Subscriber the subscription services (“Subscription”). EZT grants to Subscriber as part of the Subscription, a non-exclusive, nontransferable right to use EasyTerritory Services. Subject to the terms of this Agreement, Subscriber may allow its employees and independent consultants to use EasyTerritory Services solely for the benefit of Subscriber; provided, however, Subscriber remains responsible for any breach of this Agreement. Any other use of EasyTerritory Services by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this Agreement.
b. Restriction on Use. Use of EasyTerritory Services shall be only for Subscriber’s own internal business operations (not for the benefit of any other person or entity) for the duration of the Subscription Term, provided Subscriber has and continues to pay the applicable Subscription Fees. Access to EasyTerritory Services is only for the maximum number of authorized Users for whom Subscriber has paid the Subscriber Fees. All fees paid for EasyTerritory Services are nonrefundable. Subscriber may only exceed the number of ordered Users if Subscriber increases its order and pays additional Subscription Fees. Other than as expressly authorized in this Section 2 or as expressly permitted by applicable law, Subscriber may not: (a) copy the Software or any portion thereof; (b) use the Software to store or transmit Malicious Code, or infringing, tortious or otherwise unlawful materials; or (c) interfere with the business or operations of EZT.
c. Audit Rights. EZT may, at any time, audit Subscriber’s use of the EasyTerritory Services by accessing the EasyTerritory Services through the EZT servers to ensure compliance with the terms of this Subscription Agreement. Unless specifically authorized in writing in advance by EZT, Subscriber may not rent, lease or timeshare the EasyTerritory Services or provide subscription services for the EasyTerritory Services or permit others to do so.
3. PRICES AND PAYMENTS.
a. Prices. Pricing for the EasyTerritory Services shall be as set forth in the Subscriber’s Purchase Order.
b. Payment. All payments (including fees for additional Software, support, training, taxes, etc.) shall be due within 30 days of the date of EZT invoice.
c. Pricing Changes. EZT shall have the right to change the fees and prices for the EasyTerritory Services at any time. Prices shall be effective as of the date they are posted on the Website. Notwithstanding the foregoing, Price changes shall not affect the Subscriber’s then current Subscription fees and shall only come into effect at the time of renewal of the Subscription.
d. Taxes. All Subscriber Fees are exclusive of any export, withholding, federal, state and local taxes and duties and Subscriber is responsible for paying all taxes it is required to pay by law.
e. Late Payments. All amounts that are not paid by Subscriber by the date required by this Agreement shall be subject to a late charge equal to the lesser of one and one-half percent (1.5%) per month and the maximum allowed by applicable law. In the event that any payment due under this Agreement is overdue, EZT reserves the right to suspend the rights granted under this Agreement until such delinquency is corrected.
f. Refunds. All charges are non-refundable unless expressly stated otherwise, or otherwise provided by law.
4. SUPPORT SERVICES.
a. Updates and Upgrades. EZT may from time to time conduct updates and upgrades to the EasyTerritory Services, which may temporarily affect the use of the Software. To the extent that the use of the Software will be affected during such EZT updates and upgrades, EZT will provide prior notice of such updates and upgrades to Subscriber and will, to the extent possible, be conducted outside of regular business hours.
b. Technical Support. Subscribers may contact EZT through the EasyTerritory portal or via email for technical support provided during the operation hours of 8:00 AM EST to 5:00 PM EST, Monday through Friday excluding nationally recognized holidays.
c. Azure SLA Dependency. EasyTerritory Services are hosted in Microsoft Windows Azure (“Third-party Hosting Environment”) and are bound by their SLA (http://azure.microsoft.com/en-us/support/legal/sla/) YOU EXPRESSLY ACKNOWLEDGE AND AGREE EZT MAY NOT BE ABLE TO REMEDY ISSUES WITHIN A THIRD-PARTY HOSTING ENVIRONMENT
5. PROPRIETARY RIGHTS AND PROTECTION THEREOF.
a. Acknowledgment. The Software is licensed as a subscription, not sold, by EZT to Subscriber, and nothing in this Agreement will be interpreted or construed as a sale or purchase of the Software. EZT and Subscriber acknowledge and agree that, as between EZT and Subscriber, EZT owns and will own all rights, title, and interest, including all intellectual property rights therein and thereto, in and to the Software and Documentation, and no title to the Proprietary Rights is transferred to Subscriber. The use by Subscriber of the Proprietary Rights is authorized only for the purposes set forth herein and, upon termination of this Agreement for any reason, such authorization will cease. Subscriber will not have any rights in or to the Software except as expressly granted in this Agreement. EZT reserves to itself all rights to the Software not expressly granted to Subscriber under this Agreement.
b. No Other Rights. Subscriber may not, directly or through any person or entity, in any form or manner, decompile, reverse engineer, disassemble or otherwise attempt to derive source code or object code from the Software, except as explicitly permitted under this Agreement or expressly permitted by applicable law.
c. Subscriber Data. EZT acknowledges that all Subscriber Data belongs to Subscriber and that other than specifically provided herein, EZT acquires no rights, title or interest thereto. EZT shall maintain commercially reasonable safeguards for the protection and security of Subscriber Data. Other than as specifically permitted by Subscriber in writing, EZT shall not: (a) modify the Subscriber Data; (b) disclosed the Subscriber Data unless compelled by law; or (c) access the Subscriber Data.
d. Comments and Suggestions Should Subscriber provide EZT with comments or suggestions for the modification, correction, improvement or enhancement of the Documents or services related thereto, Subscriber grants to EZT a non-exclusive, irrevocable, worldwide, royalty-free license, with the right to sublicense, the rights to use and disclose such comments and suggestions in any manner EZT chooses, without reference to the source.
a. Nondisclosure. Each Party shall treat as confidential all Confidential Information of the other Party, shall not use such Confidential Information except as set forth in this Agreement, and shall use best efforts not to disclose such Confidential Information to any third party. Without limiting the foregoing, each of the Parties shall use at least the same degree of care that it uses to prevent the disclosure of its own Confidential Information of like importance to prevent the disclosure of Confidential Information disclosed to it by the other Party under this Agreement. Each Party shall promptly notify the other Party of any actual or suspected misuse or unauthorized disclosure of the other Party’s Confidential Information.
b. Exceptions. Notwithstanding Section 6.1, neither Party shall have liability to the other with regard to any Confidential Information of the other that the receiving Party can prove: (a) was in the public domain at the time it was disclosed or has since entered the public domain through no fault of the receiving Party; (b) was known to the receiving Party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (c) is disclosed with the prior written approval of the disclosing Party; (d) was independently developed by the receiving Party without any use of the Confidential Information, as demonstrated by files created at the time of such independent development; or (e) becomes known to the receiving Party, without restriction, from a source other than the disclosing Party without breach of this Agreement by the receiving Party and otherwise not in violation of the disclosing Party’s rights.
c. Return of Confidential Information. Upon expiration or termination of this Agreement, each Party shall return all Confidential Information received from the other Party.
d. Remedies. Any breach of the restrictions contained in this Section 6 is a breach of this Agreement that may cause irreparable harm to the non-breaching Party. Any such breach shall entitle the non-breaching Party to injunctive relief in addition to all other legal remedies.
7. TERMINATION. This AGREEMENT is effective until terminated. YOUR rights under this AGREEMENT will terminate with thirty (30) days written notice to cure if YOU fail to comply with any term(s) of this AGREEMENT. Upon the termination of this AGREEMENT, YOU shall cease all use of EasyTerritory Services. YOU may similarly terminate for breach upon thirty (30) days written notice to cure.
8. DISCLAIMER OF WARRANTIES. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF EASYTERRITORY (AS DEFINED ABOVE) IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. EASYTERRITORY IS PROVIDED "AS IS", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND EZT HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO EASYTERRITORY, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. EZT DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF EASYTERRITORY THAT THE FUNCTIONS CONTAINED IN EASYTERRITORY WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF EASYTERRITORY WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN EASYTERRITORY WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY EZT OR AN EZT AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
9. INTELLECTUAL PROPERTY INDEMNIFICATION. EZT warrants to the LICENSEE that EasyTerritory does not infringe the intellectual property rights of a third party in the United States. EZT shall indemnify, defend and hold LICENSEE harmless from all claims, losses, liabilities, costs and expenses attributable to any allegation of intellectual property infringement in the United States arising out of this Agreement.
10. LIMITATION OF LIABILITY. EXCEPT IN INSTANCES OF THIRD PARTY INFRINGEMENT ACTIONS SET FORTH IN SECTION 6, TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL EZT BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE EASYTERRITORY, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF EZT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. EXCEPT FOR DAMAGES RESULTING FROM SECTION 6, IN NO EVENT SHALL EZT'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE AMOUNT OF THE PURCHASE PRICE OF EASYTERRITORY. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11. ANNUAL SUBSCRIPTION FEE. Customers are required to pay an annual subscription fee in order to obtain and hold a Subscription to EasyTerritory Services and receive upgrades. Annual Subscription Fees must be paid in accordance with EZT payment terms (Addendum I).
12. SUBSCRIPTION. Customers who pay Annual Subscription Fees in accordance with EZT payment terms (Addendum I) have an active “Subscription.” Pursuant to 4a, EZT reserves the right to upgrade EasyTerritory at its sole discretion and make upgrades available to those customers who have an active Subscription.
13. CONTROLLING LAW AND SEVERABILITY. This AGREEMENT shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. This AGREEMENT, and all of the parties’ respective rights and duties in connection herewith, shall be governed by and construed in accordance with the laws of the State of Florida without giving effect to conflicts of laws and any action or similar proceeding that might arise from or in connection with this Agreement or its subject matter may be neither commenced nor maintained except in the courts located in Leon County, Florida.
14. COMPLETE AGREEMENT AND GOVERNING LANGUAGE. This AGREEMENT constitutes the entire agreement between the parties with respect to the use of EasyTerritory licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this AGREEMENT will be binding unless in writing and signed by EZT. Any translation of this AGREEMENT is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of this AGREEMENT shall govern.