READ THIS AGREEMENT CAREFULLY. BY CLICKING THE “ACCEPT” BOX YOU ARE AGREEING TO ENTER INTO THIS SAAS LICENSE AGREEMENT (“AGREEMENT”) WITH ADVANCE SERVICE MANAGEMENT GROUP, INC. (“ASM GROUP”) IN AN ONLINE ELECTRONIC FORMAT AND TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS IS A LEGAL AGREEMENT BETWEEN ASM GROUP AND YOU (“YOU,” “LICENSEE”) FOR THE LICENSE OF A LIMITED RIGHT TO USE ASM GROUP’S STATUSNOWTM SOFTWARE SUITE, INCLUDING The programs and routines included within ASM GROUP’s StatusNowTM Software Suite and any related mobile application which are to be furnished to Licensee (“SOFTWARE”). IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. ASM GROUP DOES NOT AUTHORIZE THE USE OF THE SOFTWARE UNTIL LICENSEE HAS AGREED TO BE BOUND BY THE TERMS OF THIS AGREEMENT BY CLICKING ON THE “I ACCEPT THE TERMS OF THE LICENSE AGREEMENT” RADIO BUTTON BELOW. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK THE “CANCEL” BUTTON BELOW.
1. This AGREEMENT applies to the use of the SOFTWARE and the SAAS Services (defined below), both provided through www.asmgroupinc.com (this “Website”). The terms of this AGREEMENT are subject to change by ASM GROUP (referred to as “ASM GROUP”, “us”, “we”, or “our” as the context may require) without prior written notice at any time, in our sole discretion. The latest version of this AGREEMENT will be posted on this Website, and you should review the AGREEMENT prior to purchasing any product or services that are available through this Website or using the SOFTWARE. Your continued use of this Website, the SAAS Services, or the SOFTWARE after a posted change the AGREEMENT will constitute your acceptance of and agreement to such changes.
2. Definitions.
a. “End User Content” means certain data, content, or materials provided by you (“End User”) when using the SAAS Services. End User is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of all End User Content. End User shall obtain and maintain any rights, consents, and approvals required to grant ASM GROUP and authorized third parties the right to access and use any End User Content for the purposes described herein.
b. “Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs.
c. “SAAS Services” means the web-based, on-line, hosted ASM GROUP STATUSNOWTM software as a service.
3. Grant of License.
a. Grant. Subject to the terms and conditions of this AGREEMENT, ASM GROUP hereby grants to End User a non-exclusive and nontransferable license, during the term of this AGREEMENT, to access and use the SAAS Services and thereby use the SOFTWARE via the Internet. End User agrees that its purchase of subscription(s) for the SAAS Services is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by ASM GROUP with respect to future functionality or features. Upon expiration or termination of your contract, the rights and licenses granted hereunder will automatically terminate, and End User may not continue to use the SAAS Services.
b. Restrictions. The license granted in Section 3(a) above is conditioned upon End User’s compliance with the terms and conditions of this AGREEMENT. End User may use the SAAS Services solely for its own personal purposes, in compliance with applicable law, and shall not: (i) permit any third party to access the SAAS Services except as permitted herein, (ii) create derivative works based on the SAAS Services; (iii) modify, reverse engineer, translate, disassemble, or decompile the SAAS Services, or cause or permit others to do so; (iv) access the SAAS Services in order to (A) build a competitive product or service, or (B) copy any ideas, features, functions, or graphics of the SAAS Services; and (v) remove any title, trademark, copyright, and/or restricted rights notices or labels from the SAAS Services. Violation of any provision of this Section shall be the basis for immediate termination of the SAAS Services by ASM GROUP.
c. Reserved Rights. ASM GROUP hereby reserves all rights in and to the SAAS Services not expressly granted by this AGREEMENT. Nothing in this AGREEMENT shall limit in any way ASM GROUP’s right to develop, use, license, create derivative works of, or otherwise exploit the SAAS Service or to permit third parties to do so.
4. Use of SAAS Services.
a. ASM GROUP’s Responsibilities. ASM GROUP shall endeavor to respond to End User’s support inquiries within a reasonable time, provided that End User supplies ASM GROUP with any information and/or materials reasonably requested, including without limitation any information needed to replicate, diagnose, and correct any error or other problem reported by End User relating to the access or use of the SAAS Services. Information that ASM GROUP may request to aid in the diagnosis and resolution efforts may include: (i) the name and contact information of the reporting person; (ii) symptoms of the suspected failure; (iii) any testing performed by End User with respect to the suspected failure; and (iv) whether use of the SAAS Services may be temporarily suspended by ASM GROUP for testing purposes. ASM GROUP shall respond only to support inquiries originated by End User.
b. End User Responsibilities. End User shall be responsible for its compliance with these Terms and shall be responsible for the End User Content. End User shall not (i) use the SAAS Services or SOFTWARE to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (ii) use the SAAS Services to store or transmit Malicious Code, (iii) interfere with or disrupt the integrity or performance of the SAAS Services. the SOFTWARE or third-party data contained therein or any systems or networks or violate the regulations, policies, or procedures of such networks used with the SAAS Services and SOFTWARE, (iv) attempt to gain unauthorized access to the SAAS Service or its related systems or networks, the ASM GROUP data or the data of any other ASM GROUP customers, or (v) harass or knowingly or intentionally interfere with another ASM GROUP customer’s use and enjoyment of the SAAS Services. Any conduct by End User that in ASM GROUP’s sole discretion restricts or inhibits any other ASM GROUP customer from using or enjoying the SAAS Services is expressly prohibited. End User will use commercially reasonable efforts to prevent unauthorized access to, or use of, the SAAS Services, and notify ASM GROUP promptly of any such unauthorized access or use.
c. Username and Password. End User is solely responsible for maintaining the confidentiality of each username and password used with End User account. End User shall not share its username, password, or other login credentials with others. End User is solely responsible for any and all activities that occur under all End User’s account. End User agrees to notify ASM GROUP immediately of any unauthorized use of End User’s account or any other breach of security. ASM GROUP will not be liable for any loss that End User may incur as a result of someone else using End User’s passwords or account, either with or without the End User’s knowledge.
d. Reserved Rights. ASM GROUP reserves the right in its sole discretion to decline to license access and use of the SAAS Services to End User. ASM GROUP further reserves the right in its sole discretion to terminate End User’s license to access and use the SAAS Services, at any time, for reasons including, but not limited to, a breach or other violation of the terms and conditions set forth in this Agreement; abuse of the SAAS Services or ASM GROUP’s underlying systems; illegal or misrepresentative use of the SAAS Services or underlying systems; and acts or circumstances detrimental to ASM GROUP, its other customers, associates, business partners, suppliers, or others, whether or not such circumstances are directly under the control of End User. ASM GROUP shall promptly communicate to End User its decision to terminate End User’s license to access and use the SAAS Services pursuant to this Section as well as, if it so chooses, the relevant reason(s) for such termination. End User agrees to provide any assistance reasonably requested by ASM GROUP in connection with such termination.
5. Intellectual Property Rights.
a. General. All right, title, and interest in and to the SAAS Services, the SOFTWARE, and ASM GROUP’s Confidential Information, including, without limitation, all modifications, enhancements, and intellectual property rights thereto, shall belong solely to ASM GROUP. All applicable rights to patents, copyrights and trademarks shall remain vested in ASM GROUP, and End User shall not undertake to copyright, trademark or apply for a patent with respect to the SOFTWARE and SAAS SERVICES. The SOFTWARE, including any part of the SOFTWARE included in a modified or updated work, shall remain the exclusive property of ASM GROUP. All applicable rights to patents, copyrights and trademarks shall remain vested in ASM GROUP, and End User shall not undertake to copyright, trademark, or apply for a patent with respect to the SOFTWARE. All commercial and distribution rights to the SOFTWARE shall remain exclusively with ASM GROUP.
b. Derived Data. ASM GROUP shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the services provided to End User and related systems and technologies (including, without limitation, information concerning End User Content and data derived therefrom), and ASM GROUP will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the services and for other development, diagnostic and corrective purposes in connection with the services and other ASM GROUP offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
c. Suggestions. ASM GROUP shall exclusively own all right, title, and interest in and to any suggestions, ideas, enhancement requests, recommendations, or other feedback provided by End User relating to the SAAS Services.
d. Survival. The terms of this Section 5 shall survive termination or expiration of your contract.
6. Warranties.
a. By ASM GROUP. ASM GROUP warrants during the term of your contract that the SAAS Services will be free of material defects and will function in substantial conformance to its documentation provided to End User by ASM GROUP, which provision may be through this Website, and which documentation sets out a description of the SAAS Services and the instructions for use of the SAAS Services.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, ASM GROUP MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THIS AGREEMENT OR ANY SAAS SERVICES, RELATED SOFTWARE, DOCUMENTATION OR OTHER SERVICES FURNISHED HEREUNDER BY ASM GROUP.
b. By End User. End User provides the warranties and agrees to the restrictions set forth below:
1. Limited Use. End User shall not make any use of the SAAS Services or the SOFTWARE other than such use as expressly authorized above. End User shall not copy, modify, rent, sell, distribute, or transfer any part of the SAAS SERVICES or SOFTWARE.
2. Unauthorized Access. End User agrees to prevent unauthorized access to the SAAS Services or SOFTWARE. Except as provided under this AGREEMENT, End User shall not deliver or provide any third party with access to the SAAS Services or SOFTWARE without first receiving ASM GROUP’s written permission.
3. Reverse Engineering. End User shall not reverse engineer, decompile, or disassemble any software to which End User is given access as part of the SAAS Services or SOFTWARE.
4. Confidential Content. End User hereby acknowledges that by using the SAAS Services and SOFTWARE, End User will be exposed to confidential and trade secret information of ASM GROUP. End User shall receive and hold such information in confidence. Without limiting the generality of the foregoing, End User shall (except as expressly authorized by prior written consent of the ASM GROUP), (i) safeguard all of such Information by using not less than the same degree of care used by the End User in safeguarding its own proprietary information or material, but in no case less than a reasonable degree of care; (ii) use all such information solely for authorized use of the SAAS Services and SOFTWARE; and (iii) not disclose any such information to other parties without first receiving the prior written consent of the ASM GROUP. End User hereby further acknowledges that the restrictions related to confidential information set forth in this AGREEMENT, including without limitation the restrictions related to use, copying, reverse engineering of the SAAS Services and SOFTWARE in this Agreement, are necessary for the protection of ASM GROUP.
5. Remedies. End User acknowledges that ASM GROUP would be irreparably harmed by any breach of the foregoing warranties and restrictions by End User and the End User would have no adequate remedy at law in the event of any such breach. Thus, in addition to any damages that ASM GROUP can prove, ASM GROUP shall also be entitled to immediate injunctive relief to prevent injury to ASM GROUP and to recover reasonable costs and attorney fees.
7. Application Upgrades. The SAAS Services and the SOFTWARE include all maintenance and upgrades. Each of ASM GROUP’s releases may incorporate major new features or enhancements that increase the core functionality of the SAAS Services.
8. Access and Monitoring. ASM GROUP and its authorized subcontractors may access End User’s account and End User Content as necessary to identify or resolve technical problems or respond to complaints about the SAAS Services or as may be required by law. ASM GROUP shall also have the right, but not the obligation, to monitor the SAAS Services to determine End User’s compliance with this Agreement. ASM GROUP shall have the right to remove any material submitted to the SAAS Services that ASM GROUP finds to be in violation of the provisions of this Agreement.
9. General Provisions.
a. Independent Contractor. The Parties to the Agreement are independent contractors, and neither Party has any authority to represent or act on behalf of the other Party.
b. Subcontracting and Assignment Prohibited. End User shall not subcontract any of its obligations under this Agreement without the prior written permission of ASM GROUP. END USER shall not assign this AGREEMENT in whole or in part without the prior written consent of the ASM GROUP.
c. Successors and Assigns. This AGREEMENT shall inure to the benefit of and be binding upon the respective successors and permitted assigns, if any, of the Parties, provided that this provision shall not be construed to permit any assignment which would be unauthorized or void pursuant to any other provision contained herein.
d. Interpretation. Both Parties have reviewed and have had an opportunity for comment upon this AGREEMENT. Any rule or principle of contractual construction that would otherwise require any aspect of this AGREEMENT to be interpreted against the Party primarily responsible for its drafting shall not be employed in the interpretation hereof.
e. Headings. The headings used in this AGREEMENT are for convenience only and shall have no significance in the interpretation of this AGREEMENT.
f. Severability. All provisions of this AGREEMENT are severable, and the unenforceability or invalidity of any of the provisions of this AGREEMENT shall not affect the validity or enforceability of the remaining provisions of this AGREEMENT.
g. Governing Law. This Agreement shall be governed by, subject to, and construed in all respects in accordance with the laws of the State of Minnesota, without regard to said state’s conflict of laws principles, and the Parties agree that any lawsuit or other legal claim or action arising out of or associated with this Agreement shall be filed and adjudicated in a Federal or state court, as applicable, located within said state.
h. Non-Waiver. No provision of this Agreement shall be deemed waived and no breach shall be deemed excused unless such waiver or consent is in writing and signed by the Party claimed to have waived or consented. No consent by either Party to, or waiver of, a breach by the other, whether express or implied, shall constitute a consent to, waiver of, or excuse for any different or subsequent breach.
i. Entire Agreement. This AGREEMENT, together with ASM GROUP’s Terms of Use and Privacy Policies, as amended from time to time at the sole discretion of ASM Group, contains the entire agreement of the Parties and there are no oral or other written representations, understandings or agreements between the parties respecting the subject matter of this AGREEMENT.
j. Termination. Either Party may terminate this AGREEMENT immediately for cause, and without cause by giving notice to the other Party fourteen (14) days prior the date of such termination. Such notice shall be deemed given by a Party if delivered electronically by that Party to the last know e-mail address of the other Party.