Software Terms of Service - TCS Tire

Software License Terms

These Software License Terms (“Terms”) are entered into between “you,” the individual or entity purchasing Software or Services pursuant to an order form (“Order Form”) referencing these Terms, and us, the entity identified in the Order Form as the provider of the Software or Services (“we,” “us,” or “our”) for the software products specified in the Order Form (“Software”) and any services specified in the Order Form (“Services”). By agreeing to these Terms, you represent that you have the authority to bind the company you represent.

Software. The Software is made available for a term, as identified in the Order Form (the “Term”). The Software may only be accessed by your authorized employees, contractors, or agents (“Authorized Users”) and may only be installed at the specific locations identified in the Order Form. The Software is made available to you as downloadable software that we deliver to you for installation on your systems (“Software”). Upon full payment of the fees in the Order Form, and during the Term, we grant to you a non-exclusive, royalty-free, revocable, non-transferable, non-sublicensable license, solely for your internal business operations in accordance with these Terms, to (a) install the Software on your systems at the specific location indicated in the Order Form; (b) copy, transmit, distribute, perform, and display the Software solely as necessary to operate the Software; and (c) copy, distribute, and publish the Documentation solely as necessary to operate the Software. The license granted in this Section 1 includes the right to: (i) install, execute, and run one copy of the Software on your internal systems; (ii) generate print, copy, download, and store the data, information, and output that results from any execution or use of the Software; (iii) use the Software solely in object code form; (iv) create one copy of the Software and Documentation for purposes of hardware or system maintenance or repair, system testing, disaster recovery, or backup and archiving. You are responsible for ensuring that the Software and the data and information processed by the Software is backed up. We will not be held responsible or liable for loss of data due to failure in any backup process. You will take all commercially reasonable measures to safeguard the Software and the Documentation (including all copies) from infringement, misappropriation, theft, misuse, or unauthorized access.
Delivery, Installation & Acceptance. Following the payment of the fees (as specified in Section 8), we will make the Software available to you for download or, if you purchase Hosting Services (as defined in Addendum A), provide you with access to the Software and provide the Documentation to you electronically. We will only be responsible for one complete installation in your production environment. We warrant that the Software will substantially conform in all material respects to the Documentation, when installed, operated, and used as recommended in the Documentation and in accordance with these Terms for a period of 180 days from the date the Software conducts the first database transaction within the production environment (“Warranty Period”). If, during the Warranty Period you believe that the Software does not conform to the specifications in the Documentation, you must provide us with written notice detailing the noncompliance. As your sole remedy, we will either correct the non-conformity or provide a workaround in a timely manner. The Software will be deemed accepted if you do not notify us of a noncompliance during the Warranty Period.
Maintenance. If you purchase Software, we will provide you with those maintenance releases that are generally made available to licensees so long as you pay the monthly maintenance fees. You will install maintenance releases promptly following receipt. We will provide error resolution support for the Software so long as you pay the monthly maintenance fees. In order for us to support the Software, you must install and maintain the remote support client-side software that we provide you. The client-side software must be installed on a device with access to the Software and have Internet access. You are responsible for ensuring any data is backed up prior to providing us with remote access via the remote support client. We are not obligated to provide technical support if you do not back up the Software or any data or information processed by the Software. If any action or omission causes a non-standard support case, we will charge you our then-current professional service rate to resolve the non-standard case. Non-standard customer support cases include issues or resolutions related to third-party integrations, customer authored reports, direct database read/write (including imports and exports, and database stored procedures not authorized by us.
License Restrictions. You are prohibited from installing the Software at any location other than the location specified in the Order Form. You are prohibited from (a) modifying, correcting, adapting, translating, enhancing, or otherwise preparing derivative works or improvements of the Software or any component of the Software (including database procedures); (b) renting, leasing, lending, selling, sublicensing, assigning, distributing, publishing, transferring, or otherwise making the Software, Documentation, or any component of the Software available to any third-party; (c) reverse engineering, disassembling, decompiling, decoding, or adapting the Software (or any component, including the database procedures), accessing or attempting to access the stored procedures that automate the Software, or otherwise attempting to derive or gain access to the source code of the Software, in whole or in part, except for the limited purposes of ensuring or assessing interoperability or otherwise qualifies as a “fair use” under US Copyright; (d) bypassing or breach any security device or protection used for or contained in the Software or Documentation; (e) using the Software in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property or other right of any person, or that violates any applicable law; (f) using the Software for purposes of: (i) benchmarking or competitive analysis of the Software; (ii) developing, using, or providing a competing software product or service; or (iii) any other purpose that is to our detriment or commercial disadvantage; (g) using the Software in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage; or (h) using the Software or Documentation in any manner or for any purpose or application not expressly permitted by these Terms.
Passwords. You and your Authorized Users are responsible for maintaining passwords and keeping passwords secure. If an Authorized User loses or forgets their username or password and have not given this information to us previously, we have no way of recovering your data.
Services. We may also provide Services which are further described as follows:
1. Hosting & Managed Services. If you purchase Hosting Services (as defined in Addendum A), as indicated in the Order Form, we will host the Software in our data centers in accordance with the terms of Addendum A, “Hosting Services.”
2. Training. Training fees will be set forth in the Order Form. If you purchase training, we will provide remote training to your employees or contractors. If we agree to provide training onsite at your locations, you will reimburse us for our travel expenses and a reasonable per diem (subject to our providing you with valid receipts for reimbursement), in addition to the payment of any onsite training fees.
3. Data Conversion Services. With respect to any historical data, you are responsible for extracting, converting, formatting, and otherwise ensuring that your historical data is useable with the Software. Historical data will be imported as individual table data in static form and, due to the complexity of historical data relationships, we cannot import historical data relationships or table relationships. Historical data may only be viewed as archived history within the Software. Any data conversion fees incurred is separate, non-refundable fee.
4. Data Recovery. We are not responsible for the loss of data due to database failure. In the case of a database failure, we will provide up to one (1) hour of analysis free of charge to determine whether the data base can be restored from the backup. Where feasible, we may attempt to restore data at our then current professional services rates. Where we attempt to restore data, we do not guarantee, represent, or warrant that data can be or will be restored. All professional services fees are due regardless of the outcome.
5. Connection to Data Feeds; Partner Data. The Software may allow you to integrate the Software with third-party services or software (“Third-Party Services”) or receive data or information from third party sources like equipment manufacturers (“Third-Party Data”). We do not provide the Third-Party Services or Third-Party Data. The Third-Party Services or Third-Party Data provider may make changes to its service, or components of its services, or suspend or discontinue a service with or without notice. The availability of the Third-Party Service may depend on your compliance with Third-Party Service or Third-Party Data terms and conditions. The Third-Party Service providers may have access to your data, information, software, hardware, networks, or systems. We may be required to provide information about you or your services to the Third-Party Service or Third-Party Data provider, and you consent to our provision of such information. We do not monitor or review the practices of any Third-Party Service or Third-Party Data provider and are not responsible for how the Third-Party Services or Third-Party Data providers provide service, their actions or omissions, or for how they transmit, access, process, store, use, collect, share, or provide data. We expressly disclaim all liability related to or arising from any Third-Party Services or Third-Party Data, including liability related to or arising from any updates, modifications, outages, delivery failures, corruption of data, loss of data, use of data, inaccurate data, security, discontinuance of services, or termination of the Third-Party Services or Third-Party Data. You are solely responsible for ensuring that you comply with all terms and conditions applicable to your use of the Third-Party Services or Third-Party Data.
Ownership. As between us, we own all right, title, and interest in and to the Software and Services, including the source code, object code API’s, scripts, client-side software, the technology or hardware used to deliver the Software, the aggregated and anonymized data generated by the Software or any Services, the database processes and procedures, the documentation describing the installation, execution, and operation of the Software (“Documentation”) and any training materials we provide you (collectively, “Our IP”). Other than the licenses granted in Section 1, or as otherwise expressly stated in these Terms, nothing in these Terms transfers to you any right, title, or interest in or to Our IP, whether by implication, waiver, estoppel or otherwise. You will take all such steps as we may reasonably require to assist us in maintaining the validity, enforceability, and ownership of Our IP. You will cooperate with and assist us in the event of any actual or threatened infringement, misappropriation, or violation of our rights in, and to attempt to resolve any actions relating to, Our IP.
Fees. You will pay the fees for the Software and the Services in the amounts and at the times specified in the Order Form. All fees will be paid in USD unless otherwise specified in the Order Form. Unless otherwise specified in the Order Form, fees are due 30 days from the date of invoice. If you fail to make any payment when due, we may charge interest on past due amounts at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law. You will reimburse us all costs that we incur in collecting any late payments, including attorneys’ fees, court costs, and collection agency fees. We may increase the fees for any maintenance, professional service, Services, or Software licensed for a term upon any renewal, or, following the first year of the Term (if the Term is greater than one year), no more frequently than once during a 12-month period. The fees are exclusive of taxes and similar assessments. Without limiting the foregoing, you are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you hereunder, other than any taxes imposed on our income.
Overages. The Software or Services may be invoiced based on number of users, storage or other consumption metric and, in such case, when your consumption or use exceeds the applicable limitations, an overage will apply. You will pay such overage upon receipt of invoice. If you provide us with a credit card, you authorize us to charge your credit card for any such overages when they are incurred or on your next billing cycle, at our discretion. We reserve the right to suspend your access or use of the Services or Software if you do not pay any overage when due.
Confidential Information. The term “Confidential Information” means (a) the non-public information of either party, including but not limited to information relating to either party’s product plans, present or future developments, customers, designs, costs, prices, finances, marketing plans, business opportunities, software, software manuals, personnel, research, development or know-how; or (b) any information designated by either party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential. “Confidential Information” does not include information that: (i) is in, or enters, the public domain without breach of this these Terms; (ii) the receiving party lawfully receives from a third-party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving party knew prior to receiving such information from the disclosing party, as evidenced the receiving party’s records; (iv) the receiving party developed independently without reference to the Confidential Information; (v) information that a party is expressly permitted to disclose pursuant to these Terms. Each party agrees that (a) it will not disclose to any third-party, or use for the benefit of any third-party, any Confidential Information disclosed to it by the other party except as expressly permitted hereunder; and (b) that it will use at least reasonable measures to maintain the confidentiality of Confidential Information of the other party in its possession or control but no less than the measures it uses to protect its own confidential information. Either party may disclose Confidential Information of the other party pursuant to the order or requirement of a court, administrative or regulatory agency, or other governmental body, provided that the receiving party, if feasible and/or legally permitted to do so, gives reasonable notice to the disclosing party to allow the disclosing party to contest such order or requirement, or to the parties’ agents, representatives, subcontractors or service providers who have a need to know such information provided that such party shall be under obligations of confidentiality at least as restrictive as those contained in this Section. Each party will promptly notify the other party in writing upon becoming aware of any unauthorized use or disclosure of the other party’s Confidential Information. Each party acknowledges and agrees that a breach of the obligations of this Section may result in irreparable injury to the disclosing party for which there may be no adequate remedy at law, and the disclosing party will be entitled to seek equitable relief, including injunction and specific performance, in the event of any breach or threatened breach or intended breach by the recipient of Confidential Information.
Termination. We may terminate these Terms, the Software, and/or the Services if (i) you fail to pay any amount when due and such failure continues for 30 days following our written notice of termination; or (ii) you are in breach of these Terms and such failure continues for 30 days following our written notice of the breach. You may terminate these Terms, the Software, and/or the Services (iii) if we are in material breach of any material term and such failure continues for 30 days following your written notice of the material breach. Either party may terminate these Terms, effective immediately upon written notice to the other party, if the other party: (iv) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (v) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (vi) makes or seeks to make a general assignment for the benefit of its creditors; or (vii) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
1. Suspension of Service. We may suspend, terminate, or otherwise deny your access or your Authorized User’s access to all or any part of the Software or Services if: (i) we believe that you or an Authorized User is in breach of these Terms, if you or an Authorized User has accessed or used the Software or Services beyond the scope of the rights granted, or for a purpose not authorized pursuant to these Terms; (ii) if you or your Authorized Users are engaged in any activity that appears to be fraudulent, misleading, or unlawful relating to or in connection with your use of the Software or Services; or (iii) if you have not paid any fees due hereunder when due. This Section does not limit any of our other rights or remedies, whether at law or in equity.
2. Effect of Termination. Upon any expiration or termination of these Terms, except as expressly otherwise provided in these Terms: (i) all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate; (ii) you will discontinue all use of any Software or Services, or other materials that we provided to you, you will remove any software or scripts that we provide you from your systems, and we will disable access to any online Software or Services; (iii) in the case of our termination for your breach of these Terms, any fees outstanding for the remaining Term will become immediately due and payable. In no event will we issue any refund of fees.
Indemnity. You will defend, indemnify, and hold us, our affiliates and each of our and our affiliate’s officers, directors, employees, agents, successors, and assigns harmless from and against any and all damages, losses, costs or expenses (including reasonable legal fees) that we incur that results or arises from, or are alleged to result or arise from: (a) your breach of these Terms; (b) your use of the Software or Services in a manner that violates applicable law, including laws that apply to marketing or advertising, warranties, privacy, consumer data or consumer credit; (c) your breach of any term or condition required by an original equipment manufacturer or your failure to be an authorized dealer of any original equipment manufacturer; (d) any materials or information (including any documents, data, specifications, software, content, or technology) provided by a third-party or on your behalf, or (e) the customization of the Software or Services in accordance with any specifications or directions provided by or on your behalf; (f) any Third-Party Service or Third-Party Data or any claim that third-party data is incomplete or inaccurate; or (g) your negligent, willful, fraudulent or intentional acts or omissions. As used in this Section, references to you include your employees or users of the Software or Services.
Warranty Disclaimer. Other than the limited warranty included in Section 2, we make no representation or warranty with respect to the Software or any Service we provide, whether express or implied, and expressly disclaim all warranties including but not limited to any implied warranty of merchantability, fitness for a particular purpose, and non-infringement. The Software and Services are provided “As Is” and with all faults. We specifically disclaim liability for (a) any loss of use of technology, loss or corruption of data, loss of business or lost profits, or any cost associated with recovery of systems or data; (b) loss arising from errors in instructions, diagrams, or other materials; (c) Third Party Services, Third Party Data, or any third-party claims; (d) delays, interruptions, service failures, or other problems inherent in the use of the Internet, electronic communications, or other systems outside of our reasonable control; (e) your users’ use of the Software or the Services in violation of law or these Terms. You are responsible for consulting your own accounting, tax and legal advisors. We do not provide accounting, tax or legal advice and expressly disclaim any representation, warranty related thereto and any liability arising therefrom. We do not represent or warrant that any information we provide to you will be accurate, complete, reliable, current or error-free. You are responsible for consulting your own accounting, tax and legal advisors. We do not provide accounting, tax or legal advice and expressly disclaim any representation, warranty related thereto and any liability arising therefrom. We do not represent or warrant that any information we provide to you will be accurate, complete, reliable, current or error-free.
Limitation of Liability. In no event will either party be liable under this Agreement for any consequential, incidental, indirect, exemplary, special, or punitive damages. In no event will our aggregate liability, or the aggregate liability of our affiliates, licensors, service providers or suppliers, whether related to breach of contract, tort, (including negligence), strict liability, or any other legal or equitable theory, exceed the total fees paid by you under these Terms in the twelve-month period preceding the event giving rise to the claim.
Review of Use. If your usage of the Software or a Service exceeds the number of licenses or the scope of license purchased, you will promptly pay us for actual usage based on our then-current list price. With prior written notice, we may ourselves or through an independent auditor, review your Software and Services usage and related records during your normal business hours to confirm compliance with these Terms (a “Review”). You will provide us or the auditor with access to the relevant records and facilities for the Review. We will treat all information disclosed during the Review as Confidential Information and will only use or disclose such information as required by law or to enforce our rights under these Terms.
Early Access Use and Suggestions.
1. Early Access Program. We may offer pre-release feature or functionality capabilities for experimental testing and evaluation (“Early Access Program” or “EAP”). If you choose to participate in the Early Access Program, and we authorize you to participate in such EAP, we grant to you a temporary, nontransferable, nonexclusive license for experimental use to access, test, and evaluate pre-release feature or functionality capabilities. The restrictions set out in Section 4 apply to pre-release features or functionality. You will evaluate pre-release capabilities under normal conditions as directed by us. You acknowledge the experimental nature of pre-release capabilities and agree not to rely on correct functioning or performance of pre-release capabilities. You further acknowledge that pre-release capabilities have not undergone full testing by us and may contain defects. We shall not be liable for your use of pre-release capabilities. You are advised to safeguard important data and use caution. You agree to maintain pre-release capabilities in confidence and to restrict access to pre-release capabilities, including any functionality, methods and concepts, solely to those employees authorized to perform pre-release capability testing. Any written evaluations and all inventions, product improvements, modifications or developments that we conceived or made during or after these Terms, including those based partly or wholly on your feedback, are our exclusive property, and we have exclusive rights, title and interest in all such property.
2. Customer Suggestions. You may choose to, but are not required to, provide suggestions, data, or other information to us regarding possible improvements in the operation, functionality, or use of the Service, whether in the course of using the Service, evaluating the Service or otherwise, and any resulting inventions, product improvements, modifications or developments made by us, at our sole discretion, will be our exclusive property.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner.
Disputes. Any controversy or claim arising out of or relating to these Terms, or the breach of these Terms, will be determined by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules and Mediation Procedures (“Commercial Rules”). The award rendered by the arbitrator shall be final, non-reviewable, non-appealable and binding on the parties and may be entered and enforced in any court having jurisdiction. The place of arbitration shall be Multnomah County, Portland Oregon. Except as may be required by law, neither a party nor the arbitrators may disclose the existence, content or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. For disputes where the amount at issue is less than $100,000, there will be one arbitrator agreed to by the parties within twenty (20) days of receipt by respondents of the request for arbitration, or, in the event timely notice of request for arbitration is not given, appointed by the AAA in accordance with its Commercial Rules. For disputes where the amount at issue is greater than $100,000, there will be three arbitrators agreed to by the parties within thirty (30) days of receipt by respondents of the request for arbitration or, in default of such agreement, by the AAA. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Terms or the transactions contemplated hereby.
Severability; No Waiver. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. No waiver by any party of any of the provisions of these Terms shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms will operate or be construed as a waiver; nor shall any single or partial exercise of any right, remedy, power, or privilege under these Terms preclude any other or further exercise of those rights, remedies, powers, or privileges or the exercise of any other right, remedy, power, or privilege.
Assignment. Client will not assign, delegate, or otherwise transfer any of its obligations or performance under these Terms, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without our prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed, except that Client may transfer its rights and obligations under these Terms in connection with a merger, consolidation, or reorganization of Client. No assignment, delegation, or transfer will relieve Client of any of its obligations or performance under these Terms. We may assign, delegate or otherwise transfer our rights, obligations or performance under these Terms with or without consent. Any other purported assignment, delegation, or transfer in violation of this Section is void.
Modifications. We may make modifications or changes to these Terms. If we make a modification that we deem material, we will provide notice to you (email notice being sufficient) which will be effective 30 days following our notice of the modification. If you do not agree to the modified terms, you may object to the modification by providing us with notification of your objection (in reasonable detail) during such 30-day notice period. Upon receipt of your objection, we may choose to modify the Terms that apply to you such that they resolve your objection, or we may enter into good faith negotiations regarding your objection in an attempt to resolve your objection. If you fail to provide us with notice of your objection within such period, you will be deemed to have accepted these Terms as modified. We may make non-material changes to these Terms by posting the revised version at the URL where these Terms are available.
No Third-Party Beneficiaries. These Terms are entered into for the sole benefit of the parties and their respective successors and permitted assigns and nothing in these Terms, express, or implied, is intended to or will confer upon any third party any legal or equitable right, benefit, or remedy of any nature or by reason of these Terms.
Force Majeure. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing under these Terms, (except for any obligation to make payments), when and to the extent such failure or delay is caused by any circumstances that constitute acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, or national or regional shortage of adequate power or telecommunications or transportation (collectively, a “Force Majeure Event”).
Notice. Any notice request, consent, claim, demand, waiver, or other communications under these Terms intended to have legal effect, must be delivered (a) in the case of Client, in writing addressed to Client’s address or email address in the Order Form, or in our case, to 26600 SW Parkway Ave #400, Wilsonville, OR 97070, and in each case, notice will be deemed effectively given when (i) received if sent by a nationally recognized overnight courier where signature is required; or (ii) if provided to you, notice may be provided via email to your contact in the Order Form with confirmation of transmission and deemed effectively given if sent during your normal business hours, and on the next business day, if sent after normal business hours.
Governing Law. These Terms will be governed by and construed by the substantive laws of the State of Oregon without giving effect to any choice-of law rules that may require the application of the laws of another jurisdiction. The UN Convention on contracts for the International Sale of Goods, the application of which is expressly excluded, shall not apply to transactions under these Terms. The Uniform Computer Information Transactions Act, the application of which is expressly excluded, shall not apply to transactions under these Terms.
Entire Agreement. These Terms together with the Order Form, the applicable Addendum and any other documents expressly incorporated into these Terms constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

Addendum A: Hosting Addendum

Hosting Services. Where hosting services are included in the Order Form, we will provide the infrastructure and equipment necessary to host the Software application for you (“Hosting Services”). The additional terms in this Addendum A apply to the Hosting Services. Your use of Hosting Services, or your access to the application is limited to a specific number of Authorized Users (as set forth in the Order Form), and you will only allow that number Authorized Users to access the Software that is made available to you via the Hosting Services. Authorized Users are prohibited from sharing passwords between users. We own the hardware used to provide the Hosting Services and each IP address that is assigned to an Authorized User. We will perform the hardware and software configurations. You will not attempt to alter any hardware or software configurations. We will provide a print server role installed on your infrastructure. The print server role will provide the user with Microsoft Easy Print drivers. The print drivers will allow printing to all approved printers through Remote Desktop or Terminal Services as outlined by Microsoft. We, at our sole discretion, may choose to install specific print drivers to allow for faster printing. The installation, configuration, and testing of the drivers will be charged at our standard professional service rates for such Service.
License to Customer Data. You grant us the limited right to copy, display, publish, transmit, and otherwise process Customer Data solely in connection with our provision of the Hosting Services. “Customer Data” means the data that is processed by the Software or software applications that we host on your behalf. You acknowledge that aggregated data about your use of the Software and Hosting Services or about the operation or function of the Software and Hosting Services is not Customer Data so long as such aggregated data does not identify you or your Authorized Users, and is Our IP.
Hosting Restrictions. You and your Authorized Users are prohibited from and will not install any third-party software unless we have consented to the installation of such third-party software. You represent and warrant that you have the right to use and install the third-party software, and have paid all applicable licensing fees, and the third-party software does not and shall not infringe on the intellectual property rights of any other person or entity. You will not process, store or transmit any material that is unlawful, obscene, of an “adult nature”, pornographic, threatening, abusive, libelous, or encourages conduct that would constitute a criminal, offensive, give rise to civil liability, infringe upon any third party’s intellectual property rights or privacy rights, or otherwise violate any local, state, federal, or international law. You will not interfere with or attempt to interfere with any component or feature of the Hosting Services (including security features), You will not use the Hosting Services for purposes of “flooding”, “mailbombing”, “spamming”, or other deliberate attempts to overload or crash a host or network. You will not disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program. You acknowledge that we have the right to monitor, investigate and disclose any violation of these Terms, including, but not limited to, intellectual property, publicity and privacy rights infringement, or security or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental or regulatory body.
Backups. We will use commercially reasonable efforts to create a daily backup of Customer Data. Backups are not intended to be a comprehensive disaster recovery solution. We make no claims, guarantees, or warranties regarding the availability or integrity of any data backup. We do not represent that backups will be available, or accessible. You are responsible for separately backing your Customer Data and agree to back up all Customer Data stored in the Hosted Services at least once daily to Customer’s own separate backup location. If Customer Data is corrupted, rendered unavailable, or lost due to system outage, application error, or customer or user error, we will only be responsible for recovering the Customer Data which is available based on the most recent available backup.
Maintenance. We perform maintenance on the servers on a routine basis. Maintenance often requires taking servers off-line. We reserve the right to perform maintenance, during which time the Software may not be available or may have slow response times. We endeavor to perform maintenance during off-peak hours. We will use commercially reasonable efforts to notify you prior to maintenance, but you acknowledge that, in the event of an emergency we may not be able to notify you. We reserve the right to change your IP address at any time, at our sole discretion. We do not provide “root” or administrative access to the hosted server.
License Restrictions. You and your Authorized Users will not process, store or transmit any material that is unlawful, obscene, of an “adult nature”, pornographic, threatening, abusive, libelous, or encourages conduct that is or may be criminal, offensive, give rise to civil liability, infringe upon any third party’s intellectual property rights or privacy rights, or otherwise violate any local, state, federal, or international law. You and your Authorized Users will not interfere with or attempt to interfere with any component or feature of the Software (including security features), not use the Software for purposes of “flooding”, “mailbombing”, “spamming”, or other deliberate attempts to overload or crash a host or network. You and your Authorized Users will not disseminate or transmit any virus, trojan horse or other malicious, harmful or disabling data, work, code or program. You acknowledge that we have the right (but not obligation) to monitor use of the Hosting Services and the Software and to investigate and disclose any violation of these Terms. You and your Authorized Users may not install any third-party software unless we have approved the third-party software. If we allow you to install third party software, you represent or warrant (a) you have all necessary rights to the third-party software to copy, transmit, modify, execute, and otherwise operate, use, and install the third-party software; (b) your installation of the third-party software does not violate any rights of the third-party software provider or infringe upon the rights (including intellectual property rights) of any other third-party. In addition, you represent that you have paid all applicable licensing fees.
Uptime. We will use commercially reasonable efforts to ensure that the Hosting Services are available. The Hosting Services (and the Software) may not be available due to: (a) circumstances outside of our control including acts of any government body, war, insurrection, sabotage, armed conflict, embargo, fire, flood, earthquake or any weather, strike or other labor disturbance, interruption of or delay in transportation, unavailability of or interruption in telecommunications or third party services, virus or denial of service attacks, hackers, or inability to raw materials, supplies, or power user in or equipment; (b) any issue or error on your or the Authorized User’s side (including Internet connection or equipment errors or failures); (c) scheduled maintenance, emergency maintenance, upgrades to software or equipment; (d) DNS issues outside of our control; or (e) issues or outages of the Internet or utilities.