1.1. Proprietary Rights.
The Software is protected by copyright, trade secret, and other intellectual property laws. Customer is only granted certain limited rights to use the Software, and SSCS reserves all other rights in the Software not granted to Customer in writing herein.
1.2. Agreement to License. SSCS agrees to grant to Customer a limited, nonexclusive, nontransferable, revocable license to use the Software, solely for its own internal business purposes (the “License”), subject to these Terms and Conditions.
1.3. Limitation on License. Customer acknowledges and agrees that the Software is licensed, not sold. Customer acknowledges that each item of the Software licensed hereunder, including any subsequent updates provided by SSCS, is furnished to Customer under a nonexclusive, nontransferable license for use by Customer and the Authorized Users only. All copies of the Software in whole or in part, including all updates, are and shall remain the property of SSCS or any third-party developer, and no title to or ownership of the Software, or any parts thereof, is transferred to Customer under the License.
2. Permitted Use of the Software.
2.1. Designated Hardware.
The Software licensed hereunder will be configured and made available to Customer on designated hardware (“Designated Hardware”), which shall be agreed to by the Parties. Only Designated Hardware may operate the Software. Each unit of the Software licensed hereunder may not be used by more than one piece of Designated Hardware. Customer may replace the Designated Hardware on which Customer is authorized to use the Software, provided that the Software licensed to the Designated Hardware is reassigned in its entirety to another piece of Designated Hardware, such that the prior Designated Hardware is no longer configured to operate the Software.
2.2. Authorized Use. Customer may use the Software only on Designated Hardware and only at the number of Customer sites for which Customer has purchased license rights.
2.3. Authorized Modifications. The Software may be modified to fit Customer’s particular needs only with the assistance of SSCS and for a fee based upon SSCS’s then current schedule of charges for such services.
3. Prohibited Use of the Software. Customer acknowledges and agrees that it will not use the Software for any of the prohibited purposes set forth in this section.
3.1. Unlawful Use.
Customer shall not use, nor permit any third party to use, the Software or any part thereof in a manner that violates any applicable law, regulation, or the License.
3.2. Third Party Access. Customer shall not provide access to or give any part of the Software to any third party other than as permitted in this Agreement.
3.3. Transfer. Customer shall not license, sublicense, sell, resell, republish, transfer, assign, distribute, rent, or time-share the rights granted to Customer under the License, or copy or otherwise commercially exploit the Software or any part thereof in any way except in accordance with the rights granted hereunder.
3.4. Unauthorized Modifications. Customer shall not alter, modify, reverse engineer, decompile, or disassemble, translate, extract data structures or otherwise attempt to extract source code from the Software or any part thereof except in accordance with the rights granted hereunder.
3.5. Derivative Works. Customer shall not create derivative works based on the Software or works containing a substantial part of the Software.
3.6. Intellectual Property. Customer shall not remove any copyright or other proprietary or intellectual property rights notices or labels on or in the Software or any part, copy, or report generated therefrom or thereof.
3.7. Competitive Use. Customer shall not use the Software in order to (i) build a competitive product or service, or (ii) copy any ideas, features, or functions of the Software.
3.8. Disable Access. Customer shall not disable or circumvent the Security Devices or any access control or related process or procedure established with respect to the Software.
3.9. Customer Agents. Customer shall not permit any of the foregoing to be done by any person, including Customer’s employees, contractors, agents, or representatives.
4. Access to the Application.
4.1. Authorized Users.
SSCS will issue accounts, or permit Customer to issue accounts, to individuals selected by Customer as authorized users (“Authorized Users”). Only Authorized Users may access or use the Application and each Authorized User’s access to the Application requires valid login credentials.
4.2. Use of the Application. During the Term, the Application will be made available to Customer for access and use by Authorized Users in the manner prescribed by SSCS.
4.3. Revisions to Application. SSCS may revise the Application’s features and functions at any time, including without limitation by removing such features and functions.
4.4. Customer Responsibilities. Customer is responsible for all activity occurring under Customer’s user accounts and shall abide by all applicable laws, treaties, and regulations in connection with its use of the Application.
4.5. Customer Cooperation. Customer hereby agrees that it will: (i) set up, maintain and operate in good repair all Customer information technology systems on or through which the Application is accessed or used; and (ii) provide all cooperation and assistance as SSCS may reasonably request to enable SSCS to exercise SSCS’s rights and perform SSCS’s obligations to Customer.
4.6. Customer Data. SSCS does not claim ownership of and assumes no liability or responsibility with respect to Customer Data. As between SSCS and Customer, all right, title, and interest in and to Customer Data will at all times be fully vested in Customer, except that, by posting, uploading, inputting, providing, submitting, or otherwise transmitting Customer Data to SSCS, Customer agrees to grant SSCS a royalty free, nonexclusive, fully paid-up limited license to use, copy, distribute, transmit, display, edit, delete, publish and translate such Customer Data to the extent reasonably required by SSCS to perform its obligations to Customer and improve, analyze, support and operate the Application and Software and any other SSCS application or software.
4.7. Data Accuracy. Customer agrees that it, and not SSCS, will have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness, and intellectual property rights of all Customer Data, and SSCS will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. SSCS will have no responsibility or liability for the accuracy of any data uploaded or input through the Application by Customer, including without limitation Customer Data and any other data uploaded or input.
4.8. Risk of Exposure. Customer acknowledges and agrees that its use of the Application will utilize, in whole or in part, the public internet and third party networks to transmit communications, which transmissions may be intercepted by other parties or stored, cached, routed, transmitted or received in jurisdictions outside of the jurisdiction of Customer. Customer recognizes and agrees that hosting data online involves risks of unauthorized disclosure or exposure and that, in accessing and using the Application, Customer assumes such risks. SSCS offers no representation, warranty or guarantee that Customer data will not be exposed or disclosed through errors or the actions of third parties.
4.9. Acceptable Use of the Application. Customer shall not: (i) use the Application in any way that would allow third parties to exploit the Application; (ii) provide Application passwords or other log-in information to any third party; (iii) share non-public Application features or content with any third party; or (iv) access the Application in order to build a competitive product or service, to build a product using similar ideas, features, functions or graphics of the Application, or to copy any ideas, features, functions or graphics of the Application.
4.10. Unauthorized Access to the Application. Customer shall take reasonable steps to prevent unauthorized access to the Application, including without limitation by protecting its passwords and other log-in information. Customer shall notify SSCS immediately of any known or suspected unauthorized use of the Application or breach of its security and shall use best efforts to stop said breach.
4.11. Proprietary Rights to the Application. SSCS retains all right, title, and interest in and to the Application, including without limitation all software used to provide the Application and all graphics, user interfaces, logos, and trademarks reproduced through the Application. This Agreement does not grant Customer any intellectual property license or rights in or to the Application or any of its components. Customer recognizes that the Application and its components are protected by copyright and other laws.
5. Disclaimer of Warranties.
5.1. THE SOFTWARE AND THE APPLICATION ARE PROVIDED “AS IS” AND SSCS HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, AND SSCS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING: (A) SSCS DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM WILL PERFORM WITHOUT INTERRUPTION OR ERROR; AND (B) SSCS DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM IS SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA WILL REMAIN PRIVATE OR SECURE.
6.1. Customer agrees to defend, indemnify, and hold SSCS harmless, including its subsidiaries, affiliates, and all of its respective officers, agents, partners, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) Customer’s use of the Software or Application; (2) breach of these Terms and Conditions; or (3) Customer’s violation of the rights of a third party, including but not limited to intellectual property rights. Notwithstanding the foregoing, SSCS reserves the right, at Customer’s expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify SSCS, and Customer agrees to cooperate, at its expense, with SSCS’s defense of such claims. SSCS will use reasonable efforts to notify Customer of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.
7. Limitations of Liability.
7.1. EXCLUSION OF INDIRECT DAMAGES.
UNDER NO CIRCUMSTANCES WILL SSCS BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER AND HOWEVER CAUSED, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, INCLUDING (WITHOUT LIMITATION) LOSS OF PRODUCTION, LOSS OF OR CORRUPTION TO DATA, LOSS OF PROFITS OR OF CONTRACTS, LOSS OF BUSINESS, LOSS OF MANAGEMENT OR OPERATION TIME, AND LOSS OF GOODWILL OR ANTICIPATED SAVINGS, EVEN IF SSCS HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF OR COULD HAVE FORESEEN SUCH CLAIMS.
7.2. EXCLUSION OF DIRECT DAMAGES. UNDER NO CIRCUMSTANCES WILL SSCS BE LIABLE TO CUSTOMER FOR DIRECT DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION OR THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF A FUNDAMENTAL TERM, FUNDAMENTAL BREACH OR OTHERWISE IN CONNECTION WITH THE SOFTWARE, APPLICATION OR THESE TERMS AND CONDITIONS. SSCS WILL USE REASONABLE EFFORTS TO CORRECT ANY MATERIAL ERRORS IN THE SOFTWARE OR APPLICATION.
Customer shall not assign this agreement, in whole or part, without the prior written consent of SSCS. The consent of SSCS to any assignment of this agreement shall not constitute SSCS’s consent to further assignment. This agreement shall be binding on the parties and their respective successors and permitted assigns. Any assignment in contravention of this section shall be void.
8.2. Relationship. The parties intend to create an independent contractor relationship and nothing contained in this agreement shall be construed to make either Customer or SSCS partners, joint venturers, principals, agents or employees of the other. Neither party shall have any right, power or authority, express or implied, to bind the other.
8.3. Severability. To the fullest extent permitted by Law, if any provision of this agreement, or the application thereof to any individual, entity, or circumstance, is held by a court of competent jurisdiction to be invalid or unenforceable, then (a) such provision shall be considered removed from the agreement and (b) the remainder of this agreement and the application of such provision to other persons or circumstances shall not be affected by such invalidity or unenforceability.
8.4. Waivers. No delay or omission by either party to exercise any right or power it has under this agreement shall impair or be construed as a waiver of such right or power. A waiver by any party of any breach or covenant shall not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be signed by the party waiving its rights.
8.5. Remedies Cumulative. No right or remedy herein conferred upon or reserved to either party is intended to be exclusive of any other right or remedy, and each and every right and remedy shall be cumulative and in addition to any other right or remedy under this agreement, or under applicable law, whether now or hereafter existing. The election by a party of any remedy provided for in this agreement or otherwise available to such party shall not preclude such party from pursuing any other remedies available to such party at law, in equity, by contract or otherwise.
8.6. Amendments. No amendment to, or change, waiver or discharge of, any provision of this agreement shall be valid unless in writing and signed by the authorized representatives of both parties.
8.7. Headings. The headings and subheadings are for the convenience of the parties only and no special meaning will attach to the headings.
8.8. Governing Law; Venue. This agreement will be deemed made in and governed by the laws of the State of California, without application of its principles regarding conflicts of law. Each party irrevocably agrees that any legal action, suit, or other proceeding brought by it in any way arising out of this agreement must be brought solely and exclusively in the courts located in or encompassing Monterey County, California.
8.9. Time. Time of delivery and performance is of the essence in this agreement.