END USER AUTHORIZATION AGREEMENT
ONLINE TERMS AND CONDITIONS
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
“Actsoft Solution” has the meaning set forth in the preamble to the Agreement for the Actsoft Solution.
"Authorized Users" means the following individual persons authorized to use the Software pursuant to the sublicense granted under this Agreement: User’s employees, contractors or agents.
“Confidential Information” has the meaning set forth in Section 12.
"Documentation" means user manuals, technical manuals and any other materials provided by PODS or Actsoft from time to time, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Software and/or Services.
"Fees" means the fees, if any, including all taxes thereon, paid or required to be paid by User for the use and access to the Actsoft Solution.
"Person" means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.
“Services” has the meaning set forth in the preamble to the Agreement for the Actsoft Solution.
"Software" has the meaning set forth in the preamble to the Agreement for the Actsoft Solution.
"Term" has the meaning set forth in the preamble to the Agreement for the Actsoft Solution.
"Third Party" means any Person other than User or PODS.
"User" has the meaning set forth in the preamble to the Agreement for the Actsoft Solution.
“User Data” means all electronic information submitted by User and User’s Authorized Users to the Software.
2. License Grant and Scope. Subject to and conditioned upon User's payment of all applicable Fees and each Authorized User's strict compliance with all terms and conditions set forth in this Agreement, PODS hereby grants to User a non-exclusive, non-transferable, non-sublicensable, limited right during the Term to use and access, solely by and through its Authorized Users, Actsoft Solution, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This Agreement grants User the right, exercisable solely by and through User's Authorized Users, to:
(a) Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for User to be able to perform its business operations and for no other purpose.
(b) access and use the Services provided by Actsoft.
(c) Download or otherwise make reasonable number copies of the Documentation and use such Documentation, solely in support of its licensed use of the Software and Services in accordance herewith. All copies of the Documentation made by User: (i) will be the exclusive property of Actsoft; (ii) will be subject to the terms and conditions of this Agreement; and (iii) must include all trademark, copyright, patent and other intellectual property rights notices contained in the original.
3. Third-Party Terms & Conditions. The Actsoft Solution includes software, content, data or other materials, including related documentation, that are owned by Actsoft and that are provided to User on User terms that are in addition to and/or different from those contained in this Agreement. User is bound by and shall comply with such terms in its use of the Actsoft Solution. Any breach by User or any of its Authorized Users of such terms is also a breach of this Agreement.
4. Use Restrictions. User shall not, and shall require its Authorized Users not to, directly or indirectly: (a) use (including make any copies of) the Software, Documentation and Services beyond the scope of the license granted herein; (b) provide any other Person, including any subcontractor, independent contractor, affiliate or service provider of User, with access to or use of the Actsoft Solution; (c) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Actsoft Solution or any part thereof; (d) combine the Actsoft Solution or any part thereof with, or incorporate the Actsoft Solution or any part thereof in, any other programs; (e) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; (f) remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Actsoft Solution, including any copy thereof; (g) except as expressly set forth in this Agreement, copy the Software or Documentation, in whole or in part; (h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Actsoft Solution or any features or functionality of the Actsoft Solution, to any Third Party for any reason, whether or not over a network and whether or not on a hosted basis, including in connection with the internet, web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service; or (i) use the Actsoft Solution in violation of any federal, state or local law, regulation or rule.
5. Responsibility for Use of Software. User is responsible and liable for all uses of the Actsoft Solution through access thereto provided by User, directly or indirectly. Specifically, and without limiting the generality of the foregoing, User is responsible and liable for all actions and failures to take required actions with respect to the Actsoft Solution by its Authorized Users or by any other Person to whom User or an Authorized User may provide access to or use of the Actsoft Solution, whether such access or use is permitted by or in violation of this Agreement.
6. Intellectual Property Rights. User acknowledges and agrees that the Actsoft Solution is not sold to User. User does not acquire any ownership interest in the Actsoft Solution under this Agreement, or any other rights thereto other than to use the same in accordance with the right granted, and subject to all terms, conditions and restrictions, under this Agreement. Actsoft reserves and shall retain its entire right, title and interest in and to the Actsoft Solution and all intellectual property rights arising out of or relating to the Actsoft Solution, except as expressly granted to the User in this Agreement.
7. Payment. All Sublicense Fees are payable in the manner set forth in the Fee Schedule above and are non-refundable, except as may be expressly set forth herein.
(a) PODS may terminate this Agreement for any reason upon thirty (30) days prior written to the other party. (b) PODS may terminate this Agreement, effective upon written notice to User, if User, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured fifteen (15) days after PODS provides written notice thereof. (c) This Agreement automatically terminates upon the termination or expiration of the Subscription Agreement, Services and/or the Actsoft Solution. (d) Upon expiration or earlier termination of this Agreement, the rights granted hereunder shall also terminate, and User shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect User's obligation to pay all Sublicense Fees, if any, that may have become due before such expiration or termination.
9. Warranty Disclaimer.
THE SOFTWARE, DOCUMENTATION AND SERVICES ARE PROVIDED TO USER "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, PODS, ON ITS OWN BEHALF AND ON BEHALF OF ACTSOFT, AND EACH THEIR RESPECTIVE AFFILIATES, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE, SERVICES AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, PODS AND/OR ACTSOFT PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE ACTSOFT SOLUTION WILL MEET THE USER'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
10. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: IN NO EVENT WILL PODS OR ACTSOFT, OR ANY OF THEIR RESPECTIVE AFFILIATES, BE LIABLE TO THE USER OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THAT PODS OR ACTSOFT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL PODS’ AND ACTSOFT’S, INCLUDING ANY OF THEIR RESPECTIVE AFFILIATES, COLLECTIVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED $100.
11. Indemnification. User shall defend, indemnify and hold harmless PODS and its directors, officers, employees, agents, successors and assigns from and against any claims, damages, losses, costs or expenses (including, without limitation, attorneys’ fees and costs) arising out of or resulting from any breach of any term or obligation of this Agreement by User or an Authorized User.
(a) This Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of Laws of any jurisdiction other than those of the State of Florida. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted in the federal courts of the United States or the courts of the State of Florida in each case located in the city of Tampa and County of Hillsborough if such legal suit, action or proceeding is brought by PODS or User against the other, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to this Agreement, the prevailing party shall be entitled to seek recovery of its reasonable attorneys' fees and court costs from the non-prevailing party.
(b) PODS shall not be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or User equipment, loss and destruction of property or any other circumstances or causes beyond PODS' reasonable control.
(c) All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile or e-mail of a PDF document if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth above (or to such other address as may be designated by a party from time to time in accordance with this section.
(d) User shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without PODS' prior written consent, which consent PODS may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving User (regardless of whether User is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which PODS' prior written consent is required. No delegation or other transfer will relieve User of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this section is void. PODS may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without User's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(e) This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Notwithstanding the foregoing, User agrees that Actsoft is a third party beneficiary of this Agreement, and has the right to enforce the provisions of this Agreement directly against the User.
(f) No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(g) If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
(h) No failure or delay by PODS in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies PODS may have at law or in equity.
(i) The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
(j) User agrees that PODS may make changes to the terms and conditions of this Agreement from time to time making the updated agreement available online. User agrees that PODS may make such changes, at PODS’ option, without providing any special notice or upon 30 days prior written notice to User.
Date: February 14, 2014