IMPORTANT - - READ CAREFULLY: This END USER LICENSE AGREEMENT (“Agreement”) is a legal agreement between APPLIED TRAINING SYSTEMS, Inc., a Delaware corporation (“Licensor”), and the individual or entity subscribing to and licensing the product (“You” or “Your”) for the Reviewsnap software product You are in the process of accessing online (the “Software Product” or “Software”). If the Software Product is an upgrade or renewal of a Licensor product licensed to You previously, by accepting this Agreement as set forth below, You agree that You may use the upgraded or renewed Software Product only in accordance with this Agreement, notwithstanding the terms of any end user license agreement You have previously entered into with Licensor.
BY USING THE SOFTWARE PRODUCT, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THIS AGREEMENT’S WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, EXIT NOW AND DO NOT ACCESS AND USE THE SOFTWARE PRODUCT.
Ownership of the Software Product. All content included in the Software Product or on the Reviewsnap website, including without limitation text, graphics, logos, images, software, etc., is the sole and exclusive property of the Licensor, and is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The Software Product is licensed, not sold. Licensor has not transferred title in the Software Product to You. You retain sole ownership of Your data.
Limited Nonexclusive License. Subject to the limitations set forth herein and receipt by Licensor of all applicable subscription fees, Licensor grants You a personal, nonexclusive license to use the Software Product for an Initial Term of one (1) year from the date of acceptance of this Agreement and, upon Your payment of all required renewal subscription fees (which fees may be changed by Licensor from time to time before the start of any renewal period), the term hereof shall automatically renew thereafter for subsequent Renewal Terms of one (1) year each unless and until either party gives the other party at least thirty (30) days’ written notice of termination or has otherwise exercised any termination rights provided by this Agreement. You may not rent, lease or sublicense or otherwise transfer Your rights to use the Software Product. You agree that You will not directly or indirectly, export or re-export the Software Product (or any portions thereof) to any other country.
You may not reverse engineer, decompile, or disassemble the Software Product. In addition, You may not nor permit others to alter or code the Software Product’s programming code in any fashion. You shall not provide or otherwise make available the Software Product, including documentation, in any form to any other person without obtaining the prior written consent of Licensor.
From time-to-time Licensor may issue upgrades that may require Your acquisition of upgrades to corresponding third party programs or products. The cost of these third party programs or products is not included in Your subscription and must be paid by You in order for You to benefit from any such the Licensor upgrades.
Fees. You agree to pay the Initial Term Subscription Fee required for Your pricing tier as disclosed in the Licensor’s website as of the date of Your initial subscription. The Initial Term is one (1) year from the date of Your payment of Your required Implementation Fee and Initial Term Subscription Fee. Your subscription and license rights shall automatically renew on each anniversary date for an additional one-year term unless terminated by either party in writing at least thirty (30) days in advance of the anniversary date; provided You have paid all required renewal subscription fees (which fees may be changed by Licensor from time to time before the start of any renewal period) before the anniversary date. Licensor may also increase the annual subscription fee during the Initial Term or any Renewal Term if You add additional employees such that You move into a higher pricing tier. Any such increase shall be due on a pro-rata basis for the remainder of the subject Initial Term or Renewal Term. The failure to pay any such increased fees when due may result in the immediate suspension of Your account and the disabling of Your access to the Software Product, and disabling your access to the Software Product will also disable your ability to access other third party software programs through our website (although you would still be able to access such third party programs from the providers’ websites).
Refunds. If for any reason, during the first 30 days of the Initial Term or Your subscription, You are not completely satisfied with the Software Product, Licensor will refund the Subscription Fee. No refunds are available after that point except as described in the termination provisions set forth below.
Support and Training. Licensor will provide one (1) session of training for Administrator(s) and one (1) session of training for manager(s) via webinar or teleconference during the Initial Term. These sessions of training will be recorded. Should an Administrator or Manager not make the initial session they will have access to the recorded session. Technical Support.
Technical Support. Licensor provides both telephone and email based support of its Software Product and its related website. A toll-free number (800-516-5849) is provided to You for such support. Email support is available at email@example.com. Our support is available Monday-Friday 8am to 8pm Eastern Time (excluding holidays).
Limited Warranty and DISCLAIMER OF ALL OTHER WARRANTIES. Licensor represents that the Software Product will materially perform as described in the current Reviewsnap Reference Guide for Administrators, which guide may be revised from time to time by the Licensor.
Licensor warrants that the Software Product website shall have uptime of at least 98% in any month, other than scheduled maintenance. Scheduled maintenance may result in the Software Product being inaccessible to You and is generally conducted between 2:00 AM and 4:00 AM Central Time. If Licensor fails to meet the aforementioned uptime for the Software Product website in any given month, You shall be entitled to receive a refund of 10% of the subscription fee applicable to that month, and this refund will be Your sole remedy for Licensor’s failure to meet this uptime commitment.
THE SOFTWARE PRODUCT, LICNESOR’S SUPPORT SERVICES ARE LICENSED AND PROVIDED TO YOU ON AN “AS IS” BASIS EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE AND, TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSOR DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE AND ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY WITH RESPECT TO THE SOFTWARE PRODUCT AND ANY SUPPORT SERVICES PROVIDED BY THE LICENSOR, AS WELL AS FOR ANY OTHER PRODUCTS OR SERVICES ACCESSED THROUGH THIS WEBSITE.
Limitation of Liability and Exclusion Of Consequential Damages. The cumulative liability of Licensor to You for all claims relating to the Software Product and any support or other services rendered by Licensor hereunder and any other matter related to this AGREEMENT, in contract, tort, or otherwise, shall not exceed the total amount of all subscription and other fees paid by You to Licensor during the twelve (12) month time period immediately preceding the date on which You assert any claim against the Licensor.
IN NO EVENT SHALL LICENSOR, ITS AFFILIATES OR ANY OF THEIR OWNERS, EMPLOYEES, AGENTS, SUBCONTRACTORS, OR VENDORS BE LIABLE FOR DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES IN ANY WAY CONNECTED WITH YOUR USE OF THE SOFTWARE PRODUCT OR ITS RELATED WEBSITE, THEIR CONTENT, OR FOR ANY DELAY OR INABILITY TO USE THE SOFTWARE PRODUCT OR WEBSITE, WHETHER YOUR CLAIMS FOR LIABILITY ARE BASED IN CONTRACT, TORT, OR ANY OTHER BASIS, EVEN IF LICENSOR HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies.
Force Majeure. Licensor shall not be liable for failing to perform under this Agreement because of any event beyond its reasonable control, including, without limitation, a labor disturbance, an Internet outage or interruption of service, a communications outage, failure by a service provider or any other third party to perform, fire, an act of terrorism, natural disaster or war.
Security. You are responsible for the confidentiality of Your account information and password and agree to accept responsibility for all activities that occur using Your password to access Your account.
Prohibited Conduct. In Your use of the SOFTWARE PRODUCT, You may not: (i) infringe, violate, or interfere with any patent, trademark, trade secret, copyright, right of publicity or any other right of any party; (ii) violate any law, rule or regulation, including, without limitation, U.S. export control laws; (iii) interfere with or damage any associated online content of Licensor, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial of service attacks, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology; or (iv) assist or encourage any third party in engaging in any activity prohibited by this Agreement.
Indemnification. You will defend, indemnify and hold Licensor and its affiliates, and its and their employees, representatives, agents, attorneys, directors, officers, managers, shareholders, suppliers and licensors (the “Indemnified Parties”) harmless from any damage, loss, cost or expense (including, without limitation, attorneys’ fees and costs) incurred in connection with any third-party claim, demand or action (“Claim”) brought or asserted against any of the Indemnified Parties arising from, related to, or connected with Your alleged breach of this Agreement. If You are obligated to provide indemnification pursuant to this provision and You do not agree to assume the defense of the Claim, we may control the disposition of the Claim at Your sole cost and expense. Without limitation of the foregoing, You may not settle, compromise or in any other manner dispose of any Claim without our written consent.
Termination. If Your subscription terminates or expires for any reason Your account shall be immediately disabled and Your access to the Software Product will be unavailable. Licensor may refuse service, remove/edit content, refuse orders, and/or terminate any subscription for any reason upon thirty (30) days’ notice to You. You may terminate Your subscription because of a material breach by Licensor that goes uncorrected for 30 days after Licensor receives written notice of the breach. If Licensor terminates the current term of Your subscription without cause or You terminate the current term of Your subscription because of an uncured breach, Licensor shall refund the pro-rata subscription fee applicable to the remainder of the then-current Initial Term or Renewal Term.
Notices. All notices or other communications required to be given to Licensor hereunder shall be in writing and shall be delivered either personally or by U. S. mail, certified, return receipt requested, postage prepaid, and addressed as then set forth in the “contact information” section of the Licensor’s website for the Software Product, which information may be revised and updated by Licensor from time to time. Notices to You may be given via messages to the email address You provide to Licensor. Notices delivered personally or by email shall be effective upon delivery and notices delivered by regular mail shall be effective upon the date of their receipt by the party to whom they are addressed.
Governing Law and Dispute Resolution. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Iowa as it applies to a contract made and performed in such state, without regard to conflict of laws principles. The parties hereto further agree and consent that exclusive jurisdiction and venue for any action brought related to or arising out of the AGREEMENT shall be limited to the United States District Court for the Southern District of Iowa, Central Division, or the Iowa District Court for Polk County, Iowa, and both parties waive all objections to such jurisdictions. Service of process may be served on any party to any such proceeding anywhere in the world. You waive Your right to a jury trial for any claims related in any way to this Agreement or the Software Product and agree that any such claims must be brought within one (1) year of the accrual of the claim. In addition to the other remedies available to Licensor hereunder, You agree to pay the costs and reasonable professional and attorney fees incurred by Licensor in enforcing any term or provision of this Agreement. If You initiate litigation against the Licensor, the prevailing party shall be entitled to reimbursement of its costs and attorneys’ fees from the other party.
Entire Agreement and Modifications. You expressly acknowledge that You have not relied on any oral or written representations or statements that are not contained in this Agreement. This Agreement constitutes the entire agreement between the parties hereto and, except for any written agreement related to the Software Product that is signed by both you and the Licensor, this Agreement supersedes all prior and contemporaneous agreements, discussions and understandings between You and us regarding this Software Product and no use of trade or other regular practice or method of dealing between the parties hereto shall be used to modify, interpret, supplement, or alter in any manner the terms of this Agreement. Licensor may modify the terms of this Agreement from time to time and such modified terms may be electronically or otherwise accepted by You, including without limitation by paying the annual subscription fee applicable to any Renewal Term which will serve Your acceptance of the then-current version of this Agreement.
Binding Effect and Assignment. This Agreement is binding upon each party and its successors and permitted assigns. This Agreement is assignable by Licensor upon notice to You, but You may not be assign this Agreement and/or Your subscription to use the Software Product to any other person or entity without the written consent of the Licensor.
Severability. The provisions of this Agreement are intended to be severable. If for any reason any provision of this Agreement is held invalid or unenforceable in whole or in part in any applicable jurisdiction, such provision shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without in any manner affecting the validity or enforceability thereof in any other jurisdiction or the remaining provisions hereof in that or any other jurisdiction.
Waivers. A waiver by either party of its rights hereunder shall not be binding unless contained in a writing signed by an authorized representative of the party waiving its rights, and the non-enforcement or waiver of any provision on one occasion shall not constitute a waiver of such
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