This agreement ("Agreement") is between Carrick Enterprises, Inc. ("Provider") and your institution ("Customer") for the use of the SiteScripter Library Applications service ("Service") for the period covered by the most recent invoice. This Agreement governs the terms of use of the Service. By activating the Service, Customer acknowledges that Customer has read and understood, and Customer agrees to, the terms of this Agreement, and represents that Customer has the full power and authority of said individual or corporation to act on Customer's behalf and that Customer has duly approved the action taken herein by virtue of the authority granted from the Board of Directors or as otherwise required of the Customer to enter into this Agreement and become bound by its terms. Provider may change the terms of the Agreement from time to time.
Customer is hereby granted a non-exclusive, non-transferable license to have access to and use of the Service. Customer does not acquire ownership interest or rights in the Service and associated materials and all such rights and interests remain with Provider and Provider's licensors. The Service is licensed solely for Customer's authorized users' internal use. No provision of this Agreement shall be deemed to make the parties either partners or joint venturers.
Customer acknowledges that Provider may, at its sole discretion, include third-party technology as part of this Agreement and Customer expressly accepts that all such technology is covered under this Agreement. Further, Customer acknowledges that Provider may, at any time at its sole discretion, make changes, modifications, edits, and otherwise alter the Service. Customer acknowledges that the Service requires resources on Customer's computers, Internet connection, network, and other facilities and hereby grant the Service use of these facilities. Customer accepts all responsibility for the security of its user accounts. It is up to Customer to keep its user accounts secure. In no event will Provider be liable for the unauthorized use or misuse of Customer's user accounts.
Provider shall use commercially reasonable efforts to provide the Service on a continuous basis and free from viruses or other harmful software. Neither Provider nor its licensors shall be liable or deemed in default of this Agreement for any failure or delay or interruption in the Service or any failure of any equipment or telecommunications resulting from any cause or circumstance beyond the reasonable control of Provider. Customer shall provide Provide with the name and email address of an administrative contact person for the Service. The administrative contact person will be notified by email one (1) week in advance of any scheduled hardware and software maintenance. Notification of emergency maintenance will be made with as much forewarning as is possible, however, forewarning cannot be guaranteed.
a) Customer shall pay the fees for the Service as selected by the Customer and shown on the invoice. All of the Customer's rights associated with the Service terminate upon the Service expiration date. Any ability for Customer to renew a subscription after the expiration date occurs under a grace period and is extended as a courtesy. Customer shall provide the name and email address of a billing contact person and all invoices will be sent in PDF format to the email address of the billing contact person.
b) Customer agrees to pay the fees for the Service within thirty (30) days of receipt of the invoice. All monies due and payable pursuant to this Agreement shall be in United States currency and made payable to Carrick Enterprises, Inc. and sent to:
Carrick Enterprises
170 Lake Terrace Drive
Munroe Falls, OH 44262
c) The parties further understand and agree that in the event of a breach, attempted breach, or threatened breach of the terms of this Agreement, Provider may proceed against the other party in law or in equity for such damages or other relief a court may deem appropriate. It is further agreed that where there is an attempted or threatened breach, Provider shall be entitled to an injunction restraining the other party or its affiliates, subsidiaries, employees or agents, from committing such attempted breach or threatened breach, and to the recovery of reasonable attorneys' fees and expenses, including court costs, incurred in attempting to remedy such breach.
This Agreement shall continue until the Service subscription expiration date as shown on the invoice. The license granted under this Agreement shall continue for the term specified and terminate early only upon Customer's breach of this Agreement. Provider may suspend access to the Service if Customer fails to comply with its obligations under this Agreement. Provider can pursue any other legal remedy available to it. Under no circumstances may Customer terminate this Agreement early, and no refund will be made to Customer, except upon Provider's material breach of this Agreement.
The intellectual property rights, including without limitation, trade secrets, copyrights and patent rights to any software, materials, databases or hardware supplied to Customer by Provider shall remain the sole property of Provider or its licensors, and no title or license right is granted to Customer except as expressly set forth in this Agreement.
From time to time during the term of this Agreement, Provider may add or modify information, materials, capabilities or services to the Service. All such information, materials, capabilities and services shall be subject to the terms and conditions of this Agreement at the time they are added or modified by Provider.
Provider may designate that certain hardware and software are capable of operating compatibly with the Service, but such designation means only that the hardware or software appears to meet the necessary requirements of the Service. PROVIDER SPECIFICALLY DISCLAIMS ANY RESPONSIBILITY FOR DETERMINING THE COMPATIBILITY OF ANY HARDWARE OR SOFTWARE NOT SUPPLIED BY THE PROVIDER WITH THE SERVICE AND PROVIDES NO WARRANTY WITH RESPECT TO THE OPERATION OF SUCH HARDWARE OR SOFTWARE WITH THE SERVICE.
THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESSED OR IMPLIED. WITHOUT LIMITING THE FOREGOING, PROVIDER EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. PROVIDER MAKES NO WARRANTY THAT THE SERVICE WILL MEET CUSTOMER'S REQUIREMENTS OR WILL BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. CUSTOMER'S USE OF THE SERVICE IS AT CUSTOMER'S OWN RISK. CUSTOMER ACKNOWLEDGES AND AGREES THAT PROVIDER SHALL NOT BE RESPONSIBLE FOR ANY DAMAGES TO CUSTOMER'S COMPUTER SYSTEMS OR TO THE COMPUTER SYSTEMS OF ANY THIRD PARTY THAT RESULT FROM USE OF THE SERVICE.
Customer agrees to defend, indemnify, and hold harmless Carrick Enterprises, its officers, directors, employees and agents, from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with Customer's access to or use of the Service, or Customer's violation of this Agreement.
THE MAXIMUM LIABILITY OF CARRICK ENTERPRISES AND ITS LICENSORS, IF ANY, UNDER THIS AGREEMENT, OR ARISING OUT OF ANY CLAIM RELATED TO THE SERVICE, FOR DIRECT DAMAGES, WHETHER IN CONTRACT, TORT OR OTHERWISE SHALL BE LIMITED TO THE TOTAL AMOUNT OF FEES RECEIVED BY CARRICK ENTERPRISES FROM CUSTOMER HEREUNDER UP TO THE TIME THE CAUSE OF ACTION GIVING RISE TO SUCH LIABILITY OCCURRED. IN NO EVENT SHALL CARRICK ENTERPRISES OR ITS LICENSORS BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES RELATED TO THE USE OF THE SERVICE OR CARRICK ENTERPRISES' FAILURE TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, REGARDLESS OF WHETHER CARRICK ENTERPRISES OR ITS LICENSORS ARE NEGLIGENT. CUSTOMER ACKNOWLEDGES THAT THE FORGOING LIMITATION OF LIABILITY REPRESENTS BARGAINED-FOR ALLOCATION OF RISK, AND THAT CARRICK ENTERPRISES' FEES, CHARGES AND COSTS HEREUNDER REPRESENT ALLOCATIONS OF SUCH RISK.
Notices should be sent via certified mail, return receipt requested to:
Bradley S. Le Boeuf
Attorney at Law
2475 Massillon Road
Akron OH 44312-5316
a) Assignment. Customer may not assign this Agreement or any right granted hereunder without the prior written consent of Carrick Enterprises, which consent shall not be unreasonably withheld.
b) Taxes. Customer is responsible for any sales, use, personal property or other federal, state and local taxes imposed on the Service.
c) Waiver. No waiver of any provision in this Agreement shall be valid unless the same is in writing and signed by the party against whom it is sought to be enforced. No wavier of any provision of this Agreement at any time will be deemed a waiver of any other provision of this Agreement at such time, or will be deemed a waiver of such provision at any other time.
d) Entire Agreement. This Agreement represents the entire, complete and exclusive understanding by and between the parties and reduces to writing all prior oral agreements and negotiations of the parties, and may not be altered, amended, or otherwise changed unless in writing signed by all of the parties affected thereby.
e) Severability. In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and affect.
a) Provider values Customer's privacy and has developed the following policy to provide protection against the unwanted disclosure of sensitive or private data. Provider remains vigilant in defense of Customer rights and expectations of privacy.
b) No information Customer generates or provides will be sold, shared, or otherwise disclosed to any third party by Provider without Customer's consent, except as required by law or during instances of compliance with requests from law enforcement personnel or for the use in an investigation of suspected fraudulent or threatening activity.
c) In an effort to provide superior service, Provider shall assemble data Customer provides Provider in a profile format that will allow Provider to make the Service more customer friendly and responsive. This information is for Provider's internal use only and will not be disclosed to any third party.
d) Email addresses and telephone numbers provided to the Service are kept in confidence. Should Provider use this information to communicate with Customer, it is designed to improve service and Provider shall respect any request to avoid the use of this information in the future. Provider shall not sell or otherwise disseminate this information to third parties unless require by court order or other legal action.
e) Provider secures all information gathered in the Service. Provider takes extensive precautions to prevent unauthorized access to this information and will safeguard Customer's information using industry standard methods of data and system security.
February 6, 2012