SOFTWARE AS A SERVICE AGREEMENT
FOLIOGROW, LLC (“FOLIOGROW”) SERVICE AND PRODUCTS
THIS LEGAL DOCUMENT IS A SOFTWARE AS A SERVICE AGREEMENT
("AGREEMENT") BETWEEN YOU, THE END-USER ("USER"), AND FOLIOGROW
FOR ALL SERVICES AND PRODUCTS PROVIDED BY FOLIOGROW HEREIN.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING AND/OR
ACCESSING THE SERVICE. BY USING THIS SERVICE, YOU, THE USER,
ARE AGREEING TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
Subject to the terms hereinafter set forth, FOLIOGROW grants to USER a
personal, non-exclusive, nontransferable license to access the FOLIOGROW
SAAS proprietary service and any downloadable software for use with the
FOLIOGROW SAAS proprietary service, if any, (collectively, the “Service”),
proprietary to FOLIOGROW or its suppliers, including associated
documentation, as a part of USER-purchased products which contain FOLIOGROW
products (“Products”). USER is granted no title or ownership rights in or
to the Service, the Products, and any software therein or related thereto,
in whole or in part, and USER acknowledges that title to and all
copyrights, patents, trade secrets, and/or any other intellectual property
rights to and in all such Service, and the software therein or related
thereto, and associated documentation are and shall remain the property of
FOLIOGROW and/or FOLIOGROW’s suppliers.
This Agreement will be effective from the earlier of: (a) the date this
Agreement is accepted by USER; or, (b) the date on which USER first
accessed the Service, whichever is earlier, and shall continue until
terminated.
FOLIOGROW considers the Service to contain “trade secrets” of FOLIOGROW
and/or its suppliers. Such “trade secrets” include, without limitation
thereto, the specific design, structure, and logic of individual software
programs, business methods, screens, output and their interactions with
other portions of Service, both internal and external, and the programming
techniques employed therein.
All grants of rights to use intellectual property intended to be
accomplished by this Agreement are explicitly stated. No other grants of
such rights shall be inferred or shall arise by implication.
USER shall not assign its rights under this Agreement to any third party.
Any attempted assignment of rights shall be void and conclusively presumed
a material breach of this Agreement.
If FOLIOGROW, in its sole discretion, (i) claims a material breach of this
Agreement, and (ii) provides written notice of such claimed material breach
to USER and (iii) observes that such claimed material breach remains
uncorrected and/or unmitigated more than thirty (30) days following USER's
receipt of written notice specifying in reasonable detail the nature of the
claimed material breach, then USER acknowledges that this Agreement may be
immediately terminated by FOLIOGROW and USER further acknowledges that any
such termination shall be without prejudice to any other rights and
remedies that FOLIOGROW may have at law or in equity. Further, this
Agreement may be terminated at any time by FOLIOGROW, with or without
cause, effective upon notice of termination. All confidentiality
obligations of USER shall survive termination.
FOLIOGROW, in its sole discretion, may or may not respond to USER feedback
or promise to address all USER feedback in the development of future
features or functionalities of the Service or any related or subsequent
versions of such Service. In the event FOLIOGROW uses USER’s feedback, USER
grants FOLIOGROW an unrestricted, perpetual, worldwide, exclusive,
transferable, irrevocable, sub-licensable, royalty-free, fully paid-up
license to use, copy, modify, create derivative works of, make, have made,
distribute (through multiple tiers of distribution), publicly perform or
display, import, export, sell, offer to sell, rent, or license copies of
USER’s feedback as part of or in connection with any FOLIOGROW product,
service, technology, content, material, specification, or documentation.
USER warrants that any feedback provided by USER does not infringe any
copyright or trade secret of any third party, and that USER has no
knowledge of any patent or other type of intellectual property of third
party that may be infringed by the feedback (including any implementation
thereof recommended by USER). USER further warrants that USER’s feedback is
not subject to any license terms that would purport to require FOLIOGROW to
comply with any additional obligations with respect to any FOLIOGROW
product or service that incorporates USER’s feedback.
USER acknowledges that FOLIOGROW and its providers may obtain certain
information and data from USER in connection with USER’s use of the
Service; including, without limitation, information and data provided in
connection with registration, activation, updating, authentication,
monitoring installation of, and access to the Software. USER hereby grants
FOLIOGROW a perpetual, irrevocable, non-exclusive, royalty-free, paid-up,
worldwide, sub-licensable license to use, access, transmit, host, store,
and display such data for the purpose of providing and improving the
Service. FOLIOGROW (or its sub-licensees) may exercise such license for
purposes of providing, maintaining, repairing, administering, and improving
the Service or in developing new products or services, including, but not
limited to, the rights to extract, compile, aggregate, synthesize, use, and
otherwise analyze all or any portion of such data. USER hereby represents,
warrants, and agrees that any data and/or other materials provided or made
available to FOLIOGROW by USER will include only information relevant to
the Service and the use thereof and will not include any
personally-identifiable information or any protected health data. USER
acknowledges and agrees that USER is solely responsible for all data
uploaded or submitted using the Service by USER and for USER’s conduct
while using the Service. USER further acknowledges and agrees that: (a)
USER will evaluate and bear all risks associated with the use of any data;
(b) USER is responsible for protecting and backing up data; (c) USER is
responsible for protecting the confidentiality of any data; and (d) under
no circumstances will FOLIOGROW be liable in any way for any data,
including, but not limited to, any errors or omissions in any data, or any
loss or damages of any kind incurred as a result of USER’s use, deletion,
modification, or correction of any data. USER hereby consents to FOLIOGROW
and its providers maintaining, using, storing, and disclosing such
information and data (including, without limitation, personal information)
in conformity with the “FolioGrow Privacy Policy,” which may be updated
from time to time. USER further consents to receiving electronic
communications and notifications from FOLIOGROW in connection with USER’s
use of the Service. However, FOLIOGROW has no responsibility to store,
protect, remove, or delete any data for USER and shall have no liability
for the deletion of or failure to store any data.
USER shall:
-
Hold the Products and Service in confidence for the benefit of FOLIOGROW
and/or FOLIOGROW’s suppliers using no less a degree of care than it uses to
protect its own most confidential and valuable information; and
-
Maintain logos of FOLIOGROW and/or FOLIOGROW’s suppliers, appearing on
the original copy of Products delivered to USER; and retain the same
without alteration on all original copies; and
-
Issue instructions to each of its authorized employees, agents, and/or
representatives to whom Service is disclosed, advising them of the
confidential nature of such Service and to provide them with a summary of
the requirements of this Agreement; and
USER shall not:
- Use the Service (i) for any purpose other than USER's own internal use;
and (ii) other than as provided by this Agreement; or
- Allow anyone other than USER's employees, agents and/or representatives
with a "need to know" to have access to the Service; or
- Duplicate any aspect or feature of the Service for the purpose of
reengineering or recreating software or a service similar to the Service;
or
- Attempt to reverse engineer, disassemble, reverse translate, decompile,
or in any other manner decode Service in order to derive the source code
form; or
- Make full or partial copies of any documentation or other similar printed
or machine-readable matter provided with Service or Products unless the
same has been supplied in a form by FOLIOGROW intended for periodic
reproduction of partial copies.
THE SERVICE IS PROVIDED “AS IS” AND WITH ALL FAULTS. THIS AGREEMENT
DOES NOT CONFER ANY WARRANTY TO USER FROM OR BY FOLIOGROW.
FOLIOGROW HAS NO OBLIGATION TO SUPPORT, UPDATE, OR UPGRADE THE SERVICE.
IN NO EVENT WILL FOLIOGROW AND/OR FOLIOGROW’S SUPPLIERS AND THEIR
DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS BE LIABLE TO OR THROUGH USER
FOR INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR
EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOSS OF BUSINESS
OR BUSINESS INFORMATION, BUSINESS INTERRUPTION, OR OTHER ECONOMIC
DAMAGE, AND FURTHER INCLUDING INJURY TO PROPERTY, AS A RESULT OF USE OR
INABILITY TO USE THE SERVICE OR BREACH OF ANY WARRANTY OR OTHER TERM OF
THIS AGREEMENT, REGARDLESS OF WHETHER FOLIOGROW AND/OR FOLIOGROW’S
SUPPLIERS WERE ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF
THE POSSIBILITY THEREOF.
LIMITATION OF LIABILITY. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO
EVENT SHALL FOLIOGROW BE LIABLE FOR PERSONAL INJURY OR ANY INCIDENTAL,
SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS
INTERRUPTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF
OR RELATED TO USER’S USE OF OR INABILITY TO USE THE SERVICE, HOWEVER
CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR
OTHERWISE) AND EVEN IF FOLIOGROW HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. IN NO EVENT SHALL FOLIOGROW’S TOTAL LIABILITY TO USER FOR
ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW) EXCEED
THE AMOUNT OF FIFTY DOLLARS ($50.00). THE FOREGOING LIMITATIONS WILL
APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
THE RIGHTS AND OBLIGATIONS ARISING UNDER THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS. ANY LEGAL
ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT WILL BE BROUGHT
EXCLUSIVELY IN THE FEDERAL OR STATE COURTS LOCATED IN OR AROUND DALLAS,
TEXAS, AND THE PARTIES HEREBY CONSENT TO PERSONAL JURISDICTION AND
VENUE THEREIN.
I have read and agree to the Terms and Conditions.