|
|
Tandem for Schools Terms of Service |
|
This Terms of Service Agreement ("Agreement") constitutes a binding contract for application services between the Customer (as defined below) and Intand Corporation, a Washington corporation, whereby Intand will provide online access to the Tandem™ software and certain related support and maintenance services as further described in this Agreement (collectively the "Service"). BY CHECKING "I ACCEPT" BELOW AND BY ACCESSING THE SERVICES, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE ORGANIZATION SPECIFIED ON THE SERVICE REQUEST FORM ("Customer"), THAT YOU HAVE READ THIS AGREEMENT, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS HEREIN ON BEHALF OF THE CUSTOMER. Description of the Services. Tandem is a calendar application that may be accessed by Customer on an application service provider basis during the term of this Agreement. You understand and agree that the Service may include content-targeted ads or other related information, as further described below, and in the Tandem Privacy Policy. License. Intand grants Customer a perpetual, non-exclusive, no charge, royalty-free, irrevocable license to access the Tandem™ software provided to you as part of the Service (referred to hereafter as "Software") in the Territory ("License"), subject to the terms and conditions of this Agreement. For purposes of this License, the Territory means the world, subject to any geographic limitations placed on the Software by the original copyright holder. The Software is developed in part based on Third Party Source Code subject to the GNU General Public License. Customer is responsible for complying with the terms and conditions set forth in the GNU General Public License, along with other third party licenses, available here at Third Party Source Code. Intand makes no warranty of any kind regarding the Third Party Source Code. The Software runs and operates using Third Party Open Source Operating Software. Customer is responsible for complying with the terms and conditions set forth in each Third Party Open Source Operating Software license, available here at Third Party Open Source Operating Software. Intand makes no warranty of any kind regarding Third Party Open Source Operating Software license. Other Required Software. The Software will not operate unless Customer has installed certain Third Party Commercial Software and Third Party Open Source Software on each computer on which the Software will be used. "Third Party Open Source Software" is defined as Software created with open source software code by anyone other than Intand. "Third Party Commercial Software" is defined as Software created without open source software code by anyone other than Intand. Intand will supply Third Party Open Source Software to Customer. Customer is responsible for obtaining Third Party Commercial Software. Intand makes no warranty of any kind regarding the Third Party Open Source Software or the Third Party Commercial Software. Proprietary Notices. Customer may not remove, change, or obscure any copyright, trademark, or other proprietary notices in the Software or on any associated media. Customer must include the notices in any authorized copies and modified versions. Exclusion of Warranties. BECAUSE THE SOFTWARE IS LICENSED FREE OF CHARGE, THERE IS NO WARRANTY FOR THE SOFTWARE, TO THE EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT WHEN OTHERWISE STATED IN WRITING, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH CUSTOMER. SHOULD THE SOFTWARE PROVE DEFECTIVE, CUSTOMER ASSUMES THE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. INTAND DOES NOT WARRANT THAT YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, WHEN TIMELY, SECURE, OR ERROR FREE. FURTHER, INTAND DOES NOT WARRANT THAT ANY DEFECTS IN THE OPERATION OR FUNCTIONING OF ANY SOFTWARE PROVIDED TO YOU AS PART OF THE SERVICES WILL BE CORRECTED. Limitation of Liability. IN NO EVENT WILL INTAND BE LIABLE TO YOU FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PROGRAM (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF DATA OR DATA BEING RENDERED INACCURATE OR LOSSES SUSTAINED BY YOU OR THIRD PARTIES OR A FAILURE OF THE PROGRAM TO OPERATE WITH ANY OTHER PROGRAMS), HOWEVER CAUSE AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF INTAND HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. REGARDLESS OF THE THEORY OF LIABILITY, INTAND'S LIABILITY IS LIMITED TO THE LICENSE FEE CUSTOMER PAID FOR THE COPY OR COPIES OF THE SOFTWARE INVOLVED. Responsibility for Use. Intand is not responsible for any errors or omissions or for the results obtained from the use of the Software and/or Third Party Software. Customer will indemnify Intand against any loss, liability, or costs (including reasonable attorney fees at trial or in any other proceeding) incurred on account of Customer's use of the Software and Third Party Software, including without limitation any claim for property damage, personal injury, or death relating to products Customer designs using the Software and/or Third Party Software, whether or not attributable to the Software and/or Third Party Software's operation or design. Infringement. If the Software is determined to infringe or, in Intand's view, is likely to be found to infringe third-party rights, Intand will, at its sole option either procure for Customer the right to continue using the Software or replace or modify the Software so that it becomes noninfringing. If, in Intand's sole opinion, neither option is desirable, Intand may refund to Customer a pro rata portion of any Annual Support Fee, based on the amount of the fee attributable to periods after the termination date. THE REMEDIES STATED IN THIS SECTION ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES IN THE EVENT OF INFRINGEMENT. Customer Support and Software Maintenance. During the term of this Agreement, Intand will provide Customer with the following customer support and maintenance as part of the Service, the charge for which is included in the Annual Fee: On-Line Support. Intand will maintain an e-mail address to which Customer's Designated Contacts may report problems and send questions about the Software. Intand personnel will monitor e-mail requests for support on a regular (but not continuous) basis, and will use reasonable efforts to answer questions about installation, use, operation, or maintenance of the Software. Support services will usually be provided by e-mail, modem, or other form of remote communication or access. Error Correction. Intand will use reasonable efforts to correct verifiable and reproducible errors in the Software reported by Customer. Intand may correct errors by making revisions to programming or by providing reasonable "work-around" solutions. As used in this Agreement, an "error" is any failure of the Software to function in substantial conformity with documentation. Intand may modify documentation that incorrectly describes Software function, to resolve an error. New Releases. Intand will provide to Customer any new release of the Software that Intand makes available to all other users of the Software on a no-charge basis. Intand retains sole discretion to determine whether and when to make new releases available and the terms on which they will be made available to customers. Software Versions Supported. Intand will provide support services for the current version of the Software. Intand will also continue providing support for the last prior version of the Software for at least six (6) months after the current version is released. Customer is responsible for installing new versions of the Software when released, and for obtaining new versions of Third Party Software needed by any new version of the Software. Intand reserves the right to base future versions of the Software on third-party platforms. Training. Subject to availability of Intand training personnel, Intand will provide training upon request to Customer personnel. Training is provided at Intand's then-standard rates for training, and is not included in the Annual Support Fee. Training will be provided at Intand's offices unless otherwise agreed. Use and Ownership of Materials. In the course of providing services, Intand may provide Customer with materials created or otherwise owned by Intand, including without limitation images, text, multimedia files, data, and trademarks ("Intand Content"). Intand may also provide Customer with materials owned by and licensed from third parties ("Third-Party Content"). Customer may provide Intand with materials to be utilized in connection with the services ("Customer Content"). Customer Content includes any Customer trademarks or service marks that Customer directs or permits Intand to incorporate into materials provided by Intand to Customer under this Agreement. Customer grants Intand a non-exclusive, worldwide, royalty-free license for the term of this Agreement to reproduce, prepare derivative works from, distribute, perform, display, use and sublicense any Customer Content in connection with the services to be provided to Customer under this Agreement. Except to the extent otherwise provided in the Service Order as to particular materials to be delivered to Customer, the Intand Content is licensed to Customer on a non-exclusive, revocable basis. The license for Intand Content is effective unless Customer fails to pay any amounts owed to Intand under this Agreement. Except to the extent otherwise provided in the Service Order as to particular materials to be delivered to Customer, Intand retains all right, title and interest (including intellectual property rights) in Intand Content. Customer hereby assigns to Intand any interest Customer may have in Intand Content (other than the license for Software provided under this agreement), and will sign such documents as Intand may reasonably request to confirm Intand's ownership. Customer represents and warrants to Intand that Customer is the owner of, or has the right to authorize Intand to utilize, any Customer Content. Customer will indemnify Intand against any loss, liability or costs (including reasonable attorney fees at trial and in any other proceeding) incurred on account of any third party claim that Intand's use of the Customer Content as permitted by this Agreement infringes the patent, trademark, copyright, or other rights of others. Intand will identify any Third-Party Content in writing before providing it to Customer for use. Customer is responsible for obtaining any license required for Third-Party Content. Customer's use of any Third Party Content provided under this Agreement will be governed by the terms on which the third party licenses the content. Late Charges. Amounts unpaid thirty (30) days after the invoice date or any later stated due date will incur a late fee of five percent (5%) of the unpaid balance or, if less, the highest late fee allowed by applicable law. Term. Subject to earlier termination under Section 16, this Agreement will be effective upon Acceptance below, and will automatically renew in successive annual periods unless either party gives notice of nonrenewal at least thirty (30) days before the end of the then-current period. The terms on which the Software will be provided for any renewal period may be changed by Intand by notice given to Customer at least fifteen (15) days before the change. Termination. Either party may terminate this Agreement by providing written notice at least thirty (30) days prior to the end of the then current annual term, or if the other party fails to comply with any material term or condition of this Agreement and does not cure the noncompliance within thirty (30) days of receiving written notice of such noncompliance; provided however that Intand may terminate immediately for failure to pay applicable fees. Upon termination, Customer will pay Intand all amounts owing under this Agreement. General Legal Terms. Arbitration. Any dispute related to the Software or this Agreement will be exclusively settled by final and binding arbitration before a single arbitrator in Bellevue, Washington, under the CPR Rules for Non-Administered Arbitration of CPR Institute for Dispute Resolution. The parties will be entitled to conduct discovery in accordance with the Federal Rules of Civil Procedure as in effect where arbitration occurs, limited to document production and depositions and subject to further limitation by the arbitrator to secure just and efficient resolution of the dispute. If the amount in controversy exceeds $10,000, the arbitrator's decision will include a statement specifying in reasonable detail the basis for and computation of the award, if any. Judgment upon the award may be entered in any court having jurisdiction. Nothing in this section will prevent a party from resort to a court of competent jurisdiction solely to obtain injunctive relief. Customer consents to nonexclusive jurisdiction of federal and state courts in Washington and waives any claim that another forum may be more convenient. Force Majeure. Intand will not be responsible for delays or failures in performance resulting from causes beyond its control. Such causes include without limitation acts of God, war, riot, earthquake, embargo, acts of civil or military authorities, fire, flood, accident, strike, and shortages of transportation, facilities, fuel, energy, labor or material. Governing Law. This Agreement is governed by Washington law, excluding choice-of-law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods. Assignability. Intand may assign this Agreement at its sole discretion. Survival. Provisions regarding responsibility for use, rights in Software, and limitations, and all other provisions that could reasonably be expected to survive termination, will remain in effect following termination or expiration of this Agreement. Modification and Waiver. No modification or waiver of the provisions of this Agreement will be binding unless made in writing and signed by both parties. NO DIFFERENT OR ADDITIONAL TERMS ON ANY PURCHASE ORDER OR OTHER FORM UTILIZED BY CUSTOMER IN CONNECTION WITH THE SOFTWARE OR INTAND'S SERVICES WILL BE PART OF THIS AGREEMENT OR OTHERWISE BINDING ON INTAND. Publicity. Intand may include Customer's name in lists of persons using the Software, and may otherwise include accurate statements about Intand's arrangement with Customer in publicity materials during the term of this Agreement. Severability. The invalidity or unenforceability of any provision of this Agreement will not affect the validity or enforceability of the remaining provisions. |