IMPORTANT. PLEASE READ.
AFTER READING
THIS SANDCATCHER SYSTEMS SERVICE AGREEMENT (THE "AGREEMENT"),
SELECTING THE “I ACCEPT” BUTTON, AND CLICKING THE CONTINUE BUTTON, I: (A)
ACKNOWLEDGE AND AGREE THAT I HAVE READ THE TERMS AND PROVISIONS OF THE
AGREEMENT, (B) COVENANT, REPRESENT AND WARRANT TO ABIDE BY THE TERMS AND
PROVISIONS OF THIS AGREEMENT AND (C) (IF I AM ENTERING INTO THIS AGREEMENT ON
BEHALF OF A SEPARATE ENTITY) COVENANT, REPRESENT AND WARRANT THAT I HAVE THE
AUTHORITY TO BIND THE SEPARATE ENTITY TO THE TERMS AND PROVISIONS OF THIS
AGREEMENT. THE TERM "I", “MY”
OR “SUBSCRIBER” REFERS TO THE INDIVIDUAL AND SEPARATE ENTITY, AS APPLICABLE,
THAT REGISTERS FOR AND/OR USES THE SERVICE (AS DEFINED BELOW). IF I DO NOT HAVE SUCH AUTHORITY, OR IF I DO
NOT AGREE WITH THESE TERMS, I SHALL SELECT THE "I DECLINE" BUTTON AND
MAY NOT USE THE SERVICE.
In consideration of the covenants,
representations and warranties set forth herein, and for other good and
valuable consideration, the receipt and sufficient of which is hereby
acknowledged, the Parties hereby agree as follows:
Certain
terms used herein shall have the meaning ascribed to such terms as set forth in
Schedule 1.
All
the defined terms as set forth in Schedule 1, if defined in the singular or
present tense, shall also retain such general meaning if used in the plural or
past tense, and if used in the plural or past tense, shall retain the general
meaning if use din the singular or present tense.
Subject
to the other terms and provisions of this Agreement, Sandcatcher Systems, Inc.
(“Sandcatcher Systems”) hereby grants Subscriber a personal, non-assignable,
non-exclusive, non-transferable, limited and revocable license to use the
Service solely for Subscriber’s internal business purposes.
Purchase
Orders may be subject to credit approval, in Sandcatcher Systems sole and
absolute discretion.
Sandcatcher
Systems shall use reasonable efforts to make the Service available twenty-four
hours per day, seven days per week, except for planned maintenance
periods. Sandcatcher Systems reserves
the right to perform maintenance of the Service as needed. Sandcatcher Systems shall not be responsible
for events resulting in temporary disconnection of the system, such as fire,
earthquake, blackouts, brownouts, strikes, insurrections or acts of God.
Sandcatcher
Systems shall be reasonably available for Support Inquiries during Working
Hours. Support Inquiries may be limited
to email queries and responses.
Subscriber
shall pay Sandcatcher Systems the Support Fees (including, without limitation,
an additional fee amount if a Support Inquiry is found to be the result of
error on the part of Subscriber (for any and all Support Services within thirty
(3) days of receipt of a Sandcatcher Systems invoice for such Support Services.
Subscriber
shall pay all Fees in accordance with Sandcatcher Systems’ billing terms, as
such billing terms are amended from time to time, in Sandcatcher Systems’ sole
and absolute discretion, without requirement of notice by Sandcatcher
Systems.
Sandcatcher
Systems charges and collects all Fees in advance of any use of the
Service. Sandcatcher Systems shall
automatically renew and bill Subscriber’s credit card or issue an invoice to
Subscriber as follows: Upon commencement of the initial term, and then: (a)
every month for monthly subscriptions or (b) every quarter for quarterly
subscriptions.
Subscriber
shall be solely responsible for payment of all Taxes on any transaction set
forth herein or undertaken by any Party pursuant hereto including, without
limitation, Taxes imposed by any Government Authority on the payment of the
Fees.
Fees
for other services shall be charged on an as-quoted basis. Sandcatcher Systems reserves the right to
change the fees, applicable charges and usage policies and to introduce new
charges at any time, in Sandcatcher Systems’ sole and absolute discretion,
without requirement to provide notice.
Invoices may be sent to Subscriber as a matter of convenience to
Subscriber; provided, however, that obligations of this Agreement shall
supersede any inconsistent provision in any invoice. For credit card payers, invoices may be generated at the start of
a subscription or billing period and Subscriber’s credit card shall be charged
simultaneously. If paying by other
means, invoices may be generated at the start of a subscription or billing
period and approximately one month in advance of the start of any renewal or subsequent
billing period and shall be due within 30 days.
In addition to any other remedies available in this Agreement or
otherwise in law or in equity, Sandcatcher Systems reserves the right to
suspend or terminate this Agreement and Subscriber’s access to the Service if
Subscriber’s account becomes delinquent (falls into arrears). Subscriber’s
account shall be considered delinquent (in arrears) if payment in full is not
received by the billing period start date.
Delinquent invoices (accounts in arrears) are subject to interest of
1.5% per month on any outstanding balance, or the maximum permitted by law,
whichever is less, plus all expenses of collection. Subscriber shall continue to be charged for Subscriber’s
subscription during any period of suspension.
If either Party initiates termination of this Agreement, Subscriber
shall be obligated to pay the balance due on Subscriber’s account.
Unless
Sandcatcher Systems, in Sandcatcher Systems sole and absolute discretion,
determines otherwise, Subscriber shall be billed in United States of America
dollars and subject to United States of America payment terms and pricing
schemes.
If
Subscriber believe that Subscriber have been incorrectly billed by Sandcatcher
Systems, Subscriber shall contact Sandcatcher Systems in writing within 60 days
of the invoice date of the invoice containing the amount in question to be
eligible to receive an adjustment or credit, in Sandcatcher Systems’ sole and
absolute discretion.
Subscriber covenants, represents and
warrants the following:
Subscriber
has and shall provide Sandcatcher Systems with valid credit card and purchase
order information.
Subscriber
has and shall provide Sandcatcher Systems with complete and accurate billing
and contact information, including, without limitation, Subscriber’s legal
company name, street address, e-mail address, and name and telephone number of
an authorized billing contact (“Subscriber Contact Information”).
Subscriber
shall update the Subscriber Contact Information within 30 days of any change to
such Subscriber Contact Information. If
any Subscriber Contact Information is false or fraudulent, Sandcatcher Systems
reserves the right to terminate Subscriber’s access to the Service in addition
to any other legal remedies.
Subscriber
shall not copy, sublicense, sell, transfer, make available, Disclose,
distribute, or assign any Service to any third Person.
Subscriber
shall not create Internet "links" to the Service or "frame"
or "mirror" any Content contained on, or accessible from, the Service
on any other server or Internet-based device.
Subscriber
shall be solely responsible for any and all activities that occur under
Subscriber’s account and ensuring that Subscriber exit or log-off from
Subscriber’s account at the end of each session of use.
Subscriber
shall abide by all applicable local, state, national and foreign laws, treaties
and regulations in connection with the Service.
Subscriber
shall not to use the Service to to: (a)
send unsolicited or unauthorized email, advertising, promotional materials,
junk mail, spam, chain letters, pyramid schemes, or any other form of
duplicative or unsolicited messages, whether commercial or otherwise; (b)
harvest, collect, gather or assemble information or data regarding other users,
including e-mail addresses, without their consent; (c) transmit through or post
on the Service unlawful, immoral, libelous, abusive, harassing, tortuous,
defamatory, threatening, harmful, invasive of another's privacy, vulgar,
obscene or otherwise objectionable material of any kind or nature or which is
harmful to minors in any way; (d) transmit any material that may infringe any
third Person’s right, title or interest in and to any third Person’s Intellectual
Property, including trademark, copyright or right of publicity; (e) transmit
any Content that contains software viruses or other harmful or deleterious
computer code, files or programs such as trojan horses, worms, time bombs or
cancelbots; (f) interfere with or disrupt the integrity of any data or
computer-based information or any servers or networks connected to the Service
or violate the regulations, policies or procedures of such networks; (g)
attempt to gain unauthorized access to the Service, other accounts, computer
systems or networks connected to the Service, through password mining or any
other means; or (h) harass or interfere with another user's use and enjoyment
of the Service.
Subscriber
shall open a user account for each authorized user (registered with Sandcatcher
Systems) (“Authorized User”) and only allow such Authorized Users to use the
Service. Subscriber shall ensure that each Authorized User chooses a personal,
non-transferable password. Subscriber shall not allow any third Person to
“share” or use a user account except Authorized Users.
All
licenses not expressly granted to Subscriber pursuant to this Agreement are
reserved by Sandcatcher Systems.
Subscriber shall not acquire any right, title or interest in and to the
Service. Subscriber shall not contest
the right, title or interest of Sandcatcher Systems in and to the Service or
the validity of the license granted by Sandcatcher Systems to Subscriber
pursuant to this Agreement. Subscriber
shall not at any time apply for any registration of any Intellectual Property
which would affect the right, title or interest of Sandcatcher Systems in and
to the Service nor shall Subscriber file any document with any Governmental
Authority or take any action which would impact any such right, title or
interest in and to the Service or assist any other Person with such action or
document.
All
right, title or interest in and to the Service, including, without limitation,
the Intellectual Property in and to the Service, exclusively vests in and shall
always vest with Sandcatcher Systems or its respective designees (as
applicable).
Subscriber
shall promptly notify Sandcatcher Systems of any unauthorized use of
Sandcatcher Systems Intellectual Property by third Persons that come to
Subscriber’s attention, including, without limitation, immediate notification
of any unauthorized use of Subscriber’s password or account or any other breach
of security that is known or suspected by Subscriber. Sandcatcher Systems shall have the right, exercisable at
Sandcatcher Systems’ sole discretion, to institute and control all Claims
against third Persons related to Sandcatcher Systems Intellectual Property.
Subscriber shall also use Subscriber’s best efforts to stop immediately any copying
or distribution of Content that is known or suspected by Subscriber.
To
the extent Subscriber is deemed an owner of any Intellectual Property in and to
the Service or any other Intellectual Property in and to the Service or any
other Intellectual Property which Sandcatcher Systems has Developed or
otherwise has a bona fide claim of ownership (whether arising from this
Agreement or otherwise), Subscriber hereby assigns any and all such
Intellectual Property to Sandcatcher Systems and will execute and undertake all
documents and all actions necessary to effect the clarification of ownership of
all such Intellectual Property in and to Sandcatcher Systems and to permit
Sandcatcher Systems to apply for registration of such Intellectual Property
and/or issuances of patents, as well as maintain any registrations or issuances
granted.
Sandcatcher
Systems retains the right to preclude Subscriber’s use of any portion of the
Service that is determined to infringe a third Person’s Intellectual Property
or that is the subject of a prohibition of use by any Governmental Authority (a
“Prohibition Event”). If a Prohibition
Event occurs and such preclusion follows, then Sandcatcher Systems shall have
ninety (90) days to provide a substitute, in Sandcatcher Systems’ reasonable
discretion, to the affected Service for Subscriber’s use consistent with the
provisions of this Agreement.
The
Service may contain hyperlinks to other sites on the Internet Controlled by
third Persons. Sandcatcher Systems does
not endorse any sites on the Internet which are linked through the Service. Subscriber acknowledges and agrees that
Sandcatcher Systems or Sandcatcher Systems’ Representatives are not responsible
for the Content of any linked site or any link contained in a linked site.
Sandcatcher Systems is providing these links to Subscriber only as a matter of
convenience, and in no event shall the inclusion of any link imply endorsement
or responsibility by Sandcatcher Systems or Sandcatcher Systems’ Representatives
of such sites.
Sandcatcher
Systems does not own any data, information or material that Subscriber inputs
into the Service ("Subscriber Content"), unless Sandcatcher Systems
indicates otherwise to Subscriber prior to such Subscriber Content being
inputted into the Service.
Except
as expressly provided in this Agreement or as may be required by law,
Sandcatcher Systems shall not monitor, edit, or disclose any information
regarding Subscriber or Subscriber’s account, including, without limitation,
any Subscriber Content, without Subscriber’s prior written permission.
Subscriber
hereby acknowledges, agrees and consents to the following:
Sandcatcher
Systems’ use and disclosure of statistical information such as usage or user
traffic patterns in aggregate form to third parties, but such information will
not include personally identifying information and Subscriber’s IP address will
not be transmitted with messages sent from Subscriber’s Sandcatcher Systems
account.
Sandcatcher
Systems’ review, access and modification to Subscriber’s account, including the
Subscriber Content, to respond to service or technical problems or as stated in
this Agreement. Subscriber shall have
sole responsibility for the accuracy, quality, integrity, legality,
reliability, appropriateness and ownership of any Intellectual Property,
including, without limitation, copyrights in and to all Subscriber
Content. Sandcatcher Systems and its
Representatives shall not be responsible or liable for the deletion,
correction, destruction, damage, loss or failure to store any Subscriber
Content.
Sandcatcher
Systems reserves the right to withhold, remove and/or discard Subscriber
Content without notice for any breach, including, without limitation,
Subscriber’s non-payment. Upon
termination for cause, Subscriber’s right to access Subscriber Content
immediately ceases, and Sandcatcher Systems shall have no obligation to
maintain any Subscriber Content stored in Subscriber’s account or to forward
any Subscriber Content to Subscriber or any third party. In the event that Subscriber terminates this
Agreement (other than by reason of Subscriber’s breach), Sandcatcher Systems
shall make available to Subscriber a file of Subscriber Content within 30 days
of termination if Subscriber so request at the time of Subscriber’s
notification of termination.
Sandcatcher
Systems alone shall own all right, title and interest, including, without
limitation, all related right, title and interest in and to the Intellectual
Property of any suggestions, ideas, feedback, recommendations, or other
information provided by Subscriber relating to the Service
("Submissions") and Subscriber hereby assigns all right, title and interest
in and to such Submissions to Sandcatcher Systems.
For
monthly, or quarterly subscriptions, this Agreement is automatically renewable
monthly, or quarterly, respectively, unless either party requests termination
or a change in service level prior to the commencement of the next period.
Either
Party may terminate this Agreement or reduce the level of service by notifying
the other Party in writing at least one month in advance of the termination
date. Subscriber shall be billed for
the period from the date Subscriber initiate the termination/reduction up to
and including the date one month following the date Subscriber initiated the
termination/reduction at the service level prior to such termination/reduction. Upon termination/reduction, Subscriber shall
be granted a refund of any prepaid charges applicable to the period starting
one month after Sandcatcher Systems’ receipt of Subscriber’s written notice of
the termination/reduction.
Any
unauthorized access, use, copying, disclosure, distribution, or sublicensing by
Subscriber or with Subscriber’s aid or consent of the Service or any related
methods, algorithms, techniques, or processes shall be deemed a material breach
of this Agreement. Sandcatcher Systems, in its sole and absolute discretion may
terminate Subscriber’s password, account or use of the Service if Subscriber
breaches or otherwise fail to comply with this Agreement. In addition, Sandcatcher Systems may, in
Sandcatcher Systems’ sole and absolute discretion, terminate a free account if
Subscriber does not first log on within 30 days after registration or if 90
days have passed since Subscriber last logged on.
Notwithstanding
any other provision of this Agreement, Subscriber shall indemnify and hold
Sandcatcher Systems and Sandcatcher Systems’ Representatives (the “Sandcatcher
Systems Indemnified Parties”) harmless from and against any and all Losses
incurred by any of the Sandcatcher Systems Indemnified Parties with respect,
arising from or out of or in connection with any Claim that relates to or
arises out of any act or omission of Subscriber, including, without limitation,
unauthorized or improper use of the Service.
THE
SERVICE IS PROVIDED TO SUBSCRIBER STRICTLY ON AN "AS IS" BASIS. SANDCATCHER SYSTEMS DISCLAIMS ANY AND ALL
WARRANTIES, CONDITIONS OR REPRESENTATIONS, WHETHER OR NOT IMPLIED, ORAL OR
WRITTEN WITH RESPECT TO SERVICE OR ANY OF THE TRANSACTIONS REASONABLY
CONTEMPLATED BY THE PARTIES HERETO PURSUANT TO THIS AGREEMENT, INCLUDING,
WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OT TITLE,
NON-INFRINGEMENT, MERCHANTABILITY, FITNESS OR SUITABILITY FOR ANY PURPOSE
(WHETHER OR NOT SANDCATCHER SYSTEMS KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED
OR IS OTHERWISE, IN FACT, AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE
BY LAW, BY REASON OR CUSTOMER USAGE IN THE TRADE OR BY COURSE OF DEALING.
IN
NO EVENT SHALL SANDCATCHER SYSTEMS BE HELD LIABLE TO SUBSCRIBER ON ACCOUNT OF
OR DUE TO BREACH OF THIS AGREEMENT IN OR FOR AN AMOUNT THAT EXCEEDS THE AMOUNTS
ACTUALLY PAID BY AND/OR DUE FROM SUBSCRIBER IN THE TWELVE (12) MONTH PERIOD
IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
IN
NO EVENT SHALL SANDCATCHER SYSTEMS OR SANDCATCHER SYSTEMS’ REPRESENTATIVES BE
LIABLE TO ANY PERSON FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY,
INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS
OF CONTENT, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF,
OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE
USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR
THROUGH THE SERVICE, EVEN IF SUBSCRIBER HAVE BEEN PREVIOUSLY ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
IN
NO EVENT SHALL SANDCATCHER SYSTEMS OR SANDCATCHER SYSTEMS’ REPRESENTATIVES BE
LIABLE TO ANY PERSON FOR ANY DIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOST
PROFITS) OR FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL
DAMAGES (INCLUDING LOST PROFITS), ARISING UNDER THIS AGREEMENT OR FROM
PERFORMANCE THEREUNDER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHERWISE, WHETHER OR NOT SANDCATCHER SYSTEMS HAD ANY KNOWLEDGE, ACTUAL OR
CONSTRUCTIVE, THAT SUCH DAMAGES MIGHT BE INCURRED, OR FOR ANY INTERRUPTION,
INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, IN THE CONTENT.
Certain
states and/or jurisdictions do not allow the exclusion of implied warranties or
limitation of liability for incidental or consequential damages, so the
exclusions set forth above may not apply to Subscriber.
This
site provides services and uses software and technology that may be subject to
United States export controls administered by the U.S. Department of Commerce,
the United States Department of Treasury Office of Foreign Assets Control, and
other U.S. agencies and the export control regulations of the European
Union. Subscriber acknowledges and
agrees that the site shall not be used, and none of the underlying information,
software, or technology may be transferred or otherwise exported or re-exported
to Afghanistan, Burma, Cuba, Iraq, Iran, Libya, Sudan, or any other countries
to which the United States and/or the European Union maintains an embargo
(collectively, "Embargoed Countries"), or to or by a national or
resident thereof, or any person or entity on the U.S. Department of Treasury's
List of Specially Designated Nationals or the U.S. Department of Commerce's
Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are
subject to change without notice. By
using this site, Subscriber represents and warrants that it is not located in,
under the control of, or a national or resident of an Embargoed Country or
Designated National. Subscriber agrees
to comply strictly with all U.S. and European Union export laws and assumes
sole responsibility for obtaining licenses to export or re-export as may be
required. This site may use encryption
technology that is subject to licensing requirements under the U.S. Export
Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC)
No. 1334/2000Sandcatcher Systems and its licensors make no representation that
the Service is appropriate or available for use in other locations. If Subscriber uses the Service from outside
the United States of America and/or the European Union, Subscriber is solely responsible
for compliance with all applicable laws, including without limitation export
and import regulations of other countries.
Any diversion of the Content contrary to United States or European Union
(including European Union Member States) law is prohibited. None of the Content, nor any information
acquired through the use of the Service, is or will be used for nuclear
activities, chemical or biological weapons, or missile projects, unless
specifically authorized by the United States Government or appropriate European
body for such purposes.
Sandcatcher
Systems may give notice by means of a general notice on the Service, electronic
mail to Subscriber’s e-mail address on record in Sandcatcher Systems' account
information, or by written communication sent by first class mail or pre-paid
post to Subscriber’s address on record in Sandcatcher Systems' account
information. Such notice shall be
deemed to have been given upon the expiration of 48 hours after mailing or
posting (if sent by first class mail or pre-paid post) or 12 hours after
sending (if sent by email). Subscriber
may give notice to Sandcatcher Systems (such notice shall be deemed given when
received by Sandcatcher Systems) at any time by any of the following: letter
delivered by nationally recognized overnight delivery service or first class
postage prepaid mail to Sandcatcher Systems at Sandcatcher Systems’ principal
place of business, currently at the following address: Sandcatcher Systems,
1250 Amherst Avenue #101, Los Angeles, CA 90025.
Sandcatcher
Systems reserves the right to change the terms and conditions of this Agreement
or its policies relating to the Service at any time and shall notify Subscriber
by posting an updated version of this Agreement on the Service. Subscriber shall be responsible for
regularly reviewing this Agreement.
Continued use of the Service after any such changes shall constitute
Subscriber’s consent to such changes.
Sandcatcher Systems reserves the right to enhance, modify, upgrade or
revise the Service, with or without notice.
This
Agreement, including, without limitation, the license granted herein, is
personal to Subscriber, and Subscriber shall not assign or transfer any of the
Subscriber’s rights or have assumed any of the Subscriber’s obligations
pursuant to this Agreement to and by, respectively, third Persons, except where
such third Person: (a) Controls Subscriber, (b) purchases all or substantially
all of Subscriber’s assets or voting securities, or (c) is approved by
Sandcatcher Systems in writing, such approval provided in Sandcatcher Systems’
sole and absolute discretion.
The
rights and limitations in this Agreement are also for the benefit of
Sandcatcher Systems' Representatives each of whom shall have the right to
enforce its rights hereunder directly and on its own behalf.
Subscriber shall not convey, submit,
or otherwise disclose to any Person (except Authorized Persons) any
Confidential Information beginning at the effective Date and for a period of
two (2) years after the termination of this Agreement. In perpetuity, Subscriber shall not convey,
submit or otherwise to any Person Sandcatcher Systems’ Trade Secrets.
The provisions herein concerning
Intellectual Property shall be construed as independent of any other provision
hereof and raising a defense to an obligation of Subscriber in this Agreement
related to Intellectual Property shall not impair the on-going duty of
Subscriber to performing accordance with its own obligations pursuant to this
Agreement.
Subscriber shall not use Sandcatcher
Systems’ name, service marks, trade dress or trademarks. Subscriber agrees that in utilizing the
Service, Subscriber shall in no way represent any right, title or interest in
or to the Service.
If any provision of this Agreement
should be held to be void or unenforceable, in whole or in part, by a court of
competent jurisdiction, then such court shall correct the defect in a narrowly
tailored manner to approximate the manifest intent of the Parties.
No
joint venture, partnership, employment, or agency relationship exists between
Subscriber and Sandcatcher Systems as a result of this Agreement or use of the
Service.
The
failure of Sandcatcher Systems to enforce any right or provision in this
Agreement shall not constitute a waiver of such right or provision unless
acknowledged and agreed to by Sandcatcher Systems in writing.
This Agreement, together with the
registration form comprises the entire agreement between Subscriber and Sandcatcher
Systems with respect to the Service and supersedes all prior or contemporaneous
negotiations, discussions or agreements, whether written or oral, between the
parties regarding the subject matter contained herein. No text or information
set forth on any other purchase order, preprinted form or document shall add to
or vary the terms and conditions of this Agreement. In the event of any discrepancy by and between any other document
and this Agreement, this Agreement shall govern.
This
Agreement shall be governed by and construed in accordance with the laws of the
state of California, without regard to the choice or conflicts of law
provisions of any jurisdiction, and any Claim arising out of or in connection
with this Agreement or the Service shall be subject to the exclusive
jurisdiction of the state and federal courts located in San Francisco,
California. Subscriber hereby consents
to personal jurisdiction, as well as venue for any Claim arising out of or in
connection with this Agreement or the Service in the appropriate state or
federal court located in San Francisco, California.
Copyright 2001, Sandcatcher Systems, Inc.
Schedule 1
–Definitions
“Authorized
Persons” shall mean those directors, officers, employees, strategic advisors,
attorneys and managers of Subscriber who must gain knowledge of the
Confidential Information in order to use the Service.
“Claim”
shall mean any demand, complaint, request for redress, assertion of a cause of
action or other claim whatsoever.
“Confidential
Information” shall mean all Content related to, used in or arising out of
Sandcatcher Systems’ business, finances or other operations and held by, owned,
licensed, or otherwise possessed by Sandcatcher Systems (whether held by,
owned, licensed, possessed, or otherwise existing in, on or about Sandcatcher
Systems’ offices, residence(s) or facilities and regardless of how such Content
came into being, as well as regardless of who crated, generated or gathered the
Content), including, without limitation, all Content contained in, embodied in
(in any Media whatsoever) or relating to Sandcatcher Systems’ inventors, ideas,
creations, works of authorship, works of visual art, business documents,
contracts, licenses, business and non-business relationships, correspondence,
operations, manuals, performance manuals, operating data, projections,
bulletins, supplier and customer lists and data, sales data, cost data, profit
data, strategic planning data, financial planning data, designs, logos, motifs,
proposed trademarks or service marks, test results, product or service
literature, product or service concepts, manufacturing or sales techniques,
process data, specification data, know how, show how, Software, databases,
research and development information and data; provided, however, that “Confidential Information” shall not
include information or data “generally publicly known”. The phrase in the previous sentence
“generally publicly known” shall not be deemed to include the Content set forth
in patents despite the fact that patents have been published by the federal
government, unless such embodiment has otherwise been the subject of a
publication for general public consumption (other than publication as a patent)
or if that embodiment is otherwise utilized generally by Persons in the United
States of America while selling products or services within the scope of
Sandcatcher Systems’ business. All
references to “Confidential Information” in this Agreement shall be deemed to
also refer to “Sandcatcher Systems’ Trade Secrets” as well, but references to
“Sandcatcher Systems’ Trade Secrets” shall not be deemed to automatically refer
to “Confidential Information.”
“Content”
shall mean all material, information, documents, matter, text, software, data,
graphics, computer-generated displays and interfaces, images, photographs and
works of whatsoever nature, including, without limitation, all compilations of
the foregoing and all results and/or derivations of the expression of the
foregoing.
“Control”
shall mean the possession, directly or indirectly, of the power to direct or
cause the direction of the management and policies of any Person, or the power
to veto major policy decisions of any such Person, whether through the
ownership of voting securities, by contract, or otherwise.
“Develop”
shall mean develop, conceive, discover, reduce to practice, create or otherwise
arise out of a Person’s efforts in any manner whatsoever and through any means
whether now known or hereafter developed.
“Fees”
shall mean the fees and charges normally charged by Sandcatcher Systems to
Persons in similar circumstances for similar services at the particular time,
as such fees are amended from time to time, in Sandcatcher Systems’ sole and
absolute discretion, without requirement of notice by Sandcatcher Systems.
“Governmental
Authority” shall mean any federal, state, county, municipal or other sovereign
entity or jurisdiction, as well as all subdivisions, agencies and authorities
therein.
“Intellectual
Property” shall mean all foreign, federal, state and common law trademarks,
service marks, domain names, Internet path names and addresses of whatsoever
nature, trade dress, copyrights, know-how, show-how, patents, Inventions
(whether or not patentable), mask works, software, proprietary data, customer
lists, strategic plans, financial data, Trade Secrets, all other intangible
assets of whatsoever nature and all applications for registration and/or
issuance with respect to all the foregoing and whether or not any of the
foregoing is registerable or patentable, including, without limitation, with
respect to all of the foregoing: (i)
all goodwill associated with any and all of the foregoing; (ii) all parents,
continuations, continuations in part, divisionals, reissues and extensions; and
(iii) all moral rights associated with any and all of the foregoing.
“Media” shall mean
print, document-based medium, television, facsimile, telex, telephony, radio,
satellite, cable, wire, computer-based network, network, magnetic means,
optical means, electronic means, internet, intranet, software, compact and
laser disc, digital video displays, video cassettes and multi-media and any
other method (now known or hereafter developed) for the publication, retention,
conveyance, possession or holding of Content.
“Losses” shall mean
any and all damages, liabilities, costs, expenses, fees (including, without
limitation, attorneys', accountants', investigators', witnesses' and
professionals' fees), charges, expenditures, liabilities, damages and other
losses of whatsoever nature.
“Parties” shall mean
Sandcatcher Systems and Subscriber.
“Person” shall mean
any natural person, corporation, limited liability company, limited
partnership, partnership trust, association, organization or other entity of
whatsoever nature.
“Prohibition Event”
shall mean any court or government agency order limiting the use by Sandcatcher
Systems of any portion of the Service.
“Representatives" shall mean all parent
organizations, subsidiaries, affiliates, shareholders, directors, officers, strategic
advisors, employees, agents, representatives, attorneys, and accountants either
holding equity in, retained by, employed by, commissioned by or otherwise
Controlled by a subject Person.
“Sandcatcher Systems
Intellectual Property” shall mean the Intellectual Property owned, held, used
or licensed by Sandcatcher Systems, including, without limitation, all
Intellectual Property in and to the Service.
“Schedule” shall mean
an enumerated schedule each of which shall be deemed attached hereto and
incorporated herein by way of the specific reference or references made in this
Agreement.
“Section” shall be
deemed a reference to an enumerated provision of this Agreement. Section headings are used for convenience
only and shall have no interpretive effect or impact whatsoever.
“Service” shall mean
the processes, methods and functions embodied in and/or expressed by the
executable code enabling: (a) a support issue creation, assignment, tracking,
transmittal and resolution operations and (b) electronic report generation,
display, transmittal and printing operations.
“Software” shall mean
source code, object code, executable code, or other program or code format
whatsoever, whether now known or hereinafter developed
“Taxes” shall mean
sales, use, excise and other taxes, duties or imposts of whatsoever nature,
other than income taxes imposed by any Governmental Authority.
“Trade Secrets"
shall mean trade secrets as such term is defined in the Uniform Trade Secrets
Act, as promulgated from time to time in California.