As used in these Terms of Service "You" and “Your” are used to refer to the entity that will be using this website. If you are an individual working for a larger entity, such as a company, You and Your will refer to such entity and its officers, directors, employees or/or other agents, as appropriate and you (as an individual) represent that you have the authority to accept these terms of service on behalf of such entity.
Ladris Technologies, Inc. may also be referred to herein as “We” or “Our” or words of similar import. Each of Ladris and You may be referred to as a “Party,” and collectively the “Parties.”
You and We agree as follows:
1.1. On-Line Service. We grant to You and Your Authorized Users a worldwide, non-exclusive, non-sublicensable and non-transferable license to use the On-Line Service for use in connection with Your personal (in the event that you are an individual, or internal business purposes in the event that you represent an entity) in connection with such facilities as You and We may agree in writing from time to time.
1.2. Consulting Service. We may provide Consulting Services to You during the Term of these Terms of Service. All such Consulting Services shall be pursuant Statement of Work (“SOW”) separately executed by both Parties and which refers to these Terms of Service. Such SOW shall describe the Consulting Services to be performed, and may contain additional terms and conditions; provided, however, unless such SOW specifically over rides any of the terms and conditions of these Terms of Service, these Terms of Service shall govern any inconsistent terms and conditions of an SOW. We represent and warrant that we have, and will have, the qualifications, experience and the ability to properly perform the Consulting Services.
1.3. Changes. These Terms are subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any), and/or by prominently posting notice of the changes on our Site. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Any changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Site. These changes will be effective immediately for new users of our Site. Continued use of our Site following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
2. LADRIS’S RESPONSIBILITIES FOR THE ON-LINE SERVICE
We will operate, manage, support and maintain the On-Line Service including maintenance, upgrades, corrections and repairs. In performing these activities, We reserve the right to modify the On-Line Service from time to time as We deem necessary or appropriate in order to provide the optimum balance of customer security and ease of use.
We may also discontinue the On-Line Service (or any part thereof) temporarily or permanently, with or without notice at any time. You agree that We shall not be liable to You or to any third party for any such modification, suspension, termination or discontinuance of the On-Line Service. If We discontinue the On-Line Service, We will comply with the provisions under Section 23 (Effect of Termination) on the return of the pro-rata payment of fees.
3.1. Commitment. If you are using a paid version of the On-Line Service, We will use commercially reasonable efforts to make the On-Line Service Available to you with a Monthly Uptime Percentage (defined below) of at least 99% during any monthly billing cycle. "On-Line Service Level Failure" means a material failure of the On-Line Services to meet the Uptime Percentage. "Available" means the On-Line Service are available for access and use by You and Your Authorized Users over the Internet.
“Monthly Uptime Percentage” is calculated by subtracting from 100% the percentage of minutes during the month in which the On-Line Service was not operating. Monthly Uptime Percentage measurements exclude downtime resulting from any of the following events:
• Scheduled Downtime;
• Downtime or degradation due to a Force Majeure Event;
• Interruptions due to misuse of the On-Line Service by You or any other user of the On-Line Service; and
• any suspension or termination of Your or any Authorized Users' access to or use of the On-Line Service as permitted by these Terms of Service.
The On-Line Service shall not be considered unavailable as a consequence of any interruption or degradation of Your access to the Internet.
3.2. On-Line Service Level Failures and Remedies. In the event of an On-Line Service Level Failure, We shall issue a credit to You in the amount of a percentage of the Fees due for the calendar month which the On-Line Service Level Failure occurred (each an "On-Line Service Credit"). For Availability during each calendar month (i) of between 99% and 98%, such percentage shall be 10%; (ii) of between 95.0% and 98%, such percentage shall 18%; and for Availability below 95.0%, such percentage shall 50%.
All On-Line Service Credits shall be subject to the following:
(a) We have obligation to issue any On-Line Service Credit unless You request such On-Line Service Credit within seven days following the end of the applicable calendar month; and
(b) in no event will an On-Line Service Level Credit for any month exceed fifty percent (50%) of the total Fees that would be payable for that Month if no On-Line Service Level Failure had occurred.
(c) Any On-Line Service Credit payable to You under these Terms of Service will be issued to You in the calendar month following the month in which the On-Line Service Level Failure occurred. This Section sets forth Our sole obligation and liability and Your sole remedy for any On-Line Service Level Failure.
3.3. Measurement. Availability shall be calculated according to the following formula:
Percentage of Availability = 100 * ((Anticipated Available Minutes – Unavailable Minutes/Anticipated Available Minutes)
“Anticipated Available Minutes” means the Total Minutes less the Excluded Minutes.
“Excluded Minutes” means that the total number of minutes the Cloud On-Line Service was not available as a consequence of the exclusions set forth above in Section 3.1 as reasonably determined by Ladris.
“Unavailable Minutes” means the number of minutes during the relevant time period that the On-Line Service was not available, not including Excluded Minutes
“Total Minutes” means the total number of minutes in the relevant period in the relevant time period.
3.4. Scheduled Downtime. We will use commercially reasonable efforts give You at least five hours prior notice of all scheduled outages of and routine maintenance for the On-Line Service ("Scheduled Downtime”).
4. U.S. GOVERNMENT RESTRICTED RIGHTS
The On-Line Service and the Ladris Materials are a "Commercial Item," as that term is defined at 48 C.F.R. 2.101 (Jan. 2011), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212, 48 C.F.R. 227.7202, and 48 C.F.R. 12.211, respectively. Consistent with 48 C.F.R. 12.212, and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users' rights to use, modify, reproduce, release, perform, display, or disclose the On-Line Service and the Ladris Materials are as provided by these Terms of Service. This U.S. Government Rights clause, consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses Government rights in computer software, computer software documentation or technical data related to the On-Line Service and the Ladris Materials. Manufacturer is Ladris Technologies, Inc.
5. SAFEGUARDS AND SECURITY
We employ security measures in accordance with Our Privacy and Security Policy set forth on our Web site and as amended from time to time (Our "Privacy and Security Policy").
We maintain a data breach plan in accordance with the criteria set forth in Our Privacy and Security Policy and shall implement the procedures required under such data breach plan on the occurrence of a breach.
Subcontractors who host the On-Line Service may have their own privacy, security and data breach policies, which may also be available to You upon request.
6. RESTRICTIONS ON ACCESS TO AND USE OF THE ON-LINE SERVICE
You shall not permit any Person other than an Authorized User to use or access the On-Line Service in any manner, and You have and will retain sole responsibility for:
a) all access to and use of the On-Line Service by any third parties by or through Your Systems, including use of any information, instructions or materials provided by You or any Authorized User regarding the On-Line Service;
b) the security of Your and Your Authorized Users' Access Credentials; and
c) all access and use of the On-Line Service by Authorized Users, including all information, instructions and materials entered in the On-Line Service by or on behalf of You or any Authorized User.
In addition, You shall not:
a) permit the use of or access to the On-Line Service through any time-sharing, On-Line Service bureau, software as an On-Line Service, cloud-based application or other technology or On-Line Service;
b) permit the use of or access to the On-Line Service by any entity other than the entity specified in the signature block hereof on behalf of the facilities covered by your Fees for the Service, or
c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code or object code of the On-Line Service, in whole or in part, or prepare derivative works of the On-Line Service or the Ladris Materials.
7. ADDITIONAL PROHIBITED ACTS
You shall not:
a) bypass or breach any security device or protection used by the On-Line Service;
b) Process (as defined herein) to or through the On-Line Service any information or material that is unlawful, injurious, or contains, transmits or activates any Harmful Code;
c) Process to or through the On-Line Service, any personal information, personal data or any other data which you do not have the right to process under any applicable privacy or data protection Law;
d) access or use the On-Line Service or Ladris Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable Law; or
e) access or use the On-Line Service or Ladris Materials for purposes of competitive analysis of the On-Line Service or Ladris Materials, the development, provision or use of a competing software On-Line Service or product or any other purpose that is to Ladris's detriment or commercial disadvantage.
8. YOUR OBLIGATION TO NOTIFY AND TAKE CORRECTIVE ACTION
You agree that if You become aware of any actual or threatened activity prohibited by these Terms of Service You will notify Ladris immediately. You further agree to take all reasonable and lawful measures within Your control that are necessary to stop the activity or threatened activity and to mitigate its effects, including, where applicable, by discontinuing and preventing any unauthorized access to the On-Line Service and Ladris Materials.
9. YOUR DATA
9.1. License for Your Content. You hereby grant (and you represent and warrant that you have the right to grant) to Us an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use and exploit any data or other content that You upload to the On-Line Service, and to grant sublicenses of the foregoing rights, solely for the purposes of including your user content in the service. You hereby irrevocably waive (and agree to cause to be waived) any claims and assertions of moral rights or attribution with respect to such content.
9.2. Use of Data. We may use or disclose Your Data only as follows:
(a) As necessary to test and perform the Services, including maintenance and support of the On-Line Service as well as design and testing of the On-Line Service and On-Line Service enhancements.
(b) To use in the calculation and determination of content provided in reports produced by the On-Line Service; provided, however, that personal data shall not be displayed except as follows:
(i) Personal data generated by an individual may be displayed to such individual or other individuals using such individuals account with Us; and
(ii) Personal data may be displayed publicly if it is de-identified or aggregated.
(c) For the proper management and administration of Ladris or to carry out Our legal responsibilities, provided that: (i) any disclosure with respect to our legal responsibilities shall be required by Law, or (ii) (a) We obtain reasonable assurances from the entity to whom the information is disclosed that the information will remain confidential and will be used or further disclosed only as required by Law or for the purposes for which it was disclosed to such entity, and (b) the entity notifies Us promptly of any instances of which it is aware in which the confidentiality of such information has been breached.
(d) As required by Law, or otherwise permitted by Sections 10, 14 and 15 of these Terms of Service on Other Permitted Uses and Disclosures, Confidentiality and Compelled Disclosure.
(e) To Subcontractors, subject to the restrictions of Section 14.3
(f) To de-identify company or personal data or information.
(g) To provide data aggregation On-Line Services.
10. OTHER PERMITTED USES AND DISCLOSURES
Unless otherwise limited in these Terms of Service, in addition to any other uses and/or disclosures permitted or required elsewhere in these Terms of Service, We may:
(a) Create, receive, maintain, transmit, use, and disclose De-Identified Data and Resultant Data for any purpose permitted by applicable Law.
(b) Create limited data sets from the Your Data and create, receive, maintain, transmit, use and disclose such limited data sets for any purpose permitted by applicable Law.
11. CONSULTING RELATIONSHIP.
11.1. Independent Contractor.
In performing the Consulting Services, if any, Our relationship with You will be that of an independent contractor and not that of an employee. Further:
A. Provision of Consulting Services. We shall be solely responsible for determining the method, details and means of performing the Consulting Services. We may, at Our own expense, employ or engage the Consulting Services of such employees, subcontractors, partners or agents as We deems necessary to perform the Consulting Services (collectively, the “Assistants”). The Assistants are not and shall not be Your employees. We shall expressly advise the Assistants of the terms of these Terms of Service and shall require each Assistant to execute a confidentiality and nondisclosure agreement.
B. No Authority to Bind Company. We acknowledge and agree that Our Assistants have no authority to enter into contracts that bind the Company or create obligations on the part of the Company without the prior written authorization of the Company.
C. No Benefits. We acknowledge and agree that We and Our Assistants shall not be eligible for any Company employee benefits and, to the extent We otherwise would be eligible for any Company employee benefits but for the express terms of these Terms of Service, We (on behalf of Ourselves and Our Assistants) hereby expressly decline to participate in such Company employee benefits.
11.2. Our Consulting Services.
All of the Services to be performed by Us, including but not limited to Consulting Services, will be as agreed between We and the Company’s Commercial Contact. We shall report to the Commercial Contact on a periodic basis concerning the Consulting Services performed under these Terms of Service. The frequency and nature of these reports shall be specified by the Commercial Contact, but shall not be more frequently than once a week.
12. FEES & PAYMENT TERMS
12.1. Fees. Our fees for the On-Line Service (“Fees”) are set forth in Our price list, which We may update from time to time on 60 days prior notice. You shall pay to Us the amounts specified in Our price list on a per facility basis for the On-line Service and pay Us for Consulting Services on a time and materials basis as specified in the appropriate SOW. We shall send You an invoice following the end of each calendar month. You shall pay all fees within 30 days of the date of each invoice. Any sums not paid when due shall bear simple interest at a rate of 12 per cent per annum.
12.2. Beta Trial. If the On-Line Service is being used in connection with a beta trial or evaluation of such service, there are no fees for the service during the period of such trial and there shall be no applicable Service Credits with respect thereto.
12.3. Collection. You agree that in the event We are unable to collect the Fees owed to Us for Your account, We may take such additional steps as We deem necessary to collect such fees from You and that You will be responsible for all costs and expenses incurred by Us in connection with such collection activity, including collection fees, court costs and attorneys' fees.
12.4. Taxes. All Fees are exclusive of Taxes and similar assessments. We will invoice You for all such Taxes that We reasonably believe that We are required to collect and pay to any applicable taxing authority. Our failure to collect Taxes for any billing period does not mean that We may not collect such Taxes for future billing periods.
13. INTELLECTUAL PROPERTY RIGHTS
13.1. Online Services and Materials. You acknowledge that Ladris owns all right, title and interest, in the On-Line Services and the Ladris Materials including all Intellectual Property Rights in the On-Line Services and the Ladris Materials. If You (or any of Your employees or contractors) provide, orally or in writing, suggestions or recommendations for enhancements, improvements or other modifications to the On-Line Service (such feedback or suggestions being “Feedback”), You agree that Ladris shall own all intellectual property rights to such Feedback and You hereby transfer and assign on Your behalf (and on behalf of Your employees and contractors) all right, title and interest You may have to such Feedback to Ladris without further consideration. You shall not acquire any Intellectual Property rights with respect to the On-Line Service or Ladris Materials (including Third-Party Materials) except for the limited authorization set forth in Section 1.1 “On-Line Service”.
You will not remove, deface or obscure any of Ladris's or its Subcontractors' copyright or trademark notices and/or legends or other proprietary notices on, incorporated therein, or associated with the On-Line Service. Neither shall you remove, delete, alter or obscure any Terms of On-Line Service, warranties or disclaimers, from the On-Line Service or any Ladris Materials, including any copy thereof
13.2. Ownership of Intellectual Property. All Inventions conceived by Us in the performance of the Consulting Services, if any, together with and any copyrights, patents, trade secrets, mask work rights or other intellectual property rights relating thereto shall be the sole property of Ladris , provided, however, that We hereby grant to Your a non-exclusive, perpetual, irrevocable, royalty free, worldwide license to make, have made, use, reproduce, modify, adapt, prepare derivative works of, display, and perform, the Inventions, but only for the internal business purposes of the Company and its affiliates.
13.3. Prior Art. In the course of performing the Consulting Services, We may use algorithms, techniques, data structures, classes, objects and other discrete sections of code or software elements that We or its Assistants have created or used previously or which is in the public domain (“Prior Art”). If such Prior Art is owned by We or an Assistant, and is supplied to the Company, the Company will convey copies of such Prior Art to the Company prior to the termination of these Terms of Service, and hereby grants a nonexclusive, royalty-free, perpetual, irrevocable, worldwide license to make, have made, use, reproduce, modify, adapt, prepare derivative works of, and perform such Prior Art, but only for the internal business purposes of the Company and its affiliates.
13.4. Third Party Material. Prior to the termination a SOW for Consulting Services We shall provide to the Commercial Contact a listing of all Open Source Software included by Us as part of the Contracting Services in any documentation or software provided to Company. Except with respect to Open Source Software disclosed to Company hereunder, We will not knowingly infringe upon any copyright, patent, trade secret or other property right of any former company, employer or third party in the performance of the Consulting Services.
14.1. Prior NDA. If You and We have signed a Non-Disclosure or Confidentiality Agreement, on or before the date We begin providing the Services, You and We agree that the following provisions will govern the treatment of Confidential Information in lieu of such prior agreement.
14.2. Covered Information. In connection with these Terms of Service each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). "Confidential Information" means Your Data and all information of the Disclosing Party which is in written, graphic, machine readable or other tangible form and is marked “Confidential,” “Proprietary,” “Trade Secret” or in some other manner to indicate its confidential nature. Confidential Information may also include oral information provided that such information is designated as confidential at the time of disclosure and is reduced to writing by the Disclosing Party within a reasonable time (not to exceed thirty (30) days) after oral disclosure and such writing is marked in a manner to indicate its confidential nature and delivered to the Receiving Party. Notwithstanding any failure to so identify Confidential Information, however, all business plans, product road maps, and financial information for Ladris and all algorithms, data structures, APIs, source code and any technical information regarding the On-Line Services or Ladris Materials shall be Confidential Information.
Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records:
a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party;
b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with these Terms of Service;
c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or
d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
14.3. Use of Confidential Information. The Receiving Party shall:
a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with these Terms of Service except as may be permitted by and subject to its compliance with
o Section 15 (Compelled Disclosures); or Section 9.2 (Use of Data)
b) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
c) not disclose or permit access to Confidential Information other than to those of its employees and subcontractors (“Representatives”) who:
(i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with these Terms of Service;
(ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section;
(iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and
(iv) ensure its Representatives' compliance with, and be responsible and liable for any of its Representatives' non-compliance with, the terms of this Section 14.
14.4. Confidential Information of Other Clients. We shall not improperly use, disclose, or induce the Company to use any proprietary information or trade secrets of any former or current employer of Ladris employees or other person or entity with which Ladris has an obligation to keep in confidence.
15. COMPELLED DISCLOSURES
If the Receiving Party or any of its Representatives is compelled by Law to disclose any Confidential Information then, to the extent permitted by Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party of such requirement so that the Disclosing Party can seek a protective order or other remedy and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure.
If the Disclosing Party waives compliance with this Section or, if after providing the notice and assistance required under this Section 15 and the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
16. YOUR REPRESENTATIONS AND WARRANTIES.
17. NO REPRESENTATIONS OR WARRANTIES.
YOUR USE OF THE ON-LINE SERVICE IS AT YOUR SOLE RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOU RESULTING FROM THE USE OF THE SERVICES, OR THE SECURITY AND PERFORMANCE OF THE ON-LINE SERVICE. NO ORAL OR WRITTEN INFORMATION OR ADVICE THAT WE OR OUR AUTHORIZED REPRESENTATIVES GIVE TO YOU SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF OUR OBLIGATIONS.
YOU ACKNOWLEDGE THAT THE ON-LINE SERVICE IS PROVIDED "AS IS". WE DO NOT REPRESENT OR WARRANT THAT THE SERVICES OR THE LADRIS MATERIALS WILL MEET YOUR REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, OR BE SECURE, FREE OF HARMFUL CODE OR ERROR FREE.
WE PROVIDE NO WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
You shall indemnify, defend and hold harmless Ladris and its Subcontractors and each of its and their respective officers, directors, employees (each an "Indemnitee") from and against any and all Losses incurred in connection with any action or proceeding by a third party (including any Employee) that arise out of or relate to Your use of the Services or Your representations, warranties, covenants or obligations under these Terms of Service.
Each Indemnitee shall promptly notify You in writing of any action for it believes it is entitled to be indemnified. It shall cooperate with You at Your sole cost and expense. You shall immediately take control of the defense and investigation of any such action and shall employ counsel reasonably acceptable to the Indemnity to handle and defend the same, at Your sole cost and expense. The Indemnitee's failure to perform its obligations under this paragraph will not relieve You of these obligations except to the extent that You can demonstrate that You have been prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
19. LIMITATIONS OF LIABILITY
IN NO EVENT WILL LADRIS, ITS SUPPLIERS AND ITS SUBCONTRACTORS BE LIABLE TO YOU FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE LADRIS SERVICES (c) LOSS, DAMAGE OR CORRUPTION OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER LADRIS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
THE COLLECTIVE AGGREGATE LIABILITY OF LADRIS, ITS ON-LINE SERVICE PROVIDERS, SUPPLIERS AND SUBCONTRACTORS WITH RESPECT TO THESE TERMS OF SERVICE OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, SHALL NOT EXCEED THE SUM OF ALL FEES PAID BY YOU UNDER THESE TERMS OF SERVICE FOR THE PRIOR 12 MONTHS. IF YOU ARE USING A FREE VERSION OR BETA VERSION OF THE ON-LINE SERVICE, LADRIS’S AGGREGATE LIABILITY SHALL NOT EXCEED $5.
20. FORCE MAJEURE
In no event shall We be liable or responsible to You for failure or delay in fulfilling or performing any term of these Terms of Service, to the extent such failure or delay is caused by any circumstances beyond Our reasonable control (a "Force Majeure Event"). Force Majeure Events include Acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, epidemics or pandemics, embargoes, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, catastrophic or unusual internet delays, denial of On-Line Service attacks and other “hacker” activity, passage of Law or any action taken by a governmental or public authority, or national or regional shortage of power or telecommunications or transportation.
21. EXPORT RESTRICTIONS
You acknowledge that the On-Line Service, any Inventions, or portion thereof may be subject to the export control laws of the United States. You will not export, re-export, divert, transfer or disclose any portion of the Services, Inventions or any related technical information or materials, directly or indirectly, in violation of any applicable export law or regulation.
22. TERM OF AGREEMENT
22.1. Term and Termination.
Subject to this Section, these Terms will remain in full force and effect while you use the On-Line Service. We may suspend or terminate your rights to use the On-Line Service (including your Account) at any time for any reason at our sole discretion, including for any use of the On-Line Service in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the On-Line Service will terminate immediately. You understand that any termination of your Account may involve deletion of your user content associated with your Account from our live databases. We will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User content
22.2. We may terminate these Terms of Service immediately, if:
(a) You fail to pay any Fees charged for the On-Line Service and such failure continues more than 30 days past the date such Fees were due;
(b) We receive a judicial or other governmental demand or order, subpoena or request from law enforcement that requires Us to do so; or
(c) We believe, in good faith and Our sole discretion, that: (i) You or any Authorized User has failed to comply with, any material term of these Terms of Service, or accessed or used the On-Line Service beyond the scope of the rights granted or in any manner that does not comply with any material instruction or requirement of the documentation therefore; or (ii) You or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or subversive or otherwise unlawful activities.
23. EFFECT OF TERMINATION
Upon termination of these Terms of Service We will pay You the prorated portion of any fee you have pre-paid for which the On-Line Services are no longer available.
a) All rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate.
b) You shall immediately cease all use of any On-Line Service or Ladris Materials and permanently erase all Ladris Materials and from all systems You directly or indirectly control.
c) Ladris may disable Your access and the access of Your Authorized User to the On-Line Service, and Ladris Materials.
The rights or obligations of the Parties in these Terms of Service that, by their nature, should survive termination or expiration of these Terms of Service, will survive any expiration or termination of these Terms of Service, including the Sections on Use of Data, Intellectual Property Rights, Confidentiality, Compelled Disclosures, Indemnification, and Limitations of Liability.
Not A Joint Venture. Nothing in these Terms of Service is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorize any party to make or enter into any commitments for or on behalf of any other party
Unenforceability. If any term of these Terms of Service is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term of these Terms of Service.
Compliance with Law. You are solely responsible for ensuring that these Terms of Service are in compliance with all laws, rules and regulations applicable to You.
Notice and Notices. Any notice required or permitted under the terms of these Terms of Service or required by law must be in writing and must be: (a) delivered in person; (b) sent by first-class registered mail, or air-mail, as appropriate; or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the recipient’s address for notices set forth below. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, three Business Days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.
Sole Understanding. These Terms of Service, together with any documents incorporated by reference, constitutes entire agreement of the parties with respect to the subject matter of these Terms of Service and supersedes all prior understandings, agreements, representations and warranties, both written and oral.
Governing Law. These Terms of Service shall be governed in all respects by the laws of the United States of America and the State of California, as such laws are applied to agreements entered into and to be performed entirely within California between California residents without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any other jurisdiction.
Jurisdiction. Both You and We agree that Sacramento County is an appropriate venue for the resolution of any lawsuit between us or any proceeding for equitable relief such as a temporary restraining order or injunction. Each of us irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in Sacramento County, California, for any matter arising out of or relating to these Terms of Service. However, either of us may seek to enforce any order or any judgment of a California court in any other appropriate jurisdiction.
Equitable Relief. You acknowledge and agree that a breach or threatened breach of any of Your obligations under these Terms of Service would cause Ladris irreparable harm for which money alone would not be an adequate remedy. You agree that, in the event of such breach or threatened breach, Ladris will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court. In any such proceeding Ladris will not be required to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that Ladris may have at law or in equity.
Amendment and Waivers. Any term of these Terms of Service may be amended or waived only with the written consent of the Parties or their respective permitted successors and assigns. Any amendment or waiver affected in accordance with this section shall be binding upon the Parties and their respective successors and assigns.
25. ADDITIONAL DEFINED TERMS
“On-Line Services” means Ladris’s on-line specified on the first page hereof, together with all new versions, updates, revisions, improvements and modifications of such services
"Access Credentials" means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual's identity and authorization to access and use the On-Line Service.
“Authorized User” means a user that You, or in the event that You represent an entity, You and such other individuals that such entity has registered with Us for use of the On-Line Service.
“Business Day” means any Monday through Friday that is not a Federal Holiday.
"Harmful Code" means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing, or (b) prevent You or any Authorized User from accessing or using the On-Line Service as intended by these Terms of Service.
"Intellectual Property Rights" means any and all patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world whether granted, applied for, or which come into existence following the Effective Date of these Terms of Service.
“Inventions” shall mean any and all copyrightable material, notes, records, drawings, designs, inventions, improvements, developments, discoveries, ideas and trade secrets conceived, discovered, authored, invented, developed or reduced to practice by We, solely or in collaboration with others, during the term of these Terms of Service and in connection with performance of the Consulting Services.
"Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree or other requirement of any federal, state, local or foreign government or political subdivision thereof, any arbitrator, court or tribunal of competent jurisdiction, or the legitimate request of any government agency having jurisdiction over either Ladris or You.
"Losses" means any and all losses, damages, or other liabilities, awarded in a final judgment, including any interest, awards, penalties, fines, costs or expenses of whatever kind, as well as reasonable attorneys' fees.
“Open Source Software” shall mean software that is distributed to the general public under a license which requires the software to be made available in source code form and which permits the user to execute, copy, modify and redistribute the software.
"Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Process” means to input, upload, transmit, collect, store or transmit any information or data.
"Resultant Data" means information, data and other content that is derived by or through the On-Line Service from Your account with Us, and any information, data or other content derived from Ladris's monitoring of Your access to or use of the On-Line Service and may include De-Identified Data.
“Services” when used on its own, means the On-Line Service and the Consulting Services.
“Taxes” means all sales, service, use and excise taxes, VAT and any other similar taxes, duties and charges of any kind imposed by any federal, state, or local government or any regulatory authority on the amounts paid or Services performed under these Terms of Service, not including taxes on Ladris’s net income.
"Ladris Materials" means the documentation for the Services together with any and all other information, data, documents, materials, works and other content, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided to You. For the avoidance of doubt, Ladris Materials include Resultant Data.
"Third Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment or components of or relating to the Ladris On-Line Service that are not proprietary to Ladris.
“Your Data” means any data regarding You, Your employees, or patients (including information or data provided by third parties) that You store on the On-Line Service. Your Data does not include any information that is in the public domain or that is generated by a government entity.