THE FOLLOWING TERMS OF SERVICE WILL BE LEGALLY BINDING ON YOU UPON EXECUTION OF ANY AGREEMENT FOR PURCHASE AND USE OF ARMATURE SOLUTIONS CORPORATION’S (“COMPANY”) SUBSCRIPTION SERVICES. YOU SHOULD READ THESE TERMS BEFORE EXECUTING THE AGREEMENT.
Agreement to Terms of Service. Client agrees to strictly abide, and to ensure that all of its Client Users of Subscription Services strictly abide, by the policies and practices set forth herein when using the Subscription Services. “Subscription Services” means Company’s Software-as-a-Service offering, tools, databases, libraries, guides, manuals, data, and other related materials developed by Company and any modifications, enhancements, or upgrades made thereto at any time and accessible to the Client over the Internet. “Client User” means Client and any end users authorized to access or benefit from the Subscription Services by or through Client. THE COMPANY RESERVES THE RIGHT TO MODIFY THESE TERMS OF SERVICE AT ANY TIME AT ITS SOLE AND ABSOLUTE DISCRETION. ANY MODIFICATIONS WILL APPLY AT ALL TIMES THEREAFTER.
Unauthorized Activities—In General. Neither Subscription Services, nor the network resources of the Data Center or Infrastructure Provider utilized to provide them, may be used to impersonate another person or misrepresent authorization to act on behalf of others or Company. “Data Center” means a third-party owned or –operated facility used to support the Subscription Services. “Infrastructure Provider” means any third-party operator of a Data Center. All messages relayed via the Subscription Services will correctly identify the sender and no user may alter the attribution of origin in electronic mail messages or postings. Client Users shall not attempt to undermine the security or integrity of computing systems or networks and shall not attempt to gain unauthorized access to any networks or exceed the scope of authorization when using the Subscription Services. Client Users may not utilize the Subscription Services nor the resources of the Data Center for mass unsolicited e-mail or “spamming” purposes.
Infrastructure Provider Restrictions. The Infrastructure Provider may impose reasonable rules and regulations regarding the use of its services and facilities and may modify them at any time in its discretion. Client agrees to impose any relevant Infrastructure Provider rules and restrictions on Client Users of the Subscription Services that are necessary to ensure compliance with them.
Unlawful Uses of Subscription Services. The Subscription Services may not be used in support of illegal activities. Company may cooperate with legal authorities or third parties in the investigation of any suspected crime or civil wrong involving the Subscription Services and Client Users. Activities that are prohibited include:
- Unauthorized copying of copyrighted material—including digitization and distribution of photographs from magazines, books, or other copyrighted sources, or copyrighted software;
- Posting or e-mailing of scams such as “make-money-fast” schemes or “pyramid/chain” letters;
- Threatening bodily harm or property damage with respect to any person or entity;
- Making fraudulent or misleading offers or advertisement of products, items, or services originating from any Client User’s account;
- Attempting to access the accounts of others, or attempting to penetrate beyond security measures of Company’s or Infrastructure Provider’s systems (i.e., hacking) whether or not the intrusion results in actual corruption to or loss of access to data;
- Harassing others by “mail-bombing” (i.e., sending more than ten (10) similar mail messages to the same e-mail address) or denial-of-service attacks;
- Forging any message header, in whole or in part, with respect to any electronic transmission originating or passing through the computing environment or Subscription Services;
- Distributing viruses, worms, or Trojan horses to or from Company’s or Infrastructure Provider’s systems; and
- Transmitting, storing, or distributing any material that violates any applicable law, including export or encryption laws or regulations.
Impersonation. Bulk or unsolicited e-mail sent through a mail service external to Company’s or Infrastructure Provider’s system cannot contain an e-mail address or a domain name that is hosted by Company. This will be cause for immediate account termination or suspension without prior notice.
Client Data and Hosting Locations. Company uses Data Centers and Infrastructure Providers located in the United States to deliver the Subscription Services to Client. Client data may be stored on a server dedicated to that Client only or on a multi-tenant server, at Company’s sole discretion.
Change in Material, Software, or Facility Managers. Company reserves the right to modify the Subscription Services or change the Data Center or Infrastructure Provider used to provide the Subscription Services for any commercial purpose—including accommodation of evolving technology, increased network demand, or provision of enhanced services. Company will use reasonable efforts to notify Client of any planned changes that may adversely affect the Subscription Services, and Client will cooperate in good faith with Company with respect to any transition plan.
Audits. Client hereby grants Company the right to periodically audit and review Client’s use of Subscription Services to ensure compliance with these Terms of Service. Client will at all times cooperate in good faith with Company audits and will promptly remedy any acts of non-compliance. Company does not warrant, however, that forensic audits can be performed or that system logs will be retained for a particular length of time to aid in the determination of when and how Client Users or unauthorized third parties have accessed the Subscription Services or Client data.
Investigations. Company reserves the right to further investigate any potential violations of the Terms of Service by any Client Users by (a) restricting Client’s access to the Subscription Services; (b) removing or requiring the removal of any potentially offending or illegal material; or (c) exercising any other rights and remedies at law or in equity. Before undertaking any responsive actions, Company will seek to provide Client with at least three days’ written notice to cure suspected violations, unless Company deems it necessary to act sooner with or without notice. To the extent investigations involve suspected or potential violations of the Data Center’s or Infrastructure Provider’s acceptable use policies, terms of service, or other similar terms governing use of their products, services, or systems, Client agrees and acknowledges that the timing, substance, and results of any responsive actions that may be taken are outside of Company’s control.
Discontinuing Subscription Services. Company may discontinue provision of Subscription Services if any Client Users are known or reasonably suspected of violating any provision of this Terms of Service or the rules and regulations of the Data Center or Infrastructure Provider. Alternatively, Company may require fulfillment of certain terms or conditions Company imposes as a prerequisite for continuing to provide Subscription Services to Client in these circumstances. Company will attempt to provide Client with reasonable notice by e-mail of any intent to discontinue or impose certain terms or conditions on the Subscription Services—provided that Company may take immediate action without notice (a) to avoid any blacklisting or blockage of its or Infrastructure Provider’s facilities or services, or (b) if it becomes aware of a potential or actual violation that either exposes Company or Infrastructure Provider to criminal liability or civil liability or exposes other customers’ network or property to harm.
Use of Client Information and Attribution. Client agrees that Company can use Client’s name in Company customer lists and marketing materials to demonstrate Company’s capabilities and experience. Company will not provide Client contact information to any third party without Client’s prior consent. Except as otherwise provided in this Paragraph, Company will not use Client’s name, logo, and trademarks in any press release, public statement, or in another similar manner without the prior written approval of Client.
Limitations on Subscription Services. Company is providing a service that includes provision of Software-as-a-Service to Client over the Internet. Like all Internet services, the Subscription Services may be temporarily unavailable from time to time due to required maintenance, telecommunications interruptions, or other disruptions. Although Company makes every reasonable effort to minimize downtime, Company does not guarantee 100% availability of the Subscription Services. Company will make best efforts to perform or have an Infrastructure Provider perform scheduled maintenance that may impact the Subscription Services between Friday at 5:00pm Eastern Time and Sunday at 5:00pm Eastern Time. For scheduled maintenance, Company will strive to notify Client at least 48 hours prior to the maintenance window.
Uptime. Here, “Uptime” means the percentage of time the Subscription Services as a whole are functional and reasonably available to a great majority of Client Users without interruption 24 hours a day, 7 days a week. The minimum acceptable Uptime will be 98.0% during any calendar month, although 99.999% uptime is expected, except during scheduled maintenance activities or downtime due to major disruptions to the primary Data Center’s functions. Company strives to provide continuous 24×7 monitoring of the Subscription Services availability and is alerted of any downtime in order to restore access without notice from Client.
Downtime. Company will grant a credit as described below to Client if the Client experiences more than 2% (14 hours per month) during which the Subscription Services as a whole are not functional (“Downtime”) during any calendar month. Downtime begins when the Subscription Services, as a whole, are not functional and continues until the Subscription Services, as a whole, are functional. Force majeure event will not be included in Downtime calculations. Additionally, Downtime will not include unscheduled periods of time during which the Subscription Services are non-operational and not reasonably available to Client Users because of network issues and other issues that are outside Company’s or Infrastructure Provider’s control.
No Data Conversion. Company is not responsible for converting any of Client’s existing data for use with Subscription Services. Company may agree to perform data conversion services, however, this service will be provided at a mutually agreed-upon cost, and those services will be performed under a separate agreement.
Confidentiality and Protection of Data. Company undertakes efforts to ensure that the Subscription Services are delivered in a manner that provides reasonable security protections to Client and to prevent improper access or removal of data by an unauthorized user. But Company does not warrant that Subscription Services, Data Centers, or Infrastructure Providers used to deliver the Subscription Services comply with the regulatory requirements applicable to Client’s business, including obligations under the Heath Insurance Portability and Accountability Act (HIPAA) and the Sarbanes-Oxley Act, for example. Client is responsible for determining whether the Subscription Services, and its use of them, are consistent with any data protection and other regulations applicable to Client’s business. Additionally, Client is responsible for assuring that any data that Client is prohibited from disclosing under any applicable law, rule, or regulation is not disclosed to Company—or, if disclosed, that this disclosure is accomplished in a manner that complies with all requirements affecting that data, legal or otherwise.
Ownership/Use of Client Data. Company does not assert any ownership claims over Client data deployed in the Subscription Services. Client owns its proprietary data placed in the Subscription Services. Company owns rights in non-Client data that is generated in connection with the Subscription Service, such as metadata generated in connection with the Subscription Services. Company may use Client data to monitor and administer the Subscription Services, resolve service requests, address performance, operation, and use of them, or conduct research and development activities relating to potential modifications of and improvements to the Subscription Services.
Third Party Requests for Access to Client Data. In the event that a third party seeks access to Client data deployed in the Subscription Services and it is required to be disclosed by law or any governmental authority or other similar requirements, the Company will (if not prohibited by law) notify Client of the compelled disclosure so that the Client can seek to avoid disclosure by means of a protective order or other relevant means. It is Client’s responsibility to ensure that it complies with any request for preservation, access, or production of Client data and other relevant Electronically Stored Information such as metadata associated with Client data (collectively “ESI”) and any related preservation duties under the law. Clients must provide Company any notices relating to this Paragraph by sending an email to firstname.lastname@example.org.
Intellectual Property and Proprietary Technology. Client must retain any patent, copyright, trademark, and other proprietary notices set forth on, or contained within, the Subscription Services. Client will not remove, deface, or alter any such notices or marks, nor will Client permit any other person or entity, including Client Users, to do so.
Limited License to Use Company Software. Company hereby licenses to Client—on a limited, non-exclusive, non-transferable basis—Company Software for use by Client Users in connection with the Subscription Services, so long as Client has satisfied its obligations under these Terms of Service and pays any fees associated with the Subscription Services (the fees will be covered under a separate agreement). Company retains all rights to Company Software not granted to Client in this Paragraph. “Company Software” means any software programs, tools, databases, libraries, guides, manuals, documentation, and other related materials developed by Company including any modifications, enhancements, or upgrades made thereto at any time. These Terms of Service do not grant Client any rights to patents, copyrights, trade secrets, or any other rights in or to the Company Software beyond the limited license granted in this Paragraph and Client shall take no action or assert any right inconsistent with Company’s sole ownership thereof.
Limited Warranties. COMPANY WILL HAVE NO OBLIGATION TO REMEDY ANY DEFECTS, OR PROVIDE ANY CREDITS FOR DOWNTIME CAUSED OR MATERIALLY CONTRIBUTED TO BY (a) ALTERATION, REPAIR OR MODIFICATION OF COMPANY SOFTWARE BY ANY PERSON OR ENTITY OTHER THAN COMPANY; (b) CLIENT’S IMPROPER MISHANDLING OR MISUSE OF SUBSCRIPTION SERVICES; (c) CLIENT’S USE OF OTHER SOFTWARE OR SERVICES IN CONJUNCTION WITH SUBSCRIPTION SERVICES; (d) CLIENT’S USE OF THIRD-PARTY SOFTWARE THAT IS INCOMPATIBLE WITH SUBSCRIPTION SERVICES; OR (e) DAMAGE BY FIRE, EXPLOSION, POWER FAILURE, LOSS OF INTERCONNECTIVITY, OR ANY ACT OF NATURE OR GROSS NEGLIGENCE OF CLIENT, CLIENT USERS, OR (f) ANY DAMAGES CAUSED BY UNATHORIZED USERS.
General Disclaimers and Warranties Relating to Functionality. EXCEPT FOR THE WARRANTIES DISCUSSED ABOVE, ALL SUBSCRIPTION SERVICES AND ASSOCIATED SOFTWARE ARE PROVIDED “AS IS” AND WITHOUT WARRANTY—WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, THESE TERMS OF SERVICE INCLUDE NO WARRANTY THAT ANY SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR FREE, THAT THE FUNCTIONS CONTAINED IN ANY SOFTWARE WILL FUNCTION WITH OTHER SOFTWARE OR HARDWARE, OR WITHIN A SYSTEM, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OR COMPLETENESS. ADDITIONALLY, COMPANY DOES NOT WARRANT NON-INFRINGEMENT OF THIRD PARTY OR CLIENT INTELLECTUAL PROPERTY. THE COMPANY WILL NOT BE RESPONSIBLE FOR ANY FAILURES, LOSSES, OR DAMAGES BEYOND THE COMPANY’S REASONABLE CONTROL—INCLUDING THOSE CAUSED BY POWER OUTAGE, VIRUSES, DENIAL-OF-SERVICE ATTACKS, OPERATOR ERROR, MISUSE OF EQUIPMENT, USE OF SERVICES OUTSIDE THE ENVIRONMENT, DEFECTS IN STORAGE MEDIA OR PERIPHERALS, OR BY ISSUES INVOLVING THE INFRASTRUCTURE PROVIDER, EXCEPT FOR THE LIMITED WARRANTY FOR THE SUBSCRIPTION SERVICES PROVIDED ABOVE IN THE PRIOR PARAGRAPH. ALL COMPANY WARRANTIES ARE SOLELY TO AND FOR THE BENEFIT OF CLIENT AND FOR NO OTHER PERSON, ENTITY, CLIENT USER, END USER, OR THIRD PARTY.
Disclaimer of Data Center/Infrastructure Provider Services and Security. CLIENT ACKNOWLEDGES THAT COMPANY DOES NOT CONTROL THE TRANSFER OF DATA OVER TELECOMMUNICATIONS FACILITIES, INCLUDING THE INTERNET. COMPANY DOES NOT WARRANT ANY PRODUCTS OR SERVICES PROVIDED BY THE DATA CENTER OR THE INFRASTRUCTURE PROVIDER, THE SECURE OPERATION OF THE SUBSCRIPTION SERVICES, OR THAT COMPANY WILL BE ABLE TO PREVENT THIRD-PARTY DISRUPTIONS OF THE ENVIRONMENT, SUBSCRIPTION SERVICES, OR CLIENT SYSTEMS AND EQUIPMENT. COMPANY WILL HAVE NO LIABILITY RELATING TO INFRASTRUCTURE PROVIDER SERVICES OR SECURITY EXCEPT TO THE EXTENT THAT RESULTING PERFORMANCE LEVELS RESULT IN DOWNTIME AS DEFINED ABOVE IN THE TERMS OF SERVICE.
By using the Subscription Services, Client agrees to be bound by the terms and conditions of these Terms of Service, as updated from time to time.