PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THIS SERVICE.
BY USING THE SERVICE OR CLICKING “AGREE” CUSTOMER IS AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT ON BEHALF OF OR FOR THE BENEFIT OF YOUR EMPLOYER, THEN YOU REPRESENT AND WARRANT THAT YOU HAVE THE NECESSARY AUTHORITY TO AGREE TO THIS AGREEMENT ON YOUR EMPLOYER’S BEHALF.
This agreement is between Stockient LLC, DBA Fixed Asset Connect, a California corporation (FAC), and the customer agreeing to these terms (Customer).
- Software service. This agreement provides Customer access to and usage of an Internet based software service as specified on an order (Service).
- USE OF SERVICE.
- Contractor Access and Usage. Customer may allow its contractors to access the Services in compliance with the terms of this agreement, which access must be for the sole benefit of Customer. Customer is responsible for the compliance with this agreement by its contractors.
- Customer Responsibilities. Customer (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify FAC promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service’s user guide and applicable law.
- FAC Support. FAC must provide customer support for the Service under the terms of FAC’ Customer Support Policy (Support) which is located at faconnect.com/support.
- 30-Day Trial Version. If Customer has registered for a trial use of the Service, Customer may access the Service for a 30-day time period (unless extended by FAC in writing). The Service is provided AS IS, with no warranty during this time period. All Customer data will be deleted after the trial period, unless Customer converts its account to a paid Service.
DISCLAIMER. FAC disclaims all other warranties, including, without limitation, the implied warranties of merchantability, title and fitness for a particular purpose. While FAC takes reasonable physical, technical and administrative measureS to secure the Service, FAC does not guarantEE that the Service cannot be compromised. Customer understands that the Service may not be error free, and use may be interrupted.
- Payment. Customer must pay all fees as specified on the order, but if not specified then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT and other similar taxes. This agreement contemplates one or more orders for the Service, which orders are governed by the terms of this agreement.
- MUTUAL CONFIDENTIALITY.
- Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). FAC’s Confidential Information includes without limitation the Service, its user interface design and layout, and pricing information, and the Software and Documentation (defined below).
- Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
- Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser, (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser, (iii) is received from a third party without breach of any obligation owed to Discloser, or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
- FAC Property.
- Reservation of Rights. The software, workflow processes, user interface, designs, Software and Documentation, and other technologies provided by FAC as part of the Service are the proprietary property of FAC and its licensors, and all right, title and interest in and to such items, including all associated intellectual property rights, remain only with FAC. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Software and Documentation. FAC reserves all rights unless expressly granted in this agreement.
- Restrictions. Customer may not (i) sell, resell, rent or lease the Service or use it in a service provider capacity; (ii) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, or otherwise objectionable, unlawful or tortious material, or to store or transmit material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service or the Software and Documentation; or (vi) access the Service or use the Software and Documentation to build a competitive service or product, or copy any feature, function or graphic for competitive purposes.
- Software and Documentation. All software provided by FAC as part of the Service, and the Service documentation, sample data, marketing materials, training material and other material provided through the Service or by FAC (Software and Documentation) are licensed to Customer as follows: FAC grants Customer a non-exclusive, non-transferable license during the term of this agreement, to use and copy such Software and Documentation, solely in connection with the Service.
- Anonymized Data. During and after the term of this agreement, FAC may use and owns all anonymized data within the Service for purposes of enhancing the Service, aggregated statistical analysis, technical support and other business purposes.
- Customer Property.
- Customer Owned Data. All data uploaded by Customer remains the property of Customer, as between FAC and Customer (Customer Data).
- License. Customer grants FAC, its affiliates, its service providers, its contractors and its service providers’ affiliates and contractors the right to use the Customer Data solely for purposes of performing under this agreement. FAC and its licensors and service providers may use anonymous and aggregated Customer Data to publish research data from time to time, and may use, display, distribute or license such anonymous aggregate research data for purposes of helping FAC, its licensors, and its service providers improve its products and services, to enable a better and more accurate user experience, and to assist in troubleshooting and technical support. During the term of this agreement, Customer may export its Customer Data as allowed by functionality within the Service.
- Restrictions. Customer Data may not include any data that (i) is Illegal, fraudulent, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, harassing, offensive, inappropriate or objectionable including without limitation data that would encourage “flaming” others, or criminal or civil liability under any local, state, federal or foreign law; (ii) would impersonate someone else or falsely represent identity or qualifications, or that constitutes a breach of any individual’s privacy; (iii) promotes investment opportunities, solicitations, chain letters, pyramid schemes, other unsolicited commercial communication or results in spamming or flooding; is a virus, trojan horse, worm or other disruptive or harmful software or data; and (iv) is not legally Customer’s and is without permission from the copyright owner or intellectual property rights owners.
- FAC Property.
- TERM and Termination.
- Term. This agreement continues until all orders have terminated.
- Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
- Return of Customer Data.
- Within 60-days after termination, upon request FAC will make the Service available for Customer to export Customer Data as provided in Section 2(a).
- After such 60-day period, FAC has no obligation to maintain the Customer Data and may destroy it.
- Return FAC Property Upon Termination. Upon termination of this agreement for any reason, Customer must pay FAC for any unpaid amounts, and destroy or return all property of FAC. Upon FAC’s request, Customer will confirm in writing its compliance with this destruction or return requirement.
- Suspension for Violations of Law. FAC may temporarily suspend the Service or remove the applicable Customer Data, or both, if it in good faith believes that, as part of using the Service, Customer has violated a law. FAC will attempt to contact Customer in advance.
- LIABILITY LIMIT.
EXCLUSION OF INDIRECT DAMAGES. Neither FAC nor its licensors or service providers is liable for any indirect, special, incidental or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of data, records or information; and lost profits, revenue or anticipated cost savings), even if it knows of the possibility of such damage or loss.
TOTAL LIMIT ON LIABILITY. FAC’s, its licensors’ and its service providers’ total liability arising out of or related to this agreement (whether in contract, tort or otherwise) does not exceed the amount paid by Customer within the 6 month period prior to the event that gave rise to the liability.
- Indemnity. Customer agrees to indemnify, defend and hold FAC, its licensors, and its service providers harmless from any and all claims, liabilities, damages, losses, costs and expenses, including but not limited to reasonable attorneys’ fees and costs, arising out of any claims relating to any part of the Customer Data, provided that FAC: promptly notifies Customer in writing of the claim; and allows Customer to control, and cooperates with Customer in, the defense and any related settlement.
- GOVERNING LAW AND FORUM. This agreement is governed by the laws of the State of California (without regard to conflicts of law principles) for any dispute between the parties or relating in any way to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for Santa Clara County, California, and Customer submits to this personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
- OTHER TERMS.
- Entire Agreement and Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise or inducement not included in this agreement is binding. No modification of this agreement is effective unless both parties sign it, however this agreement may be modified through an online process provided by FAC. No waiver is effective unless the party waiving the right signs a waiver in writing.
- No Assignment. Neither party may assign or transfer this agreement or an order to a third party, except that this agreement with all orders may be assigned, without the consent of the other party, as part of a merger, or sale of substantially all the assets, of a party.
- Independent Contractors. The parties are independent contractors with respect to each other.
- Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation force majeure events.
- Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party’s intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach.
- No Additional Terms. FAC rejects additional or conflicting terms of any Customer form-purchasing document.
- Order of Precedence. If there is an inconsistency between this agreement and an order, the order prevails.
- Survival of Terms. Any terms that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
- Feedback. If Customer provides feedback or suggestions about the Service, then FAC (and those it allows to use its technology) may use such information without obligation to Customer.
- Electronic Communications. Visiting FAConnect.com or sending emails to FAC constitutes electronic communication. Customer consents to receive electronic communications and Customer agrees that all notices, disclosures and other communications that FAC provides to Customer may be sent electronically.
- Third Party Websites. The Service may link to websites that are controlled by third parties other than FAC. FAC is not responsible for those websites or Customer’s use of those websites. If any accounts or licenses are required to use a product or service on those websites, Customer must obtain such accounts and licenses on its own.