End User License Agreement (EULA)
Baseline Data Systems, Inc.
Torrance, CA USA
Baseline Data Systems End User License Agreement (EULA)
You MUST ACCEPT the License Agreement below BEFORE you can use this service and any related software, services or documentation. This document is an Agreement between you and Baseline Data Systems, Inc. ('BDS') governing the use of Office Accelerator (‘the Product’), which includes, but is not limited to, any related software ('the Software'), any related documentation ('the Documentation'), any related services ('the Services'), including maintenance and technical support services ('Support Services'), and required payment of service fees (‘Service Fees’) by you.
Grant of License
BDS grants you a personal, non-exclusive, nontransferable license to use OA for your own internal needs. You may not: (i) distribute, sublicense, rent, or lease the Product; (ii) modify, adapt, translate, reverse engineer, decompile, disassemble or create derivative works based on the Product; (iii) transmit the Product electronically or transfer it by any other means; (iv) use the Product in multiple computer or multiple user arrangements, unless that use is covered in the EULA.
Multiple Computer, Device & User Arrangements
BDS, at its sole discretion, allows you to purchase services that enable multiple active user accounts. Each active user account may be used from any computer for non-simultaneous use. Simultaneous use of a user account from multiple computers or devices, or by multiple people, is prohibited unless otherwise specified. A user account is defined as 'used' if it is successfully logged in and has not been subsequently logged out. The limitations on simultaneous use include, but are not limited to, all modules requiring a user login. This definition of use may change at any time at BDS sole discretion. Any browser-based version, if enabled, that require a user login is subject to the simultaneous use provision described herein. The Mobile Sync option, if enabled, requires a user login and is limited to one computer for each active user account. If enabled, a hand-held device that is synchronized to a user account requires a user login and is limited to one device at one computer for each active user account. Handheld devices include, but are not limited to, BlackBerry phones and tablets. The Outlook Sync option, if enabled, requires a user login and is limited to one computer for each active user account. In the event that a user account is inactive, future synchronization to any device or data source that was synchronized to that account is not permitted, even if that account is re-activated. All licensing defined in this section is subject to change without notice at BDS' sole discretion.
Copy Restrictions
Except as expressly provided herein, you may not copy any part of the Product.
Ownership of the Product
BDS is the sole owner and developer of the Product. You agree that BDS retains title to and ownership of the Product, including all related materials, regardless of the form of media in or on which the material may exist. You agree to keep confidential and use your best effort to prevent and protect the contents of the Product from unauthorized disclosure. The license granted to you hereunder does not constitute a sale of the Product or any subsequent releases of the Product.
Copyright
The Product is proprietary to BDS and is protected by copyright laws and international treaty. You must, therefore, treat the Product like any other copyrighted material.
Termination
This Agreement is effective until terminated. The Agreement and the license granted to you hereunder will terminate automatically, and without notice from BDS, if you fail to comply with any of the terms of the Agreement. Upon termination, you shall destroy all materials related to the Product, including any backup copy or installation thereof, if any. The Sales Order determines the initial term (the "Initial Term") of your Agreement. Upon expiration of the Initial Term, this Agreement will automatically renew for successive terms equal to the same period of time as the Initial Term (each, a "Successive Term," together with the Initial Term, the "Term"), and you will continue to be billed for the Fees until this Agreement is terminated in accordance with the terms and conditions set forth herein. At any time during the Term, either Customer or BDS may terminate this Agreement for any reason. If Customer desires to terminate this Agreement, Customer may request a termination in writing by mailing to Baseline Data Systems, 3655 Torrance Blvd Suite 255, Torrance, CA 90503 (a "Valid Termination Notice"). Customer assumes all responsibility for managing credit card information. Customer acknowledges the ability to fully manage all billing and payment options is available to Customer in the Product. Customer agrees not to dispute any credit card charge that Customer has the ability to manage. Customer acknowledges that allowing a credit card to expire or failing to submit payment by check does not constitute a Valid Termination Notice. Any Customer termination request that occurs in the middle of a payment term (whether monthly, quarterly or annually, as set forth in the Sales Order) will be made effective on the final day of such term. Upon termination of this Agreement for any reason, all Customer Recipient Data may be destroyed and deleted in accordance with the terms and conditions set forth in this EULA. Notwithstanding any termination or expiration of this Agreement, Customer will remain obligated to pay BDS Fees which were incurred prior to (and on) the effective date of such termination or expiration, as the case may be.
Upgrade Policy
BDS may create, from time to time, upgraded versions of the Product. At its option, BDS may make such upgrades available to you if you are a validly registered user and agree to pay the applicable fees.
Additional Module & Products Policy
BDS may create, from time to time, new products, modules or services for the Product. At its option, BDS may make such new products, modules or services available to you if you are a validly registered user and agree to pay the applicable fees.
Service Fees
The Product is provided as a service requiring payment of periodic Service Fees by you. BDS reserves the right to alter the Service Fees from time to time at BDS' sole discretion. In the event that your usage of the Product requires an increase in the Service Fees, BDS, at its sole discretion, may automatically increase your periodic Service Fees and charge any amount due immediately or at the time BDS deems appropriate. BDS, at its sole discretion, may provide you sixty (60) days prior written notice of any changes to the Service Fees. In the event you allow the Service Fees to lapse, this agreement may be terminated without notice at BDS' sole discretion. At BDS sole discretion, you may thereafter renew this agreement for the affected Product by paying the applicable fees as required by BDS.
Customer Contact Information
At BDS’ sole discretion, your contact information provided by you to BDS (‘the Contact Information’) may be used by BDS for the purpose of BDS’ operations. This includes, but is not limited to, contacting you for assistance, payment and disseminating information. Furthermore, BDS may use the information internally in any way at BDS’ sole discretion including outbound sales or marketing correspondence with you. BDS may contact you for marketing purposes by various means, including, but not limited to, regular mail, email or telephone. When you activate your BDS account you expressly consent to receive marketing communications via direct mail, email (at the email address you provided when you activated your account), telephone (at the number you provided when you activated your account), pre-recorded messages (at the number you provided when you activated your account), text messages (if you provided a wireless telephone number), instant messages or other communications methods. BDS will not provide your information to third parties for any use other than those included herein. Third parties include, but are not limited to, consultants hired by BDS.
Customer Data
The accumulation of data solely created by you that is stored in the Product (‘Customer Data’) is owned by you. At BDS’ sole discretion, the Customer Data may be used by BDS to improve the Product and BDS’ operations. Use of the Customer Data includes, but is not limited to, evaluation, inspection, accumulation, and correlation activities. BDS’ shall not provide the Customer Data to third parties for any use other than those included herein. Third parties include but are not limited to; consultants hired by BDS. Deletion of the Customer Data by you may not result in permanent deletion from the Product. In the event your account is terminated, the Customer Data will be deleted from BDS servers at a time determined at BDS sole discretion. BDS performs daily backups of all data hosted on BDS servers. Deletion of the Customer Data from BDS backups is at BDS sole discretion.
Customer's Recipient Data
In offering and executing the Services, BDS may collect personal information about Recipients. BDS will not own any data, information or material that Customer submits to BDS in connection with the Services ("Customer Recipient Data"). Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Recipient Data and Customer is responsible for maintaining, securing and storing all Customer Recipient Data in accordance with applicable law. Upon any termination or expiration of this Agreement and Customer's payment of all unpaid and outstanding Fees, customer can export all data to Tab Separated text file onto to any storage device of their choice. Customer acknowledges and agrees that after the thirtieth (30th) day following any such termination or expiration BDS has no obligation to retain the Customer Recipient Data and may delete and destroy such Customer Recipient Data without providing Customer with notice of such deletion. BDS will not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Recipient Data.
Data Disclosures
Except as otherwise set forth herein, BDS does not disclose, sell or rent Customer Recipient Data or Customer Data (collectively, the "Data"), without Customer's prior consent or unless required by order or other requirement of a court, administrative agency, or other governmental body or applicable law. Customer expressly permits BDS to disclose the Data to: (i) BDS personnel who access and manage the Data in connection with the Services; (ii) service providers for purposes of providing functions or services related to the Services and BDS's customers' accounts; and (iii) BDS marketing partners through which Customer purchased the Services, if any. Except as otherwise set forth herein, BDS will not provide any Data to any third party without Customer's authorization and will use commercially reasonable efforts to prohibit any third party that receives any such Data from selling or redistributing such Data without Customer's authorization.
Passwords
In connection with BDS's provision of the Services, BDS will send to Customer's email address (as designated by Customer at the time an account is established), information such as user-IDs and/or passwords which will enable Customer to access the Services (the "Passwords"). Customer agrees to maintain the Passwords in strict confidence and not to provide the Passwords to any third party. Customer will notify BDS promptly if there is a loss or compromise of any Passwords and Customer will be solely responsible for all actions and fees incurred as a result of such incident resulting from the Customer's negligence or intentional misconduct. Any unauthorized use of the Passwords by Customer will constitute a material breach of this Agreement.
Use of Services
Customer acknowledges and agrees that it will use the Services only to access, employ, utilize, or display the Software solely for Customer's "internal business purposes" by Customer's employees or by independent contractors hired by Customer. For the avoidance of doubt, the term "internal business purposes," as used herein, does not include, among other things, the right to: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, harassing, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send messages to any purchased (email) lists, purchased distribution lists, purchased newsgroups, or purchased email addresses; (iv) send or store material containing malicious code, including, without limitation, software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; or (v) use the Services (and the Professional or Consulting Services as the case may be) in any other manner which violates any Policy or any applicable law. Customer agrees to report immediately to BDS, and to use best efforts to stop immediately, any violation of the terms and conditions set forth by BDS. In the event of any suspected violation of any term, condition or restriction set forth herein or in any Policy, or in the event BDS otherwise reasonably objects to any inappropriate or improper content uploaded by Customer in connection with its use of the Service, BDS may immediately disable Customer's access to the Services and suspend its provision thereof.
Tampering
Each email message that is sent using the Services must contain an "unsubscribe" link that allows Recipients to remove themselves from Customer's mailing list and a link to BDS's Policies. Customer agrees that it will not remove, disable, modify or attempt to remove, disable or modify either link. Further, each such email message may contain an automatic identifying footer such as "Powered by Office Accelerator or similar." Except as otherwise expressly permitted in writing by BDS, Customer agrees that it will not remove, disable or modify or attempt to remove, disable or modify such footer.
Confidential Information
Each of BDS and Customer, as a Receiving Party (as defined below), will hold confidential, not use except as otherwise authorized herein, and protect from disclosure to unauthorized third parties the Confidential Information (as defined below) of the Disclosing Party (as defined below). For purposes hereof, "Confidential Information" means any information disclosed by one party (the "Disclosing Party") to the other party (the "Receiving Party") that relates to such Disclosing Party's business affairs, internal operations, personnel, subscribers, customers, financial matters, technology, research and development, product plans or offerings, markets, or know-how. Confidential Information will not include information that: (i) was publicly available, or that subsequently becomes publicly available, except by wrongful disclosure hereunder by the Receiving Party; (ii) was in the Receiving Party's possession prior to receipt of the same hereunder, as evidenced by the Receiving Party's prior written records; (iii) was received from a third party who was not known by the Receiving Party to be under any obligation of confidentiality with respect to such information or to have violated any applicable law; (iv) can be proven by competent written evidence to have been independently developed by the Receiving Party; or (v) is approved in writing for release by the Disclosing Party. For purposes hereof, Customer Recipient Data and Customer Information are considered Customer's Confidential Information. Nothing set forth herein shall be construed to prohibit BDS from disclosing Customer's Confidential Information to any third party that has a need to know such information in connection with its performance of the Services. From time to time, BDS may be required to disclose Customer's Confidential Information by order or other requirement of a court, administrative agency, or other governmental body or applicable law, as determined by BDS or its legal counsel. In such event, Customer hereby permits BDS to disclose such information to the extent necessary to comply with such order or legal requirement, which disclosure shall not be construed as a breach of this section.
Support Services
At BDS' sole discretion, the Support Services may include updates, enhancements, upgrades, support, or data hosting for the Product. The Support Services do not necessarily include additional products, support, services, or data hosting. At BDS' sole discretion, included in the Support Services is reasonable access by telephone and/or Internet to BDS' technical staff for assistance in resolution to any technical abnormalities caused by the Product. Additional support fees may be required.
Consulting & Training
At BDS' sole discretion, BDS may, at your request, provide consulting and training services ('Consulting'). The Consulting to be provided herein is designed to assist you in the use of the Product and such services may be requested as needed by you thereafter. In addition to any fees, you shall reimburse BDS for all reasonable travel, living and delivery expenses incurred in rendering Consulting. Termination of consulting and or training services does not terminate the use of the Office Accelerator product as outlined in terms and use of this agreement.
Disclaimer of Warranty
The Product is provided 'AS IS' without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose. Moreover, BDS does not warrant that the functions contained in the Product will meet your requirements or that the operation of the Product will be uninterrupted or error free. The entire risk as to the quality and performance of the Product is borne by you. Should the Product, in part or in whole, prove defective, you and not BDS or any authorized dealer of BDS, assume the entire cost of all necessary service, repair or correction.
Limitation of Liability
In no event will BDS or any representative be liable to customer or any other party for any special, direct, indirect, incidental, exemplary, consequential or punitive damages arising from or related to the services (or the professional services, if applicable), or to this agreement, including, but not limited to, damages for loss of data, loss of use, or loss of profits, even if BDS or its representative has been advised in advance of the possibility of such loss or damages. Further, in no event will BDS or any representative's total cumulative liability to customer or any other party for claims, losses, or damages of any kind, whether based on contract, tort, negligence, indemnity or otherwise, arising out of or related in any way to this agreement, the services, or the professional services, exceed the actual fees customer paid to BDS for the services during the twelve (12) month period ending on the date of the cause of action giving rise to the claim, loss, or damage. No claim may be asserted by Customer against BDS more than twelve (12) months after the date of the cause of action underlying such claim. In the event of any failure, or BDS's non-provision, of the Services (or the Professional Services as the case may be), Customer's sole and exclusive remedy shall be for BDS to use commercially reasonable efforts to repair or provide the Services (or the Professional Services as the case may be).
Indemnification
Customer agrees to indemnify, defend and hold harmless BDS, the Representatives, and its and their respective affiliates, subsidiaries, officers, directors, stockholders, employees, consultants, representatives, agents, successors and assigns from and against any and all claims, losses, liabilities, sums of money, damages, expenses, costs (including, but not limited to, reasonable attorneys' fees) and/or actions arising from: (i) Customer's acts or omissions; (ii) Customer's violation of any applicable law, including, without limitation, the United States CAN SPAM Act and Canada's Fighting Internet and Wireless Spam Act, or the Policies; (iii) Customer's breach of any term or condition set forth in this Agreement (including in the Policies); (iv) Customer's breach of any of its representations or warranties set forth herein; and/or (v) Customer's infringement or misappropriation of any intellectual property rights or other rights of any person or entity.
Governing Law
This Agreement will be governed by the laws of the State California as applied to agreements entered into and performed entirely within the California, except for those conflicts of law rules thereof that would require or permit the application of the laws of another jurisdiction. The rights and obligations of the parties under this Agreement shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.
Relationship
This Agreement does not create a partnership, joint venture or agency relationship between BDS and Customer. Customer does not have any right, power, or authority to act as a legal representative of BDS.
Assignment
Customer may not transfer, assign, sublicense, or delegate any right or duty under this Agreement to another entity or person without the express written consent of BDS. Any such transfer, assignment, sublicense or delegation without consent will be null and void.
Severability
In the event that a court of competent jurisdiction determines that any portion of this Agreement is illegal, invalid or unenforceable, such portion will not affect or impair the legality, validity or enforceability of any other provisions of this Agreement.
Survival
The provisions of this Agreement that by their nature and context are intended to survive the performance and termination of this Agreement, will survive the completion of performance and termination of this Agreement.
Entire Agreement
This Agreement, the Policies and the Statement of Work(s), if any, constitute the entire agreement and understanding between BDS and Customer and supersede all prior and contemporaneous agreements, documents, and proposals, oral or written, between the BDS and Customer, except for any prior agreement addressing confidentiality, which will continue in effect according to its terms following the execution, performance and termination of this Agreement. At any time prior to, or during, its use of the Services, Customer may enter into certain other agreements with BDS which are subject, expressly or otherwise, to the terms and conditions set forth in this Agreement. In the event of any conflict between a term or condition set forth therein and herein, the term or condition which most favors BDS, as determined by BDS, shall govern.
No Waivers
BDS's failure to exercise any of its rights under this Agreement will not constitute or be deemed to constitute a waiver or forfeiture of such rights or of any preceding or subsequent breach or default.
Export Restrictions
Customer acknowledges that the Services may be subject to U.S. or other countries' export control laws and regulations. Customer agrees not to export, or transfer for the purpose of re-export, the Services (including technical data) in violation of any U.S. or other applicable export control laws and regulations.
Limitation of Remedies
BDS' entire liability and your exclusive remedy shall be, at BDS' option, either (a) a refund of the purchase price or unused portion for the Product or (b) the replacement of the disks that do not meet BDS' Limited Disk Warranty set forth above and which are returned to BDS within 7 days of notification by you to BDS. IN NO EVENT will BDS be liable to you for ANY damages, including any lost profits, lost savings or other direct, indirect, incidental or consequential damages arising out of the use, the results of the use or inability to use the Product, in part or in whole, even if BDS or an authorized dealer has been advised of the possibility of such damages.
Miscellaneous
This Agreement constitutes the entire agreement between you and BDS. This Agreement is governed by the laws of the State of California. Should you have any questions concerning this Agreement, or if you desire to contact BDS for any reason, please contact Baseline Data Systems, Inc. in writing at 3655 Torrance Blvd., Suite 255, Torrance, California 90503.