CIRCUMSPEX® END USER LICENSE AGREEMENT
This Circumspex End User License Agreement (this ”Agreement”) is entered into by and between Circumspex, LLC, a Pennsylvania limited liability company (“Circumspex”) and the undersigned end user (“End User”) on the date set forth on the signature page below.
In consideration of the mutual promises set forth below, Circumspex and End User, intending to be legally bound, agree as follows:
1. LICENSE Subject to the terms and limitations identified in this Agreement, Circumspex grants to End User a month-to-month personal, non-exclusive, nontransferable, limited license during the period for which End User has paid a license fee, to access and use for disaster recovery planning purposes (the “Purpose”) the contents of the Circumspex Web Site (www.circumspex.com, the “Website,” the contents thereof being referred to herein as the “Materials”) as the Materials are provided and updated from time to time. This limited license includes:
a. The right to electronically display the Materials;
b. The right to print out the Materials for the Purpose;
c. The right to download and store in machine-readable form for exclusive use of the End User, a single copy of any form included in the Materials for the Purpose; and
d. The right to upload and retrieve files for storage on servers maintained by Circumspex.
2. OWNERSHIP Circumspex Software and Materials are licensed, not sold. Circumspex Software and Materials remains the sole property of Circumspex, and there are no implied licenses. Circumspex maintains the copyright in all of the Materials, information, and publications it places on the Web Site. The End User acquires no proprietary interest in the Web Site, Materials, or copies thereof by his, her, or its use of the Web Site. The End User may not otherwise use, download, upload, copy, print, display, perform, reproduce, publish or distribute any Materials or other Web Site information, in whole or in part, without the prior written consent of Circumspex.
3. SOFTWARE, HOSTING, DATA STORAGE AND SUPPORT FEES AND PAYMENT
a. The Circumspex Software is licensed to the End User under this Agreement for an Initial License Fee set forth on Exhibit A and a Monthly Hosting/Data Storage Fee for each End User location, also set forth on Exhibit A. The Initial License Fee is due and payable upon signature of this Agreement and must be received by Circumspex before End User may activate a full service account. Monthly Hosting/Data Storage Fees will be charged to a credit card account supplied by End User as part of End User’s registration on the Web Site.
b. LOCATIONS The number of End User locations listed on Exhibit A represents End User’s initial determination of the number of locations End User intends to define. End User may define additional locations at its discretion using the Website. End User acknowledges that Circumspex will charge an additional Monthly Hosting/Data Storage Fee at the charge per location set forth on Exhibit A for each new location added by End User and agrees to pay such additional Monthly Hosting/Data Storage Fees from the credit card account supplied by End User.
c. SUPPORT SERVICES Circumspex will provide End User Support as described on Exhibit B at no additional charge.
d. OTHER SERVICES Circumspex may provide other services to End User. Any such additional services and the fees payable for such services are listed on w to this Agreement.
e. FAILED CREDIT CARD TRANSACTIONS The e-mail address of record for the End User will be notified of failed credit card transactions immediately. Written notice will be provided within five (5) business days after the failed credit card transaction.
f. DELINQUENT ACCOUNT In the event of End User’s failure to make full payment within 15 days of the payment due date, access to the Materials, including any information uploaded by End User and stored on the Circumspex servers, will be terminated. Access to the Materials, including related End User information, will be reinstated immediately upon payment of monthly fees, late fees and reinstatement fees, subject to the provisions of Subsection (g) hereof.
g. LATE PAYMENTS Late payments will be subject to an interest charge of 1.5% per month or any part thereof that a late payment remains outstanding, or, if less, the highest rate allowed by law (“Late Fee”).
h. REINSTATEMENT FEES In addition to any applicable Late Fee, a reinstatement fee of Fifty Dollars ($50.00) will be charged for payments received after the 15-day Late Fee period.
i. STORAGE OF DATA DURING FAILED PAYMENT After twenty-five (25) business days without payment, Circumspex may delete any End User data. Data may be stored at Circumspex’s sole discretion past the twenty-fifth (25th) business day and no oral statement or course of conduct shall be interpreted to imply any form of obligation for Circumspex to store such data for a longer period.
4. PASSWORD MAINTENANCE Upon execution of this Agreement and payment of the Initial License Fee, End User will receive authorization to establish accounts for each of its locations. End User may authorize and register any number of authorized users with distinct user identities and passwords. End User expressly acknowledges and agrees that it is End User’s responsibility to maintain and protect End User’s passwords. If at any time End User feels that the integrity of the password(s) provided has been compromised, End User should immediately contact Circumspex to have a new password issued. End User is responsible for all actions of persons using End User’s passwords, whether or not Circumspex has been notified of any potential problems with the password(s).
5. SOFTWARE RESTRAINTS AND ACCESS ROUTINES Circumspex Software may contain software devices or restraints that prevent use of the Circumspex Software outside the terms of this Agreement and routines that permit remote access for diagnosis and support.
6. UPTIME Circumspex cannot guarantee 100% server uptime. Circumspex does monitor the Web Site for downtime and problems and responds accordingly. Circumspex makes every effort to ensure that the Web Site is available and will announce scheduled downtime for maintenance at least forty-eight (48) hours in advance. In the event of emergency software maintenance, Circumspex will provide End User with as much notice as commercially reasonable. Circumspex contracts with a dedicated web hosting service that guarantees 99.993% uptime. Circumspex is not liable for any file corruption, data loss, or errors in site design, content, or performance due to downtime or server load. In such an event Circumspex will restore the site to the most recent backup (no more than 24 hours prior to the downtime or problems) as soon as possible. End User acknowledges that Circumspex recommends that End Users maintain copies of materials uploaded to the Web Site in paper and electronic form at a secure off-site location.
8. WARRANTY THE WEB SITE AND ALL MATERIALS ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THOSE REGARDING THE ACCURACY OR COMPLETENESS OF THE INFORMATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND THOSE ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. NO PERSON IS AUTHORIZED TO MAKE, AND CIRCUMSPEX IS NOT OBLIGATED TO HONOR, ANY WARRANTY NOT SET FORTH IN THIS AGREEMENT.
9. LIMITATION OF REMEDIES CIRCUMSPEX DOES NOT PROVIDE OR DEVELOP DISASTER RECOVERY PLANS BUT ONLY SUPPLIES TOOLS TO FACILITATE DEVELOPMENT AND IMPLEMENTATION OF SUCH PLANS BY END USERS, WHO ARE SOLELY RESPONSIBLE FOR THE CONTENT AND IMPLEMENTATION OF SUCH PLANS. IN NO EVENT WILL CIRCUMSPEX OR ANY OF ITS AFFILIATES, SUPPLIERS, OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES OR SUBCONTRACTORS BE LIABLE FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOST PROFITS, LOST DATA, LOST REVENUE OR BUSINESS INTERRUPTION) ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF, THE WEB SITE OR THE MATERIALS, EVEN IF CIRCUMSPEX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, NEITHER CIRCUMSPEX, NOR ANY OF ITS AFFILIATES, SUPPLIERS OR ITS OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES OR SUBCONTRACTORS SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES THAT MAY RESULT FROM THE USE OF THIS WEB SITE OR ANY INFORMATION CONTAINED HEREIN, WHETHER ARISING UNDER CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LAW OR CAUSE OF ACTION. IN NO EVENT WILL CIRCUMSPEX’ LIABILITY TO END USER EXCEED THE TOTAL FEES PAID TO CIRCUMSPEX BY END USER HEREUNDER.
10. DEFENSE AND INDEMNIFICATION If End User is in compliance with this Agreement and a third party claims that some portion of the Materials infringes that party’s patent or copyright, Circumspex will defend End User against that claim at Circumspex’ expense.
11. TERMINATION If End User is current on all fees and charges due to Circumspex, End User may terminate this Agreement for convenience at any time by notifying Circumspex in writing. Unless a shorter time period is otherwise provided for herein, upon thirty days’ written notice, Circumspex may terminate this Agreement for End User’s breach of this Agreement, if the breach is not cured within that thirty (30) day period.
12. FORCE MAJEURE Circumspex is not responsible for delay or failure in performance due to causes outside its reasonable control.
13. SEVERABILITY If any provision of this Agreement is held to be unenforceable, the remainder of this Agreement will not be affected. The unenforceable provision will be deemed to be restated to reflect the original intentions of the parties as nearly as possible in accordance with applicable law. EACH AND EVERY PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER SUCH PROVISION AND TO BE ENFORCED AS SUCH. IN THE EVENT ANY REMEDY UNDER THIS AGREEMENT IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH IN THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT. The parties have relied on the limitations set forth in this Agreement in determining whether to enter into this Agreement.
14. GOVERNING LAW The laws of the Commonwealth of Pennsylvania govern this Agreement and all matters arising out of it, WITHOUT GIVING EFFECT TO THE CONFLICT OR CHOICE OF LAWS PROVISIONS THEREOF. Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
15. ASSIGNMENT End User may not assign or otherwise transfer this Agreement without Circumspex’s prior written consent. Any attempt to do so is void. Circumspex may assign this Agreement to an affiliate or to any person that acquires substantially all of the assets of Circumspex without End User’s consent.
This Agreement is the complete and exclusive statement of the understanding of the parties and supersedes any and all prior agreements, arrangements, proposals and understandings, whether verbal or written, relating to the subject matter of this Agreement. An executed copy of this Agreement or any part of it reproduced by reliable means (for example, photocopy, facsimile or other electronic image) is considered an original. Any handwritten changes not initialed by both parties are void.