ALEYANT SYSTEMS END USER LICENSE AGREEMENT
YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF ALEYANT SYSTEMS' ONLINE SERVICES, INCLUDING OFFLINE COMPONENTS, AND ALEYANT SYSTEMS' DOWNLOADABLE SOFTWARE (SOMETIMES REFERRED TO AS THE “SOFTWARE”). ONE OR MORE OF ALEYANT SYSTEMS’ ONLINE SERVICES, OFFLINE COMPONENTS, AND SOFTWARE ARE REFERRED TO AS THE "SERVICE". IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU", "I", OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MAY NOT USE THE SERVICE. BY USING THE SERVICE YOU THEREBY CONSENT TO THIS AGREEMENT.
What Aleyant Systems Provides
If you have a license for the online Service, Aleyant Systems will provide you with use of the online Service, including a browser interface and data encryption, transmission, access, and storage. If you have a license for the Software, Aleyant Systems will provide you with access to the Software in a downloadable format. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement, including any materials available on the Aleyant Systems website incorporated by reference herein, and also including Aleyant Systems's privacy and security policies. For reference, a Definitions section is included elsewhere in this Agreement.
1. Privacy & Security; Disclosure
Aleyant Systems will not send marketing related communications to you through a third party. Aleyant Systems reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Because the online Service is a hosted, online application, Aleyant Systems occasionally may need to notify you and all Users of important announcements regarding the operation of the Service. If you become a paying customer of the Service, you agree that Aleyant Systems can disclose the fact that you are a paying customer and the edition and type of the Service that you are using.
2. License Grant & Restrictions
Aleyant Systems hereby grants you a non-exclusive, non-transferable, non-sublicensable, worldwide right to use the Service, subject to this Agreement. All rights not expressly granted to you are reserved by Aleyant Systems and its licensors.
2A. You shall not: (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service (other than the login page) or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; (iv) reverse engineer or access the Service in order to: (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service; (v) copy, mirror, or transmit the Software except as expressly permitted by your license or by Section 2C of this Agreement; (vi) use or reconfigure the Software to create any derivative work or any adaptation of or change to the Software; (vii) modify, translate decompile, or disassemble the Software, or otherwise attempting to view or reveal the Software’s source code; (viii) use the Software other than for the purposes marketed by Aleyant Systems;
2B. You may use the Service only for your own bona fide business purposes and you shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
2C. Unless you purchased from Aleyant Systems a license permitting use of the Software by more than one User:
a. The Software may be downloaded onto only one device.
b. The Software may be installed onto only one device, except as necessary for archival and backup purposes and to install or copy the Software onto one device that replaces the device onto which the Software was previously downloaded or installed.
c. The Software may be accessed or used by only one device or by one device that replaces the device that previously accessed the Software if you are not using that previous device due to its malfunction or obsolescence.
d. The Software may be used only by you, by one person designated by you, or by one person who replaces the previously designated person due to the absence, permanent reassignment, or termination of the previously designated person.
e. You may not use the Software with more than one printer.
f. You may not share, loan, rent, or lease the device onto which the Software is downloaded or installed, or the device that access the Software, for the purpose of allowing use of the Software by anyone other than the person identified in Section 2C(d) above.
3. Your Responsibilities
You are responsible for all activity occurring under your account and you shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to privacy, international communications, and the transmission of technical or personal data. You shall: (i) notify Aleyant Systems immediately of any unauthorized or suspected use of any password or account or any other known or suspected breach of security; (ii) report to Aleyant Systems immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another Aleyant Systems licensee or user of the Service or provide false identity information to gain access to or use of the Service.
4. Account Information and Data
Aleyant Systems does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not Aleyant Systems, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Aleyant Systems shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. You agree not to store any sensitive Customer Data, such account numbers, in the Service. Aleyant Systems will not use or disclose to a third party any Customer Data that you or your clients submit to the Service in the course of using the Service, except: (a) to enable Aleyant Systems to provide the Service, (b) in connection with this Agreement, or (c) as required by any applicable law or by the order of any court, administrative agency, or other tribunal. Aleyant Systems will promptly inform you whenever Aleyant Systems has actual knowledge or actual notice that the Customer Data stored on a third party server has or may have been used or disclosed by the third party, by any of its vendors, or by anyone else who gained unauthorized access to the server. Aleyant Systems will also promptly inform you whenever Aleyant Systems is or may be required to use or disclose that Customer Data under exception (c) above, with as much prior notice as is reasonably possible. In the event this Agreement is terminated (other than by reason of your breach), Aleyant Systems will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. Aleyant Systems reserves the right to withhold, remove and/or discard Customer Data without notice if you do not request the Customer Data within upon termination or for if you breach this Agreement, including your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and Aleyant Systems shall have no obligation to maintain or forward any Customer Data. Upon the termination or expiration of your license to use the Software, you must delete the Software from each device onto which the Software was downloaded or installed, including each archive and backup device.
5. Intellectual Property Ownership
Aleyant Systems alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Aleyant Systems Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. Aleyant Systems may modify the Service to duplicate any techniques, concepts, functions, ideas, and content on your website, which you use in connection with the Service and which is not specific to your customers. If Aleyant Systems terminates your license for the Service due to your nonpayment or your breach of this Agreement, you thereby irrevocably grant Aleyant Systems exclusive ownership, including all copyrights, to all the contents of your website by which you used the Service, which are not specific to your customers, such as templates. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Aleyant Systems Technology or the Intellectual Property Rights owned by Aleyant Systems. No right or license is granted to use the Aleyant Systems name, the Aleyant Systems logo, and the product names associated with the Service.
6. Third Party Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. Aleyant Systems and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. Aleyant Systems does not endorse any sites on the Internet that are linked through the Service. Aleyant Systems provides these links to you only as a matter of convenience, and in no event shall Aleyant Systems or its licensors be responsible for any content, products, or other materials on or available from such sites. You recognize that certain third-party providers of ancillary software, hardware or services may require your agreement to additional or different license or other terms prior to your use of or access to such software, hardware or services.
7. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is incurred. The initial charges will be equal to any account setup fees plus the monthly subscription fee. Payments may be made annually, monthly, or quarterly, as indicated by your Order Form, or as otherwise mutually agreed upon. You are responsible for paying the subscription fee for the entire License Term, whether or not the Service is actively used. You must provide Aleyant Systems with valid credit card or approved purchase order information as a condition to signing up for the Service. You shall at all times provide us with current credit card information. Aleyant Systems reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
8. Excess Utilization Fees.
8A. The following applies to the online Service:
Aleyant Systems maintains policies concerning the fair and reasonable use of Service resources. Unless otherwise stipulated in the Order Form, the resources provided to you for the online Service at no additional charge are: (a) 1000MB for disk storage at any time, (b) 1000MB per month for network bandwidth utilization, and (c) 100 ecommerce orders per month. In addition, usage of the eDocBuilder, unless otherwise stipulated, is limited to (a) 100 completed transactions per month, (b) 2500 database records per transaction, (c) 5000 pages per transaction, (d) a maximum of 1600 by 1600 pixels for raster image previews generated, and (e) a limit of 50MB per template, including all associated image and font files. If the amount of Service utilization exceeds these limits, you will be charged Aleyant System’s then-current storage fees. Aleyant Systems will use reasonable efforts to notify you when the resource utilization reaches approximately 90% of the maximum; however, any failure by Aleyant Systems to so notify you shall not affect your responsibility for such additional storage charges. Aleyant Systems reserves the right to establish or modify its general practices and limits relating to Service utilization, including the deletion of Customer Data.
8B. The following applies to the Software:
You are liable to Aleyant Systems for all monetary damages that Aleyant Systems incurs due to any copying, transmission, or use of Software that you downloaded or installed, or that you allowed to be downloaded or installed, contrary to this Agreement, including Aleyant Systems’ license fees for multi-user uses and installations or uses otherwise contrary to this Agreement.
8C. Resource Utilization is a yearly measurement based on a number of factors affecting the resources needed to support the use of the system. Some of the factors include the number of orders, number of items ordered, number and size of file attachments, number of online design/VDP jobs, etc. These go beyond bandwidth requirements and also affect server resources such as CPU, RAM, server disk space, site responsiveness, and even support. We reserve the right to require the use of the next level plan if your resource utilization becomes excessive. For those in the top 10% of resource allocation, the dedicated server plan will be required. If your account exceeds the yearly limit, there will be a 30-day notice and grace period before transitioning to the next higher plan.
9. Billing and Renewal
(i) Aleyant Systems charges and collects in advance for use of the Service. Aleyant Systems will automatically renew and bill your credit card or issue an invoice to you (a) every month for monthly licenses, (b) every quarter for quarterly licenses, or (c) each year on the subsequent anniversary for annual licenses. The renewal charge will be equal to the then-current monthly fee plus any additional fees for usage or volume, unless Aleyant Systems has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis. Aleyant Systems's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Aleyant Systems's income. You agree to provide Aleyant Systems with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and Site Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Aleyant Systems reserves the right to terminate your access to the Service in addition to any other legal remedies.
(ii) If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. If you do not contact us in writing within 60 days of the date of the invoice containing the amount in question, you shall not be entitled to any adjustment or credit.
10. Non-Payment and Suspension
(i) In addition to any other rights granted to Aleyant Systems herein, Aleyant Systems reserves the right to suspend or terminate this Agreement, your access to the Service, and your right to use the Software if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection including attorneys’ fees and the fees of Aleyant Systems's experts and consultants. You will continue to be charged monthly subscription fee during any period of suspension. If you or Aleyant Systems initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees and Billing and Renewal sections above. You agree that Aleyant Systems may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
(ii) Aleyant Systems reserves the right to impose a reconnection fee or another download fee in the event you are suspended and thereafter request access to or use of the Service. You agree and acknowledge that Aleyant Systems has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
This Agreement commences on the Effective Date. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms, equal in duration to the Initial Term at Aleyant Systems's then current fees. You or Aleyant Systems may terminate this Agreement without cause, effective upon the expiration of the then current term, by notifying the other party in writing at least five (5) business days prior to the date the then current term expires. In the event this Agreement is terminated (other than by reason of your breach), Aleyant Systems will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. You agree and acknowledge that Aleyant Systems has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
12. Termination for Cause
Each of the following shall constitute your material breach of this Agreement, for which Aleyant Systems may, at its sole discretion, suspend or terminate your password, your account, or your use of the Service and Aleyant Systems Technology, and for which Aleyant shall have all other rights and remedies under any applicable law: (a) any breach of your payment obligations to Aleyant Systems, (b) any unauthorized use of the Aleyant Systems Technology or Service by you or any User, (c) any material breach of your representations & warranties within this Agreement, (d) your material breach of your indemnity obligations under this Agreement, or (e) any use by you or any User of the Aleyant Systems Technology or Service contrary to, or to produce anything contrary to, any statute, regulation, order of any court or government agency, ordinance, government code, government rule, common law, treaty, or any other type of law (one or more of which is a “Law”). In addition to the above remedies, Aleyant Systems may also, without liability to you, suspend or terminate your use of the Service and Aleyant Systems Technology, at any time and without prior notice to you, if Aleyant Systems has knowledge, notice, or reasonably believes that you or any User has or may have used the Service or Aleyant Systems Technology contrary to, or to produce anything contrary to, any Law. You agree and acknowledge that Aleyant Systems has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement.
13. Representations & Warranties
You and Aleyant Systems represent and warrant to each other that each of you has the legal power and authority to enter into this Agreement. Aleyant Systems represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Aleyant Systems help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
You shall indemnify, defend, and hold Aleyant Systems, its licensors, its resellers, and each such party's parent organizations, subsidiaries, affiliates, members, shareholders, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim of your clients or customers; (iii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iv) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Aleyant Systems (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Aleyant Systems of all liability and such settlement does not affect Aleyant Systems's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
15. Disclaimer of Warranties
(a) ALEYANT SYSTEMS, ITS LICENSORS, AND ITS RESELLERS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. ALEYANT SYSTEMS, ITS LICENSORS, AND ITS RESELLERS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, SERVICE, DATA, OR CUSTOMER DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA OR CUSTOMER DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (G) THE USE OF THE SERVICES WILL NOT RESULT IN ANY LOSS OR CORRUPTION OF DATA OR CUSTOMER DATA, OR (H) THE SERVICES DO NOT INFRINGE ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS AND ALL OTHER RIGHTS OF THIRD PARTIES, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK.
(b) ALEYANT SYSTEMS IS NOT RESPONSIBLE FOR YOUR INABILITY TO DOWNLOAD, INSTALL, OR USE THE SOFTWARE UNLESS CAUSED BY A MALFUNCTION OF THE SOFTWARE, INCORRECT DOCUMENTATION FURNISHED BY ALEYANT SYSTEMS, OR INCORRECT TECHNICAL ASSISTANCE FURNISHED BY ALEYANT SYSTEMS.
16. Maintenance, Service Delays, and Guaranteed Uptime.
The following apply to the online Service: (a) In North America, The Service may be unavailable due to scheduled maintenance each week by Aleyant Systems or one of its data center vendors, starting on Sunday at approximately 2:00 AM and ending at approximately 4:00 AM, based on the local time of the data center. Outside North America, The Service may be unavailable due to scheduled maintenance each week by Aleyant Systems or one of its data center vendors, starting on Saturday at approximately 11:00 PM and ending on Sunday at approximately 1:00 AM, based on the local time of the data center. Aleyant Systems will use its best efforts to minimize the Service unavailability due to maintenance, but the total time for maintenance may vary and may be more than as stated herein. (b) THE SERVICE IS SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ALEYANT SYSTEMS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS (c) Excluding scheduled maintenance, if, due to a malfunction, the Service is available for less than 99.9 percent of an entire calendar month (the Guaranteed Uptime), at your request Aleyant Systems will credit your next monthly payment, prorata based on your monthly subscription, for the amount by which the Service availability is less than the Guaranteed Uptime.
16A. If, due to a malfunction of the Software, incorrect documentation furnished by Aleyant Systems, or incorrect technical support furnished by Aleyant Systems, the Software is inoperable for less than 99.9 percent of an entire calendar month (the Guaranteed Uptime), at your request Aleyant Systems will credit your next monthly payment, prorata based on your monthly subscription, for the amount by which the Software operates less than the Guaranteed Uptime.
17. Limitation of Liability
IN NO EVENT SHALL ALEYANT SYSTEMS, ITS LICENSORS, AND ITS RESELLERS AGGREGATE LIABILITY TO YOU EXCEED THE AMOUNTS ACTUALLY PAID BY YOU FOR THE SERVICE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE ACT, OMISSION, OR EVENT FOR WHICH YOU CLAIM ALEYANT SYSTEMS, ITS LICENSORS, OR ITS RESELLERS ARE LIABLE, INCLUDING ALEYANT SYSTEM’S BREACH OF ANY PROVISION OF THIS AGREEMENT. IN NO EVENT SHALL ALEYANT SYSTEMS, ITS LICENSORS, AND ITS RESELLERS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING BUT NOT LIMITED TO LOSS, CORRUPTION, USE, OR RELEASE OF CUSTOMER DATA; LOST REVENUE; DIRECT OR INDIRECT LOST PROFITS, LOSS OF GOODWILL, LOSS OF USE, LOSS OF GOING CONCERN VALUE, AND LOSS OF ANY OTHER TYPE ECONOMIC LOSS OR LOSS OF ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO ALEYANT’S BREACH OF THIS AGREEMENT, THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF ALEYANT SYSTEMS, ITS LICENSORS, OR ITS RESELLERS WAS PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ALEYANT SYSTEMS, ITS LICENSORS, AND ITS RESELLERS WILL NOT BE LIABLE FOR ANY COSTS OR DAMAGES YOU INCUR TO PROCURE SUBSTITUTE GOODS OR SERVICES. ALEYANT SYSTEMS WILL NOT BE LIABLE FOR ANY DAMAGES: (A) OF WHICH YOU DO NOT NOTIFY ALEYANT SYSTEMS IN WRITING WITHIN 14 DAYS AFTER YOU HAVE KNOWLEDGE OR NOTICE OF SUCH DAMAGES, OR (B) WITHIN 14 DAYS AFTER YOU SHOULD HAVE HAD KNOWLEDGE OR NOTICE OF SUCH DAMAGES USING REASONABLE DILIGENCE. ALEYANT SYSTEMS, OR (C) IF YOU DO NOT COMMENCE AN ACTION TO RECOVER YOUR DAMAGES WITHIN 60 DAYS AFTER YOU HAVE OR SHOULD HAVE HAD KNOWLEDGE OR NOTICE OF YOUR DAMAGES.
18. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions and limitations set forth above may not apply to you.
19. Local Laws and Export Control (a) This site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control laws and regulations of Switzerland, the European Union, and other nations. You acknowledge and agree that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland, the European Union, or any other nation maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. You represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
(b) This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000
(c) Aleyant Systems, its licensors, and its resellers make no representation that the Service is appropriate or available for use in any location, including those indicated in the Company Information section of your Order Form. If you use the Service from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
Aleyant Systems may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Aleyant Systems's account information, or by written communication sent by first class mail or pre-paid post to your address on record in Aleyant Systems's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Aleyant Systems (such notice shall be deemed given when received by Aleyant Systems) at any time by any of the following: letter sent by confirmed facsimile to Aleyant Systems at the following fax numbers (630) 206-0448; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Aleyant Systems at the following addresses (whichever is appropriate): Aleyant Systems LLC, PO Box 641, Wheaton, IL 60187, or to such other fax number or address as Aleyant Systems indicates by notice to you.
21. Modification to Terms
Aleyant Systems reserves the right to modify this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. No other act or omission by Aleyant Systems or by any third party shall constitute a modification of this Agreement unless expressly designated as such in writing by Aleyant Systems, even if such act or omission is contrary to this Agreement. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such modifications shall constitute your consent to such changes. If you reject any modification, you must notify Aleyant Systems in writing and your sole remedy shall be to terminate this Agreement and to receive a refund of your subscription payment, pro rata based on the number of days remaining in that month.
22. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of Aleyant Systems but may be assigned without your consent by Aleyant Systems to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor. Any actual or proposed change in control of you that results or would result in a direct competitor of Aleyant Systems directly or indirectly owning or controlling 50% or more of you shall entitle Aleyant Systems to terminate this Agreement for cause immediately upon written notice.
23. Enforcement and Interpretation
This Agreement shall be governed by the laws of the State of Illinois and the United States of America, without regard to the choice or conflicts of law provisions of any jurisdiction. Any disputes, actions, claims or causes of action that you have and that arise out of or are in connection with this Agreement, the Service, or that otherwise involve Aleyant Systems, shall be subject to the exclusive jurisdiction and the exclusive venue of the state courts located in DuPage County, Illinois, and the federal courts located in Cook County, Illinois, and you waive all claims that such jurisdiction is improper and that such venue is inconvenient. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Aleyant Systems as a result of this Agreement or use of the Service. The failure of Aleyant Systems to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Aleyant Systems in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Aleyant Systems and supersedes all prior or contemporaneous negotiations, discussions, documents or agreements, whether written or oral, between you and Aleyant Systems regarding the subject matter contained herein. A) In all lawsuits to enforce this Agreement, you hereby waive all rights to a jury trial, and Aleyant Systems shall recover from you the costs and expenses, including the fees of its attorneys, experts, and consultants, incurred by Aleyant Systems if it is the prevailing party. B) You intend that the “four corners” rule shall be applied in construing this Agreement and that the interpretation of this Agreement shall be derived only from the provisions hereof, without resort to course of dealing, usage of trade, course of performance, or any other extrinsic evidence, and shall not be construed in favor of you or against Aleyant Systems. Whenever appropriate under the circumstances: (a) the plural of any word in this Agreement shall mean the singular; (b) the singular of any word in this Agreement shall mean the plural; (c) “and” shall mean “or”; (d) “or” shall mean “and”; (e) “any” shall mean one, more than one, or all, and (f) “all” shall mean any, one, or more than one. C) Aleyant Systems, has not made, and you have not relied on any statement, representation, or promise that is not expressly set forth within this Agreement and the Order Form. In addition, you have not relied on any statement, representation, or promise made by Aleyant Systems’ Licensors or Resellers concerning the Services that is not expressly set forth within this Agreement or within the Order Form. D) You hereby waive all rights to use or introduce parol evidence or extrinsic evidence for any purpose with respect to this Agreement, including without limitation, to modify, contradict, interpret, otherwise explain any provision of this Agreement, to show that any provision within this Agreement is ambiguous, or to show any condition precedent for this Agreement that is not expressly set forth within this Agreement. E) You hereby waive all claims for fraud-in-the-inducement with respect to this Agreement, and you hereby waive all claims contrary to any recital or covenant of this Agreement. F) The section headings in this Agreement are included solely for convenience and are not intended to affect the interpretation of this Agreement or to have any substantive meaning.
25. Content Pack License Agreement.
Aleyant Systems shall have no obligation to provide you with any training, assistance, or support except as posted on Aleyant Systems’ website or except as otherwise provided by Aleyant Systems at its sole discretion.
27. Third Party Reseller.
Notwithstanding anything herein to the contrary, if you acquire the license for the Service in connection with goods or services sold, leased, or otherwise provided by a third party, you shall pay the fee for the license as provided by your agreement or other arrangement with that third party, and the duration of your license to use the Service shall be as provided by that agreement or other arrangement. Your permission to use the Service is subject to and conditioned on: (a) your adherence to that agreement or other arrangement, (b) the terms of this Agreement, and (c) the reseller’s adherence to its agreement with Aleyant Systems. You waive all claims against Aleyant Systems for any act or omission of that third party, including negligent and intentional acts or omissions.
28. Disclosure Of URL.
If Aleyant Systems hosts the website by which you use the Service, you hereby give Aleyant Systems permission to disclose your website’s uniform resource locator (url) to Aleyant System’s potential licensees and to others with whom Aleyant Systems transacts or might transact business.
29. Independent Provisions.
Aleyant Systems’ limitations of warranties, limitations of liability, and limitations of damages are separate and independent from Aleyant Systems’ obligations, and therefore Aleyant Systems’ breach of its obligations shall not discharge, limit, or otherwise affect Aleyant Systems’ limitations of warranties, limitations of liability, and limitations of damages.
30. Review of Licensee Content
You hereby give Aleyant Systems permission to do the following: Aleyant Systems may review the website you use for the Service and the content you create for that website, including the types of products and services, descriptions and prices of those products and services, and the types and quantities of customers’ orders. After reviewing your website, Aleyant Systems may contact you to suggest changes to your website which might improve your success using the Service. Aleyant Systems is not required to review your website or to give you any suggestions. You are not required to follow Aleyant Systems’ suggestions. Your use of Aleyant Systems’ suggestions are entirely at your risk. Aleyant Systems does not guarantee the results of its suggestions, including whether its suggestions will increase or decrease your success using the Service.
31. Additional Products and Additional Services.
If Aleyant Systems provides you with any products or services other than or in addition to the Services, the provisions of this Agreement shall govern that transaction and the references in this Agreement to Services shall mean and include those products and other services, except as otherwise expressly provided by any contract made by and between you and Aleyant Systems.
32. Third Party Beneficiaries. This Agreement is solely for the benefit of you, Aleyant Systems, Aleyant Systems’ licensors, and Aleyant Systems’ resellers. There are no other third party beneficiaries of this Agreement.
33. Expiration of Professional Services and Expert Services Hours. Unused hours purchased for professional services will expire 12 months from the date of ordering, unless otherwise specified on the order form or sales agreement. Unused training hours included in the purchase of a product, or an add-on to a product, will expire 3 months from the date of ordering unless otherwise specified on the order form or sales agreement. Unused hours for expert services, also called managed services, will expire at the end of each month and cannot be banked or carried forward to the next month, unless otherwise specified on the order form or sales agreement.
34. Annual Price Increase. All subscriptions will be subject to an annual price increase of 5% effective on the first invoice of each calendar year.
Questions or Additional Information: If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to firstname.lastname@example.org.