END USER LICENSE AGREEMENT
BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF THE SDS ONLINE SERVICE, INCLUDING OFFLINE COMPONENTS (COLLECTIVELY, 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 THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.
As part of the Service, SDS will provide you with use of the Service, including a browser interface and data encryption, transmission, access and storage. 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 www.case-connect.com
website incorporated by reference herein, including but not limited to SDS’s privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.
1. Privacy & Security; Disclosure
SDS’s privacy and security policies may be viewed at http://www.case-connect.com/policy.php
. SDS reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Individual users, when they initially log in, will be asked whether or not they wish to receive marketing and other non¬critical Service-¬related communications from SDS from time to time. They may opt out of receiving such communications at that time or at any subsequent time by changing their preferences under Personal. Note that because the Service is a hosted, online application, SDS or salesforce.com occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. If you become a paying customer of the Service, you agree that SDS can disclose the fact that you are a paying customer and the edition of the Service that you are using.
2. License Grant & Restrictions
SDS hereby grants you a non¬exclusive, non¬transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by SDS and its licensors. You may not access the Service if you are a direct competitor of SDS, except with SDS’s prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
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 or "frame" or "mirror" any Content on any other server or wireless or Internet-¬based device; or (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. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service.
You may use the Service only for your internal business purposes and 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 in violation 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 Customer Data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
Certain editions of the Service offer integration capabilities via an application programming interface, or “API”. You are limited to the use of the API as follows: 1,000 calls/day/User (aggregated over all Users under the account), up to an aggregate maximum of 1,000,000 calls/day/account.
If you are ordering salesforce.com Force.com service through SDS, then you will be granted access to the Force.com platform facilities and also certain limited parts of the salesforce.com CRM service as defined in the Service help text. You may not use CRM functions other than those described in the Service help text even if your account has access to them. If you require additional facilities of the salesforce CRM service you must order these additional services directly from salesforce.com. If you are in any doubt as to what facilities you are permitted to use then please consult your SDS representative.
3. Your Responsibilities
You are responsible for all activity occurring under your User accounts and 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 data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify SDS immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to SDS 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 SDS user or provide false identity information to gain access to or use the Service.
4. Account Information and Customer Data
SDS 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 SDS, 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 SDS shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), SDS will make available to you a file of your Customer Data within 30 days of termination if you so request at the time of termination. SDS reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non¬payment. Upon termination for cause, your right to access or use your Customer Data immediately ceases, and SDS shall have no obligation to maintain or forward any Customer Data.
Terms used, but not otherwise defined in this Section shall have the same meaning as those terms in defined under the Health Insurance Portability and Accountability Act of 1996 and its related regulations, as amended (“HIPAA”).
SDS agrees: (i) not to use or disclose PHI other than as permitted or required by this Agreement, or as Required By Law; (ii) to use appropriate safeguards to prevent any use or disclosure of the PHI other than as provided by this Agreement; (iii) to mitigate, to the extent practicable, any harmful effect that is known to SDS of a use or disclosure of PHI by SDS in violation of this Agreement; (iv) to report to you any use or disclosure of PHI not provided for by this Agreement of which it becomes aware; and (v) to require that any agent, including any subcontractor, to whom it delegates any function or activity it has undertaken to perform on behalf of you, and to whom it provides PHI of yours, to agree to the same restrictions and conditions on the use or disclosure of PHI as those restrictions and conditions that apply to SDS, as set forth in this Agreement; (vi) upon your written request, to provide access to you to such PHI in a Designated Record Set as required for you to respond to Individual requests for access under 45 CFR 164.524 (you shall have the sole responsibility for responding to such Individual requests); (vii) upon your written request, to make such amendments to PHI in a Designated Record Set as are required for you to respond to Individual requests for an amendment under 45 CFR 164.526 (you shall have the sole responsibility for responding to such Individual requests); (viii) to make its internal practices, policies, procedures, books, and records relating to the use and disclosure of PHI available for inspection and copying by the Secretary for purposes of the Secretary determining your compliance with the Privacy Rule; (ix) to document such disclosures of PHI and information related to such disclosures as would be required for you to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR 164.528; and (x) upon written request by you, to provide to your information collected in accordance with part (ix) above as required for you to respond to a request by an Individual for an accounting of disclosures of PHI in accordance with 45 CFR 164.528 (you shall have sole responsibility for responding to such Individual requests).
SDS may use or disclose PHI in a manner consistent with the performance or improvement of its services for you, or as permitted without authorization pursuant to the Privacy Rule, including, but not limited to, data aggregation services and proper management and administration of SDS’s business and to carry out its legal responsibilities as permitted pursuant to Sections 164.504(e)(2) and (e)(4) respectively of the Privacy Rule. Additionally, SDS may use and disclose PHI to a third party if otherwise authorized by you or a given Individual or as permitted without authorizations pursuant to the Privacy Rule. Except as provided in this Agreement, such uses and disclosures shall be limited to those that would not violate the Privacy Rule if done by End User. In addition, SDS may use and disclose PHI: (i) to de-identify the information in accordance with 45 CFR §164.514(b), which de-identified information may be used and disclosed by SDS as it deems appropriate; (ii) pursuant to an Individual authorization in accordance with 45 CFR §164.508; (iii) to report violations of Law to appropriate federal and state authorities, consistent with 45 CFR §164.502(j)(1); and (iv) as otherwise authorized in writing by Covered Entity.
SDS shall maintain documentation of all Account Data processed for one year. Subject to this Section, all such records, while maintained by SDS, shall be accessible by you for examination and audit during the term of and in accordance with this Agreement.
6. Intellectual Property Ownership
SDS alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the SDS 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. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the SDS Technology or the Intellectual Property Rights owned by SDS. The SDS name, the SDS and SDS logo, and the product names associated with the Service are trademarks of SDS or third parties, and no right or license is granted to use them.
7. 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. SDS and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third¬-party. SDS does not endorse any sites on the Internet that are linked through the Service. SDS provides these links to you only as a matter of convenience, and in no event shall SDS or its licensors be responsible for any content, products, or other materials on or available from such sites. SDS provides the Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, 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.
Service features that interoperate with external services such as Google Docs depend on the continuing availability of the relevant application programming interface (“API”) and program for use with the Services. If a third party ceases to make available or support the relevant API SDS may cease providing such Service features without entitling you to any refund, credit, or other compensation.
The SDS Service does not transmit your Customer Data outside the Service, however should you transmit Customer Data to any other service (e.g. Google Docs) or any other application, whether or not you use the SDS Service to do this, you do this at your own risk and you acknowledge that the security and validity of the Customer Data is your responsibility.
8. 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 due and payable. The initial charges will be equal to the current number of total User licenses requested times the User license fee currently in effect. Payments must be made annually in advance unless otherwise mutually agreed upon in an Order Form or through the Online Order Center. All payment obligations are non-¬cancelable and all amounts paid are nonrefundable. You are responsible for paying for all User licenses ordered for the entire License Term, whether or not such User licenses are actively used. You must provide SDS with valid credit card or approved purchase order information as a condition to signing up for the Service. An authorized License Administrator may add licenses by executing an additional written Order Form or using the Online Order Center. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. SDS 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.
9. Excess Data Storage Fees
The maximum disk storage space provided to you at no additional charge is the greater of 1 GB or an aggregate of 20 MB per User license. If the amount of disk storage required exceeds these limits, you will be charged the then ¬current storage fees. SDS will use reasonable efforts to notify you when the average storage used per license reaches approximately 90% of the maximum; however, any failure by SDS to so notify you shall not affect your responsibility for such additional storage charges. SDS reserves the right to establish or modify its general practices and limits relating to storage of Data.
10. Billing and Renewal
SDS charges and collects in advance for use of the Service. SDS will automatically renew and bill your credit card or issue an invoice to you each year on the subsequent anniversary or as otherwise mutually agreed upon. The renewal charge will be equal to the then¬ current number of total User licenses times the license fee in effect during the prior term, unless SDS 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. SDS’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 country, federal or state taxes based solely on SDS’s income. You agree to provide SDS 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 License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is incorrect SDS reserves the right to terminate your access to the Service in addition to any other legal remedies. Unless SDS in its discretion determines otherwise: (i) entities with headquarters and a majority of users resident in the United States will be billed in U.S. dollars and subject to U.S. payment terms and pricing schemes ("U.S. Customers"); and (ii) all other entities will be billed in U.S. dollars, British Pounds, Euros or local currency and be subject to either U.S. or non¬-U.S. payment terms and pricing schemes at the discretion of SDS ("Non¬-U.S. Customers"). If you believe your bill is incorrect, you must contact us in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
11. Non-¬Payment and Suspension
In addition to any other rights granted to SDS herein, SDS reserves the right to suspend or terminate this Agreement and your access to the Service 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. You will continue to be charged for User licenses during any period of suspension. If you or SDS 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 section above. You agree that SDS may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
SDS reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that SDS 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.
12. Termination upon Expiration/Reduction in Number of Licenses
This Agreement commences on the Effective Date. The Initial Term will be as you elect during the online subscription process or as otherwise mutually agreed upon in an Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at SDS’s then current fees. Either party may terminate this Agreement or reduce the number of licenses, effective only upon the expiration of the then current License Term, by notifying the other party in writing at least forty five (45) days prior to the date of the invoice for the following term. In the case of free trials, notifications provided through the Service indicating the remaining number of days in the free trial shall constitute notice of termination. In the event this Agreement is terminated (other than by reason of your breach), SDS 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 SDS has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
13. Termination for Cause
Any breach of your payment obligations or unauthorized use of the SDS Technology or Service will be deemed a material breach of this Agreement. SDS, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, SDS may terminate a free account at any time in its sole discretion. You agree and acknowledge that SDS has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
14. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. SDS 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 SDS 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.
15. Mutual Indemnification
You shall indemnify and hold SDS, its licensors and each such party's parent organizations, subsidiaries, affiliates, 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, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that SDS (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 SDS of all liability and such settlement does not affect SDS’s business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
SDS shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, 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 the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by SDS of its representations or warranties; or (iii) a claim arising from breach of this Agreement by SDS; provided that you (a) promptly give written notice of the claim to SDS; (b) give SDS sole control of the defense and settlement of the claim (provided that SDS may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to SDS all available information and assistance; and (d) have not compromised or settled such claim.
SDS shall have no indemnification obligation, and you shall indemnify SDS pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
16. Disclaimer of Warranties
SDS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. SDS AND ITS LICENSORS 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 OR CUSTOMER DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED 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, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. 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 RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY SDS AND ITS LICENSORS.
17. Internet Delays
SDS’s SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SDS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
18. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF CUSTOMER DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO 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 THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
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 set forth above may not apply to you.
19. Local Laws and Export Control
The Service 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 regulations of Switzerland and the European Union. The User of this site acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported to countries as to which the United States, Switzerland and/or the European Union 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. By using the Service, 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. 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. SDS and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, Switzerland and/or the European Union, 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, Swiss or European Union (including European Union Member 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.
SDS may give notice by means of a general notice on the Service, electronic mail to your e¬mail address on record in SDS’s account information, or by written communication sent by first class mail or pre¬paid post to your address on record in SDS’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 SDS (such notice shall be deemed given when received by SDS) at any time by any of the following: letter sent by confirmed facsimile to SDS at the following fax number: (888) 227-3167; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to SDS at the following addresses: Surgical Data Solutions, Inc., 9044 E Sands Drive, Scottsdale, AZ 85255, addressed to the attention of: SDS Admin.
21. Modification to Terms
SDS reserves the right to modify the terms and conditions of 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. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
22. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of SDS but may be assigned without your consent by SDS to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of SDS or salesforce.com directly or indirectly owning or controlling 50% or more of you shall entitle SDS to terminate this Agreement for cause immediately upon written notice.
This Agreement shall be governed by Arizona law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Phoenix, Arizona. 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 the terms and conditions of 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 SDS as a result of this agreement or use of the Service. The failure of SDS 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 SDS in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and SDS and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
As used in this Agreement and in any Order Forms now or hereafter associated herewith:
“API” means Application Programming Interface;
"Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service;
"Customer Data" means any data, information or material provided or submitted by you to the Service in the course of using the Service;
"Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date you begin using the Service;
"Initial Term" means the contract term, beginning on the contract start date and ending on the contract end date, specified on the applicable Order Form;
"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
"License Administrator(s)" means those Users designated by you who are authorized to purchase licenses online using the Online Order Center or by executing written Order Forms and to create User accounts and otherwise administer your use of the Service;
"License Term(s)" means the period(s) during which a specified number of Users are licensed to use the Service pursuant to the Order Form(s);
"Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail);
"Online Order Center" means SDS’s online application that allows the License Administrator designated by you to, among other things, add additional Users to the Service;
“SDS” means Surgical Data Solutions, Inc., an Arizona corporation;
"SDS Technology" means all of SDS’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know how, techniques, designs and other tangible or intangible technical material or information) made available to you by SDS in providing the Service;
"Service(s)" means the specific edition of SDS’s surgical scheduling software identified during the ordering process, developed, operated, and maintained by SDS, accessible via http://www.case-connect.com
or another designated web site or IP address, or ancillary online or offline products and services provided to you by SDS, to which you are being granted access under this Agreement, including the SDS Technology and the Content;
"User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by SDS at your request).