FireCast ClientCenter Service Agreement
Last updated: December 2, 2010
IMPORTANT: BY ACCESSING THE FIRECAST CLIENTCENTER ONLINE SERVICE ("CLIENTCENTER") YOU ARE AGREEING TO ALL THE TERMS OF THIS SERVICE AGREEMENT (THE "AGREEMENT") AS THIS AGREEMENT MAY BE AMENDED FROM TIME TO TIME. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOUR COMPANY, YOU REPRESENT THAT YOU HAVE COMPLETE AUTHORITY TO DO SO. IN THIS CASE, THE TERMS "YOU" AND "YOUR" IN THIS AGREEMENT MEANS YOUR COMPANY AND ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS THAT ACCESS CLIENTCENTER ON THE COMPANY'S BEHALF.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT USE CLIENTCENTER. IF YOU HAVE ALREADY BEGUN USE OF THE SERVICE AND DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DISCONTINUE USE OF CLIENTCENTER IMMEDIATELY.
This Agreement is also referred to as the "ClientCenter Terms of Service".
SCOPE OF AGREEMENT
This Agreement is made as of this day, by and between WireSpring Technologies, Inc., a Florida USA corporation ("WireSpring"), and you. This Agreement sets forth the terms and conditions that apply to your access and use of ClientCenter, an Internet-based application owned and operated by WireSpring.
This Agreement is intended to apply to ClientCenter, and does not apply to FireCast OS. FireCast OS is licensed under a separate FireCast OS End User License Agreement (the "FireCast OS EULA"), and nothing in this Agreement shall be construed to have any impact on the terms of the FireCast OS EULA.
By accessing and using ClientCenter (other than to read this Agreement), you agree to comply with all of the terms and conditions of this Agreement, including any changes or revisions to this Agreement, which WireSpring, in its sole discretion, may make in the future.
THE CLIENTCENTER SERVICE
ClientCenter is a remote management application for controlling one or more computer systems that are running FireCast OS (the "FireCast OS devices"). For purposes of this Agreement, ClientCenter includes:
- The main ClientCenter interface, which you access via a web browser.
- The FireCast Status Monitor application ("FireCast Status Monitor"), which you may optionally install on your desktop computer.
- The storage and management activities that are transparent to you (e.g. the storage of your multimedia content or the transfer of content from ClientCenter to your FireCast OS devices).
Your access and use of ClientCenter may be interrupted from time to time for several reasons, including, but not limited to, the malfunction of WireSpring's equipment, periodic updating, maintenance or repair activities that WireSpring may undertake from time to time, or other actions that WireSpring, in its sole discretion, may elect to take. Although WireSpring will use its reasonable best efforts to minimize the impact that such interruptions may have on your use of ClientCenter (and to notify you in advance of any scheduled interruptions), WireSpring reserves the right to suspend or discontinue the availability of ClientCenter at any time in its sole discretion and without prior notice to you.
LICENSE; PROPRIETARY SOFTWARE
WireSpring grants to you and you accept, on the terms and conditions set forth herein, a nontransferable, nonexclusive right to use the proprietary ClientCenter software applications and the accompanying end user documentation (collectively, the "Proprietary Software"). This license is subject to the following restrictions:
The Proprietary Software may be used only by you for your direct benefit in the course and scope of your business. However, you may allow others to access the Proprietary Software on your behalf, provided that such access to the Proprietary Software is for the direct benefit of you (or if you are entering into this Agreement on behalf of a company, your company). Notwithstanding the foregoing, this right is not transferable by you to any other person or entity.
The Proprietary Software may be accessed via the Internet from any supported computer platform (as defined in the Documentation), but may only be used to manage FireCast OS devices. The Proprietary Software may be used at any point in time only to manage the number of FireCast OS devices for which the corresponding subscription fee has been paid.
You shall use the Proprietary Software only in its original form, and shall not modify, reverse compile, reverse engineer, disassemble, or translate the Proprietary Software, nor shall you create any derivative works or otherwise use the Proprietary Software except as specifically permitted in this Agreement.
You shall not rent, lease, distribute, sell, resell, assign, sublicense, allow access to, or otherwise transfer the Proprietary Software to any other party; use the Proprietary Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels on the Proprietary Software by operation of law or otherwise, except as provided for under this Agreement or a separate Reseller Agreement between WireSpring and you.
You shall not export or re-export the Proprietary Software without first having obtained the appropriate United States or foreign government export licenses; provided, however, that in no event may you export the Proprietary Software to any country to which export is prohibited by the United States, or to any country which is not a member of either the Universal Copyright Convention or the Berne Convention (a "Member Country"); provided, that any export to a Member Country is only permitted if such Member Country recognizes copyright protection for software.
The Proprietary Software is copyrighted material under the laws of the United States and international treaty provisions. Notwithstanding the copyright, the Proprietary Software contains trade secrets and confidential information of WireSpring. You may not make any copies of the Proprietary Software or the associated source code (including HTML). However, you may make a reasonable number of copies of the Documentation for use only by your employees or agents, which such use is for your direct benefit in the course and scope of your business, provided that all copies of the Documentation contain the original copyright notice and all proprietary legends. No other copies may be made of the Documentation or any part thereof, except as specifically permitted herein.
You acknowledge that the Proprietary Software and all copies of it, regardless of the form or media in which the original or copies may exist, are the sole and exclusive property of WireSpring. You further acknowledge that the Proprietary Software, including the source and object codes, logic and structure, constitute valuable trade secrets of WireSpring. You agree to secure and protect the Proprietary Software consistent with the maintenance of WireSpring's rights in the Proprietary Software, as set forth in this Agreement. Except as expressly permitted herein, you agree not to disclose or otherwise make available any part of the Proprietary Software to any third party on any basis. By accepting this License, you do not become the owner of the Proprietary Software; WireSpring retains all right, title and interest in and to the Proprietary Software. This section shall survive any termination of this Agreement.
Notwithstanding the foregoing, the entirety of ClientCenter (except your Private Data, as defined below) is copyrighted by WireSpring. WireSpring also owns a copyright of a collective work in the selection, coordination, arrangement, presentation, display and enhancement of the ClientCenter content. "WireSpring", "FireCast", and "ClientCenter" and the associated logos are trademarks or service marks of WireSpring, and may not be used by you without the prior express written permission of WireSpring, which permission may be withheld in WireSpring's sole discretion.
GENERAL RESTRICTIONS ON USE
You are only entitled to access and use ClientCenter for lawful purposes and pursuant to the terms and conditions of this Agreement. Any action by you that, in WireSpring's sole discretion, restricts, inhibits or prevents any third party from accessing, using or enjoying ClientCenter, or through the use of ClientCenter, defames, abuses, harasses, offends or threatens any other user or third party, shall not be permitted, and may result in your loss of the right to access and use ClientCenter. Except for links to the ClientCenter login page, you shall not provide links to or frame ClientCenter or any of the resources provided therein without the prior express written permission of WireSpring.
YOUR CONTACT AND BILLING INFORMATION
You agree to provide WireSpring with accurate billing information and with truthful, accurate, and complete contact information, including your legal name, company name, street address, email address, and telephone number (collectively, the "Billing Information"), and to update this information within fifteen (15) days of any change to it. If the Billing Information you have provided is false or fraudulent, WireSpring reserves the right to terminate your access to ClientCenter immediately without any obligation to return your data. Payment by fraudulent means may also result in criminal penalties.
PAYMENT METHODS AND BILLING POLICIES
You agree to pay WireSpring the then applicable fees (the "Fees") by a payment method acceptable to WireSpring, such as credit card, check, or wire transfer. WireSpring reserves the right to change the accepted forms of payment upon reasonable advance notice to you. Fees include access to the ClientCenter application as well as other services detailed below. For paid accounts, WireSpring allocates (i) 1 GB of monthly data transfer to each FireCast OS Device (the "Data Transfer") and (ii) 1 GB of central storage space (the "Central Storage") as part of your ClientCenter fee, unless you agree to purchase a different amount. For trial accounts (regardless of whether a trial fee was paid), you will be allocated 100 MB of Central Storage and 100 MB of Data Transfer. (1 GB is defined as 1,073,741,824 bytes; 1 MB is defined as 1,048,576 bytes.) WireSpring reserves the right to change the Fees, applicable charges and usage policies and to institute new charges at any time, upon at least thirty (30) days advance notice to you (which may be sent by email). To obtain a current list of fees, please contact WireSpring.
UNDERSTANDING YOUR BILL
ClientCenter is billed on a monthly, quarterly, or annual basis (the "Billing Period"). Each Billing Period begins at 12:00 am US eastern standard time on the first day of the first month in that period, and ends at 11:59 pm US eastern standard time on the last day of the last month in that period. Fees are invoiced in advance of the Billing Period, on or about the first day of the Billing Period. (If you have requested credit card billing, the fees will be charged to your credit card at such time.) Each bill will include the following:
- Base charge: calculated by multiplying the number of Active Devices (defined below) as of the first day of the Billing Period by the standard ClientCenter fee. This charge will apply regardless of whether the devices were actually checking in to ClientCenter at such time.
- Pro-rated fees for any Active Device(s) whose Activation Date fell within the preceding Billing Period
- Charge for additional Central Storage to be used in the current Billing Period
- Charge for additional Central Storage used during the preceding Billing Period, pro-rated based on the date when the change took effect
- Charge for additional Data Transfer to be used in the current Billing Period
- Charge for additional Data Transfer used during the preceding Billing Period
Additional Central Storage and Data Transfer are billed in 1 GB increments. You may view your Central Storage and Data Transfer usage at any time from within ClientCenter.
ACTIVATION AND DEACTIVATION OF FIRECAST OS DEVICES
A FireCast OS Device is considered to be an "Active Device" once you have synchronized it with ClientCenter for the first time (the "Activation Date"). Once activated, the device will remain an Active Device for billing purposes unless you notify WireSpring that you wish to deactivate it. Such notice should be sent in writing or via email to WireSpring using the then-current contact information found at http://www.wirespring.com and must contain the Unit ID number of the device. It is your responsibility to make sure the device is physically turned off or disconnected from the Internet connection before you request deactivation, and to confirm that WireSpring has received your notice of deactivation.
For billing purposes, deactivation will take effect thirty (30) days after the deactivation request is received. If you subsequently reactivate a device, a reactivation fee of $150 USD will apply. However, this fee will NOT apply if all of the following conditions are met: (i) you request that WireSpring deactivate the device solely for purposes of your transporting the device from an initial staging location to the final installation site, (ii) the time period between the request for deactivation and the subsequent reactivation is fifteen (15) days or less, and (iii) this is the first time that the specific device has been deactivated in the past three (3) years.
No refunds are provided. However, if you deactivate a device prior to the end of the Billing Period, you may apply any remaining ClientCenter service for that device (starting after the effective date of deactivation) to other devices within the same ClientCenter account. (An account is identified by a unique string of letters that appears at the beginning of each Unit ID number, e.g. "ABCD".) The remaining ClientCenter service may be applied towards future invoices for ClientCenter services only, and cannot be applied to invoices already issued and outstanding or to any other fees charged by WireSpring. Such credit against future invoices is subject to WireSpring's approval, which may be withheld if unusual or extreme circumstances apply, such as the deactivation of all but one device within an account. If you request deactivation of all of the devices in your account, this shall function as a termination of this Agreement, and is subject to the terms governing termination below.
CHANGING YOUR CENTRAL STORAGE AND DATA TRANSFER ALLOCATIONS
If you wish to change the amount of Central Storage or Data Transfer included with your account, you must notify WireSpring via email or in writing using the then-current contact information found at http://www.wirespring.com. Increases in Central Storage will become effective no later than the fifth business day after your request is received, with charges pro-rated as appropriate. Reductions in Central Storage will become effective on the first day of the following Billing Period, or thirty (30) days after your request is received, whichever is later. Changes in Data Transfer will become effective on the first day of the following Billing Period.
BILLING PERIOD, DUE DATE AND DELINQUENCY
If your account has 1-9 Active Devices, your Billing Period will be annual. If your account has 10-49 Active Devices, you may choose a Billing Period of quarterly or annual. If your account has 50 or more Active Devices, you may choose a Billing Period of monthly, quarterly, or annual.
For invoice billing: Full payment for each Billing Period's invoice is due in accordance with the terms stated on your invoice, typically Net 15. If such payment has not been received within fifteen (15) days after the due date (or if your check is refused for payment), your account will be considered delinquent and we will send you notice via email. If we do not receive payment within thirty (30) days after the due date, your access to ClientCenter will be suspended.
For credit card billing: It is your responsibility to make sure that your credit card is valid and that you notify us promptly when any information changes. If your credit card company refuses for any reason to pay the amount billed to it, we will retry the charge in 1-2 days. If the charge is still refused, your account will be considered delinquent and we will send you notice via email to request alternate payment. If you fail to provide us with alternate payment within three (3) business days, your access to ClientCenter will be suspended.
If your account becomes delinquent twice or more during any rolling twelve month period, WireSpring may require you to switch to an annual or quarterly Billing Period, in WireSpring's sole discretion.
WireSpring may impose a charge of no less than $500 USD to re-activate an account that has been suspended. Unpaid charges are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. Any account which has been suspended for more than thirty (30) days will be terminated without any obligation on the part of WireSpring to maintain your data.
If you believe WireSpring has billed you incorrectly, you must contact WireSpring in writing no later than thirty (30) days after the billing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
PROTECTION OF YOUR BILLING INFORMATION
WireSpring provides your Billing Information to organizations (such as credit card processing companies) to ensure that we receive proper payment for our services. This notwithstanding, WireSpring will not share, rent, sell, or trade any Billing Information (including email addresses) that identifies you to third parties. However, WireSpring may use this information to contact you to ensure that you are satisfied with WireSpring products or services, learn about any ideas you may have to improve our offerings, call your attention to additional products or services provided by WireSpring, and communicate other information that WireSpring believes will be useful. In addition, WireSpring may share email address and other information required to ensure that WireSpring channel partners and contractors can provide service and support to you.
PROTECTION OF YOUR PRIVATE DATA
In the course of using ClientCenter, you may enter, upload, download, collect, analyze, or otherwise manipulate data not related to transactions you have with WireSpring (the "Private Data"). Private Data includes, but is not limited to, your multimedia files, log files, device information, and usage statistics. All such Private Data remains your sole and exclusive property. WireSpring will not share, rent, sell, or trade any Private Data that identifies you to third parties. However, WireSpring may use this information to investigate and troubleshoot problems in the event that you request customer service or technical support.
ACCESS TO LOG FILES AND HISTORICAL DATA
Private Data of a historical nature (such as log files) is kept online for a period of six (6) months from the date that such data was collected or generated by ClientCenter. If you wish to retain access to this data for a longer period, it is your responsibility to download the data to your computer using the tools provided in ClientCenter. WireSpring shall not be responsible for retrieving archived data that is more than six (6) months old.
SUPPORT AND MAINTENANCE
WireSpring will provide technical support to your employees and full-time contractors via email and live chat for as long as you remain a subscriber to ClientCenter, provided that you are in compliance with the terms of this Agreement and have paid the applicable Fees. WireSpring will investigate all questions and problems promptly. You agree to provide adequate information to WireSpring to assist in the investigation and to confirm that any problems have been resolved. Support via the telephone may be purchased separately.
WireSpring reserves the right to upgrade or enhance the ClientCenter service when and how it sees fit. WireSpring makes no representation or warranty that a particular version of ClientCenter will be available for any specific period of time.
WireSpring will provide you with upgrades to FireCast OS for as long as you remain a subscriber to ClientCenter, provided that you are in compliance with the terms of this Agreement and have paid the applicable Fees. The mechanism for delivering such upgrades (e.g. Internet download, CD-ROM, online update) shall be at WireSpring's sole discretion. Upgrades are limited to subsequent versions of the FireCast OS product you originally purchased. For example, if you purchased FireCast OS standard edition, you will NOT receive free upgrades to FireCast OS dynamic media edition. However, if you subsequently purchase a paid upgrade to a different version (the "Paid Upgrade Version"), the free upgrades shall apply to the Paid Upgrade Version as if you had purchased that version originally. Any upgrades received pursuant to this section shall be governed by the terms of the FireCast OS EULA.
PASSWORDS AND SECURITY
You will choose or be given all applicable passwords to use in connection with ClientCenter. You are entirely responsible for maintaining the confidentiality of your passwords and account (including, if applicable, the passwords and accounts of each user accessing ClientCenter by means of an account established by you). Furthermore, you are entirely responsible for any and all activities that occur under your account (including, if applicable, the accounts of each user accessing ClientCenter by means of an account established by you), and you shall ensure that you exit from your account at the end of each session. You shall notify WireSpring immediately of any unauthorized use of your account (including, if applicable, the passwords and accounts of each user accessing ClientCenter by means of an account established by you) or any other breach of security. WireSpring cannot and will not be liable for any loss or damage arising from your failure to comply with these requirements.
WireSpring takes security very seriously, and we take reasonable precautions under current technology to protect your information. When you submit sensitive information (including Billing Information and/or Private Data) we attempt to protect this information, both online and off-line, with the same methods that we use to protect our own proprietary data. ClientCenter session data is protected using 128-bit SSL (Secure Socket Layer) encryption.
If you subscribe to the optional private labeling service, WireSpring will use its reasonable best efforts to display your provided logos and brand names in key locations throughout ClientCenter. However, images and text referring to WireSpring, FireCast, and ClientCenter (the "WireSpring Branding") will still appear in some locations, such as the online help text and the copyright disclaimer. Presence of the WireSpring Branding does not relieve you of the obligation to pay the agreed-upon fees for the private labeling service.
CUSTOM SERVICE PLANS
If your account includes a custom service plan (such as hosting the ClientCenter service in your own datacenter), any terms that vary from this Agreement will be detailed in a separate contract between WireSpring and you. However, if you purchase additional services that do not materially impact the scope of this Agreement, such as optional support via telephone, WireSpring may provide the terms pertaining to such services on the corresponding invoice.
THIRD PARTY LINKING
WireSpring may, at its sole discretion, provide links from ClientCenter to other Internet sites or resources. Because WireSpring has no control over such sites and resources, you acknowledge and agree that WireSpring is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources. You further acknowledge and agree that WireSpring shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such site or resource.
Limited Warranty. WireSpring warrants that the Proprietary Software licensed to you hereunder, if properly used, shall materially conform to the specifications set forth in the accompanying Documentation (or at WireSpring's option, the then-current version of the Documentation) for as long as you remain a subscriber to ClientCenter, provided that you are in compliance with the terms of this Agreement and have paid the applicable Fees (the "Warranty Period"). You shall promptly notify WireSpring via email or in writing upon the discovery of any non-conformance. WireSpring shall correct any such non-conformance of which it has been properly notified within the Warranty Period, through the means it determines to be most appropriate, whether by special instructions, the issuance of updated documentation, corrective code, or other methods.
Notwithstanding the warranty provisions above, WireSpring shall have no warranty obligations with respect to any part or parts of the Proprietary Software which have been damaged by improper installation or operation, or by misuse, abuse or negligent use or repair or alteration or which have been damaged by use which does not conform to the specific or general instructions of WireSpring or to the provisions of the Documentation, or if you or any third party has modified or attempted to modify the Proprietary Software or if the damage has occurred due to causes external to the Proprietary Software, or if you have refused to implement software or other changes recommended by WireSpring.
THE WARRANTY SET FORTH ABOVE SHALL BE EXCLUSIVE AND IN LIEU OF ALL OTHER LIABILITIES, OBLIGATIONS, CONDITIONS AND/OR WARRANTIES, EXPRESSED OR IMPLIED (INCLUDING BUT NOT LIMITED TO ANY IMPLIED AND/OR STATUTORY WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY IMPLIED AND/OR STATUTORY WARRANTIES ARISING FROM THE COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE), AND YOU HEREBY WAIVE ALL OTHER RIGHTS, OBLIGATIONS AND/OR WARRANTIES AND ASSUME ALL RISKS AND LIABILITIES IN RESPECT THEREOF. WIRESPRING MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT THE PROPRIETARY SOFTWARE OR ANY FILE THAT MAY BE AVAILABLE FOR DOWNLOADING FROM IT IS FREE OF INFECTION FROM ANY VIRUSES, WORMS, TROJAN HORSES, TRAP DOORS, BACK DOORS, EASTER EGGS, TIME BOMBS, CANCELBOTS OR OTHER CODE OR COMPUTER PROGRAMMING ROUTINES THAT CONTAIN CONTAMINATING OR DESTRUCTIVE PROPERTIES OR THAT ARE INTENDED TO DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION. WIRESPRING MAKES NO WARRANTY THAT THE OPERATION OF THE PROPRIETARY SOFTWARE WILL BE ERROR FREE OR WITHOUT INTERRUPTION AND IT IS YOUR SOLE RESPONSIBILITY TO INDEPENDENTLY EVALUATE THE ACCURACY, CORRECTNESS OR COMPLETENESS OF ANY DATA OR FILES OBTAINED FROM THE PROPRIETARY SOFTWARE. WIRESPRING DOES NOT WARRANT THAT THE PROPRIETARY SOFTWARE SHALL OPERATE WITH ANY HARDWARE OR SOFTWARE OTHER THAN AS SPECIFIED IN THE DOCUMENTATION.
EQUIPMENT AND RELATED COSTS
You are responsible for obtaining and maintaining all computer hardware and software, Internet access services and other equipment or services needed to access and use ClientCenter, and all costs and fees associated with Internet access or long distance charges incurred with regard to your access and use of ClientCenter.
TERMINATION OF THIS AGREEMENT
The term of this Agreement is based on your Billing Period, and thus shall either be one (1) month, three (3) months, or twelve (12) months. The Agreement shall automatically renew for subsequent Billing Periods unless either party requests termination. You may terminate this Agreement by notifying WireSpring in writing or via email at least thirty (30) days prior to the start of the next Billing Period. It is your responsibility to use the then-current contact information found at http://www.wirespring.com and to confirm that WireSpring has received your notice of termination. In the event of any termination, you will pay in full for ClientCenter up to and including the last day of the Billing Period in which the termination becomes effective, and WireSpring will provide you with access to ClientCenter through that same date. No refunds are provided.
WireSpring, in its sole discretion, may terminate your use of ClientCenter immediately if you fail to comply with this Agreement or the FireCast OS EULA, or if your account remains suspended for non-payment for an extended period of time (as detailed elsewhere in this Agreement).
WireSpring will remove the data of an account (including Private Data) after termination. WireSpring may, but is not obligated to, delete archived data, but will not do so until thirty (30) days after the termination of this Agreement. If your use of ClientCenter is provided at no-charge pursuant to the terms of a Reseller Agreement or other arrangement between you and WireSpring, WireSpring reserves the right to cease offering ClientCenter to you and erase your Private Data if you have no activity on the Service within the thirty (30) day period prior to such cessation.
Upon expiration or termination, you will immediately cease all use of ClientCenter, including the Proprietary Software and any Documentation. Termination is not an exclusive remedy and all other remedies will be available whether or not the license granted herein is terminated. Notwithstanding the foregoing, if you are dissatisfied with ClientCenter, the materials available on or through ClientCenter, or with any of the ClientCenter terms and conditions, your sole and exclusive remedy is to discontinue using ClientCenter.
LIMITATIONS ON WIRESPRING'S LIABILITY
WIRESPRING SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE TO YOU OR ANY THIRD PARTY, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES THAT INCLUDE, BUT ARE NOT LIMITED TO, DAMAGES FOR ANY LOSS OF PROFIT, REVENUE OR BUSINESS, AS A DIRECT OR INDIRECT RESULT OF: (I) YOUR ACCESS AND USE OF CLIENTCENTER; (II) YOUR INABILITY TO ACCESS OR USE CLIENTCENTER FOR ANY REASON; (III) YOUR DOWNLOADING OF ANY DATA OR PROGRAMS (INCLUDING FIRECAST STATUS MONITOR) TO YOUR COMPUTER OR TO FIRECAST OS DEVICES (EVEN IF SUCH DOWNLOADING OCCURS AUTOMATICALLY BASED ON SCHEDULES YOU CREATE); OR (IV) YOUR RELIANCE ON OR USE OF ANY DATA, INCLUDING YOUR PRIVATE DATA, WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR NOT. NOTWITHSTANDING THE ABOVE, WIRESPRING'S LIABILITY FOR DIRECT DAMAGES SHALL NEVER EXCEED THE AMOUNT PAID BY YOU FOR THE CLIENTCENTER SERVICE FOR THE MONTH IN WHICH THE ALLEGED DAMAGE OCCURRED, WITH SUCH AMOUNT PRO-RATED TO A ONE MONTH AMOUNT IN THE EVENT THAT YOUR BILLING PERIOD IS LONGER THAN ONE MONTH. CLIENTCENTER HAS BEEN SPECIFICALLY PRICED TAKING INTO ACCOUNT THIS SECTION.
ADDITIONAL TERMS FOR FIRECAST STATUS MONITOR:
THE FIRECAST STATUS MONITOR APPLICATION IS PROVIDED FREE OF CHARGE TO CLIENTCENTER USERS AS PART OF THE CLIENTCENTER SERVICE. THIS IS ONLY POSSIBLE AS LONG AS YOU AGREE TO THE LIMITATION OF DAMAGES SET FORTH HEREIN. SPECIFICALLY, THE SOFTWARE LICENSE TO FIRECAST STATUS MONITOR IS BEING ISSUED FREE OF CHARGE BY WIRESPRING IN SPECIFIC RELIANCE UPON THE FOLLOWING STATEMENT: NOTWITHSTANDING THE LIMITATION OF LIABILITY FOR CLIENTCENTER AS STATED ABOVE, WIRESPRING'S LIABILITY FOR DIRECT DAMAGES ARISING FROM USE OF THE FIRECAST STATUS MONITOR PROGRAM SHALL NOT EXCEED ZERO DOLLARS.
You shall defend, indemnify and hold harmless WireSpring and its officers, directors, shareholders, employees, independent contractors, agents, representatives and affiliates from and against all claims and expenses, including, but not limited to, attorneys' fees, arising out of, or attributable to: (i) any breach or violation of this Agreement by you; (ii) your failure to provide accurate, complete and current billing information; (iii) your access or use of ClientCenter; and/or (iv) access or use of ClientCenter under any username or password that may be issued to, or created by, you.
WireSpring reserves the right to amend this Agreement at any time in its sole discretion and without notice, except as provided for expressly herein. Changes, revisions or deletions with regard to this Agreement shall be effective immediately upon the posting of the updated Agreement on the ClientCenter login page.
It is your responsibility to revisit this Agreement from time to time in order to review any changes that have been made. Your continued access and use of ClientCenter following the posting of any such changes shall automatically be deemed your acceptance of the same.
ASSIGNMENT; THIRD PARTY RIGHTS
Except as provided for under a separate Reseller Agreement between WireSpring and you, neither this Agreement nor any rights hereunder, in whole or in part, shall be assignable or otherwise transferable by you, and any purported assignment or transfer shall be null and void.
This Agreement is for the benefit of WireSpring and its affiliates, each of which shall have the right to enforce and assert the terms and conditions of this Agreement directly against you on behalf of WireSpring.
If any term or provision of this Agreement shall be found to be illegal or unenforceable, then, notwithstanding, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this Agreement will not be affected. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY OR LIMITED WARRANTY IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH.
BREACH AND REMEDIES
No consent by either party to, or waiver of, a breach of this Agreement by the other party, whether express or implied, shall constitute a consent to, waiver of, or excuse for any other different, continuing, or subsequent breach.
You acknowledge that WireSpring may be irreparably damaged if this Agreement is not specifically enforced, and damages at law would be an inadequate remedy. Therefore, in the event of a breach or threatened breach of any provision of this Agreement by you, WireSpring shall be entitled, in addition to all rights and remedies, to an injunction restraining such breach or threatened breach, without being required to show any actual damage or to post an injunction bond, and/or to a decree for specific performance of the provisions of this Agreement.
For purposes of this Section, you agree that any action or proceeding with regard to such injunction restraining such breach or threatened breach shall be brought in the courts of record of Broward County, Florida, USA or the United States District Court, Southern District of Florida, USA. You consent to the jurisdiction of such court and waive any objection to the laying of the venue of any such action or proceeding in such court. You agree that service of any court paper may be effected on such party by mail or in such other manner as may be provided under applicable laws, rules of procedure or local rules.
Any civil action, claim, dispute or proceeding arising out of or relating to this Agreement, except for an injunctive action regarding a breach or threatened breach of any provision of this Agreement by you, shall be referred to final and binding arbitration, before a single arbitrator, under the commercial arbitration rules of the American Arbitration Association in Broward County, Florida, USA.
The arbitrator shall be selected by the parties, and if the parties are unable to reach agreement on selection of the arbitrator within thirty (30) days after the notice of arbitration is served, then the arbitrator shall be selected by the American Arbitration Association.
Judgment upon any award rendered by the arbitrator shall be final, binding and conclusive upon the parties and their respective administrators, executors, legal representatives, successors and assigns, and may be entered in any court of competent jurisdiction. Notwithstanding the previous sentence, in no event shall any party be entitled to punitive damages and all parties hereby waive their rights to any punitive, special, indirect or consequential damages, including, but not limited to, damages for any loss of profit, revenue or business.
The parties agree that this Agreement shall be governed and construed by the laws of the State of Florida, USA. You hereby submit to the jurisdiction and venue of the federal courts of the Southern District of Florida, the Circuit and County Courts of Broward County where appropriate, all located in the USA.
CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS
The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
You may preserve this Agreement in written form by printing it for your records, and your continued use of ClientCenter will function as your waiver of any other requirement that this Agreement be evidenced by a written document.
No purchase order, other ordering document or any other document issued by you which purports to modify or supplement this Agreement or any schedule or attachment hereto shall add to or vary the terms and conditions of this Agreement unless executed by both WireSpring and you. This limitation shall not apply to invoices issued by WireSpring. WireSpring's acceptance of any purchase order placed by you is expressly made conditional on your assent to the terms set forth in this Agreement, and not those contained in your purchase order, and such purchase order terms shall have no effect on this Agreement.
This Agreement and any schedules and attachments hereto constitutes the entire agreement between WireSpring and you concerning ClientCenter and supersedes all prior agreements, whether written or verbal, between WireSpring and you, except as expressly provided for under this Agreement.