eAppTrack Family of Products
Subscription Agreement and Terms of Use
Updated: April 1, 2014
This is a subscription agreement (“Agreement”)
between Soleran, Inc., (“Soleran”) and the entity or organization on behalf of
which you are accepting this Agreement (collectively, “_______________”) for
access to the eAppTrack product family services, software or online tools
(collectively, “eAppTrack”). In addition to the foregoing, references to
eAppTrack, as used herein, shall include any and all proprietary documents and
materials made available through eAppTrack and any and all accompanying and
supporting software, services (whether or not provided online), content, and
documentation, and the entire eAppTrack family of products that includes, but is
not limited to eSalesTrack, eFireTrack, eMediTrack, eFaciliTrack, eFreshTrack,
eNspecTrack, and eNsite. “Users” shall mean those individuals designated and
authorized by you to access and use eAppTrack and who have been issued separate
account registration and login information. Soleran and you are collectively
referred to herein as the “parties.”
BY CLICKING THE ACCEPTANCE BUTTON OR BY
REGISTERING AN ACCOUNT, LOGGING INTO AN ACCOUNT, USING, OR OTHERWISE ACCESSING
ANY PART OF EAPPTRACK, YOU EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF
THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING 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. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS
AGREEMENT, YOU MUST INDICATE NON-ACCEPTANCE AND REFRAIN FROM REGISTERING AN
ACCOUNT, LOGGING INTO AN ACCOUNT, USING OR OTHERWISE ACCESSING ANY PART OF
EAPPTRACK.
1.
Product Terms
a.
Description. eAppTrack is
proprietary to Soleran and is protected by intellectual property laws and
international intellectual property treaties. Your and your Users’ access to
eAppTrack is licensed and not sold. Soleran reserves all rights not expressly
granted to you, including, but not limited to, the right to alter, modify,
update, enhance, or improve eAppTrack.
b.
eAppTrack. Subject to the terms of
this Agreement and upon payment of any applicable Fees (defined below), Soleran
agrees to provide you with the number of non-exclusive, non-transferable user
accounts for which you have subscribed in the Order Form (defined below)
enabling you and your Users to access and use eAppTrack solely for your internal
business needs (and not for service bureau, time-sharing, or similar services).
Each User account is valid for one user only and may not be shared concurrently
or otherwise by or among multiple Users. You may harvest and/or reassign User
accounts to new Users within your organization by notifying Soleran (for
example, upon the departure or reassignment of a User). Users of eAppTrack are
limited solely to your employees or independent contractors. You are
responsible for your Users’ compliance with the terms of this Agreement.
c.
Accessibility of eAppTrack.
Soleran will use commercially reasonable efforts to make the core functions and
features of eAppTrack available for access by you and your Users via the
Internet ninety-nine (99%) of the time during normal business hours. You
understand and agree that from time to time eAppTrack may be inaccessible or
inoperable during normal business hours in the event of periodic maintenance
procedures or repairs which Soleran may undertake of which Soleran notifies you
at least twenty-four (24) hours in advance; provided that, periodic maintenance
affecting the availability of core functions and features during normal business
hours that exceeds four (4) hours during any contract month shall be included in
the calculation of the service levels provided above. In the event Soleran
fails to meet the service levels specified herein during any contract month
during the term of this Agreement, you shall be entitled to a service level
credit equal to one (1) month of the pro rata recurring subscription Fees due
under this Agreement. Any service level credits earned during this Agreement
shall immediately expire upon termination or expiration of this Agreement and
are non-transferrable. You do not have a right to a refund or payment for any
used or unused service level credits.
d.
Usage Limitations. Each User
account will have 1GB of storage space to store all Customer Data (defined
below) loaded by such User. This space is per User account and cannot be used
as aggregate storage space throughout all of your accounts. Additional storage
can be purchased per User account at Soleran’s then-standard rates. Soleran
reserves the right to implement reasonable usage limitations from time to time,
including limitations on the number of page views and calls to Soleran’s
interface.
e.
Equipment. You shall be solely
responsible for providing, maintaining and ensuring the compatibility of all
hardware, software, electrical and other physical requirements necessary for
your and your User’s access and use of eAppTrack, including, without limitation,
telecommunications and internet access connections and links, web browsers or
other equipment, and programs and services required to access and use eAppTrack.
f.
Reverse Engineering. Modification,
reverse engineering, reverse compiling, or disassembly of eAppTrack or any
component thereof is expressly prohibited.
g.
eAppTrack Dealer or Developer
Network. Terms of the dealer agreements are subject to the terms and agreements
that are agreed to in the eAppTrack ePartner Agreement forms. Ask your
representative to be contacted by an eAppTrack Dealer Manager for more
information and access to this agreement.
2.
Limitations
a.
Account Security. You and your
Users shall be responsible for the security, confidentiality and integrity of
all information that Users receive or transmit through eAppTrack. You and your
Users shall be responsible for any authorized or unauthorized access or use of a
User account by any person. You shall use commercially reasonable efforts to
monitor and control access to your Users’ accounts and account information. If
at any time you learn or suspect that any of your Users’ account information has
been disclosed or otherwise made known to any person other than the relevant
User, you agree to immediately notify Soleran at security@eAppTrack.com. You
agree to bear all responsibility for the confidentiality of your Users’
passwords and all use or charges incurred from use of eAppTrack through your
Users’ accounts.
b.
Security Statement.
Soleran’s Security Statement is located at the following link:
http://www.soleran.com/Company/Security
(“Security Statement”). While Soleran and its service providers undertake the
security precautions set forth in the Security Statement, Soleran cannot
guarantee security of your information. Soleran reserves the right to update
and/or modify the Security Statement by notifying you of such changes at least
thirty (30) days in advance.
c.
Privacy Policy. In an effort
to address User’s privacy concerns, Soleran has instituted the a Privacy Policy
located
http://www.soleran.com/Company/Privacy
(“Privacy Policy”) which is incorporated herein by this reference. Soleran
reserves the right to change the Privacy Policy as set forth therein. Soleran
reserves the right to update and/or modify the Privacy Policy by notifying you
of such changes at least thirty (30) days in advance and as otherwise set forth
therein.
d.
Circumvention. You and your Users
agree not to access eAppTrack, any part thereof or any information contained
thereon through any technology or means other than through the applicable User’s
account using the applicable User’s account information. You and your Users
agree not to use or launch any automated system, including, without limitation,
“robots,” “spiders” or “offline readers,” that accesses eAppTrack in a manner
that sends more request messages to Soleran or eAppTrack in a given period of
time than a human can reasonably produce in the same period by using a
conventional online web browser. You and your Users agree not to collect or
harvest any personally identifiable information, including account information,
from eAppTrack or Soleran.
3.
Intellectual Property
a.
Soleran Intellectual Property. The
intellectual property utilized in providing eAppTrack is the valuable,
confidential and copyrighted property of Soleran. You and your Users may use
eAppTrack as permitted herein and may not otherwise disclose, modify, adapt,
translate, or create derivative works based on eAppTrack or any component
thereof without the prior written consent of Soleran. As between the parties,
Soleran owns all right, title, and interest in and to eAppTrack, including
without limitation, any and all proprietary documents and materials made
available through eAppTrack and all ancillary and interface software, all
current and future enhancements, revisions, new releases and updates thereof and
any derivative works based thereon and all documentation thereto, all
copyrights, trade secrets, patents and goodwill therein, and all images,
photographs, illustrations, graphics, audio, video and other content therein.
Soleran®, the Soleran logo, eAppTrack™ and the eAppTrack™ logo are service marks
of Soleran. All other trademarks, service marks and logos used on the website
or through eAppTrack are the trademarks, service marks or logos of their
respective owners.
b.
Customer Data. eAppTrack allows
you to upload data selected by your Users (the “Customer Data”) into the
eAppTrack system. In connection with Customer Data, you affirm, represent and
warrant that you own or have the necessary licenses, rights, consents and
permissions to use and authorize Soleran to use all Customer Data and to enable
inclusion and use of the Customer Data in the manner contemplated hereunder.
You retain all ownership rights in the Customer Data. By uploading Customer
Data to eAppTrack, you hereby grant Soleran a worldwide, non-exclusive,
royalty-free, sublicenseable and transferable license to use, reproduce,
distribute, modify, edit, adapt, publish, translate, incorporate, prepare
derivative and collective works utilizing, display and perform the Customer Data
for purposes of providing eAppTrack and the services to you under this
Agreement. Additionally, you grant to Soleran a worldwide, non-exclusive,
perpetual, irrevocable, royalty-free, sublicenseable and transferable license to
use, reproduce, adapt, perform, compile, display, incorporate, modify and create
derivative and collective works utilizing Customer Data in a de-identified
format for the improvement of eAppTrack and Soleran’s other products and
services (as may exist now or in the future) and for such other lawful purposes
as Soleran sees fit. For the avoidance of doubt, Soleran will compile and
present any such Customer Data that it so uses in such a manner that data cannot
reasonably uniquely identify, either explicitly or implicitly, you or any
individual.
c.
Inaccurate Customer Data. All
Customer Data originates from you and your Users, and as such, is beyond the
control of Soleran. Soleran neither initiates the uploading of such Customer
Data nor monitors the specific content or accuracy of the Customer Data being
uploaded. Without limiting the generality of any other provision of this
Agreement, Soleran shall have no responsibility for or liability related to the
accuracy, content, currency, completeness or delivery of the Customer Data
provided by you or any of your Users. You are responsible for the accuracy,
content, currency, completeness and delivery of the Customer Data uploaded by
your Users, and you warrant that the Customer Data posted by your Users is
accurate, current and complete.
d.
Suggestions. You grant to us a
royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual
license to use or incorporate into eAppTrack any suggestions, enhancement
requests, recommendations or other feedback provided by you or your Users
relating to the operation of eAppTrack.
4.
User Representations
You and your Users represent and warrant to
Soleran that: (a) you and all your Users are over the age of eighteen (18) and
have the power and authority to enter into and perform their obligations under
this Agreement; (b) all information provided by your Users to Soleran is
truthful, accurate and complete; (c) you and your Users shall comply with all
terms and conditions of this Agreement, including, without limitation, the
provisions set forth in Sections 5 and 7; (d) you and your Users have provided
and will maintain accurate and complete registration information with Soleran,
including, without limitation, legal names, addresses and telephone numbers; (e)
your and your Users’ access to and/or use of eAppTrack does not and will not
constitute a breach or violation of any other agreement, contract, terms of use,
or similar policy or understanding to which you or a User is or may be subject;
(f) you and your Users will not use eAppTrack to violate any statute, law, rule
or regulation, to violate any agreement with Soleran or to otherwise violate the
legal rights of Soleran or any third person; (g) you and your Users will not
access or use eAppTrack in order to gain competitive intelligence about Soleran,
eAppTrack or any product or service offered by Soleran or to otherwise compete
with Soleran; and (h) you and your Users are in fact an authorized
representatives of the entity on behalf of which you purport to act.
5.
Prohibited Uses
You are responsible for any and all acts and
omissions that occur under each of your User’s account or password, and you and
your Users agree not to engage in unacceptable use of eAppTrack, which includes,
without limitation, use of eAppTrack to: (a) disseminate or transmit material
that, to a reasonable person, may be abusive, obscene, pornographic, defamatory,
harassing, grossly offensive, vulgar, threatening or malicious; (b) disseminate,
store or transmit files, graphics, software or other material that actually or
potentially infringes the copyright, trademark, patent, trade secret or other
intellectual property rights of any person; (c) interfere, disrupt or attempt to
gain unauthorized access to other accounts on eAppTrack or any other computer
network; (d) disseminate, store or transmit viruses, trojan horses or any other
malicious code or programs; (e) disseminate or otherwise make available any
proprietary documents or materials made available through eAppTrack to third
parties unrelated to your internal business needs without the prior written
consent of Soleran; and/or (f) violate any statute, law, rule or regulation or
otherwise violate the legal rights of a third person.
6.
Fees and Payment
a.
Payment. You shall pay to Soleran
(or to its third party payment services provider, if any) the subscription and
other charges set forth in the applicable order form (whether online or
otherwise) (“Order Form”), the first such payment due and payable immediately
upon submission of the Order Form and any other payments due monthly, quarterly
or annually as set forth in the Order Form (“Fees”). All Fees, Taxes and other
charges shall be billed to your credit card, ACH or other payment method by
Soleran or its third party service provider, if any. Fees are quoted and
payable in United States dollars and are based on services and accounts
purchased as opposed to actual usage. In the event the Agreement is renewed as
set forth in Section 8, you agree that Soleran may automatically charge you for
the Fees due for the renewal term based upon your then-current usage of
eAppTrack using your previous payment method.
b.
Collection and Taxes. You shall be
responsible for and shall pay Soleran all currency conversion charges, sales,
use, value-added, personal property or other tax, duty or levy of any kind,
including interest and penalties thereon (“Taxes”), whether imposed now or
hereinafter by any governmental entity. You agree to pay interest at the rate
equal to the lesser of 1.5% per month, or the maximum rate allowed by applicable
law, on any outstanding balance, together with costs of collection, including
attorneys’ fees and costs.
7. Confidentiality
By virtue of this Agreement, each party may have
access to information that is confidential to the other party (“Confidential
Information”). Soleran’s Confidential Information shall include, but not be
limited to, any documents or materials made available through eAppTrack, the
eAppTrack software, documentation, formulas, methods, know how, processes,
designs, new products, developmental work, marketing requirements, marketing
plans, customer names, prospective customer names, terms and pricing, and any
information clearly identified in writing or which, by its nature, should
reasonably be known by User at the time of disclosure as confidential. Your
Confidential Information shall include Customer Data submitted via eAppTrack
that is non-public, proprietary information. Each party acknowledges that the
disclosing party’s Confidential Information constitutes valuable, proprietary
information of the disclosing party, and each party agrees that it shall use the
disclosing party’s Confidential Information solely in accordance with the
provisions of this Agreement and shall not use or disclose, or permit to be used
or disclosed, the same, directly or indirectly, to any third party without the
disclosing party’s prior written consent. Each party shall safeguard the
disclosing party’s Confidential Information from unauthorized use and disclosure
using measures that are equal to the standard of performance used it to
safeguard its own Confidential Information of comparable value, but in no event
less than reasonable care. The following information will not be considered
Confidential Information: (a) information which was in the public domain prior
to its disclosure; (b) information which becomes part of the public domain by
any means other than through violation of this Agreement; (c) information
independently developed by the receiving party without reference to the
disclosing party’s Confidential Information, already in the receiving party’s
possession prior to receipt from the disclosing party, or rightfully provided to
the receiving party from a third party without restriction; or (d) information
produced in compliance with any court or administrative order; provided,
however, that the receiving party gives the disclosing party reasonable notice
that such Confidential Information is being sought by a third party, so as to
afford the disclosing party the opportunity to limit or prevent such
disclosure. Further, each party agrees that it shall disclose the disclosing
party’s Confidential Information only to such of its representatives and/or
employees who have a need to know such information for the furtherance of this
Agreement.
8. Term; Termination
a.
Term; Renewal. This Agreement is
effective upon your acceptance as set forth herein and shall continue in full
force until the expiration of the period set forth in the Order Form unless
otherwise earlier terminated in accordance with this Agreement. Except as
otherwise specified in the applicable Order Form, all User subscriptions shall
automatically renew for additional periods equal to the expiring subscription
term or one year (whichever is shorter), unless either party gives the other
notice of non-renewal at least thirty (30) days prior the end of the relevant
subscription term. The Fees during any such renewal term shall be the same as
those charged during the prior term unless Soleran provides you with written
notice of an increase in Fees at least thirty (30) days before the end of such
prior term, in which case the pricing increase shall be effective upon renewal
and thereafter. Any such increase in Fees shall not exceed seven percent (7%)
over the applicable Fees for materially similar access to or number of
equivalent accounts for eAppTrack in the immediately prior subscription term,
unless the Fees in such prior term was designated in the relevant Order Form as
promotional or one-time. Notwithstanding anything to the contrary in this
Agreement, if you are registering for a free, 30-day trial subscription to
eAppTrack, the term shall be for such thirty (30) days, and Soleran shall have
no further obligation beyond such time period unless you convert to a paid
subscription.
b.
General Termination of eAppTrack
Should either party commit a material breach of its obligations hereunder, the
other party may, at its option, terminate this Agreement by written notice to
the other party. Such notice shall identify and describe the material breach
upon which termination is based. The breaching party shall have fifteen (15)
days from the effective delivery of the notice to cure such breach which, if
effected, shall prevent termination by virtue of such breach. In the event of
termination by you due to Soleran’s uncured breach, Soleran shall refund a pro
rata portion of the Fees paid by you for the then-current term. Otherwise, you
shall not be entitled to any refund of the Fees, and any unpaid Fees for the
remainder of the then-current term shall become immediately due and payable to
Soleran. Soleran may suspend your and your Users’ access to eAppTrack
immediately upon written notice in the event of nonpayment of the Fees for a
period of the (10) days after the due date thereof or immediately in the event
of later rejection of your payment method or chargeback.
c.
Additional Methods of Termination
of eAppTrack Soleran reserves the right, in its sole discretion and at any time
and for any reason, to terminate the terms of this Agreement as to eAppTrack
upon thirty (30) days’ notice to you. Additionally, you may terminate this
Agreement immediately in the event you qualify for service level credits for any
three (3) consecutive months during the term of this Agreement. In such an
event, Soleran shall refund a pro rata portion of the Fees paid by you for the
then-current term.
d.
Effect of Termination. Upon
termination, you and your Users shall terminate all use of eAppTrack, including,
without limitation, you and your Users’ use of any and all proprietary documents
and materials made available through eAppTrack, and each party shall return or
destroy the other party’s Confidential Information (provided that Soleran may
retain your Confidential Information subject to the confidentiality obligations
of this Agreement to the extent incorporated into Soleran’s disaster recovery
backups or as otherwise permitted or required by law). If requested within
thirty (30) days after the effective date of termination of this Agreement,
Soleran will make available to you for download a file of all requested Customer
Data in comma separated value (.csv) format. After such thirty day period,
Soleran shall have no obligation to maintain or provide any Customer Data and
shall thereafter, unless legally prohibited, delete all Customer Data in its
systems or otherwise in its possession or under its control.
9. Disclaimer of Warranties
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN OR
OTHERWISE PROHIBITED BY LAW, EAPPTRACK IS PROVIDED “AS IS” WITHOUT WARRANTY OF
ANY KIND, EXPRESS OR IMPLIED. YOUR AND YOUR USERS’ ACCESS TO AND USE OF
EAPPTRACK IS AT YOUR SOLE RISK. SOLERAN DOES NOT WARRANT THAT YOUR OR YOUR
USERS’ USE OF EAPPTRACK WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES SOLERAN
MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF EAPPTRACK,
NOR DOES SOLERAN PROVIDE ANY WARRANTY RELATED TO THE TIMELINESS, SEQUENCE,
ACCURACY, ADEQUACY OR COMPLETENESS OF ANY DOCUMENTS, MATERIALS OR INFORMATION
PROVIDED THROUGH EAPPTRACK. SOLERAN MAKES NO OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IN RELATION TO EAPPTRACK.
10. Limitation of Liability
EXCEPT AS OTHERWISE PROHIBITED BY LAW, UNDER NO
CIRCUMSTANCES SHALL SOLERAN BE LIABLE TO YOU, ANY USER OR ANY OTHER PERSON FOR
ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES FOR ANY
MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, EAPPTRACK OR THE INTERNET
GENERALLY, INCLUDING, WITHOUT LIMITATION, YOUR OR YOUR USERS’ USE OR INABILITY
TO USE EAPPTRACK, ANY CHANGES TO OR INACCESSIBILITY OF EAPPTRACK, DELAY,
FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY
MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, ANY TRANSACTION OR
AGREEMENT ENTERED INTO THROUGH EAPPTRACK, OR ANY DATA OR MATERIAL FROM A THIRD
PERSON ACCESSED ON OR THROUGH EAPPTRACK, WHETHER SUCH LIABILITY IS ASSERTED ON
THE BASIS OF CONTRACT, TORT OR OTHERWISE. EXCEPT AS OTHERWISE PROHIBITED BY
LAW, IN NO EVENT SHALL SOLERAN’S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED THE
TOTAL PURCHASE PRICE AND/OR FEES PAID, IF ANY, BY YOU TO SOLERAN HEREUNDER. IF
YOU ARE DISSATISFIED WITH EAPPTRACK, YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE FOR
YOU AND YOUR USERS TO DISCONTINUE USE OF EAPPTRACK AND TERMINATE THIS AGREEMENT
IN ACCORDANCE WITH SECTION 8.
SOLERAN IS NOT AN INSURER WITH REGARD TO
PERFORMANCE OF EAPPTRACK. THE DISCLAIMER OF WARRANTIES AND THE LIMITATION OF
LIABILITY AND REMEDY ARE A REFLECTION OF THE RISKS ASSUMED BY THE PARTIES IN
ORDER FOR YOU AND YOUR USERS TO OBTAIN THE RIGHT TO USE EAPPTRACK AT THE
SPECIFIED PRICE, IF ANY. YOU AGREE TO ASSUME THE RISK FOR: (i) ALL LIABILITIES
DISCLAIMED BY SOLERAN CONTAINED HEREIN; AND (ii) ALL ALLEGED DAMAGES IN EXCESS
OF THE AMOUNT, IF ANY, OF THE LIMITED REMEDY PROVIDED HEREUNDER.
11. Indemnification
You agree to indemnify, hold harmless and defend
Soleran, its members, officers, employees and agents from and against any
action, cause, claim, damage, debt, demand or liability, including reasonable
costs and attorney’s fees, asserted by any person or entity, arising out of or
relating to: (a) this Agreement; (b) your and your Users’ use of eAppTrack,
including any Customer Data, data or work transmitted or received by your Users;
(c) any unacceptable use of eAppTrack by your Users or through your Users’
accounts, including, without limitation, any Customer Data or any statement,
data or content made, transmitted or republished by your Users which is
prohibited under applicable law or by this Agreement; (d) any intentional or
negligent act or omission of your Users; and/or (e) your Users’ violation of any
third party rights, including, without limitation, any intellectual property or
privacy right.
12. Miscellaneous
a.
Independent Contractors. The
parties and their respective personnel, are and shall be independent contractors
and neither party by virtue of this Agreement shall have any right, power or
authority to act or create any obligation, express or implied, on behalf of the
other party.
b.
Assignment. You shall not assign
or otherwise transfer your license under this Agreement or any of your rights or
duties hereunder to another party, by operation of law or otherwise, without the
prior written consent of Soleran. Any attempted assignment or transfer in
contravention of this Agreement shall be void and of no effect. Soleran may
assign this Agreement at any time without advance written notice to you.
c.
Waiver. No waiver of any term,
provision or condition of this Agreement, whether by conduct or otherwise, in
any one or more instances, shall be deemed to be, or shall constitute, a waiver
of any other term, provision or condition hereof, whether or not similar, nor
shall such waiver constitute a continuing waiver of any such term, provision or
condition hereof. No waiver shall be binding unless executed in writing by the
party making the waiver.
d.
Severability. If any provision of
this Agreement is determined to be illegal or unenforceable, then such provision
will be enforced to the maximum extent possible and the other provisions will
remain fully effective and enforceable.
e.
Notice. Unless otherwise provided
in this Agreement, all notices shall be in writing and shall be deemed to be
delivered when sent by first-class mail, postage prepaid, or when sent by
facsimile or e-mail to either party’s last known post office, facsimile or
e-mail address, respectively. You hereby consent to notice by email and posting
on Soleran’s web site. Unless otherwise provided in this Agreement, all notices
shall be directed to the parties at their respective addresses or to such other
address as either party may, from time to time, provide to the other party.
f.
Law. This Agreement shall be
treated as though it were executed and were to be performed in Johnson County,
Kansas, USA. The rights and obligations under this Agreement shall not be
governed by the United Nations Convention on Contracts or the International Sale
of Goods, the application of which is expressly excluded, but such rights and
obligations will instead be governed by the laws of the State of Kansas, USA.
This Agreement shall be interpreted in accordance with and governed by the laws
of the State of Kansas, USA, without regard to conflict of law principles.
g.
Forum. All actions, claims or
disputes arising under or relating to this Agreement shall be brought in the
federal or state courts located in or serving Johnson County, Kansas, USA. The
parties irrevocably submit and consent to the exercise of subject matter
jurisdiction and personal jurisdiction over each of the parties by the federal
and/or state courts located in or serving Johnson County, Kansas, USA. The
parties hereby irrevocably waive any and all objections which any party may now
or hereafter have to the exercise of personal and subject matter jurisdiction by
the federal or state courts located in or serving Johnson County, Kansas, USA
and to the laying of venue of any such suit, action or proceeding brought in any
such federal or state court located in or serving Johnson County, Kansas, USA.
h.
Process. The parties irrevocably
submit and consent, and irrevocably waive any and all objections which any party
may now or hereafter have, to process being served in any such suit, action or
proceeding referred to in the preceding subsection pursuant to the rules of the
applicable court, including, without limitation, service by certified or
registered mail, return receipt requested. No provision of this section shall
affect the right of any party to serve process in any manner permitted by law or
limit the right of any party to bring suits, actions or proceedings to enforce
in any lawful manner a judgment issued by the state or federal courts located in
or serving Johnson County, Kansas, USA.
i.
Equitable Relief. The parties
agree that breach of the provisions of this Agreement, including, but not
limited to, the unauthorized use or duplication of eAppTrack or any of the
proprietary documents and materials made available through eAppTrack or a breach
of the confidentiality provisions of this Agreement, would cause irreparable
harm and significant injury to Soleran which would be both difficult to
ascertain and which would not be compensable by damages alone. As such, the
parties agree that Soleran has the right to enforce the provisions of this
Agreement in a court of competent jurisdiction by injunction (without necessity
of posting bond), specific performance, or other equitable relief without
prejudice to any other rights and remedies Soleran may have for your breach of
this Agreement.
j.
Attorney’s Fees. If any action in
law or in equity is necessary to enforce the terms of this Agreement, the
prevailing party will be entitled to reasonable fees of attorneys, accountants,
and other professionals, and costs and expenses in addition to any other relief
to which such prevailing party may be entitled.
k.
Headings. The captions and
headings of this Agreement are included for ease of reference only and will be
disregarded in interpreting or construing this Agreement.
l.
Force Majeure. If the performance
of any part of this Agreement by either party (other than the payment of money)
is prevented, hindered, delayed or otherwise made impracticable by reason of any
flood, riot, fire, judicial or governmental action, labor disputes, act of God,
telecommunications interruption, slow-speed of the Internet or any other causes
beyond the control of either party, that party shall be excused from such to the
extent that it is prevented, hindered or delayed by such causes.
m.
Survival. The terms and provisions
of Sections 1(a), 1(f), 3, 4, 7, 8(d) and 9-12 shall survive any termination or
expiration of this Agreement.
n.
Entire Agreement. This Agreement,
including any other documents referenced herein and hereby incorporated by this
reference, constitutes the complete and exclusive statement of the agreement
between the parties with respect to eAppTrack and supersedes any and all prior
or contemporaneous communications, representations, statements and
understandings, whether oral or written, between the parties concerning
eAppTrack. No modification, amendment, or waiver of any provision of this
Agreement shall be effective unless in writing and either signed or accepted
electronically by the party against whom the modification, amendment or waiver
is to be asserted.
o.
Export Compliance. You and your
Users shall comply with the export laws and regulations of the United States and
other applicable jurisdictions in using eAppTrack. Without limiting the
generality of the foregoing, you represent that (i) you and your Users are not
named on any U.S. or other applicable government list of persons or entities
prohibited from receiving exports, and (ii) you shall not permit Users to access
or use eAppTrack in violation of any U.S. or other applicable countries’ export
embargo, prohibition or restriction. You recognize and acknowledge that some
countries (including, without limitation, Belgium, China (including Hong Kong),
France, India, Indonesia, Israel, Russia, Saudi Arabia, Singapore and South
Korea) have restrictions on the use of encryption within their borders or the
import or export of encryption even if only for temporary personal or business
use, and you further acknowledge and agree that you and your Users are
ultimately responsible for complying with any and all government export and
other applicable laws.
Referenced Policies and Statements:
Security Statement:
http://www.soleran.com/company/security
Privacy Policy:
http://www.soleran.com/company/privacy