BROMELKAMP ONLINE TERMS OF SERVICE:
EGRANT.NET, FIRST AKOYA.NET AND COMMUNITY AKOYA.NET, FUNDWEB.NET
updated April, 2015
These Online Terms of Service (the “Agreement”) are an agreement between Bromelkamp Company LLC (“Bromelkamp”) and Customer. This Agreement consists of the below terms and conditions and the pricing and payment terms made available relating to the Service in the “Order,” as defined below. The Service also may contain other posted notices or codes of conduct, which are incorporated by reference into this Agreement.
Please read this Agreement carefully. BY SUBSCRIBING TO AND/OR USING ANY OF THE SERVICE, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY MODIFICATIONS MADE TO IT FROM TIME TO TIME. IF A MODIFICATION BY BROMELKAMP TO THESE TERMS HAS A MATERIAL ADVERSE IMPACT ON CUSTOMER, SUCH MODIFICATION WILL NOT BE EFFECTIVE UNTIL THIRTY (30) DAYS AFTER BROMELKAMP PROVIDES NOTICE OF THE CHANGE TO CUSTOMER, OR NINETY (90) DAYS AFTER POSTING SUCH MODIFICATION AT WWW.BROMELKAMP.COM. IF CUSTOMER DOES NOT AGREE TO THE TERMS AND CONDITIONS IN THIS AGREEMENT, IT MAY NOT SUBSCRIBE TO OR USE THE SERVICE.
"Affiliate" means any legal entity that a party owns, that owns a party, or that is under its common ownership. "Ownership" means, for purposes of this definition, control of more than a 50% interest in an entity. If Customer is an agency of a state, provincial, or local government, “Affiliate" means (1) any government agency, department, office, instrumentality, division, unit or other entity, of Customer’s state, provincial or local government that is supervised by, or is part of, Customer, or which supervises Customer or of which Customer is a part, or which is under common supervision with Customer; (2) any county, borough, commonwealth, city, municipality, town, township, special purpose district, or other similar type of governmental instrumentality established by the laws of Customer’s state or province and located within Customer’s state’s or province’s jurisdiction and geographic boundaries; and (3) any other entity in Customer’s state or province expressly authorized by the laws of Customer’s state or province to purchase under state or provincial contracts; provided that a state or province and its Affiliates shall not, for purposes of this definition, be considered to be Affiliates of the federal government or its Affiliates. Notwithstanding the forgoing, provincial Crown corporations are not Affiliates for the purposes of this definition. If Customer is an agency of the U.S. government, “Affiliate" means any other agency of the U.S. government. If Customer is an agency of the Canadian government, “Affiliate" means any other agency of the Canadian government, except for a federal Crown corporation.
“Client Software” means any software provided to Customer related to the Service.
“Customer” means the entity that has entered into this Agreement. If an individual enters this Agreement on behalf of a company or other legal entity, such individual represents that he or she has the authority to bind such entity to this Agreement.
“License" means the rights granted by Bromelkamp to Customer to copy, install, use, access, display, run and/or otherwise interact with the Service and/or Client Software for, as applicable, for Customer’s internal business purposes.
“Bromelkamp” means Bromelkamp Company LLC or its Affiliates.
“Estimate” means a scope of service or project definition which may include both fixed price and estimated items.
"Order" means an order for Services, usually in the form of a signed “Estimate.” An Order may include multiple Services.
“Service” means all Bromelkamp online services (including pre-release services) and software, including any updates, upgrades, support, and content (e.g., audio and visual information, documents) contained or made available to Customer by Bromelkamp in the course of using the service. Bromelkamp may change the Service at any time and for any reason without notice.
“SLA" means Service Level Agreement representing commitments Bromelkamp publishes and modifies from time to time on its web site http://www.bromelkamp.com with regard the Services.
“Hosting Period" means the part of year the specific Services being ordered may be used.
“Hosting Fee” means the annual amount Customer is required to pay for the subscription to the Service and Client Software.
“Term" means the duration of the Hosting Period.
“User licenses” refers to the named licenses that Customer has purchased during the Hosting Period.
“Users” means individuals with Customer’s organization who have the right to use the Services, as dictated by the number of User Licenses purchased by Customer.
2.1 General. Bromelkamp grants Customer a License to the Services ordered by Customer, subject to Customer’s obligation to pay and any rights and limitations described in this Agreement. This License is non-exclusive, nonperpetual, and is not transferable. The ability to use Services may be affected by minimum system requirements or other factors. Bromelkamp reserves all rights not expressly granted.
2.2 Client Software. Customer may need to install Client Software to access and use the Service. Customer may make copies of the Client Software solely to support the Service for its Users. Copies must be true and complete copies (including copyright and trademark notices) and be made from a Bromelkamp approved media or a network source. Customer may use a third party to make and install these copies, but Customer agrees that it will be responsible for that third party’s actions. Customer agrees to use reasonable efforts to make its employees, agents and other individuals that it allows to use the Client Software aware that it is licensed from Bromelkamp and subject to the terms of this Agreement. Additional rights and restrictions for the Client Software may accompany the provision of such Client Software, and Customer agrees to abide by all such additional rights and restrictions.
2.3 Authorized Users.
a. First Akoya.net and Community Akoya.net Only those individuals who Customer designates as authorized Users may use and access the Service up to and including the total number of User Licenses purchased during the Hosting period. Unless otherwise requested by the Customer, by default all Authorized Users are configured by Bromelkamp and have full administrator privileges. User Licenses cannot be shared or used by more than one individual. Bromelkamp shall, upon Customer's request, assign rights to a new authorized User to replace a current authorized User who has terminated employment or otherwise changed job status or function and no longer uses the Service. (Customer can disable an authorized User from the Service but only Bromelkamp can delete the License at Customer’s request, otherwise Customer will still be paying for the disabled User License.)
b. eGrant.net Only those individuals who Customer designates as authorized Users may use and access the administrative interface. Only Users who have administrator privileges may add additional authorized Users to the Service. There is no limit to the number of Authorized Users Customer may specify.
c. FundWeb.net Fundweb.net does not have an administrative interface and as such does not require the Customer to assign authorized Users. All users are External Users as defined in section 2.4 of this Agreement.
2.4 External Users. (eGrant.net and Fundweb.net only) Customer does not need to purchase additional Users accounts for external users who access the Service without using any of the software. “External users” means users that are not Customer, or its employees, Affiliates, contractors or agents. External users access the user interface and do not have access to the administrative interface.
2.5 Limitations on use. Customer shall not reverse engineer, decompile or disassemble the Service or Client Software, except where applicable law permits it despite this limitation. Customer shall not rent, lease, lend, resell, or host to or for third parties any Service or Client Software.
2.6 Font Components. While using the Service, Customer may use its fonts to display and print content. Customer may only: (i) embed fonts in content as permitted by the embedding restrictions in the fonts; and (ii) temporarily download them to a printer or other output device to print content.
3. ORDERING, PRICING, PAYMENTS, RENEWALS AND TAXES
3.1 Ordering. Customer shall place an Order for each Service via any means made available by Bromelkamp for such Ordering. If Customer desires to use the Service for more than the total number of User Licenses available through the Service level it subscribed to, it must subscribe to the appropriate Service level prior to commencing any such use. Any Services added to an Order will expire at the end of the Term. Each Hosting Period shall be for a defined Term (e.g., 30 days or 12 months). Customer may place Orders for its Affiliates under this Agreement and grant its Affiliates administrative rights to manage the Services. Affiliates may not place Orders under this Agreement. To the extent Customer grants any rights to Affiliates, such Affiliates shall be bound by the terms and conditions of this Agreement. Customer agrees that it is jointly and severally liable for any Services purchased for, or other actions taken by, any of its Affiliates or any third party to which it provides rights under this Agreement.
3.2 Hosting Fees. Customer is required to pay the Hosting Fee in advance. Bromelkamp may charge Customer at one time for more than one billing period. Hosting Fees are available via the Order or other means made available by Bromelkamp. Payments are due and must be paid in accordance with the Order. Price level changes are not retroactive. Prices for each price level are fixed at the time the Order is first placed and apply throughout the Term. Hosting Fees are subject to change at the beginning of any Hosting renewal.
3.3 Renewal. As specified in the renewal billing, Customer’s Hosting will automatically renew at the expiration of the Term.
3.4 New agreement. Prior to placing new Orders, renewing Hosting, or further use of the Services, the parties may mutually agree to enter into an updated agreement to govern Orders, Hosting renewal, or usage from that date forward.
3.5 Taxes and other Incidental Charges. The prices and rate plans do not include any taxes, phone and Internet access charges, mobile text messaging, wireless service and other data transmissions, unless stated otherwise. Customer is responsible for all such incidental charges and any taxes and is legally obligated to pay including, but not limited to, paying Bromelkamp any applicable value added, sales or use taxes or like taxes that are permitted to be collected from Customer by Bromelkamp under applicable law. If any taxes are required by law to be withheld on payments made by Customer to Bromelkamp, Customer may deduct such taxes from the amount owed Bromelkamp and pay them to the appropriate taxing authority; provided, however, that Customer shall promptly secure and deliver to Bromelkamp an official receipt for any such taxes withheld or other documents necessary to enable Bromelkamp to claim a Foreign Tax Credit. Customer will make certain that any taxes withheld are minimized to the extent possible under applicable law.
3.6 Refunds. All charges are non-refundable unless expressly stated otherwise, or otherwise provided by law.
3.7 Late Payments. Except to the extent prohibited by law, Bromelkamp may assess a late charge if Customer does not pay on time, or as otherwise provided for in this section 3.7. Customer must pay these late charges as and when billed by Bromelkamp. The late charge will be the lesser of 1.5% of the unpaid amount each month or the maximum rate that is permitted by law. Bromelkamp may use a third party to collect past due amounts. Customer may withhold payment for disputed billed amounts by providing written notice. If Customer disputes a portion of its bill, the parties will work to mutually resolve the isuse. If the issue is resolved in Bromelkamp's favor, customer will immediately pay the portion of the bill that was disputed. If the issue is resolved in Customer's favor, such amount chall not be paid to Bromelkamp and no late charge shall be assessed. Bromelkamp may suspend or cancel the Service without notice if Customer does not pay in full and on time unless Customer has registered a dispute in writing, as earlier in this section 3.7.
4. TERM AND TERMINATION
4.1 Termination by Bromelkamp. Bromelkamp may cancel or suspend Customer’s use of the Service or a portion of thereof at any time if Customer violates the terms of this Agreement, if Bromelkamp believes that Customer’s use of the Service represents a direct or indirect threat to its network function or integrity or anyone else’s use of the Service, or if Bromelkamp is otherwise required by law to do so. Upon notification by Bromelkamp of any such cancellation or suspension, Customer’s right to use the Service will stop immediately. Cancellation or suspension of the Service for Customer’s violation of the terms of this Agreement will not change Customer’s obligation to pay any Hosting fees due for the applicable Term.
4.2 Termination by Customer. Customer may cancel the Service at any time for any reason by notifying Bromelkamp in writing with two months’ notice pursuant to section 17.1 of this Agreement. In the case of termination before the scheduled end of a Term, Customer shall be obligated to pay the greater of (i) an amount equal to three monthly Hosting Fees or (ii) Hosting fees remaining through the end of the then current Term.
4.3 Reduction of Users. Customer may reduce the number of User Licenses that it has with the Service at any time for any reason by notifying Bromelkamp in writing or by telephone. Customer will pay any remaining Hosting Fees through the remainder of the Term.
4.4 Effect of termination. Upon termination or cancellation of the Service by either party for any reason, Bromelkamp may delete Customer’s data permanently from its servers. Notwithstanding the foregoing, Bromelkamp will keep Customer’s data for a period of 90 days before it is deleted from Bromelkamp’s servers, and during such 90-day period, Bromelkamp will, upon request from Customer and at the Customer’s expense for time and materials, at the rates then in effect as specified in written notifications from Bromelkamp, return all such data to Customer in a format that is then standard and uniform and mutually agreed upon by Bromelkamp and Customer. Customer is solely responsible for taking the necessary steps to back up its data and ensure that it maintains its primary means of business. Bromelkamp will notify client 30 days before termination and confirm upon termination.
4.5 Waiver of rights and obligations. To the extent necessary to implement the termination of this Agreement, each party waives any right and obligation under any applicable law or regulation to request or obtain intervention of the courts to terminate this Agreement.
4.6 No liability for deletion of data. Customer acknowledges that, other than as expressly described in these terms, Bromelkamp will have no obligation to continue to hold, export or return Customer’s data after termination. Customer acknowledges that Bromelkamp will have no liability whatsoever for deletion of Customer data pursuant to these terms.
5. CONSULTING SERVICES
5.1 Inclusions (kinds of work provided by Bromelkamp to Customer). According to these terms, Bromelkamp agrees to provide the following consulting services at Customer's request:
"Technical Support" such as:
· assistance with First Akoya.net, Community Akoya.net, or eGrant.net: how it works, how to use it;
· assistance with interfacing First Akoya.net, Community Akoya.net, or eGrant.net with Microsoft Office;
· maintenance to prevent or correct errors or malfunctions in First Akoya.net, Community Akoya.net, or eGrant.net.
“New Work” including:
· systems design;
· assistance in writing specifications or plans;
· consultation to determine the feasibility and cost of any proposed changes, and the effect of such proposed work on the existing system application and on general system(s) operations;
· changes to the system specifications not originally provided and installed on the installation date;
· installation of new configuration or features being made at Customer's request;
· custom programming;
· converting data from one system to another;
· assistance with software or services other than First Akoya.net or Community Akoya,net;
· answering questions about what to debit or credit or offering direction or advice about which accounts to post rather than how Community Akoya.net will process those transactions;
· fixes or changes to programs that were specially written or adapted for the client;
· assistance with browser or equipment operation (subject to Bromelkamp's familiarity);
· troubleshooting apparent malfunctions in browser or equipment;
· time spent on advice, shopping, quoting prices, ordering, testing, or installing software, and equipment;
· interaction with equipment, software or service vendors, communications carriers, and software license owners as needed to initiate service to correct malfunctions or upgrades in the client's computer and communications services. UNDER THIS AGREEMENT, BROMELKAMP DOES NOT REPAIR OR UPGRADE EQUIPMENT OR COMMUNICATIONS SERVICES; THE CLIENT IS RESPONSIBLE FOR MAKING ARRANGEMENTS AND PAYING FOR EQUIPMENT AND COMMUNICATIONS SERVICES REPAIRS AND UPGRADES.
5.2 Exclusions (kinds of work Bromelkamp is not responsible for). Consulting services provided by Bromelkamp under this Agreement do not include repair of damage or increase in service time caused by:
· Customer's failure to continually provide a suitable operating environment with all facilities prescribed by the equipment manufacturer(s) including, but not limited to, adequate electrical power, air conditioning, or humidity control;
· Customer's use of equipment or computer application programs or online services for uses other than those for which they were designed;
· any accident or disaster including, but not limited to: flood, water, wind, and lightning; or neglect; or use not in accordance with Bromelkamp's instructions; and
· maintenance or repair by persons other than Bromelkamp or its designated substitute.
5.3 Other Consulting Services. Bromelkamp customarily provides some consulting services at no charge:
· Version updates to First Akoya.net or Community Akoya.net programs,
· fixes to First Akoya.net or Community Akoya.net programs that were not specifically adapted for the client; and
· Dynamic Akoya.net, its newsletter.
These no-cost services are listed as examples only and may change at any time without notice. Bromelkamp will always answer questions about the company or its policies, or invoices to the client at no charge.
5.4 Consulting Services Conditions.Customer's primary contact person, or a designee identified as acting on behalf of the primary contact person, will request service. If requested by Customer, Bromelkamp will provide an estimate of time and materials required to complete the service, and a schedule for its completion. If an estimate is provided, Bromelkamp will not perform such service until Customer agrees to the estimate and schedule. If requested by Customer, Bromelkamp will also provide a fixed price bid to provide the service, and a schedule for its completion. Customer may choose whether and under which basis (time and materials or fixed price) the service is to be performed.
Amendments and Cancellations:
If Customer cancels a service request, it will be liable to Bromelkamp for such compensation, as outlined under 5.5. "Compensation" below, relating to the canceled request for service which is due Bromelkamp for actual hours already worked and expenses already incurred at the time notice of cancellation is received by Bromelkamp. If Customer changes a request for service, then for the purposes of this Agreement, Bromelkamp may consider the original request for service canceled and make a new response to the amended request.
Availability and Access:
Customer will provide Bromelkamp with access to First Akoya.net or Community Akoya.net as necessary to provide technical support or new work under this Agreement.
Time of Service:
All service will be performed during normal business hours, Monday through Friday, 7:30 a.m. to 5:00 p.m. Central Time, except legal holidays, unless special arrangements are agreed to in advance by both parties. Service requested by Customer to be performed at times other than normal business hours will be billed such that each hour worked will count as two (2) hours.
Bromelkamp may, at its own discretion and expense, and upon prior notification to Customer, provide a duly qualified substitute to provide service under this Agreement. It is agreed that in such instances a) all terms and conditions of this Agreement will apply and b) Customer will be billed as if Bromelkamp performed the service itself.
Limitation of Liability:
Consulting Services provided under this Agreement may cause temporary interruption of normal operations of the client's data processing system. When such interruptions are anticipated, Bromelkamp will inform Customer of the nature of such interruptions in advance, so that Customer may, at its discretion, defer the consulting service to a later time. Bromelkamp is not responsible for the cost or inconvenience incurred due to such interruption of operation of Customer's data processing equipment, computer application programs, communications services, or related services.
5.5 Compensation. Customer will pay Bromelkamp compensation in U.S. dollars based on one of two methods.
The first method, BASIC SUPPORT, is available only for First Akoya.net, Community Akoya.net, and eGrant.net. (Consulting services for FundWeb.net are excluded and treated as “New Work” as described in section 5.1.) BASIC SUPPORT is payment of a flat monthly fee for "Technical Support" services (as described in section 5.1) plus an additional hourly fee for "New Work" services (as described in section 5.2).
The second method, HOURLY SUPPORT, is payment of an hourly fee for all services provided under this agreement. With HOURLY SUPPORT, in any month in which services are provided, the minimum charge for services provided under this Agreement will be one-quarter of the hourly fee. In any month in which no services are provided, there will be no charge.
These terms of service will be in effect from installation of the software until terminated by the client or Bromelkamp Company upon two (2) months' written notice. The client will select a compensation method at the time of installation (see also "COMPENSATION" described above). The selected method will be in effect until or unless we are notified of the Client's intent to change the compensation method (change to end Basic Support requires two (2) months' advance written notice; change to add Basic Support requires written notice and is initiated on the first day of the next month). The client may not return to the previous method of compensation for six (6) months after a change. The client will be notified of any changes to our rate structure at least two months prior to any change taking effect. Rates are subject to change. Bromelkamp will provide Customer two (2) months written notice for any rate increase. Rate increases are customarily similar to the rate of inflation.
For any service for which Customer has chosen to pay by a fixed price bid, Customer will pay Bromelkamp the total fixed price for completed work, upon completion of the work, in lieu of hourly charges for that work.
In addition, Customer will reimburse Bromelkamp for any expenses (such as travel, shipping, etc.) incurred in the performance of services under this Agreement, provided that expenses over $10 to be reimbursed are approved by Customer in advance and are in accordance with Customer's reimbursement policies then in effect.
Payment is due thirty days after the date of the invoice. Customer agrees to pay on a timely basis and will be subject to late fees not to exceed 1.5% per month on unpaid balances.
BASIC SUPPORT is not a substitute for formal training from Bromelkamp. Bromelkamp reserves the right, on two (2) months written notice, to change the method from BASIC SUPPORT to HOURLY SUPPORT if a primary user has not received such training.
5.6 Period of Performance. These terms of service will be in effect from installation of the software until terminated by Customer or Bromelkamp upon two (2) months’ written notice.
Customer will select a compensation method at the time of installation (see also section 5.5. "Compensation" in this Agreement). The selected method will be in effect until or unless Bromelkamp is notified of Customer's intent to change the compensation method (change to end Basic Support requires two (2) months advance written notice; change to add Basic Support requires written notice and is initiated on the first day of the next month). Customer may not return to the previous method of compensation for six (6) months after a change. Customer will be notified of any changes to our rate structure at least two (2) months prior to any change taking effect.
6.1 Access and Disclosure. In order to operate and provide the Services, Bromelkamp collects certain information about its Customer. Bromelkamp uses and reasonably protects that information from third parties. Bromelkamp may access or disclose information about Customer, including the content of its communications, in order to:
· comply with the law or respond to lawful requests or legal process;
· protect the rights or property of Bromelkamp or its customers, including the enforcement of its agreements or policies governing Customer’s use of the Services; or
· act when Bromelkamp believes, in good faith, that such access or disclosure is necessary to protect the personal safety of Bromelkamp employees, customers or the public.
Customer hereby consents to the access and disclosures outlined in this section. Bromelkamp agrees that it will, at all times, comply with applicable privacy laws and regulations.
6.2 Transfer of personal information. Personal information collected through the Service may be stored and processed in the United States or any other country in which Bromelkamp or its affiliates, subsidiaries, or agents maintain facilities. By using the Service, Customer consents to any such transfer of information outside of its country. Bromelkamp abides by the safe harbor framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of data from the European Union. Customer may read more about transfers of this data in the Privacy Statement, which is incorporated by reference in this Agreement.
6.3 Performance and usage data. In order to provide the Service, Bromelkamp may collect certain information about Service performance, Customer’s computers and its Service use. Bromelkamp may automatically upload this information from Customer’s computers. This data will not personally identify Customer.
6.4 Filtering technology. Bromelkamp may use technology or other means to protect the Service, protect its customers, or stop customers from breaching this Agreement. Examples include filtering to stop spam and viruses or increase security. These means may hinder Customer’s use of the Service.
6.6 Communications. Because the Service is a hosted, online application, Bromelkamp may need to notify Users of the Service occasionally of important announcements regarding the operation of the Service. As a condition of the Service, Users may receive marketing and other non-critical Service-related communications from Bromelkamp from time to time.
7.1 Confidentiality. Under the terms of this Agreement, Bromelkamp Company guarantees that under no circumstances will it make use of, nor will it have access to, the information stored within the client's computer system for purposes other than those outlined in this Agreement, or as agreed upon by Bromelkamp Company and the client's primary contact person or designee; and no third parties will have access to the information within the client's computer system for any purpose whatsoever, without the written consent of the authorizing official signing this Agreement for the client. In addition, when requested, Bromelkamp may notify Customer in writing if Bromelkamp will abide by any additional confidentiality terms required by Customer's organization or company.
Bromelkamp shall maintain in strict confidence and shall not disclose to any person or entity, or otherwise utilize or license, either during the term of this agreement or at any time thereafter, any confidential information, data, trade secret or any other proprietary or confidential matter of which it becomes aware and which in any way relates to the business, financial or property affairs of Customer or its Affiliates, without Customer’s prior written consent. In addition, Bromelkamp shall cause all of its employees and independent contractors to adhere to all such obligations. Bromelkamp agrees that Customer shall be entitled to obtain injunctive relief, without bond, for any breach or threatened breach of this provision.
7.2 Virus Scanning. Bromelkamp's hosted servers are protected by industry-standard virus detection software which automatically scans all files, including files arriving from Customer.
7.3 Remote Access and Remote Control. If necessary to provide support, Bromelkamp may need to connect to Customer using current, industry standard means such as Microsoft's Remote Desktop or Citrix Online's GoTo products, which are leading remote control and integrated audio and web conferencing services, respectively. Using this kind of software allows Bromelkamp to connect to and take remote control of a Customer's computer. This allows Bromelkamp to troubleshoot problems, facilitate training, and/or implement changes at Customer's request. A designee of Customer must participate in setting up the remote control session; Bromelkamp cannot access your computers without this permissiona and participation for each session.
Note that disallowing remote access or remote control access to Customer's computers can substantially increase the cost of supporting and maintaining the system, as well as increasing the response time for troubleshooting problems and implementing solutions.
8. USER RIGHTS AND LIMITATIONS
8.1 SLAs. Bromelkamp will comply with its then-current SLA in place relating to the Services as published at www.bromelkamp.com
8.2 Customer’s Use. In using the Service, Customer will:
· comply with all laws;
· comply with any codes of conduct or other notices provided by Bromelkamp;
· keep its password secret; and
· promptly notify Bromelkamp if it learns of a security breach or unauthorized access related to the Service.
Customer may not:
· use the Service in any way that harms Bromelkamp or its Affiliates, resellers, distributors and/or vendors (collectively, the “Bromelkamp parties”), or any customer of a Bromelkamp party or the Service or other Users;
· engage in, facilitate, or further unlawful conduct;
· damage, disable, overburden or impair the Service (or the networks connected to the Service) or interfere with anyone’s use and enjoyment of the Service;
· resell or redistribute the Service, or any part of the Service, unless Customer has a contract with Bromelkamp that permits it to do so;
· use any portion of the Service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages (“spam”);
· use any unauthorized automated process or service to access and/or use the Service (such as a BOT, a spider, periodic caching of information stored by Bromelkamp or “meta-searching”), however, periodic automated access to the Service for report creation or scheduling is permitted;
· use any unauthorized means to modify or reroute, or attempt to modify or reroute, the Service or work around any of the technical limitations in the Service;
· modify, create derivative works from, reverse engineer, decompile or disassemble or otherwise attempt to discover any trade secret contained in the Service or in any technology, or system used by Bromelkamp in connection with providing the Service, except and only to the extent that applicable law expressly permits Customer to do so despite this limitation;
· create Internet “links" to the Service or “frame" or “mirror" any content of the Service to give the impression that Customer is offering all of the functionality of the Service as its service located on its own servers;
· build a product or service using similar ideas, features, functions or graphics of the Service;
· copy any ideas, features, functions or graphics of the Service; or
· access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
8.3 Limits on Service. Bromelkamp may establish limits on the Service. For example, it may limit the number of days the Service will retain any content that Bromelkamp, Customer or its Users provide, the number and size of email messages that Customer may send or receive through the Service, the maximum storage space on Bromelkamp’s servers available to Customer, the number of Service accounts to which Customer may subscribe, how long Bromelkamp retains an inactive Service account (one where Customer does not sign in to the Service for an extended period of time), the number of transactions Customer can conduct through the Service, and the number of asynchronous transactions that can be executed with an organization
8.5 Third Party Services. Bromelkamp may make services from third parties available to Customer through the Service. These third party services are the responsibility of the third party, not Bromelkamp. The third party service providers may require Customer to accept additional terms and conditions and/or pay a fee in order to use their services. Those additional terms and conditions are between Customer and the third party. Any third party’s use of information Customer provides as part of using their service is subject to the privacy statements and practices of that third party and/or their suppliers. Bromelkamp encourages Customer to review the privacy statement of these third party providers. Bromelkamp is not responsible for the privacy statements or privacy practices of these third party providers or their suppliers.
9. USER-GENERATED CONTENT
9.1 Content. Bromelkamp, Customer, its Users and associated account users and third parties may be able to post or store materials, including data, documents, information, advertisements, communications, messages and links to third party websites (“content”) on the Service. Customer may be able to post or provide materials (including feedback) that are part of the Service in a publicly accessible or other public area that allows Customer to communicate with others (“public areas of the Service”). It also includes areas of the Service to which Customer can control access by authorized users of associated accounts (“private areas of the Service”).
9.2 Intellectual property rights. Bromelkamp does not sanction or approve the unauthorized use of content protected by copyright and other intellectual property rights. Customer understands that sharing content that violates others’ copyrights and intellectual property rights violates this Agreement. Customer represents and warrants that the use and publication of the content by Customer and others does not violate the intellectual property rights of any third party. Customer understands that Bromelkamp may remove content at any time without notice when the content violates this Agreement or an applicable code of conduct, or when Bromelkamp has a good faith reason to believe it is necessary to do so.
9.3 Posting Content. Customer acknowledges that Bromelkamp does not control or endorse the content that it and others post or provide on the Service. Bromelkamp doesn’t claim ownership of content that Customer and others post or provide. By posting or providing content, Customer grants Bromelkamp and the public (for content posted on publicly accessible areas of the Service), or those authorized Users of associated accounts to which Customer has granted access (for content posted on private areas of the Service), free, unlimited worldwide and perpetual permission to use, modify, copy, distribute and display the content and publish Customer’s name with the content. Customer also gives the public, or those members of the public to which Customer has granted access, permission to grant these rights to others. Customer represents and warrants that it has all the rights necessary to grant the rights in this section and that the use and publication of the content does not breach any law. Bromelkamp will not pay Customer for content posted on public areas of the Service. This section only applies to legally permissible content and only to the extent that use and publishing of the legally permissible content does not breach the law.
9.4 Private areas of the Service. Customer acknowledges that certain technical processing of content posted on private areas of the Service may be required to store and retrieve the content, conform to connecting networks’ technical requirements, or conform to the limitations of the Service.
9.5 Links to third-party Web sites. The Service may contain links to third-party websites. These third-party websites are not under Bromelkamp’s control. If Bromelkamp has included these links in the Service, it provides them as a convenience only. The inclusion of these links is not an endorsement by Bromelkamp of any third-party website, service or product. Bromelkamp reserves the right to disable links to any third-party website that Customer posts on the Service.
9.6 Bromelkamp will not own any Customer data. Bromelkamp performs regular backups of Customer data for the purpose of recovery in the event of a failure in Bromelkamp’s data centers. However, notwithstanding the foregoing, Customer is solely responsible for maintaining and backing up any Customer data that it uses with the Service, as specified in section 4.4. Customer, not Bromelkamp, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use such data. Bromelkamp shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any data that Customer uses with the Service.
10. ASSOCIATED ACCOUNTS
Only Customer may use its Service account. However, Bromelkamp may allow Customer to setup additional member accounts that are dependent on Customer’s account (an “associated account”). Bromelkamp may limit associated accounts. Customer is responsible for all activity under its Service account, associated accounts and passwords. Customer is solely responsible for monitoring usage of its Service account and for any use or misuse of its Service account or the Service resulting from any associated account or any third party using any password or user name selected by or issued to Customer. If Customer is the authorized User of an associated account, then the person or entity that gave Customer access to the Service (the account holder) has full control over Customer’s associated account. This control includes the right to end the Service, close or alter Customer’s associated account at any time, and, in some cases, request and receive machine and Service usage information related to Customer’s associated account.
11. PRE-RELEASE SERVICE
When made available by Bromelkamp, a customer may choose to use a pre-release or early access version (“Beta Version”), of the service. If the version of the Service that is Licensed to Customer is a pre-release or early access version then it may not work the way a final version of the feature or Service will. Bromelkamp reserves the right to not release a commercial version of, or to change, any Beta Version of the Service at any time without notice to Customer. Any such Beta Version, including its user interface, features and documentation (“Confidential Information”), is confidential and proprietary to Bromelkamp and its suppliers. For five years after Customer subscribes to the Beta Version of the Service or the subsequent commercial version of the Service, whichever is first, Customer agrees not to disclose any Confidential Information to third parties or to use any Confidential Information other than for its internal purposes in connection with Customer’s use of the Service. Customer may disclose Confidential Information only to its employees and consultants who need to know the information and who have signed agreements containing restrictions at least as protective of the Confidential Information as those contained herein. Customer’s duty to protect Confidential Information survives the termination of this Agreement. Notwithstanding the foregoing, Customer may disclose confidential information in response to a judicial or governmental order, so long as Customer first gives written notice to Bromelkamp to allow it to seek a protective order or otherwise protect the information. Confidential information does not include information that: (1) becomes publicly known through no wrongful act; (2) is received from a third party who did not breach confidentiality obligations to Bromelkamp or its suppliers; or (3) is independently developed by Customer without the use of, or access to, the Confidential Information.
Bromelkamp and Customer shall treat the terms and conditions of this Agreement as confidential and shall not disclose them to any third party except in the furtherance of the parties’ business relationship with each other. For government Customers, this Section is subject to the requirements of applicable trade secret, public records, or similar laws.
13.1 Limited warranty. Bromelkamp warrants that the Services and Client Software will conform substantially to the description of them contained in the applicable Bromelkamp user documentation. This limited warranty is subject to the following limitations:
· this limited warranty applies only during the Term, including any renewals ("Warranty Period");
· any implied warranties, guarantees or conditions not able to be disclaimed as a matter of law will last only during the Warranty Period;
· this limited warranty does not cover problems caused by accident, abuse or use of the Services in a manner inconsistent with this Agreement, or resulting from events beyond Bromelkamp’s reasonable control;
· this limited warranty does not apply to problems caused by the failure to meet minimum system requirements; and
· this limited warranty does not apply to downtime or other interruption in access to the Services, or any other performance metrics that are addressed in an applicable SLA.
13.2 Remedies for breach of limited warranty. If Customer notifies Bromelkamp within the Warranty Period that a Service does not meet the limited warranty, then Bromelkamp will, at its option, either (1) return the amount paid for the Service during the (a) Term or (b) twelve (12) months prior to delivery of notice to Bromelkamp, whichever is less, or (2) update such Service to make it conform. These are Customer’s only remedies for breach of the limited warranty, unless other remedies are required to be provided under applicable law.
13.3 DISCLAIMER OF OTHER WARRANTIES.
OTHER THAN THIS LIMITED WARRANTY, BROMELKAMP PROVIDES NO OTHER EXPRESS OR IMPLIED WARRANTIES. BROMELKAMP DISCLAIMS ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE OR NON-INFRINGEMENT. THESE DISCLAIMERS WILL APPLY UNLESS OTHERWISE REQUIRED BY APPLICABLE LAW.
14. DEFENSE OF INFRINGEMENT AND MISAPPROPRIATION CLAIMS
14.1 Agreement to protect. Bromelkamp will defend Customer against any claims made by an unaffiliated third party that any Service or Client Software infringes that party’s patent, copyright or trademark or makes intentional unlawful use of its trade secret or undisclosed information. Bromelkamp will also pay the amount of any resulting adverse final judgment (or settlement to which Bromelkamp consents). This Section provides Customer’s exclusive remedy for these claims. The term “undisclosed information" is as defined in Article 39.2 of the WTO’s TRIPs agreement.
14.2 Customer obligations. Customer must notify Bromelkamp within five (5) business days, in writing, of the claim and give Bromelkamp sole control over its defense or settlement. Customer must also provide Bromelkamp with reasonable assistance in defending the claim. Bromelkamp will reimburse Customer for reasonable out of pocket expenses that it incurs in providing that assistance.
14.3 Limitations on defense obligation. Bromelkamp’s obligations will not apply to the extent that the claim or award is based on:
· Customer’s use of the Service or Client Software after Bromelkamp notifies it to discontinue its use due to a third party claim;
· Customer’s combination of the Service or any related Client Software with a non-Bromelkamp product, data or business process;
· damages attributable to the value of the use of a non-Bromelkamp product, data or business process;
· Customer’s use of Bromelkamp’s trademark(s) without express written consent to do so; or
· any trade secret or undisclosed information claim, where Customer acquires the trade secret or undisclosed information (1) through improper means; (2) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (3) from a person (other than Bromelkamp) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret or undisclosed information.
Customer will reimburse Bromelkamp for any costs or damages that result from any of the above actions.
14.4 Specific rights and remedies in case of infringement. (a) Bromelkamp’s rights in addressing possible infringement. If Bromelkamp receives information concerning an infringement claim related to a Service or Client Software, Bromelkamp may, at its expense and without obligation to do so: (1) procure for Customer the right to continue to use the allegedly infringing Service and/or Client Software, (2) modify the Service and/or Client Software, or (3) replace the Service and/or Client Software with a functional equivalent, to make it non-infringing, in which case Customer will immediately stop using the allegedly infringing Service and/or Client Software after receiving notice from Bromelkamp. (b) Customer’s specific remedy in case of injunction. If, as a result of an infringement claim, Customer’s use of a Service or Client Software is enjoined by a court of competent jurisdiction, Bromelkamp will, at its option, either: (1) procure the right to continue its use; (2) replace it with a functional equivalent; (3) modify it to make it noninfringing; or (4) terminate the License for the infringing Service and/or related Client Software and refund any amounts paid in advance by Customer for unused Services, or refund all fees prepaid by Customer prorated from the date Customer no longer has effective use of the Service.
15. LIMITATION OF LIABILITY
15.1 Limitation on liability. Except as otherwise provided in this Section, to the extent permitted by applicable law, the liability of Bromelkamp and of Bromelkamp’s contractors to Customer arising under this Agreement is limited to direct damages up to the amount Customer paid Bromelkamp for the Service and/or Client Software giving rise to that liability during the (1) Term or (2) twelve months prior to the filing of the claim, whichever is less. These limitations apply regardless of whether the liability is based on breach of contract, tort (including negligence), strict liability, breach of warranties, or any other legal theory.
However, these monetary limitations will not apply to:
· Bromelkamp’s obligations under the Section titled “Defense of infringement and misappropriation claims";
· Bromelkamp's use of Customer’s trademark(s) without express written consent to do so;
· liability for damages awarded by a court of final adjudication for Bromelkamp’s or its employees’ or agents’ gross negligence or willful misconduct;
· liabilities arising out of any breach by Bromelkamp of its obligations under the Section entitled “Confidentiality"; or
· liability for personal injury or death caused by Bromelkamp’s negligence or that of its employees or agents or for fraudulent misrepresentation.
EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN AN AGREEMENT BETWEEN YOU AND BROMELKAMP, ALL SOFTWARE, SERVICES, COMMUNICATION SERVICES, TRAINING, THIRD-PARTY LINKS AND INFORMATION ON BROMELKAMP WEB SITE ARE PROVIDED "AS IS" WITHOUT ANY OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, OR THOSE ARISING BY LAW, STATUTE, USAGE OF TRADE, OR COURSE OF DEALING. BROMELKAMP MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS AND ACCURACY OF THE INFORMATION, SOFTWARE, SERVICES, TRAINING AND COMMUNICATION SERVICES CONTAINED ON BROMELKAMP WEB SITE. BROMELKAMP ASSUMES NO RESPONSIBILITY FOR ERRORS, INNACURACIES OR OMISSIONS IN ANY SOFTWARE, SERVICES, INFORMATION OTHER DOCUMENTS OR ANY OTHER MATERIALS THAT ARE REFERENCED BY OR LINKED TO THE BROMELKAMP WEB SITE.
15.2 EXCLUSION OF CERTAIN DAMAGES. IN NO EVENT SHALL BROMELKAMP BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF DAMAGE, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF OR IN CONNECTION WITH THE USE, NON-USE, PROVISION, PERFORMANCE OR FAILURE OF PERFORMANCE OF THE SERVICES, BROMELKAMP WEB SITE, TRAINING, COMMUNICATION SERVICES AND THIRD PARTY LINKS, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILTY OF SUCH DAMAGES OR IF SUCH POSSIBILITY WAS REASONABLY FORSEEABLE.
16. VERIFYING COMPLIANCE
During the Term of any Hosting Period and for one year thereafter, Customer must keep all usual and proper records relating to the Hosting Period(s) and Customer’s use of the Services and/or Client Software under this Agreement. Bromelkamp may request that Customer conduct an internal audit of all Services in use throughout Customer’s organization, comparing the number of User Licenses in use to the number of User Licenses issued to and/or paid for by Customer. By requesting an audit, Bromelkamp does not waive its rights to enforce this Agreement or to protect Bromelkamp’s intellectual property by any other means permitted by law. If verification or self-audit reveals any unlicensed use, Customer must promptly order sufficient Licenses to cover its past and present use. If material unlicensed use is found, Customer must reimburse Bromelkamp for the costs Bromelkamp has incurred in verification and acquire the necessary additional Licenses at single retail license cost within 30 days.
17.1 Notices to Bromelkamp. Notices, authorizations, and requests in connection with this Agreement may be sent by telephone, via e-mail or by mail to Bromelkamp Company LLC, 106 E 24 St, Minneapolis MN 55404-3522 USA. 612-767-6701. Customer will assign to Bromelkamp one Primary Contact person to receive official communications; changes can be made as necessary. Termination of the Agreement, Hosting, or cancellation of a Hosting should be made by the Primary Contact. Bromelkamp may communicate notice of any changes to pricing, discounts and other Program terms to Customer using e-mail. Other communications from Bromelkamp sent via e-mail include billing notifications, notices of promotions, invitations to events and any other matters regarding the administration of the program.
17.2 Assignment. Customer may not assign this Agreement. Bromelkamp may assign this Agreement to its Affiliates.
17.3 Severability. If a court holds any provision of this Agreement to be illegal, invalid or unenforceable, the rest of the document will remain in effect and this Agreement will be amended to give effect to the eliminated provision to the maximum extent possible.
17.4 Waiver. A waiver of any breach of this Agreement is not a waiver of any other breach.
Any waiver must be in writing and signed by an authorized representative of the waiving party.
17.5 Applicable law. This Agreement is governed by the laws of the State of Minnesota without regard to its conflict of laws principles. The 1980 United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement. The Services are protected by copyright and other intellectual property rights laws and international treaties.
17.6 Dispute resolution. Any action to enforce this Agreement must be brought in the State of Minnesota, USA. This choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction. If Customer is an entity of the U.S. Government or an entity of a state or local government, this Section does not apply and jurisdiction and venue will be determined by applicable law.
17.7 This Agreement is not exclusive. Customer is free to enter into agreements to license, use or promote non- Bromelkamp software or services.
17.8 Entire agreement. This Agreement and the pricing and payment terms available set forth in the Order and Privacy Agreement referenced in section 6.2 constitute the entire agreement concerning the subject matter and supersede any prior or contemporaneous communications.
17.9 Survival. Provisions regarding fees, restrictions on use, transfer of licenses, export restrictions, defense of infringement and misappropriation claims, limitations of liability, confidentiality, compliance verification, obligations on termination and the provisions in this Section entitled “Miscellaneous" will survive termination of this Agreement.
17.10 Force majeure. Neither party will be liable for any failure in performance due to causes beyond either party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of Services)). This Section will not, however, apply to Customer’s payment obligations under this Agreement.
17.11 User Logins. Customer agrees that it is responsible for protecting the confidentiality of any user login IDs and passwords associated with this Agreement.
17.12 U.S. export jurisdiction. The Services are subject to U.S. export jurisdiction. Customer must comply with all applicable laws including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, as well as end-user, end-use and destination restrictions issued by U.S. and other governments.
17.13 English language controls. The English language version of this Agreement controls. If Customer is in Canada, it is the express wish of both parties that this Agreement, and any associated documentation, be written and signed in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
17.14 Natural disaster. In the event of a natural disaster, Bromelkamp may post information or provide additional assistance or rights on http://www.bromelkamp.com.