This End User License Agreement (“Agreement”) is a binding legal contract between you (either an individual “You” or a legal entity, “Customer”) and Assorted.com (“Assorted”), and governs your access to and use of (a) the accompanying software and (b) any services, features, or functionalities or information made available by accessing the accompanying software ((a) and (b), collectively, the “Application”). By downloading, installing, accessing or using the Application you will be bound by the terms of this Agreement.
If you do not agree to the terms of this Agreement, Assorted is not willing to grant you any right to use or access the Application. In such event, you may not download, install, access, use or copy the Application. Notwithstanding anything to the contrary in this Agreement, your first use of the Application shall irrevocably indicate your agreement to this Agreement.
The Application is licensed to you, not sold. Except for the limited license granted in this Agreement, Assorted and its licensors retain all right, title and interest in the Application and all proprietary rights in the Application, including copyrights, patents, trademarks and trade secret rights.
Other Applicable Terms and Conditions
Please understand that each entity that has been authorized by Assorted to use the Application (each, a “Subscriber”) has an agreement with Assorted that also governs your use of the Application (a “Subscription Agreement”). In the event of a conflict between this Agreement and the applicable Subscription Agreement, the Subscription Agreement shall control.
The applicable Subscription Agreement is incorporated into this Agreement by reference.
Updates and Changed to This Agreement
Assorted may update this Agreement from time-to-time and may amend them at any time to incorporate additional rules, policies, procedures and other instructions concerning access to and use of the Application or additional features, materials, products, opportunities, or services that Assorted may make available on or through the Application. All such updates and amendments are effective immediately upon notice thereof, which Assorted may give by any means, including by posting a revised version of this Agreement or other notice in the Application or by sending you a copy of the revised Agreement by email. In the event that customer cannot or does not agree to changes, this original version of this Agreement will remain in effect for the duration of the Term.
You should view this Agreement often to stay informed of changes that may affect you, as your continued use of the Application signifies your continuing consent to be bound by this Agreement.
Please be advised that Assorted may monitor your use of and access to the Application and website to ensure compliance with this Agreement and any other applicable rules, policies, deadlines and instructions. Moreover, Assorted uses Google’s analytics and Google Adwords free conversion features. By using the Application, you expressly consent to such monitoring.
Assorted takes such commercially reasonable measures as it deems appropriate to secure and protect information transmitted to and from the Application. Nevertheless, we cannot and do not guarantee that any such transmissions are or will be totally secure.
In connection with your access to the Application, you are responsible for compliance with all applicable laws, regulations and policies of all relevant jurisdictions. Recognizing the global nature of the Internet, you agree to comply with all applicable local rules regarding online conduct and acceptable content. Specifically, among other things, you agree that by or while accessing or using the Application you will not:
• violate this Agreement, including any applicable SaaS Exhibit;
• use the Application for any purpose that is unlawful;
• restrict or inhibit any other user from using or enjoying the Application;
• represent yourself as another or as a fictitious individual;
• disrupt or interfere with the Application or its operation or availability, or alter or tamper with Content on the Application;
• take any action that imposes or may impose, in Assorted’s sole and exclusive discretion, an unreasonable or disproportionately large burden on Assorted’s systems;
• bypass any measures Assorted may use to present or restrict access to the Application, or otherwise attempt (by any means) to gain access to data or information that you are not entitled to access;
• import, input, or transmit any data that cannot be exported without prior written government authorization;
• import, input, or transmit any data in violation of a license agreement, contract, or other third party rights
• copy, modify, create derivatives of, decompile, or reverse engineer the Application or take any action to interfere with Assorted’s proprietary and intellectual property rights in the Application; and
• import, input, or transmit any information which contains a virus, Trojan horse, worm, or other disabling device or harmful component.
The above assurances and commitments by you shall survive termination of this Agreement.
Assorted reserves the right to terminate this Agreement, or to refuse, restrict, suspend, or discontinue your access to the Application (or any portions, components, modules, or features of the Application) for any reason, or for no reason whatsoever, at any time, without liability with a minimum of 30 day notice. In the event of a termination is voluntarily instigated by Assorted, client will receive a refund based on the pro-rated amount for the remaining portion of the term.
Additionally, failure to comply with this Agreement, including your breach of any provision of the applicable agreement, may, among other things, result in Assorted terminating your Subscriber’s access to the Application without a refund. In the event Customer terminates the agreement for any reason other than a Assorted breech, Customer shall pay to Assorted all remaining fees of the agreement in full.
Customer agrees to indemnify and hold harmless Assorted and Assorted’s officers, directors, employees, agents and licensors from and against any loss, liability, claim, demand, damages, costs and expenses, including reasonable attorney’s fees, arising out of, or in connection with any claim brought by any third party in connection with or arising out of (a) your access to and use of the Application, (b) your submissions, or (c) your violation of this Agreement or its violation of any rights or another. Assorted reserves, and you grant to Assorted, the right to assume exclusive defense and control of any matter subject to indemnification by you. All rights and duties of indemnification that are set forth herein shall survive termination of this Agreement.
FEES AND PAYMENT; SERVICE LEVEL AGREEMENT – FOR PAYING CUSTOMERS ONLY
Fees. Customer shall pay Assorted the service fees as set forth in the SaaS Exhibit(s). Except as otherwise specified in a SaaS Exhibit, (i) fees are based on services purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, provided service is properly rendered by Assorted as set forth herein and in accordance with the SaaS Exhibit and (iii) the number of named users purchased cannot be decreased during the relevant subscription term stated on the SaaS Exhibit.
Service Level Agreement. The SaaS Exhibit shall meet the Availability Requirement defined as Application access and use by Customer an average of at least ninety-five (95%) of the time during each month during the term. In the event Assorted fails to achieve the Availability Requirement for a particular month, Assorted shall provide a credit equal to eight percent (8%) of the applicable pro-rata monthly fees for the month in which Assorted did not achieve the Availability Requirement (the “Service Level Credit”). In the event Assorted fails to achieve the Availability Requirement in three (3) consecutive months during any twelve (12) month period during the Term of this agreement, Customer may terminate this agreement upon notice and without further obligation. The Service Level Credits and termination option shall constitute Customer’s sole and exclusive remedy and Assorted’s sole and exclusive liability for failure to achieve the
Payment Terms. Subject to modifications set forth in the Assorted SaaS Exhibit, the first payment fee and other fees set forth in the SaaS Exhibit(s) are due on the Effective Date; subsequent subscription fee fees and other fees set forth in the SaaS Exhibit(s) are due and payable on the anniversary of the effective date for the duration of the Term. Payment terms for fees other than the initial payment are due upon invoice date net thirty (30). If any payments are not received by the due date, Assorted shall notify Customer regarding the late payment. Customer shall have 14 days from day of late payment notification to make payment. If any payments are not received by the late payment notification, then such charges may accrue late interest at the rate of one percent (1%) of the outstanding balance per month from the initial due date, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
Taxes. All charges and fees listed on the SaaS Exhibit exclude taxes and mandated withholdings. If Assorted is required to pay sales, use, value-added or other taxes resulting from sales made under this Agreement, then such taxes will be billed to and paid by Customer.
While this Agreement is in effect, Assorted, at its expense, will maintain Professional Liability insurance, insuring Assorted for Errors and Omissions, with limits of at least two million dollars ($2,000,000) for each occurrence Assorted will (i) cause its insurers to issue certificates of insurance evidencing that the coverage and policy endorsements required by this Agreement are maintained in force; (ii) provide Customer a copy of certificates of insurance; and (iii) will give Customer not less than thirty (30) days’ written notice before modifying, canceling, or not renewing any policy specified in this Agreement.
Assorted’s obligation to maintain insurance coverage in specified amounts will not act as a limitation on any other liability or obligation that Customer would have under this Agreement.
Disclaimer of Warranty
THE APPLICATION IS SUPPLIED “AS IS,” “WHERE IS,” “WITH ALL FAULTS,” AND WITHOUT WARRANTY OF ANY KIND. Assorted EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF INFORMATION, QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT. Assorted DOES NOT WARRANT THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS OR THAT APPLICATION WILL BE ERROR-FREE, OR THAT DEFECTS IN APPLICATION WILL BE CORRECTED. YOU EXPRESSLY AGREE AND ACKNOWLEDGE THAT USE OF THE APPLICATION AND ANY OTHER SERVICES PROVIDED BY Assorted HEREUNDER IS AT YOUR SOLE RISK.
YOUR WIRELESS CARRIER, THE MANUFACTURER AND RETAILER OF YOUR COMPUTING DEVICE, THE DEVELOPER OF THE OPERATING SYSTEM FOR YOUR MOBILE DEVICE, AND THE OPERATOR OF ANY APPLICATION STORE OR SIMILAR SERVICE THROUGH WHICH YOU OBTAIN THE APPLICATION (COLLECTIVELY, THE “THIRD PARTY PROVIDERS”) ARE NOT PARTIES TO THIS AGREEMENT AND THEY DO NOT OWN AND ARE NOT RESPONSIBLE FOR THE APPLICATION.
Limitation of Liability
IN NO EVENT SHALL Assorted OR ITS LICENSORS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, GENERAL, SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF DATA) ARISING OUT OF OR CONNECTED IN ANY WAY WITH THIS AGREEMENT, APPLICATION, OR ANY SERVICES RENDERED HEREUNDER, EVEN IF Assorted HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
No Waiver. No failure or delay by either party in exercising any right, power, or remedy with respect to any of its rights hereunder shall operate as a waiver thereof.
Assignment. Unless by a company merger, name change, or acquisition, this agreement may not be assigned without the written consent of Assorted.
Governing Law; Severability. The validity, construction and performance of this Agreement and the legal relations among the parties to this Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, excluding that body of law applicable to choice of law. If any provision of this Agreement or the application of any such provision shall be held by a tribunal of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement shall remain in effect.
Survival. The following Sections shall survive expiration or termination of this Agreement: 7.4 (Feedback), 10 (Indemnity), 11 (Disclaimer of Warranty), 12 (Limitation of Liability), 13 (General), and any other provision that the Parties reasonably contemplate as remaining in effect after expiration or termination of this Agreement.