End User License Agreement
ICUMANAGER.COM USER AGREEMENT
IMPORTANT – READ CAREFULLY
THIS USER AGREEMENT (THIS “AGREEMENT”) IS A LEGAL AND BINDING CONTRACT BETWEEN YOU AND THE COMPANY LICENSING THE SOFTWARE (“CUSTOMER”) ON THE ONE HAND AND ICUMANAGER.COM (“ICU Manager”) ON THE OTHER. THE AGREEMENT GOVERNS CUSTOMER’S ACCESS TO AND USE OF THE ICU Manager SOFTWARE (AS FURTHER DEFINED BELOW, THE “SOFTWARE”).
PLEASE READ THIS AGREEMENT CAREFULLY. BY INSTALLING AND USING THE SOFTWARE, AND BY CLICKING “I ACCEPT” BELOW, CUSTOMER INDICATES ITS ACCEPTANCE OF THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND LIMITATIONS OF THIS AGREEMENT, CUSTOMER MUST PROMPTLY (A) DELETE THE SOFTWARE FROM ANY AND ALL OF CUSTOM ER’S COMPUTERS ON WHICH IT IS INSTALLED AND DESTROY ALL COPIES OF THE SOFTWARE IN CUSTOMER’S POSSESSION AND ALL ACCOMPANYING MATERIALS, INCLUDING PACKAGING AND DOCUMENTATION, AND (B) CEASE ALL OF CUSTOMER’S USE OF THE SOFTWARE.
THIS AGREEMENT APPLIES TO THAT VERSION OF THE SOFTWARE THAT CUSTOMER HAS LICENSED. THE SOFTWARE IS LICENSED, NOT SOLD. CUSTOMER MAY USE ONLY THE VERSION OF THE SOFTWARE THAT CUSTOMER HAS LICENSED AND HAS PAID FOR, AND CUSTOMER MUST USE IT STRICTLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. CUSTOMER IS RESPONSIBLE FOR ENSURING THAT ALL EMPLOYEES, CONTRACTORS, AND OTHER USERS (“AUTHORIZED USERS”) WITHIN ITS ORGANIZATION ABIDE BY THE TERMS OF THIS AGREEMENT.
ICU Manager RESERVES THE RIGHT, IN ITS SOLE DISCRETION, TO MODIFY THE TERMS AND CONDITIONS OF THIS AGREEMENT, AT ANY TIME, EFFECTIVE UPON MAKING THE MODIFIED PROVISIONS AVAILABLE THROUGH SOFTWARE UPDATES OR OTHERWISE THROUGH CUSTOMER’S USE OF THE SOFTWARE.
1.1 “Backup Services” shall mean the backup services that Customer is providing to its Clients using the Software (including the Client Software and the Server Software).
1.2 “Client” shall mean Customer’s clients, i.e. the organizations to which Customer is providing the Backup Services.
1.3 “Client Software” shall mean the client interface component of the Software and all Software installed on Client computers.
1.4 “Purchase Order” shall mean the document or other method (including, but not limited to, online or email order form) by which Customer purchases the Software licenses from ICU Manager.
1.5 “Server Software” shall mean any Software installed on Customer’s computers, including without limitation, the server component of the Software which is installed on Customer’s host server and is used to provide the back up services.
1.6 “Software” shall mean all the software provided by ICU Manager collectively (including without limitation the Client Software and Server Software), and each separate component of the foregoing individually, any updates, upgrades or enhancements to the Software or any Software component provided to you by ICU Manager, including, without limitation, any support software provided to you by ICU Manager via the Internet, email or by any other means.
2. LICENSE GRANT.
(B) CLIENT SOFTWARE LICENSE. Customer is purchasing the number of Client Software licenses specified in the applicable Purchase Order. The Purchase Order specifies the number of organizations for which Customer may use the Software to provide Backup Services. Customer may install the Client Software on computers within the organizations of the number of Clients specified in the applicable Purchase Order. The Purchase Order also specifies how many users are permitted within each Client organization. Customer may only install the Client Software on the number of user computers within the each Client organization as specified in the applicable Purchase Order.
(C) LICENSE RESTRICTIONS. Notwithstanding anything to the contrary herein, the license grants of Section 2 are subject to the following restrictions:
(i) Representations. Customer shall be responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access or otherwise use the Software , including, without limitation, modems, hardware, software, and long distance or local telephone service. Customer shall be responsible for ensuring that such equipment or ancillary services are compatible with the Software.
(ii) Derivative Works. Customer may not modify or make derivative works of the Software, the documentation thereof, or any other component that may be included in the Software or provided with the Software, nor rent, lease or otherwise distribute the Software or the documentation thereof, except as expressly permitted in Section 2 of this Agreement.
(iii) Transfer of Rights. Except as expressly set forth in Section 2, Customer shall not assign, sublicense, rent or otherwise transfer Customer’s access and use rights under this Agreement to the Software without the prior written approval of ICU Manager.
(iv) Reverse Engineering and Software Development. Customer may not reverse engineer, decompile, or disassemble the Software, directly or indirectly, in whole or in part. The Software shall only be used in accordance with the accompanying documentation and shall not be used for software development or any other purposes.
(v) Copies. Customer may not copy the Software except as expressly permitted in Section 2 of this Agreement or the applicable Purchase Order.
(vi) Ownership. All worldwide ownership of and all rights, title and interest in and to the Software, and all copies and portions thereof, including without limitation, all copyrights, patent rights, trademark rights, trade secret rights, inventions and other proprietary rights therein and thereto, are and shall remain exclusively in ICU Manager. The only rights Customer acquires under this Agreement are the licenses set forth in this Agreement.
(vii) Other Restrictions. Customer may not use the Software to:
(a) defame, abuse, harass, threaten or otherwise violate the legal rights (such as rights of privacy and publicity) of others;
(b) conduct or forward illegal contests, pyramid schemes, chain letters, unsolicited or unauthorized advertising, promotional materials, unsolicited e-mail or multi-level marketing campaigns;
(c) publish, post, distribute, disseminate or link to any: (i) defamatory, infringing, or unlawful topic, name, material or information; (ii) software or other material protected by intellectual property laws, copyright licenses, rights of privacy or publicity, or other proprietary rights, unless you own, control such rights or have received all necessary consents for your use of such software and other materials;
(d) harvest user names or email addresses for any purpose;
(e) restrict or inhibit any other user from using and enjoying its rights with respect to ICU Manager or its website, interfering with or disrupting the Website, the ICU Manager service servers or network connected to ICU Manager; or (f) violate any applicable government laws or regulations.
3. FEES. Customer must pay the fees specified in the applicable Purchase Order. Such fees may include ongoing monthly or other periodic fees. Failure to pay such fees on time will result in shut down of Customer and its Clients’ use of the Software as specified in the Termination section of this Agreement.
4. USE OF THE SOFTWARE AND ICU MANAGER WEBSITE AND SERVICES. ICU Manager has no special relationship with or fiduciary duty to Customer. Customer acknowledges that ICU Manager has no control over, and no duty to take any action regarding: what Customer accesses via ICU Manager or its website; what effects the content Customer access may have on Customer; how Customer may interpret or use the content; or what actions Customer may take as a result of having been exposed to the content. Customer is solely responsible for Customer’s activities in using the ICU Manager website, Software or other services including the activities of your employees, contractors, clients and all parties that Customer allows to have access to the ICU Manager website and Software. Customer is solely responsible for the contents, modification, management and/or deletion of any and all files and data used by Customer in conjunction with ICU Manager. Further, Customer is responsible to ensure that such files and data are not used in conjunction with ICU Manager in violation of any copyright or any other proprietary right of any third party. ICU Manager may access Customer’s account, including its data, to respond to service or technical problems or as stated in this Agreement. Customer, not ICU Manager, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all data stored in Customer’s account. Furthermore, ICU Manager shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any data.
5. FEEDBACK MECHANISM; SHUTDOWN MECHANISM. The Software is equipped with a feedback mechanism that allows ICU Manager to review Customer’s and its Clients’ use of the Software and communicates activity using the Software back to ICU Manager. ICU Manager reserves the right to use such data to evaluate the Software use and for any purposes which ICU Manager deems useful or appropriate. The Software is also equipped with a shut-down mechanism by which ICU Manager may shut down Customer’s and its Clients’ use of the Software. ICU Manager reserves the right to use this shut down mechanism if Customer or its Clients breach this agreement, Customer or its Clients use the Software in ways not permitted by this Agreement, and/or if Customer fails to pay the applicable periodic Software fees as specified in the applicable Purchase Order.
6. ACCESS RESTRICTION. ICU Manager reserves the right to deny to any user, in its sole discretion, access to the Software or any portion thereof without notice. Customer is responsible for safeguarding the confidentiality of password(s) and user name(s) created by Customer for use with the Software, and for any use or misuse of the ICU Manager account resulting from any third party using a password or user name created by Customer. Customer shall be solely responsible for securing access to its and its Clients’ data. ICU Manager shall in no event be liable for any unauthorized access to any data stored using the Software.
7. WARRANTY DISCLAIMER. THE SOFTWARE, THE ICU MANAGER WEBSITE AND ALL OF THE CONTENTS THEREOF ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESSED, IMPLIED OR STATUTORY, AND ICU MANAGER HEREBY EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS, WITH RESPECT THE SOFTWARE, THE WEBSITE AND ALL CONTENTS THEREOF, THE ACCOMPANYING DOCUMENTATION, AND ANY ACCOMPANYING SUPPORTING MATERIALS OR OTHER MATERIALS RECEIVED FROM ICU MANAGER AND/OR ANY AFFILIATE, AGENT, RESELLER, DEALER, DISTRIBUTOR, EMPLOYEE, CONTRACTOR OR REPRESENTATIVE OF ICU MANAGER. CUSTOMER EXPRESSLY ACKNOWLEDGES THAT THE WEBSITE AND/OR THE SOFTWARE MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS. NO AFFILIATE, CONTRACTOR, EMPLOYEE, AGENT, RESELLER, DEALER OR DISTRIBUTOR OR REPRESENTATIVE OF ICU MANAGER IS AUTHORIZED TO MODIFY THIS LIMITED WARRANTY OR TO MAKE ANY ADDITIONAL WARRANTIES. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
8. LIABILITY DISCLAIMER; NO LIABILITY FOR CONSEQUENTIAL DAMAGES. CUSTOMER IS SOLELY RESPONSIBLE FOR CUSTOMER’S AND ITS CLIENTS’ USE OF THE SOFTWARE, INPUTS INTO THE SOFTWARE, VERIFYING THE RESULTS OF THE USE OF THE SOFTWARE AND HOW THE OUTPUT FROM THE SOFTWARE IS USED BY CUSTOMER AND ITS CLIENTS. IN NO EVENT SHALL ICU MANAGER BE RESPONSIBLE OR LIABLE TO CUSTOMER, ITS CLIENTS OR ANY THIRD PARTY FOR ANY LIABILITY ARISING OUT OF INSTALLATION OR USE OF THE SOFTWARE, WHETHER BY CUSTOMER, CLIENTS, USERS WITHIN CUSTOMER OR CLIENTS’ ORGANIZATIONS, OR OTHER AUTHORIZED USERS.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ICU MANAGER BE LIABLE OR OBLIGATED TO CUSTOMER OR ITS CLIENTS IN ANY MANNER FOR ANY SPECIAL, NON-COMPENSATORY, CONSEQUENTIAL, INDIRECT, INCIDENTAL, STATUTORY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOST DATA OR PROGRAMS, PRIVACY OF DATA OR PROGRAMS, UNAUTHORIZED ACCESS TO DATA OR PROGRAMS, BUSINESS INTERRUPTIONS, LOST PROFITS AND LOST REVENUE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ICU MANAGER IS AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES IN ADVANCE. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, ICU MANAGER SHALL NOT BE LIABLE TO CUSTOMER OR ITS CLIENTS IN AN AMOUNT IN THE AGGREGATE GREATER THAN $100 OR THE AMOUNT THAT RECEIVED BY ICU MANAGER IN THE PAST 3 MONTHS FROM CUSTOMER FOR THE SOFTWARE LICENSED UNDER THIS AGREEMENT. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES SET FORTH IN THIS AGREEMENT. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES.
9. INDEMNIFICATION. Customer agrees to defend, indemnify and hold harmless ICU Manager, and its employees, officers, contractors, investors, directors, agents, licensors and affiliates from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys’ fees) arising from (a) Customer’s and/or any Client’s or any users authorized by of either of the foregoing’s (“Authorized Users and Organizations”) installation or use of the Software, including without limitation claims relating to loss or confidentiality of data or programs (b) any violation by Authorized Users or Organizations of any warranty, representation or covenant under this Agreement, (c) Authorized Users or Organizations infringement of any third-party’s rights, (including, without limitation, infringement of any copyright, violation of any proprietary right and invasion of any privacy rights), and/or the use or misuse of your ICU Manager account by you or any third party using your password(s) and/or user name(s). These obligations will survive any termination of Customer’s relationship with ICU Manager.
10. US GOVERNMENT RESTRICTED RIGHTS. If Customer is the United States Government or are acquiring the right to access and use ICU Manager on behalf of the United States Government, then the United States Government agrees that: (a) if the right to access and use ICU Manager is acquired by or supplied to the Department of Defense (“DOD”), ICU Manager shall be classified as “Commercial Computer Software” and the government is acquiring only “restricted rights” in ICU Manager and its documentation, as defined in Clause 252.227-7013(c)(1) of the DFARS; (b) for any part of the United States Government other than DOD, the government’s rights in the Software and its documentation will be as defined in Clause 52.227-19(c)(2) of the FAR or, for NASA, in Clause 18-52.227-86(d) of the NASA Supplement to the FAR.
11. TERMINATION. The license granted herein is effective until this Agreement is terminated. This Agreement shall terminate immediately, without notice, in the event Customer (i) fails to comply with any of the terms and conditions set forth in this Agreement, (ii) ceases doing business, (iii) ICU Manager does not receive in a timely manner any payment owing, or (iv) ceases using ICU Manager service and notifies ICU Manager thereof. ICU Manager reserves the right to refuse service to anyone at its sole discretion and to terminate this Agreement immediately. ICU Manager does not refund any part of the payment made by Customer. Upon termination Customer must immediately (i) destroy all copies of the Software and Software documentation in your possession, or (ii) return the Software and documentation according to the instructions of ICU Manager. Upon termination by ICU Manager will close Customer’s account and delete all of Customer’s and its Clients’ data within seven (7) days of termination. ICU Manager shall have no obligation to maintain any data stored in Customer’s account or to forward any data to Customer or any third party.
16. TRADEMARKS. ICU Manager, ICU ManagerBox, ICU ManagerMSP, ICU ManagerSync, and their respective designs, trademarks and logos are trademarks or registered trademarks of Icumanager.com . All other trademarks and/or service marks are the property of their respective owners.
17. COPYRIGHT MATTERS. ICU Manager respects the intellectual property of others, and we ask Customer to do the same. We reserve the right to disable the accounts of users who we believe to be infringing the intellectual property rights of others and to remove any such infringing materials. If you believe that your copyrighted work has been copied and is accessible on the Website in a way that constitutes copyright infringement, please notify ICU Manager’s copyright agent by email at [email protected], by regular mail 657 Misison Street #601, San Francisco, CA 94105 and provide the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work; (c) identification of the URL or other specific location on the Site where the material that you claim is infringing is located; (d) your address, telephone number, and email address; (e) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. You hereby agree that you shall not assert any claim against ICU Manager or its officers or directors with respect to such content unless and until: (1) you have fully completed the process set forth above; and (2) ICU Manager has failed to remove the offending content within thirty (30) days after such notification without a reasonable explanation for its failure to do so. It is ICU Manager’s policy to (1) block access to or remove content that it believes in good faith to be copyrighted material that has been illegally copied, displayed or distributed by any of our advertisers, affiliates, content providers, members or users; and (2) remove and discontinue services to repeat offenders.
18. GENERAL. This Agreement embraces the full, complete understanding of the parties as to the subject matter hereof, and may not be altered or modified, except by written amendment or collateral agreement which expressly refers to this Agreement and which is duly executed by ICU Manager and your duly authorized representative. All prior representations, understandings and agreements regarding the subject matter hereof whether written or oral, expressed or implied, are superseded and shall be of no effect. In the event of conflicting provisions between this Agreement and a duly executed collateral agreement, the duly executed collateral agreement shall control. This Agreement shall be construed and governed in accordance with the laws of the state of California, excluding the application of its conflicts of law rules. Any action related to this Agreement or the Software shall be brought exclusively in the state or federal courts located in the County of Los Angeles, State of California, United States of America. Each party hereby agrees to submit to the jurisdiction of such courts. Customer acknowledges that a breach of this Agreement will cause irreparable and continuing damage to ICU Manager for which money damages are insufficient, and ICU Manager shall be entitled to injunctive relief and/or a decree for specific performance, and such other relief as may be proper (including money damages if appropriate). In the event of litigation between Customer and ICU Manager concerning the Software or any other item which is subject to this Agreement, the prevailing party in the litigation will be entitled to recover attorney fees and expenses from the other party. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms. Customer agrees that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export law, restrictions or regulations. No waiver by ICU Manager of any breach or default by you of any of the covenants or agreements herein set forth shall be deemed a waiver as to any subsequent and/or similar breach or default.
BY ACCESSING AND USING THE WEBSITE AND BY INSTALLING, ACCESSING AND USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREES UNCONDITIONALLY THAT CUSTOMER SHALL BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER REPRESENT, WARRANT AND INDEMNIFY ICU MANAGER THAT YOU HAVE FULL AUTHORITY TO EXECUTE THIS AGREEMENT ON BEHALF OF CUSTOMER AND BIND THE CUSTOMER.