BEFORE USING SITECAPTURE PRODUCT, THE FOTONOTES PRODUCT, OR THE RELATED SERVICES (ALL DEFINED FURTHER BELOW IN SECTION 1), YOU MUST READ AND AGREE TO THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION AGREEMENT (THE “AGREEMENT”). UPON YOUR ACCEPTANCE OF THE AGREEMENT BY CLICKING THE APPLICABLE APPROVAL BOX IN CONNECTION WITH YOUR SIGNUP FOR THE APPLICABLE SUBSCRIPTION TO ACCESS THE PRODUCT(S), OR BY OTHERWISE USING THE PRODUCTS AND/OR SERVICES, THE AGREEMENT CONSTITUTES A BINDING LEGAL CONTRACT BETWEEN YOU AND SITECAPTURE INC. DBA SITECAPTURE (“SITECAPTURE”). IF YOU DO NOT AGREE TO ALL OF THE TERMS AND PROVISIONS OF THE AGREEMENT, THEN YOU MAY NOT USE THE APPLICABLE PRODUCT(S). IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DOING SO ON BEHALF OF AN ENTITY CUSTOMER, SUCH INDIVIDUAL REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND THE CUSTOMER TO THESE TERMS AND CONDITIONS.
SITECAPTURE MAY, IN ITS SOLE DISCRETION, REVISE THE TERMS OF THIS AGREEMENT AT ANY TIME, AND YOU AGREE TO BE BOUND BY SUCH REVISIONS, PROVIDED THAT THE REVISIONS WILL NOT BE BINDING ON YOU UNTIL THEY ARE POSTED ON SITECAPTURE.COM (WITH RESPECT TO USERS OF THE FOTONOTES PRODUCT) AND SITECAPTURE.COM (WITH RESPECT TO USERS OF THE SITECAPTURE PRODUCT). SITECAPTURE WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO ADVISE USERS BY EMAIL OF REVISIONS TO THIS AGREEMENT, BUT SITECAPTURE IS NOT REQUIRED TO EMAIL OR OTHERWISE PROVIDE YOU NOTICE OF THE REVISIONS (OTHER THAN POSTING THE REVISED PROVISIONS OF THIS AGREEMENT ON THE APPLICABLE SITE AS DESCRIBED HEREIN. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOU ARE FAMILIAR WITH ALL POSTED REVISIONS, AND BY YOUR YOU AGREE TO BE BOUND BY THEM. IF YOU DO NOT ACCEPT AND ABIDE BY THE AGREEMENT, AS REVISED FROM TIME TO TIME, YOU MAY NOT USE THE PRODUCTS EXCEPT PURSUANT TO A SEPARATE SUBSCRIPTION AGREEMENT. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO CONFER ANY THIRD-PARTY RIGHTS OR BENEFITS.
This Agreement governs the use by you (“Customer” or “you”) of the applicable Product(s) and Services as set forth herein, as applicable based on the Product(s) selected for subscription by you on the applicable check box in the Order Form or as otherwise selected in connection with your registration for use of such Product(s). If you have entered into a separate written agreement executed by you and SiteCapture permitting your use of the Products and Services (a “Separate Subscription Agreement”), your Separate Subscription Agreement with SiteCapture shall supersede and control over this Agreement, provided that this Agreement will apply to any use by your of the Products or Services that is not covered by the Separate Subscription Agreement. Where applicable in context, “Customer” shall include Users accessing the Products via Customer’s account.
2. GRANT OF LICENSE. Subject to the terms and conditions of this Agreement, SiteCapture grants Customer for the Initial Term and any subsequent Renewal Term(s) (as defined below) (collectively the “Term”) a limited, non-exclusive, non-sublicensable, non-transferable, license to install the applicable Application(s) and access and use the Software for its internal business purposes subject to the limitations on number of Users and projects as set forth on the applicable Order Form.
3. RESERVATION OF RIGHTS. Customer acknowledges SiteCapture’s exclusive right, title and interest in the Software and SiteCapture’s copyrights, patents, trade secrets and SiteCapture trademarks, excluding third-party components. Nothing in this Agreement shall be interpreted to grant (by implication or otherwise) any license or rights except as expressly stated herein. SiteCapture retains ownership of all Software and copies. Customer may not (a) copy, reverse engineer, decompile, or disassemble the Software, except to the extent expressly permitted by applicable license and law notwithstanding this limitation or (b) sell, copy, rent, lease, distribute, pledge, assign, make available or otherwise transfer its license rights to any third party. Customer shall not remove any copyright notices or licensing terms from the Software or any components including third party components. Customer may not use the Software if the Subscription has terminated. Customer shall not allow more than the permitted number of concurrent Users set forth on the applicable Order Form.
4. SECURITY; INTEGRITY. SiteCapture shall implement and maintain measures in accordance with generally accepted industry standards to (a) store Customer Data; and (b) protect against any anticipated threats or hazards to the security or integrity of Customer Data; provided, that Customer shall be solely responsible for protecting its User IDs and passwords and SiteCapture shall not be responsible for any unauthorized access under a valid User ID and password.
5. CUSTOMER DATA; CUSTOMER OBLIGATIONS. All Customer Data shall remain the proprietary information of the Customer. Customer shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; has all necessary rights, permissions and consents to provide such information to SiteCapture (b) obtain and maintain any equipment, mobile devices and ancillary services needed to connect to, access or otherwise use the Software; (c) comply with all applicable local, state, federal, and foreign laws in using the Software; (d) comply with applicable third party terms and condition and policies applicable to Customer in make accessing or using the Software; and (e) be responsible for moderating the Customer Data submitted to the FotoNotes Server and shall remove infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material. Customer represents and warrants that (a) all information provided by Customer to SiteCapture in connection with this Agreement is and shall be correct and current and (b) Customer (or the individual entering this Agreement on Customer’s behalf, if applicable) has all right, power and authority necessary to enter into this Agreement and to perform the acts required of Customer hereunder.
7. SUPPORT SERVICES. SiteCapture shall: (a) use industry standard methods and technology to maintain the security and integrity of the applicable Server, and (b) use commercially reasonable efforts to make the applicable Server generally available at all times, except for: (i) planned downtime, or (ii) downtime caused by circumstances beyond SiteCapture’s reasonable control, including computer or telecommunications failures or delays involving hardware or software not within SiteCapture’s possession or reasonable control.
8. SERVICES. Subject to the terms and conditions hereof, SiteCapture shall use commercially reasonable efforts to provide the Services to Customer in material conformance with specifications and timelines set forth on the applicable Order Form.
9. PAYMENT. The Fees for the Services and Subscription are due and payable to SiteCapture as set forth on the applicable Order Form. All Fees are payable in U.S. dollars and are non-cancelable and non-refundable, except as provided under this Agreement. Customer shall be responsible for payment of any taxes for the Product(s) received from SiteCapture.
10. RENEWAL AND TERMINATION. The Subscription may be renewed by mutual consent of Customer and SiteCapture for an additional term (each a “Renewal Term”) at the applicable Fee. SiteCapture may elect to suspend the Subscription until the Fee for any applicable Renewal Term is received. Without prejudice to any other rights, SiteCapture may terminate the Subscription if Customer does not comply with the terms and conditions of this Agreement, in which case Customer must remove the applicable Application(s) from its Users’ devices and destroy or return all copies to SiteCapture. Notwithstanding the foregoing, the provisions of Section 9 (to the extent of any unpaid Fee) and Sections 12 through Section 25 shall survive termination of this Agreement.
11. LIMITED WARRANTY. For a period of 30 days from first delivery of such Software, SiteCapture warrants that the Software will perform substantially in accordance with the SiteCapture documentation for such Software. This warranty covers only problems reported during the warranty period. In the event of a breach of this warranty, SiteCapture shall repair or replace the applicable Software or, if replacement or repair is inadequate as a remedy or, in SiteCapture’s opinion, impractical, SiteCapture shall refund the Fees paid for the Subscription to such Software, as applicable. This Section 11 sets forth Customer’s sole and exclusive remedy and SiteCapture’s entire liability and obligation for any breach of this warranty.
12. DISCLAIMER OF WARRANTIES. The warranty provided in Section 11 is the only warranty made to Customer with respect to the Products and is provided in lieu of any other warranties, express or implied. Except for such warranty and to the maximum extent permitted by applicable law, SiteCapture provides the Products “AS IS”, and hereby disclaims all other warranties and conditions, either express, implied or statutory, including, but not limited to, implied warranties, duties or conditions of merchantability, of fitness for a particular purpose, of non-infringement, of accuracy or completeness, of workmanlike effort, all with regard to the Software and the provision of or failure to provide Services. Further, SiteCapture does not warrant results of use or that the Software is bug free or that its use will be uninterrupted.
13. LIABILITY LIMITATION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SITECAPTURE BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, OR FOR LOSS OF PRIVACY) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE, THE PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR OTHERWISE UNDER OR IN CONNECTION WITH THE PRODUCTS OR ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY, AND EVEN IF SITECAPTURE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SITECAPTURE BY LIABLE FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO SITECAPTURE DURING THE 6 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
15. CONFIDENTIALITY. During the Term of this Agreement, each party may have access to information or material of the other party relating to its business, technology or operations, expressly identified in writing or verbally as confidential and proprietary (“Confidential Information”). Confidential Information shall not include information which: (a) is, or becomes, publicly available without restriction through no breach of this Agreement; (b) the disclosing party, in writing, authorizes the receiving party to disclose without restriction; (c) the receiving party lawfully knows at the time of disclosure, without an obligation to keep it confidential; (d) the receiving party lawfully obtains from any source other than the disclosing party, provided that such source lawfully disclosed such information; or (e) the receiving party independently develops without use of or reference to the Confidential Information. The parties shall not use not use, except as permitted or required in the Agreement, and shall hold each other’s Confidential Information in confidence for a period of 5 years after termination of this Agreement, except for the Software, which shall be held in confidence in perpetuity. Each party agrees to take reasonable steps required to ensure that Confidential Information is not disclosed or distributed by its employees or representatives to any third party. Customer agrees not to use Confidential Information in any manner to develop substitutes for the Software and/or Products or to advise any third-party developer for such purposes.
16. PROMOTION. Notwithstanding Section 15, SiteCapture may include Customer’s name and logo in customer listings on SiteCapture’s website and in marketing materials. In addition, upon reasonable request by SiteCapture, Customer agrees to act as a reference for SiteCapture, including taking reference calls from prospective customers, reporters and analysts.
17. EXPORT RESTRICTION. Customer acknowledges that the Software, with the possible exception of certain third-party components, is of U.S. origin. Customer agrees to comply with applicable domestic and international laws that apply to the Software, including the U.S. Export Administration Regulations and other limitations issued by U.S. and foreign governments.
18. GOVERNMENT RESTRICTED RIGHTS. The Software is provided with “RESTRICTED RIGHTS”. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in FAR52.227-14 and DFAR252.227-7013 et seq. or its successor. Use of the Software by the U.S. Government constitutes acknowledgement of SiteCapture’s proprietary rights therein.
19. TRANSFER AND ASSIGNMENT. This Agreement and the rights and obligations under it are not assignable by Customer without the prior written approval of SiteCapture. Any attempt by Customer to assign this Agreement without such approval shall be void. This Agreement shall inure to the benefit of the successors and assigns of SiteCapture.
20. FORCE MAJEURE. Except for the obligation to make payments, nonperformance of either party shall be excused to the extent the performance is rendered impossible by strike, fire, flood, war, governmental acts or orders or restrictions, or any other reason where failure to perform is beyond the reasonable control of the non-performing party.
21. EQUITABLE RELIEF. The parties agree that, due to the unique and proprietary nature of the Products, SiteCapture’s remedies at law for a breach of Customer’s confidentiality obligations, or of the restrictions on use of the Software, will be inadequate. In the event of such breach or threatened breach, SiteCapture shall be entitled to equitable relief (including, without limitation, injunctive relief and specific performance) in addition to all other remedies under this Agreement or available at law.
22. GOVERNING LAW AND JURISDICTION. This Agreement is to be construed in accordance with and governed by laws of the State of California, excluding its conflict of law provisions. SiteCapture and Customer agree to submit to the personal and exclusive jurisdiction of, and agree that venue is proper in, the California State or Federal Courts located in the County of Alameda, California, for any such legal action or proceeding. The United Nations Convention on International Sale of Goods, the application of which is expressly excluded, does not govern this Agreement.
23. ENTIRE AGREEMENT; COUNTERPARTS; AMENDMENT. This Agreement and the applicable Order Form (and any subsequent Order Forms), which are hereby incorporated herein by reference and made part of this Agreement, constitute the entire understanding between the parties relating to the subject matter hereof and supersede all prior writings, negotiations or understandings with respect thereto. The provisions of this Agreement shall take precedence over any conflicting terms in any subsequent purchase order, documentation or collateral other than a Separate Subscription Agreement executed by you and SiteCapture.
24. WAIVER AND SEVERABILITY. No term of this Agreement shall be considered waived, and no breach excused, by either party unless made in writing. The waiver of either party of any default or breach of this Agreement shall not constitute a waiver of any other subsequent default or breach. Any provision held invalid or unenforceable shall not affect the validity of the remaining provisions of this Agreement. A valid provision, which most closely approximates the intent and economic effect of the invalid provision, will be substituted.
25. LEGAL EXPENSES. If any action at law or in equity, including any action for arbitration or injunctive relief, is brought relating to this Agreement or the breach hereof, the prevailing party in any final judgment or arbitration award shall be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees and reasonable attorneys’ and experts’ fees paid or incurred in good faith.