SAManage Master Service Agreement
Last update 11-22-2007
TERMS OF USE:
This Service Agreement (the "Agreement") is made between you (both the individual using the Services (defined below) offered under this Agreement and installing the computer software accompanying the Services, and any legal entity on whose behalf such individual is acting) (hereinafter: “You” or “Your”) on the one hand and SAManage Ltd., a corporation with its principle place of business in 16541 Redmond Way. Suite 416, Redmond, WA 98052 on the other hand (“SAManage”).
PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE ACCEPTING, AND/OR BEFORE REGISTERING FOR THE SERVICES AND/OR DOWNLOADING OR INSTALLING THE SYSTEM (DEFINED BELOW). THIS SYSTEM IS COPYRIGHTED AND LICENSED (NOT SOLD). TAKING ANY STEP TO SETUP OR INSTALL THE SYSTEM CONSTITUTES YOUR ASSENT TO AND ACCEPTANCE OF THIS AGREEMENT. WRITTEN APPROVAL IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT AND NO SOLICITATION OF ANY SUCH WRITTEN APPROVAL BY OR ON BEHALF OF YOU SHALL BE CONSTRUED AS INFERENCE TO THE CONTRARY. THE REGISTRATION BY YOU TO THE SERVICES (DEFINED BELOW) IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS AND CONDITIONS SET FORTH HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE ALL USE OF THE SYSTEM.
Definitions.
"Agent" means the Software downloaded and installed on any workstation, server, laptop or other networked appliance (individually a “Device” and collectively the "Devices") as required for the use of the Services and Software.
"Service(s)" means the SAManage's online service as described in the Website (at: http://www.samanage.com) (the "Website"), developed, operated, and maintained by SAManage, accessible via the Website or any other designated partner web site, service names, domains or IP address, and/or any ancillary online or offline products and services provided to You by SAManage, to which You are being granted access under this Agreement. SAManage reserves the right to add, change, remove and/or modify the Services, including modifications to functionality, presentation and companion products after providing prior notification on the Website and the Service.
“Software” means an Agent downloaded to Your Device and the software code used as part of the Service, both in connection with the Services rendered under this Agreement, together with all other related and accompanying documentation (the "Documentation"), provided by SAManage via the Service, and any update or a new release of the Software.
"System" means the Software, the Services, the Agents and all associated processes.
Agents. SAManage grants You a non-exclusive, non-transferable and fully revocable right to download the Agents and to distribute an unlimited number of Agents to Your Devices for the sole purpose of providing the Services to You. You may distribute Agents by various means as described in the Website. You may disable, re-assign, or remove an Agent at any time and from any Device. SAManage shall provide support of various Devices. Notwithstanding the forgoing, SAManage may from time to time withdraw support for specific device types and makes no commitment to support new device types as they become available. SAManage Agents collect data from Your Devices, and uses the data for the sole purpose of rendering the Services, and You hereby waive any and all claims against SAManage with respect to breach of privacy.
Service. Subject to the terms and conditions of this Agreement and payment of applicable Fees, SAManage hereby grants You, and You hereby accept, a non-exclusive, non-transferable and fully revocable right to use the Services subject to registration by You to the Website. SAManage will provide the Services selected by the You upon the registration to the Website.
Use of System. The System is protected by intellectual property laws and international treaty provisions. Unauthorized copying of the System in whole or in part is expressly forbidden. Notwithstanding the above, the System is licensed to You solely for Your own internal use, to be made by You and for Your own operations. Neither the System nor any portion thereof may be used by or on behalf of, accessed by, re-sold to, returned to, or distributed to any other party. You agree not to allow others to use the System, except as expressly authorized in this Agreement, and You will not use the System for the benefit of third parties. You acknowledge that the source code of the System, and the underlying ideas or concepts are valuable intellectual property of SAManage and You agree not to, except as expressly authorized in writing by SAManage and only to the extent established by applicable statutory law, attempt to (or permit other third parties to) decipher, reverse translate, decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms or file formats or programming or interoperability interfaces of the System by any means whatsoever. You will not develop methods to enable unauthorized parties to use the System, except as expressly authorized in this Agreement, or to develop any other product containing any of the concepts and ideas contained in the System. You will not (and will not allow any third party to) modify the System or create a derivative work off any portion of the System. You will not (and will not allow any third party to) remove any copyright or other proprietary notices from this System. You will not test the System or use the System in connection with any benchmark tests, evaluation or any other tests of which the results are designated or likely to be published in any form or media or otherwise made available to the public, without SAManage's prior written approval. Other than explicitly permitted hereinabove: You will not rent, lend, lease, sub-license or transfer the System and/or Your rights to the System. You or any person under Your authority or control will not make copies of the System or any portions thereof, except as expressly authorized in this Agreement. You will not use the System in a manner that is not in compliance with the Documentation and with SAManage's specific instructions. You will not copy nor modify, adapt or translate into any language the Documentation, nor create derivative works based on the Documentation, without the prior written consent of SAManage.
Title and Intellectual Property. You acknowledge and agree that use of the System, is subject to the terms and conditions of this Agreement and that the Software and the Documentation, including any revisions, corrections, modifications, enhancements and/or upgrades thereto are SAManage's property protected under any applicable laws and treaties. You further acknowledge and agree that all right, title and interests in and to the System, including associated intellectual property rights (including but not limited to, copyrights, trade secrets, trademarks, etc.), evidenced by or embodied in and/or attached/connected/related to the System are and shall remain with SAManage. This Agreement does not convey to You an interest in or to the System, but only a limited right of use of the System, revocable in accordance with the terms and conditions of this Agreement. Nothing in this Agreement constitutes a waiver of SAManage's intellectual Property rights under applicable Law. If the System contain any software provided by third parties, such third party software shall be subject to its applicable license and to the conditions found in separate license agreements as applicable, in the event that no such third party license agreements exist, the restrictions contained in this agreement shall apply on all such third party software mutatis mutandis. The System contains open source code components licensed under the GNU Lesser General Public License (LGPL).
Confidentiality. SAManage agrees that it shall not, during the Term of this Agreement, disclose to any person or entity, any data or information concerning You without verbal or written permission from a duly authorized representative of You, except as to the fact that You are a subscriber of the System and Service and for internal and auditing purposes. You hereby acknowledge that all materials and documents associated with the Service, including this Agreement are proprietary and confidential in nature. This includes pricing information, materials, methodology and documentation of the Service and System.
Account Information. SAManage further acknowledges that all data produced as a result of Your use of the Services (“Customer Data”) is Your sole property, and SAManage will reasonably safeguard such data and prevent unauthorized, negligent or inadvertent use or disclosure thereof. SAManage reserves the right to withhold, remove, and/or discard Customer Data for any breach, including, without limitation, your non-payment. It is Your responsibility to download any Customer Data prior to terminating the Service.
Fees. You shall pay SAManage those fees set forth in the Website, Registration Form, Enrollment Agreement or Service Orders made through a third party or partner (the “Service Order”), and as applicable to Your subscription for the Service (the "Service Fee"). The Service Fee shall be due and payable in advance and according to the terms set forth in your Service Order, and is not refundable. SAManage reserves the right to modify the Fees at any time, upon 30 days prior written notice to You, which notice may be provided by e-mail or at the Website; such new prices shall not apply for subscription for Services which has already been completed, but shall apply to any subscription completed after the effective date of change of the Fees. Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and such taxes, levies and duties shall be added to the Service Fee.
Nonpayment. In addition to other remedies available to it, SAManage expressly reserves the right to suspend or terminate Services and notify You of such termination or suspension, in the event You fail to pay the Fees on a timely manner. You further agree and acknowledge that SAManage has no obligation to retain your Customer Data and that it may be deleted from the Service if Your account is 30 days or more delinquent.
Term and Termination. This Agreement is effective commencing on the date of the Service Order, or the date upon which You have subscribed through the Website to the Service (the "Effective Date") and until expiration of the Service to which You have subscribed (the "Term") or until terminated by SAManage. SAManage will automatically renew and issue an invoice 30 days prior to expiration of the Term. Upon any violation by You of any of the provisions of this Agreement, which has not been remedied within 15 days after you have been given written notice of the violation, which may be made via email, rights to use the System shall automatically terminate. In such event, You shall indemnify SAManage for any loss, expense and/or damage incurred by SAManage pursuant to such breach or violation, in addition to any other rights and remedies available to SAManage under applicable law.You may terminate this Agreement at any time by removing all copies of the Software and Agents from all Your Devices; provided, however, that such termination by You shall not relief You from Your obligation to pay any Service Fees for the duration of the term to which you have subscribed for. The provisions of paragraphs 4 through 13 will survive any termination of this Agreement.
Limitation on Warranty. SAManage warrants for Your benefit alone, that for a period of six (6) months from the Effective Date (the "Warranty Period"), the System, if downloaded, installed and operated as specifically directed by SAManage, shall operate substantially in accordance with the functional specifications in the Documentation and as specifically provided by SAManage. SAManage does not warrant however that the use of the System will be uninterrupted or that use of the System will be error free or secure. SAManage’s sole liability and Your sole and exclusive remedy for any breach of this warranty by SAManage shall be the repair the defect that does not meet this limited warranty, within reasonable time. Any replaced or repaired System component will be warranted for the reminder of the original warranty period or for two (2) months, whichever is longer. The foregoing warranty applies only to failures in operation of the System that are reproducible in standalone form and does not apply (i) if the defect is caused by faulty maintenance, installation or set-up, by alterations undertaken without SAManage’s consent or by faulty repairs; (ii) if the defect is caused by use of a superseded update of that System that SAManage makes generally available to its customers that subscribe for updates (“Software Release”) of the System if the infringement would have been avoided by the use of a current Software Release of the System that SAManage provides to its customers; (iii) if the defect is caused by the combination, operation or use of the System with software, hardware or other materials not licensed hereunder and not conforming SAManage’s specifications set forth in the Documentation; (iv) if the System is otherwise operated in violation of this Agreement or other than in accordance with the Documentation; (v) if the defect is caused due to problems inherent to the use of the internet and/or electronic communications. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, THE LICENSE TO USE THE SYSTEM AS SET FORTH HEREIN, IS PROVIDED FOR THE USE OF THE SYSTEM “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, AND SAMANAGE DISCLAIMS ANY AND ALL WARRANTIES, WETHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGEMENT OF THIRD PARTY RIGHTS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; NO LICENSOR, DEALER, DISTRIBUTOR, RESELLER, AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS WARRANTY.
Limitation of Liability. YOU HEREBY AGREE THAT IN NO EVENT SHALL SAMANAGE OR ITS SHAREHOLDERS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTIONS, LOSS OF BUSINESS INFORMATION OR DATA, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE SALE OF, USE OF OR INABILITY TO USE THE SYSTEM, EVEN IF SAMANAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY REGARDLESS OF THE FAILURE OF ANY ESSENTIAL PURPOSE. THIS LIMITATION IS AN ESSENTIAL PART OF THE AGREEMENT BETWEEN YOU AND SAMANAGE. IN NO EVENT WILL SAMANAGE BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT SAMANAGE RECEIVED FROM YOU FOR THE SPECIFIC LICENSED SUBSCRIBED FOR, WHICH IS GIVING RISE TO THE LIABLITY. YOU ACKNOWLEDGE THAT THIS LIMITATION REPRESENTS A REASONABLE ALLOCATION OF RISK, AND THAT SAMANAGE WOULD NOT PROVIDE THE SYSTEM EXCEPT UNDER THE TERMS OF THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO YOU.
Export Control. You shall comply with all applicable government trade and export control laws and regulations with respect to the System. You agree that the System will not be transferred or exported into any country or used in any manner prohibited by any applicable laws in any jurisdiction.
Miscellaneous. You may not assign Your rights or obligations under this Agreement without the prior written consent of SAManage. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the Agreement, and the remainder of the provisions of this Agreement shall remain in full force and effect. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.
Law and Venue. The laws of the State of Washington shall govern all issued arising under or relating to this Agreement, without giving effect to the conflict of laws principles thereof. All disputes arising under or relating to this Agreement shall be resolved exclusively in the appropriate court sitting in Washington.
Entire Agreement. This Agreement and any Schedule(s) thereto including the Service Order, sets the entire understanding and agreement between You and SAManage, it supersedes any prior proposal, representation and understanding concerning the System, and may be amended only in writing signed by both parties. . If You are a corporation, partnership or similar entity, then the license to use the System granted hereunder is deemed to be accepted by a person authorized to sign for and bind the entity.
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