- License Grant
Subject to the terms and conditions of this Agreement, Sertus hereby grants you a limited, non-exclusive, non-transferable license to access and use the Service (i) solely on a server within the United States of America that is controlled by Sertus and (ii) solely for your own purposes. The license granted herein is conditioned on your continued compliance with the terms and conditions of this Agreement.
- Restrictions on License Grant
Your use of the Service is limited to the scope of the license granted in this Agreement and this Agreement does not permit you to use the Service other than as provided herein. You acknowledge that the Service comprises valuable trade secrets and/or the confidential information of Sertus or its licensors. You acknowledge and agree that except as otherwise authorized under this Agreement or otherwise specified in writing between the parties:
- You shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, grant a security interest in, or otherwise transfer any rights to, or commercially exploit, the Service or any information, documents, software, products and services contained or made available to you in the course of using the Service (the “Content”) or use the Service to run or as part of a service bureau, outsourced, or managed services arrangement;
- You shall not copy, reproduce, republish, upload, post, transmit or distribute the Service or the Content in any way;
- You shall not modify, translate, alter, adapt, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), reproduce, distribute or display, or create derivative works, compilations or collective works based on the Service or the Content;
- You shall not knowingly or negligently permit other individuals or entities to use or copy the Service, or create Internet “links” to the Service or “frame” or “mirror” the Service on any other server or wireless or Internet-based device;
- You shall not access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, (c) copy any ideas, features, functions or graphics of the Service, (d) monitor its availability, performance or functionality, or (e) for any other benchmarking or competitive purposes;
- You shall not access the Service if you sell or provide any service or software that may compete with Sertus’ services or software (a “Competitor”);
- You shall not attempt to use or gain unauthorized access to data, accounts, hosts, systems or networks of Sertus or any of its customers or suppliers, or those of any other party; breach the security of another user or system, or attempt to circumvent the user authentication or security of any host, network, or account, including, without limitation, accessing data not intended for you or logging into or making use of a server or account you are not expressly authorized to access;
- You shall not attempt to probe, scan or test the vulnerability of a system, account or network of Sertus or any of its customers or suppliers, any Sertus product or service, or those of any other party;
- You shall not interfere, or attempt to interfere, with service to any user, host or network including, without limitation, mail-bombing, flooding, and attempting to deliberately overload the system or distribute programs that “crack,” or make unauthorized changes to, the software;
- You shall not forge any TCP-IP packet header or any part of any header information, falsify, alter or remove address information or other modification of e-mail headers; collect responses from unsolicited bulk messages, falsify references to Sertus or the Service, by name or other identifier, in messages; impersonate any person or entity, engage in sender address falsification, forge anyone else’s digital or manual signature, or perform any other similar fraudulent activity;
- You shall not restrict, inhibit, or otherwise interfere with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Service (except for tools for safety and security functions), including, without limitation, posting or transmitting any information or software which contains a worm, virus, or other harmful feature, or generating levels of traffic sufficient to impede others’ ability to use, send, or retrieve information;
- You shall not restrict, inhibit, interfere with, or otherwise disrupt or cause a performance degradation, regardless of intent, purpose or knowledge, to the Service or any Sertus (or Sertus supplier) host, server, backbone network, node or service, or otherwise cause a performance degradation to any Sertus (or Sertus supplier) facilities used to deliver the Service;
- You shall not create or use any program, tags, markers, bots, mousetraps, highjackers or other similar computer routines or sub-routines to automatically access or manipulate the Service; and
- You may not use the Service if you are domiciled, operating, registered, or incorporated within the following countries: Afghanistan, Cuba, Iran, Iraq, North Korea, Somalia, Sudan, South Sudan, Syria, Crimea Region of Ukraine, Yemen or Zimbabwe or any other country that appears on the United States’ Export Administration Regulation (EAR) list.
If you are aware of, or experience, any content, activity or communication through or in connection with the Service that appears to be in violation of the above restrictions, or in violation of any other provision of these Terms, please contact us using the information under “Questions or Additional Information” section below.
If you engage in any activity or communication through or in connection with the Service in violation of any of the above restrictions, in addition to any other damages to which Sertus may be entitled, if actual damages cannot be reasonably calculated then you agree to pay Sertus liquidated damages of $100 for each violation of this Section 2 or the maximum liquidated damages permitted under law, whichever is greater; otherwise you agree to pay Sertus’ actual damages, to the extent such actual damages can be reasonably calculated.
By using the Service, you represent and warrant that you (i) are at least 18 years old, (ii) are of legal age to form a binding contract, (iii) have not been removed or suspended from the Service by Sertus, and (iv) will only use the Service for purchases within the United States of America and its territories.
- Account Obligations and Access
You shall: (i) notify Sertus immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Sertus immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you; (iii) notify Sertus when you no longer require access to the Service; and (v) keep all of your profile information current. Where use of the Service is contingent on you accessing an “account” and/or inserting a “user identification” and/or “password”, you agree that you will be solely responsible for the user id and passwords that are provided to you (as such passwords may be changed from time to time in accordance with features of the Service) to log-in to the password protected Service. If non-authorized individuals have access to your systems or to your user id and password, they may be able to use the Service. You shall keep any correspondence you receive relating to or through the use of the Service (including, but not limited to, your user id, passwords, and other registration or sign-in information) confidential and in a safe place and not disclose it to any third party. You will be responsible and liable for all communications and actions that take place through the use of your user id, including without limitation, any actions that occur without your authorization. Accordingly, it is your responsibility to take appropriate actions immediately if any password has been stolen, leaked, compromised or otherwise used without proper consent.
- Intellectual Property Ownership
All right, title and interest in the Service, including technology and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, including all copyrights, patents, trade secrets, trade dress and other proprietary rights, and any derivative works thereof, shall belong solely and exclusively to Sertus or its licensors, and you shall have no rights whatsoever in any of the foregoing. You acknowledge that the Service constitutes a valuable trade secret and/or is the confidential information of Sertus or its licensors. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in the Service, in whole or in part. All content and materials included as part of the Service, such as text, graphics, logos, button icons, images, audio clips, information, data, forms, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material or Content, and software (the “Works”) are the property of Sertus or its content suppliers and is protected by copyrights, trademarks, trade secrets, or other proprietary rights and these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Works are copyrighted as individual works and as a collective work under the U.S. copyright laws (17 U.S.C. Section 101, et. seq.) and international treaty provisions, and Sertus owns a copyright in the selection, coordination, arrangement and enhancement thereof. You may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Works, in whole or in part. Any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, republication, display, or performance, of the Works, except as specifically permitted herein, is strictly prohibited. You understand and acknowledge that unauthorized disclosure, use or copying of the proprietary products and services provided pursuant to this Agreement may cause Sertus and its licensors irreparable injury, which may not be remedied at law, and you agree that Sertus and its licensors’ remedies for breach of this Agreement may be in equity by way of injunctive or other equitable relief.
The Sertus name, logo, other related names, design marks, product names, feature names and related logos are trademarks of Sertus and may not be used, copied or imitated, in whole or in part, without the express prior written permission of Sertus. In addition, the look and feel of the Service (including all page headers, custom graphics, button icons, and scripts) constitutes the service mark, trademark and/or trade dress of Sertus and may not be copied, imitated or used, in whole or in part, without the express prior written permission of Sertus.
- Term; Termination; Suspension of Service
The term of this Agreement commences on your first use of the Service and continues through any subsequent use of the Service thereafter. Any unauthorized use of the Service will be deemed a material breach of this Agreement. Sertus, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement or Sertus’ then-current payment or refund policies. In addition, Sertus may terminate a free account at any time in its sole discretion.
- Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity. If you do not have such authority, you must immediately stop using the Service.
You shall defend, indemnify and hold Sertus harmless from and against any and all losses, damages, liabilities, costs, judgments, charges and expenses, including reasonable attorneys’ fees, arising out of or relating to any act or omission by you with respect to (i) your use of the Service or (ii) your breach or violations of this Agreement.
- Disclaimer of Warranties
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE SERVICE IS PROVIDED “AS-IS” AND “WITH ALL FAULTS”, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SERTUS, INCLUDING ITS AFFILIATES, SUBSIDIARIES, LICENSORS, SUBCONTRACTORS, DISTRIBUTORS, SERVICES PARTNERS, AGENTS AND MARKETING PARTNERS) AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS (COLLECTIVELY, THE “SERTUS PARTY(IES)”) DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICE, OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WARRANTIES AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT AND ACCURACY AND NON-INTERFERENCE; (B) NEITHER SERTUS NOR ANY SERTUS PARTY WARRANTS THAT (i) THE SERVICE IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS, (ii) THE SERVICE WILL MEET YOUR REQUIREMENTS, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; (C) YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF SERTUS’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) SERTUS AND THE SERTUS PARTIES, JOINTLY AND SEVERALLY, DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF THE PRICING, DISCOUNTS, FEATURES, PRODUCTS, RESULTS OR OTHER INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED BY YOU FROM ACCESSING AND/OR USING THE SERVICE OR OTHERWISE RELATING TO THIS AGREEMENT, AND (E) USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK AND NEITHER SERTUS NOR ANY OF THE SERTUS PARTIES SHALL HAVE ANY LIABILITY OR RESPONSIBILITY THEREFOR.
The limitation of liability reflects the allocation of risk between the parties. The limitations specified in this section will survive and apply even if any limited remedy specified in these terms is found to have failed of its essential purpose.
- Interruption of Service
YOU AGREE THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SERVICE, INCLUDING, THE PUBLIC TELEPHONE, COMPUTER NETWORKS AND THE INTERNET OR TO TRANSMIT INFORMATION, WHETHER OR NOT SUPPLIED BY YOU OR SERTUS, CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT THE ACCESS TO AND/OR THE USE OR OPERATION OF THE SERVICE. NEITHER SERTUS NOR ANY OF THE SERTUS PARTIES SHALL BE LIABLE FOR ANY INTERFERENCE WITH OR PREVENTION OF YOUR ACCESS TO AND/OR USE OF THE SERVICE.
- Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL SERTUS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOST TIME OR GOOD WILL, EVEN IF SERTUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. SERTUS SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST YOU BY THIRD PARTIES. IF, DESPITE THE LIMITATIONS ABOVE, ANY SERTUS PARTY IS FOUND LIABLE FOR ANY LOSS OR DAMAGE WHICH ARISES OUT OF OR IN ANY WAY CONNECTED WITH ANY OF THE OCCURRENCES DESCRIBED ABOVE, THEN SUCH SERTUS PARTY’S LIABILITIES WILL IN NO EVENT EXCEED, IN THE AGGREGATE, THE GREATER OF (A) THE TRANSACTION FEES ASSESSED FOR YOUR TRANSACTIONS THROUGH THE SERVICE, OR (B) ONE-HUNDRED DOLLARS ($100.00). NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THE SERVICE MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED. YOU ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF THE REMEDIES FAIL THEIR ESSENTIAL PURPOSE AND THAT, WITHOUT THESE LIMITATIONS, YOU WOULD HAVE PAID A HIGHER FEE FOR THE SERVICE PROVIDED HEREUNDER. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
The Service may provide links to other Internet sites or resources. You acknowledge and agree that Sertus is not responsible for the availability of such external sites or resources and is not responsible or liable for any content, advertising, products or other materials on or available from such sites or resources. You further acknowledge and agree that Sertus shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such site or resource.
Sertus may in its sole discretion permit you to pay amounts due by credit card, provided that in such case you shall also pay Sertus, in consideration for Sertus’ agreement to permit such payment by credit card, an additional amount equal to 4.0% of the amount due. Past due balances (including, without limitation, declined credit card payments and other payments that are rejected for insufficient funds) are subject to a finance charge of one percent (1.0%) per month (or, if less, the maximum amount permitted under applicable law) until the date payment in full is received. Sertus may in its sole discretion coordinate credit card payments through one or more third-party payment processors or other service providers (including, without limitation, Bill.com and Vantage), and in such case, your use of Sertus’ credit card payment option constitutes your acceptance of such third-parties’ applicable terms and conditions.
Sertus may give notice by means of a general notice via the Service, electronic mail to your e-mail address on record in Sertus’ account information, or by written communication sent by first class mail or pre-paid post to your address on record in Sertus’ account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Sertus (such notice shall be deemed given when received by Sertus) at any time by any of the following: letter sent by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Sertus, 3824 Cedar Springs Road #801-5343, Dallas, Texas 75219.
- Modification to Terms
Sertus reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
- Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of Sertus. Any purported assignment in violation of this section shall be void.
- Dispute Resolution
In the event that you and Sertus are unable to resolve a dispute within thirty (30) days of written notice of the dispute, you and Sertus agree to resolve such dispute through final and binding arbitration. You and Sertus each agree to submit to the personal and exclusive arbitration of any disputes arising out of or relating to your use of the Service under the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”). The AAA Rules and fee information are available at www.adr.org. The arbitration shall be held in Travis County, Texas, unless you and Sertus otherwise agree in writing. You may not initiate any legal action or proceeding against us or any of our employees, managers, members or agents, in any other forum or location.
You further agree that you may resolve any dispute with us only on an individual basis, and that you may not bring any claim or demand as a plaintiff of, or otherwise participate as part of, any purported class, consolidated, or representative action or proceeding. In addition, unless you and Sertus otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class, consolidated or representative proceeding.
Notwithstanding the foregoing, either you or Sertus may bring a lawsuit for injunctive relief to prevent and/or to stop (1) unauthorized use or abuse of the Service, (2) defamation, libel, or other false or misleading statements, or (3) any actual or threatened intellectual property infringement or unfair competition without first engaging in the arbitration process described above.
- This Agreement shall be governed by Texas law and controlling United States federal law, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service, with the exception of claims for injunctive relief, shall be subject to the exclusive jurisdiction of the state and federal courts located in Austin, Texas.
- Any cause of action you may have with respect to your use of the Service must be commenced within one (1) year after the claim or cause of action arises.
- If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provisions shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provisions, with all other provisions remaining in full force and effect.
- It may be necessary for Sertus to perform scheduled or unscheduled repairs, maintenance, or upgrades and such activities may temporarily degrade the quality of the Service or result in a partial or complete outage of the Service. Sertus provides no assurance that you will receive advance notification of such activities or that the Service will be uninterrupted or error-free. Any degradation or interruption in the Service shall not give rise to a refund or credit of any fees paid by you.
- No joint venture, partnership, employment, or agency relationship exists between you and Sertus as a result of this agreement or use of the Service. The failure of Sertus to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Sertus in writing.
- Neither party shall be liable to the other party for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, fire, flood, war, embargo, strike, riot or the intervention of any governmental authority.
- If you have not entered into another written and signed agreement with Sertus regarding the subject matter contained herein, then this Agreement comprises the entire agreement between you and Sertus and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. However, if you and Sertus have entered into another written and signed agreement regarding the subject matter set forth herein that is a written and signed agreement between you and Sertus, then this Agreement should be read and interpreted in conjunction with such agreement and, in the event of a conflict between this Agreement and a written, signed agreement between the parties, the written, signed agreement shall govern and control.
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to [email protected]