TERMS OF Service agreement
BY USING OR OTHERWISE ACCESSING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THESE TERMS OF SERVICE (“AGREEMENT”). IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT USE OR OTHERWISE ACCESS THE SERVICES UNDER ANY CIRCUMSTANCES. THIS AGREEMENT SHALL BE EFFECTIVE UPON CUSTOMER’S ELECTONIC EXECUTION OF IT OR CUSTOMER’S FIRST USE OF OR OTHERWISE ACCESS TO THE SERVICES.
v. 1.0 20100326
1. Rights , Guarantee, and Restrictions.
1.1 Services. Subject to the terms and conditions of this Agreement, RoastLog grants to Customer, a nonexclusive, nontransferable, nonsublicensable right to use the Services in accordance with RoastLog documentation. This right extends to the downloadable software and hardware provided by RoastLog, both of which shall be consider part of the Services. Customer may also request a copy of Customer’s data stored through the use of the Services in accordance with RoastLog standard procedures.
1.2 Guarantee. In the event that Customer is not satisfied with the Services with the first ninety (90) days of when RoastLog provides Customer access to the Services (“Guarantee Period”), Customer may return the hardware to RoastLog at the address listed in Section 9.1 within the Guarantee Period, and receive a refund of the Fees paid for the Guarantee Period.
1.3 General Restrictions. Customer represents that it will not (a) use or attempt to use another user's account; (b) upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, overburden, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment; (c) upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, or any other form of solicitation; (d) upload, post, email, transmit or otherwise make available any harmful, threatening, abusive, harassing, obscene, or racially, ethnically or otherwise objectionable materials; (e) harvest or collect email addresses or other contact information or use automated scripts to collect information from the Services for any other purpose that to communicated directly to a specific user; (f) intimidate or harass another customer and/or user of the Services; (g) create a false identity on the Services; and (h) copy, modify, translate, prepare derivative works, reverse engineer, decompile, disassemble, and/or unbundle the Services. Customer agrees that RoastLog may use and rely on any information provided by Customer in any manner. Customer represents that it will only provide true, accurate, current, and complete information about it to RoastLog. Customer’s right to use the Services is a non-transferable right.
1.4 Account Security. Customer agrees that it is entirely responsible for maintaining the confidentiality of any password and account information that it creates and any and all activities that occur under Customer’s account. Customer agrees to notify RoastLog immediately of any unauthorized use of Customer’s account or any other breach of security.
2. Fees and Payment.
2.1 Fees. There are various levels of Services. The fees for the different levels of Services will be as stated in the applicable enrolment screen or as otherwise presented by RoastLog prior to enrolment in the Services. Fees for Services are due in advance of the provision of the Services. Customer may also adjust its level of Services (and the corresponding Fees) from the start of the month after Customer makes such adjustment. After the Guarantee Period the Fees are non-refundable.
2.2 Taxes and other Fees. Customer shall pay any and all applicable taxes and duties imposed as a result of Customer’s use of the Services, except for taxes based on RoastLog’ income. All payments or reimbursements under this Agreement shall be made free and clear and without deduction for any and all present and future taxes, levies, imposts, duties, VAT charges, or fines imposed by any federal, state, or local government or foreign government.
3.1 Confidentiality. Both parties may, in connection with this Agreement, disclose to the other party Confidential Information. Confidential Information shall include, but not be limited to, information related to the Services, any documentation, past, present or future research, development or business affairs, any proprietary products, materials or methodologies, the terms of this Agreement, or any other information that provides the disclosing party with a competitive advantage. Confidential Information, if disclosed or provided in tangible form, shall be clearly and conspicuously identified as confidential or proprietary, and if orally or visually disclosed, shall be identified as confidential or proprietary in nature at the time of disclosure. Notwithstanding the foregoing, Confidential Information shall include information that would reasonably be considered to be Confidential. The receiving party shall protect the disclosing party’s Confidential Information with the same degree of care that it regularly uses to protect its own Confidential Information from unauthorized use or disclosure, but in no event less than a reasonable degree of care. Confidential Information shall not be provided or disclosed to anyone except those employees or contractors of the receiving party with a need to know under this Agreement. No warranties or rights or licenses under patents, trademarks or copyrights are granted or implied by any disclosure of Confidential Information. Confidential Information and any and all authorized copies thereof shall remain the property of the disclosing party. Notwithstanding any provision contained in this Agreement, neither party shall be required to maintain in confidence any of the following: (i) information that, at the time of disclosure to the receiving party, is in the public domain; (ii) information that, after disclosure, becomes part of the public domain without restriction, except by breach of this Agreement; (iii) information that was in the receiving party’s possession at the time of disclosure, and which was not acquired, directly or indirectly, from the disclosing party; (iv) information that the receiving party can demonstrate resulted from its own research and development, independent of disclosure from the disclosing party; (v) information that the receiving party receives from third parties, provided such information was not obtained by such third parties from the disclosing party on a confidential basis; or (vi) information that is produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production.
3.2 Publicity. RoastLog may disclose Customer as a customer (and use its logos) in sales presentations, other press releases, product brochures, and other marketing material. Customer is granted a revocable license to use RoastLog’ name, logos, and promotional materials to promote its use of the Services, subject to RoastLog’ Trademark usage guidelines provided by RoastLog.
4. Intellectual Property Rights.
Customer acknowledges that RoastLog retains all intellectual property rights and title (including any patent, copyright, trademark, trade secret, and other rights) in and to all of RoastLog’ confidential information, trade secrets or other proprietary information, products, and the ideas, concepts, techniques, inventions, processes, the Services, software, hardware, documentation, or works of authorship developed, comprising, embodied in, or practiced in connection with the Services provided by RoastLog hereunder (“Intellectual Property”). Intellectual Property includes all derivatives developed or created by RoastLog or its personnel or contractors during the course of providing the Services Customer. Customer does not acquire any rights, express or implied, in the Intellectual Property or in any modifications, enhancements, localizations, extensions or derivative works thereto, or in any materials provided hereunder. Notwithstanding the foregoing, Customer shall own the data it enters and stores into and the Services.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE BASIS” AND ROASTLOG DOES NOT MAKE ANY WARRANTIES WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ROASTLOG DOES NOT WARRANT THAT (I) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (II) THE SERVICES WILL BE ERROR FREE AND/OR OPERATE WITHOUT INTERRUPTION, AND (III) CUSTOMER’S DATA WILL NOT BE LOST, AND THE FOREGOING ARE DISCLAIMED.
6. Limitation of Liability.
IN NO EVENT SHALL ROASTLOG BE LIABLE TO CUSTOMER (OR ANY OTHER THIRD PARTY) FOR ANY CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES OR COSTS HOWSOEVER ARISING OUT OF OR RELATED TO THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. ROASTLOG’ AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT SHALL NOT EXCEED THE GREATER OF 1) FEES PAID BY CUSTOMER TO ROASTLOG IN THE YEARS THE CLAIM ARISES.
Customer at its own expense shall indemnify, defend and hold RoastLog free and harmless from any and all claims, damages, losses, costs, actions and expenses, including attorneys’ and experts’ fees (“Indemnity Condition”), arising from any claim or contention (a) arising under this Agreement or (b) the breach of warranties, representations and obligations under this Agreement. RoastLog shall (1) give prompt written notice of any such claim, suit, expense or the like in accordance with the provisions of Section 9.1, (2) permit the Customer to control and direct the defense or settlement of any such claim, suit or the like, provided, however that (a) Customer shall not enter into any settlement agreement that would result in any admission by RoastLog or payment by RoastLog without RoastLog’ prior written consent, (b) RoastLog may at its election participate in the defense of such claim, suit or the like through separate counsel at its own expense, and (c) RoastLog provides Customer all reasonable assistance (at the expense of Customer) in connection with the defense or settlement of any such claim or suit.
8. Term and Termination.
8.1 Term. This Agreement shall commence as of the Effective Date and continue until terminated by either party.
8.2 Termination. This Agreement and any Order Forms, may be terminated as follows:
a) by either RoastLog or Customer upon thirty (30) days prior notice for any material default or breach of any of the material terms and conditions of any Order Forms and/or this Agreement by the other party, unless the defaulting party has cured such failure or default within such 30-day period;
b) by Customer upon written notice to RoastLog and by RoastLog upon thirty (30) days written notice to Customer; or
c) by either party immediately upon notice, if (i) the other party is subject to a bankruptcy proceeding, whether voluntary or involuntary, which is not dismissed within sixty (60) days or makes an assignment for the benefit of creditors, or if a receiver, liquidation, administrator or trustee is appointed for such party’s affairs is initiated and not dismissed within sixty (60) days or (ii) the other party is dissolved.
8.3 Effect of Termination. Upon termination of any Order Form, and this Agreement for any reason, the provisions of Sections 1.3, 2, 3.1, 4-7, 8.3, and 9 shall survive. Upon termination of this Agreement, Customer shall immediately pay RoastLog all outstanding fees due, and shall promptly return to RoastLog, or, at RoastLog’ option, destroy, all copies, in any medium, of any Confidential Information of RoastLog.
9. General Provisions.
9.1 Notices. Unless otherwise provided in this Agreement, all notices under this Agreement shall be in writing and shall be sent by express delivery service to the other party addressed to RoastLog at 805 Portola Ave. Alameda, CA 94501 USA and to Customer at the address on file with RoastLog. Either party may change its address by written notice to the other party in the manner set forth above. Notices shall be effective on the date the notice is delivered to the applicable address.
9.2 Force Majeure. Except as otherwise set forth in this Agreement, a party will not be deemed to have materially breached this Agreement to the extent that performance of its obligations (except payment obligations) or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, strike, labor dispute or walkout, or any other cause beyond the reasonable control of a party; provided that the party whose performance is delayed or prevented resumes performance of its obligations as soon as practicable.
9.3 No Assignment. Neither party shall assign, transfer or pledge this Agreement, or any interest or rights of any kind herein, without the prior written consent of the other party, except in connection with a merger, reorganization or sale of all or substantially all of the business or equity interests of RoastLog. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns.
9.4 Independent Contractors. In performing this Agreement, each of the parties will operate as, and have the status of, an independent contractor. This Agreement does not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between the parties. Neither party will have the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other party or its affiliates, whether express or implied, or to bind the other party or its affiliates in any respect whatsoever.
9.5 Choice of Law; Choice of Forum. This Agreement shall be governed by and construed in accordance with, the laws of the State of California, without giving effect to its conflicts of law principles. The parties agree that the UN Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The parties agree that jurisdiction and venue for any matter arising out of or pertaining to this Agreement shall only be in San Francisco County.
9.6 Injunctive Relief. Customer acknowledges and agrees that any breach of this Agreement relating to any Intellectual Property Rights in the Services or RoastLog’ Confidential Information would cause irreparable harm to RoastLog for which recovery of money damages would be inadequate. Therefore, in addition to any and all remedies available to RoastLog at law or in equity, RoastLog shall be entitled to obtain injunctive relief to protect the foregoing.
9.7 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not, in any way, be affected or impaired thereby.
9.8 Entire Agreement. This Agreement, including any Order Forms constitutes the entire agreement of the parties concerning its subject matter and supersedes any and all prior or contemporaneous, written or oral, negotiations, correspondence, understandings and agreements between the parties respecting the subject matter of this Agreement. Any additional terms in any Customer purchase order or other ordering document are expressly rejected by RoastLog.
9.9 Execution. This Agreement shall be binding upon electronic execution or other agreement by the parties and shall be effective as of such date (“Effective Date”).