ONLINE SOFTWARE LICENSE AGREEMENT
IF YOU AGREE TO THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”), AND YOU ARE NOT OUR DIRECT COMPETITOR AND YOU ARE ACCEPTING ON BEHALF OF YOUR COMPANY OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL BINDING AUTHORITY TO THE COMPANY OR APPLICABLE ENTITY. IF YOU DO NOT HAVE LEGAL BINDING AUTHORITY, CLICK THE “I DO NOT ACCEPT” BUTTON BELOW. THIS LICENSE AGREEMENT IS EFFECTIVE AS OF THE DATE YOU CLICK THE “I ACCEPT” BUTTON BELOW.
Uptime.ly Incorporated herein referred to as its tradmarked name (the “StatusCast INCORPORATED”) may update these Terms in the future, and you will be able to find the most current version of this agreement here: http://www.StatusCast.com/terms-conditions
1. License. If you accept this License, StatusCast INCORPORATED hereby licenses to you one electronic copy of the computer program you are about to install, or services accessed via a web browser, and related documentation (the “Software”) for each user license purchased. StatusCast INCORPORATED retains all right, title and interest in and to the Software. The Software and all parts thereof are the subject matter of various proprietary rights, including without limitation copyrights, trade secrets, patents and other similar intellectual and industrial property rights (“Proprietary Rights”). This License permits you to use the Software and to make copies and install the Software as necessary in unmodified form for your internal use of the Software in accordance with this Agreement. You may not, however, sell or derive any profit from such distribution or installation. No license, right or interest in any trademark, trade name or service mark of StatusCast INCORPORATED or any third party is granted under this License. You acknowledge that this License in no way shall be construed to provide an express or implied license to use, modify or improve any of the content of the Software, including without limitation, or any works, inventions, discoveries, technology or other items which are the subject matter of StatusCast INCORPORATED’s Proprietary Rights or otherwise to use or exploit the Software or the Proprietary Rights in any matter not expressly permitted herein. StatusCast acknowledges and agrees that you may use the Software to provide access to the Software (including via a website or other means, such as the use of our API) to your customers and end-users of data related to the performance of your commercially available services and products for which you charge a fee; provided, however (a) any such access does not exceed your total number of authorized users of the Software; and (b) StatusCast INCORPORATED shall not be liable to you or any such customers or end-users for any such use. You grant StatusCast a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the StatusCast service all enhancement requests and suggestions to the operation of the StatusCast Software.
2. Restrictions. You may not attempt to create or derive any of the source code or other technology or data within the Software by disassembly, reverse engineering or any other method, or otherwise reduce the Software to a human-perceivable form. You may not modify or translate any part of the Software. You may not use, disclose, distribute, in whole or in part, nor rent, lease or lend the Software without the prior written authorization of StatusCast INCORPORATED. You agree to provide notice to StatusCast INCORPORATED immediately after learning of or having reason to suspect a breach of any of the provisions set forth in this License.
3. Termination and Term. This Agreement shall become effective upon your indication of acceptance by electronically indicating acceptance and installing the Software (“Effective Date”). You may terminate this Agreement within 10 days of the Effective date if you disagree with the terms of this Agreement. This Agreement shall remain in effect until Termination. If you terminate the Agreement other than for cause as defined below before the end of a Term then at the time of termination you agree to pay all remaining monies owed for entire remaining period of the contract term you selected electronically, either monthly (“Monthly”) recurring or yearly (“Yearly”) recurring during the acceptance and subscription selection stage. The Yearly recurring option may have multi-yearly (“Multi-Yearly”) discounts available, therefore the Yearly recurring term would be defined as the total amount of years you selected (if not selected or specified, the default Yearly recurring plan is for one (1) year). In addition, for either Monthly or Yearly recurring plans, Client must provide notice of Termination at least 30 days prior to the next recurring term. For avoidance of doubt, the selection subscription stage is wherein the Client chooses the level of subscription that the Client desires along with the recurring payment term (“Payment Term”). The Payment Term selected by Client sets and equates to the agreement term (“Agreement Term”) length for this Agreement, which automatically extends Monthly, Yearly or Multi-Yearly unless cancelled as per this Section 3.
As long as you have made timely payments and are not in breach of the Agreement, you may terminate for cause if StatusCast INCORPORATED fails to perform its duties under the Agreement within 30 days of your notice to StatusCast INCORPORATED that it is in breach of a material term. StatusCast INCORPORATED may terminate this Agreement for cause if you fail to make timely payments within 10 days of notice of delinquency by StatusCast INCORPORATED. StatusCast INCORPORATED may also disable the Software temporarily in the case of nonpayment, which shall not be considered a termination by StatusCast INCORPORATED. Charges will still accrue even if your service is temporarily suspended for non-payment. StatusCast INCORPORATED may also terminate this Agreement if you fail to comply with your duties under the Agreement within 30 days of notice to you that you are in breach. StatusCast INCORPORATED may also terminate the Agreement immediately if you violate its intellectual property rights or seek bankruptcy protection or similar relief from creditors, or if bankruptcy proceedings are imminent or initiated by any other party. In any termination for cause, all payments owed shall be immediately due and payable.
Upon termination, you must destroy (or permanently uninstall) all copies of the Software and remove all StatusCast INCORPORATED related HTML, Java script(s), and web code inclusions of any type (i.e. IFRAME, etc.) relating to StatusCast INCORPORATED entirely from all applicable websites.
4. Disclaimer of Warranties.
- StatusCast INCORPORATED DISCLAIMS AND YOU HEREBY WAIVE ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR INTENDED USE, WARRANTIES AGAISNT INFRINGEMENT OF THIRD PARTY RIGHTS, ANY WARRANTY OF COMPATIBILITY BETWEEN THE SOFTWARE AND YOUR EQUIPMENT OR SOFTWARE, OR ANY LIABILITY IN NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, WITH RESPECT TO StatusCast INCORPORATED. YOU AGREE THAT StatusCast INCORPORATED SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUES, EVEN IF ADVISED OF THE RISK OF SUCH DAMAGES IN ADVANCE.
- StatusCast INCORPORATED shall not be liable to you nor deemed to be in default of this Agreement, on account of any delays, errors, malfunctions, compatibility problems or breakdowns with respect to the Software, unless such delay, error, malfunction or breakdown results solely from the gross negligence or willful misconduct of StatusCast INCORPORATED.
- You acknowledge that the installation or use of the Software on your communications hardware (including peripherals) or software may result in loss of or damage to your hardware, software or data. You agree to take all reasonable precautions to prevent such loss and damage, including copying data prior to installation and other reasonable and customary measures, and adherence to manufacturer’s instructions. You further agree to release and hold StatusCast INCORPORATED and its past and present directors, affiliates, partners, officers, employees, agents and contractors harmless from and against any losses, damages, liabilities, suits or fines caused by or arising from the installation or use of the Software or the communications hardware (including peripherals) or any other similar hardware or software utilized to permit access to the Software.
5.Liability. Total cumulative liability in connection with this Agreement and the Software, whether in contract or tort or otherwise, will not exceed the amount of License Fees paid to StatusCast INCORPORATED for the most recent one-year period (note that free accounts, those that do not include fees (“Free Version”) provide $0 (zero) dollars in liability) prior to the event giving rise to such liability.
If the disclaimer of warranty and limitation of liability provided in Section 4 and Section 5 cannot be given local legal effect according to their terms, reviewing courts shall apply local law that most closely approximates an absolute waiver of all civil liability in connection with the Software and Services provided, unless a warranty or assumption of liability accompanies usage of the Software and Services in return for a fee.
6. Controlling Law and Interpretation. This License shall be governed by and construed in accordance with the substantive laws of the State of California, notwithstanding the conflicts of law provisions of that state or any other jurisdiction. All disputes arising out of this license shall be subject to the exclusive jurisdiction of federal and state courts located in Los Angeles County, California. If any part of this Agreement is deemed unenforceable for any reason, that provision and the remainder of the Agreement shall be interpreted to the greatest extent allowable by law to give the provision and the Agreement as a whole the fullest effect intended under the law.
7. Price and Payment. This section is relevant for any Client not currently utilizing the initial free 30 day trial or the Free Version of StatusCast INCORPORATED’S software and services. Any usage by Client outside the initial 30 free day trial or Free Version will constitute Client as a (“Paying Subscriber”). Paying Subscribers have the option to subscribe to Monthly or Yearly recurring terms.
Monthly Paying Subscribers shall pay to StatusCast INCORPORATED monthly in advance the subscribed to set license and service fees pursuant to this Agreement. Client agrees and authorizes StatusCast INCORPORATED or its agent to automatically bill Client’s credit card on a continual basis each, 3-5 days in advance prior to the original subscription start day of the next Monthly billing period, per the set license and service level fees pursuant to this Agreement.
Yearly Paying Subscribers shall pay to StatusCast INCORPORATED yearly in advance the subscribed to set license and service fees pursuant to this Agreement. Client agrees and authorizes StatusCast INCORPORATED or its agent to automatically bill Client’s credit card on a continual basis each, 3-5 days in advance prior to the original subscription start day of the next Yearly billing period, per the set license and service level fees pursuant to this Agreement.
Multi-Yearly Paying Subscribers shall pay to StatusCast INCORPORATED multi-yearly in advance the subscribed to set license and service fees pursuant to this Agreement. Client agrees and authorizes StatusCast INCORPORATED or its agent to automatically bill Client’s credit card on a continual basis each, 3-5 days in advance prior to the original subscription start day of the next Multi-Yearly billing period, per the set license and service level fees pursuant to this Agreement.
Since each upgrade to user count, plan change or feature set will renew the Monthly, Yearly or Multi-Yearly term commitment and billing cycle dates for the entire Agreement, any prorated unused credits due from the previous billing term will be applied as a credit toward the renewed Agreement balance that may be due. Discounts for Yearly and Multi-Yearly or any package where discounts were provided based on length of term will be lost if downgrading in the middle of a Term. To receive volume pricing, upon each upgrade, Client must keep total number of licenses, plan package or feature set for the agreed to Term before a downgrade is permitted. This requirement is not necessary if discounts are waived by customer. If minimum requirements were negotiated to obtain volume pricing and stated in invoice terms, then those agreed upon minimum requirements must be maintained upon renewal to continue receiving pricing incentives. Unless the volume pricing or pricing discounts are renegotiated, discounts may expire after any offered promotional period.
If Client has the Use Corporate SMS Credits option enabled the (“SMS Minimum”) will be fulfilled, subsequently auto-replenished and charged to Client’s credit card on file. The SMS Minimum is calculated by choosing the greater of the following options: (i) The current number of active subscribers multiplied by four (4) or (ii) 4,000 SMS credits. As SMS Credits are sold as a volume purchase, StatusCast does not provide refunds for any unused remaining SMS balances. To prevent auto-replenishing, CLIENT may disable the SMS alert option at any time, upon which, any remaining SMS credits will expire.
StatusCast INCORPORATED may make arrangements to invoice Client Monthly, Yearly or Multi-Yearly for agreements valued over $1,000 monthly, in advance, the set license fees pursuant to this Agreement. Failure of StatusCast INCORPORATED to issue any invoice or bill shall not relieve Client of the obligation to pay for any charge owed StatusCast INCORPORATED pursuant to this Agreement. If StatusCast INCORPORATED invoices Client for the Monthly, Yearly or Multi-Yearly set license fees, Client shall pay all fees and other charges within fifteen (15) days of the date of each invoice unless other terms have been negotiated in advance and are clearly stated on the invoice. Invoices shall be dated no earlier than the first day of the month before the recurring term for which the invoice applies. Provided that the invoice is timely received, in the event that Client fails to pay within fifteen (15) days of an Invoice, StatusCast INCORPORATED may levy a late payment charge computed at the rate of 1 1/2% per month on the outstanding balance due hereunder from any month or fraction thereof that such payment is in default.
Client shall pay all sales, use, personal property, excise, license and franchise taxes as well as any other similar fees, charges or assessments which arise as a result of this Agreement or which may be imposed in connection with access to the Application. StatusCast INCORPORATED reserves the right to increase any charge to Client under this Agreement once each term upon not less than thirty (30) days prior written notice to Client. Outside of Client initiated upgrades, each such increase shall be limited to five (5%). Client will not set-off or offset against StatusCast INCORPORATED’s invoices amounts that Client claims are due to it. Client will bring any claims or causes of action it may have in a separate action and waives any rights it may have to offset, set-off, or withhold payment for Application licenses delivered by StatusCast INCORPORATED.
If you have questions about charges to an account, you should contact StatusCast INCORPORATED at billing@StatusCast.com or by using the corporate headquarter address of 8318 Forrest Street Floor 2, Elkridge MD 21043. All charges are considered valid unless Client disputes the charge in writing within 30 days of the billing date. No adjustments will be made for charges that are more than 30 days old.
8. Technical Standard Support Service Level. StatusCast INCORPORATED will provide either one or more of the following forms of technical support to Client’s User Licensees from 9 a.m. to 8 p.m. Eastern Standard Time (EST), Monday-Friday (“Weekdays”) of each week of this Agreement: Phone, E-mail or Chat. StatusCast INCORPORATED will provide on call support with one hour or less response time 24 hours per day if client subscribes and elected the premium support. In addition, StatusCast INCORPORATED will respond to any electronic mail queries within 24 hours of receipt by StatusCast INCORPORATED during regular business days.
Client acknowledges that StatusCast INCORPORATED does not agree to provide, and will not provide, any “help desk” assistance or similar user or technical support to Client’s customers with regard to the Application or Services.
Client agrees that it will notify its customers that StatusCast INCORPORATED does not provide such support, and Client shall be solely responsible for all such support for the benefit of its customers.
StatusCast INCORPORATED has established set maintenance windows on Monday and Friday mornings between the hours of 2 a.m. and 6 a.m. EST (“Pre-established Maintenance Window”). During the Pre-established Maintenance Window, StatusCast INCORPORATED reserves the right to take down a Client’s server(s) in order to conduct routine maintenance checks to both software and hardware. If a Client’s server(s) will be down for more than two (2) minutes within the Pre-established Maintenance Window, StatusCast INCORPORATED will advise Client of such prior to any scheduled maintenance downtime. StatusCast INCORPORATED will not be responsible for damages or costs incurred by Client, if any, for scheduled down time during the Pre-established Maintenance Window. StatusCast INCORPORATED reserves the right to change the Pre-established Maintenance Window upon prior notice to Client.
9. Miscellaneous. StatusCast INCORPORATED may modify, suspend, discontinue or restrict the use of any portion of the Software without notice or liability.
10. Complete Agreement. This License constitutes the entire agreement between the parties with respect to the use of the Software and supersedes all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.