BY SELECTING THE “I ACCEPT” BUTTON BELOW THIS AGREEMENT OR BY USING THE PASSWORD TO ACCESS THE MORECOMPETENCY ONLINE SERVICES AND DOWNLOADS ON THE WEB SITE, YOU INDICATE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS TOU.
YOU SHOULD PRINT AND KEEP A COPY OF THIS TOU.
By selecting the “I ACCEPT” button below or by accessing or using this Site, you are agreeing to enter into this TOU and to be bound by and comply with all of the terms and conditions set forth herein. If you do not agree to all the terms and conditions of this TOU, (A) do not use or access the Site, and (B) select the “I REJECT” button below.
1. SERVICE ACCESS.
Subject to the terms and conditions of this TOU, including payment by Customer of all amounts due hereunder, MoreCompetency grants a nonexclusive, nontransferable license to Customer and Users to access and use the Online Services identified in the applicable MoreCompetency Online Services Order Form (the “Order Form”) and hosted on servers owned or operated by MoreCompetency or its designee during the Term in connection with Customer’s business purposes for the number of user licenses for which Customer has fully paid the applicable license fees to MoreCompetency.
To be eligible to access and use the Online Services, Customer must be authorized to use the Online Services via a valid Order Form and must be current in all payments due hereunder. Subject to the requirements set forth herein, the Customer may provide unique user log-in information to Users who share the Customer’s Content to enable such Users to access the On Line Services, up to a maximum number of Users for which Customer has fully paid the applicable license fees. Customer shall be responsible and liable for all Users’ compliance with this TOU and use of the Content and Online Services. MoreCompetency will not allow more than one individual to access the Online Services at the same time under a single user license. Except as otherwise permitted herein,
Customer will not:
- (i) rent, lease, lend, assign, sublicense, transfer, or otherwise make available, the Online Services to any third party; or
- (ii) use or permit the Online Services to be used, as part of a service bureau, time-sharing, interactive cable system or otherwise, for the benefit of any third party.
In order to utilize the Online Services, Customer and/or User will be required to provide certain contact and account information as part of a registration process. Each of Customer and User (i) represents and warrants that all information submitted by it during the registration process is accurate and (ii) agrees to update this information to keep it accurate and complete during the term of this TOU.
The quote set forth in the Order Form does not include any taxes, which may apply to this purchase and which shall be the responsibility of Customer. Any such taxes required to be collected by MoreCompetency shall be added to the amount quoted and shall appear as a separate item when invoiced. The right of MoreCompetency to receive any payment provided for under the TOU will not be subject to any abatement, reduction, setoff, defense, counterclaim or recoup of any amount due or alleged to be due because of any past, present or future claims of Customer or any User.
Any software available for downloading from the Site (“Software”) shall be subject to the end user license agreement accompanying such Software.
5. ALL RIGHTS RESERVED.
Except as expressly provided otherwise in this TOU, title, ownership, and all rights and interest including, without limitation, patents, copyrights, trademarks, trade secrets, and other intellectual property rights, in and to the Online Services remain with MoreCompetency and its licensors. The structure, organization, and code of the Online Services and accompanying materials, if any, are valuable trade secrets of MoreCompetency and its licensors, and Customer and/or User shall keep such trade secrets confidential. No logo, graphic, sound, content or image from the Site may be copied or retransmitted unless expressly permitted by MoreCompetency in a separate writing. The Online Services are licensed, not sold.
7. RIGHT TO REMOVE OR DISABLE ACCESS.
If MoreCompetency is made aware of Content or Customer or User conduct that is, or that MoreCompetency believes in good faith may be,
- (i) libelous, obscene, excessively violent or defamatory,
- (ii) a violation of any law, regulation, or rights of a third party, including, but not limited to, rights under the copyright law and prohibitions on libel, slander, and invasion of privacy, or
- (iii) a violation of MoreCompetency’s Acceptable Use Policy
MoreCompetency has the right, but not the obligation, to immediately remove or disable access to that Content and/or terminate Customer’s and/or User’s ability to access the Online Services without notice to the Customer.
8. LICENSE BY CUSTOMER AND USERS.
Customer shall ensure that it has the requisite rights to submit, post, reproduce, publish, distribute, or otherwise transmit all material, information and media submitted or uploaded by Customer or User on or through the Site (“Company Content”). MoreCompetency acknowledges that it does not own the Company Content that Customer or User submits to the Site in connection with the Online Services. By submitting, posting, or otherwise making Company Content available to MoreCompetency, or available to any individual or entity on or through the Site, each of Customer and User hereby grants MoreCompetency a non-exclusive, royalty free, paid up, worldwide, sub-licensable license to store, display, reproduce, modify and transmit the Company Content solely for the purposes of formatting, maintenance, repair, protection, organization, or other administration of the Site and Online Services and use such Company Content in the ordinary course of MoreCompetency’s, or its designated third parties’, provision of the Online Services.
9. CONTENT: GENERAL.
As between MoreCompetency and Customer, Customer is solely responsible for all Company Content and all activities that occur on the Site under Customer’s User accounts, including, without limitation any comments, information, questions, data, plans, feedback, ideas, descriptions of processes, or other information submitted, posted, reproduced, published, distributed, or otherwise transmitted to MoreCompetency by Customer or any User through the Site or Online Services. Customer may use the Site, the MoreCompetency Materials, and Online Services for lawful purposes only. Customer is responsible for implementing sufficient procedures and checkpoints to satisfy Customer’s particular requirements for accuracy of data input and output. Customer acknowledges that: (i) Customer will evaluate and bear all risks associated with the use of any Company Content, including any reliance by Customer or its Users on the accuracy, completeness, or usefulness of such Company Content; and (ii) under no circumstances will MoreCompetency be liable in any way for any Company Content, including, but not limited to, any errors or omissions in any Company Content, or any loss or damages or any kind incurred as a result of Customer’s or any User’s use, deletion, modification, or correction of any Company Content.
10. PROTECTION OF CONTENT
During the term of this TOU, MoreCompetency will use commercially reasonable standards and practices to back up and protect Company Content. Notwithstanding the foregoing, MoreCompetency makes no warranties or representations regarding its back-up practices, and does not warrant that it will be able to restore any lost or damaged Company Content or other data. Customer acknowledges that no network security procedures can assure complete network security or prevent all unauthorized access to the Site and will immediately notify MoreCompetency of any known security breaches affecting the Site, Online Services, or MoreCompetency Materials.
11.1 Confidential Information
As used in this TOU, confidential information shall mean
- (a) any information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”) that is marked or designated as “confidential” or “proprietary” at the time of disclosure;
- (b) MoreCompetency Materials,
- (c) information related to access to the Site, including Customer’s registration information and account passwords, and
- (d) information related to MoreCompetency’s business or operations, product plans or product prices (collectively “Confidential Information”).
11.2 Limitations on Disclosure and Use of Confidential Information
Receiving Party shall exercise the same degree of care employed by such party to prevent the unauthorized disclosure of its own Confidential Information, but in no event employing less than reasonable care. Confidential Information disclosed under this TOU shall only be used by Receiving Party in the furtherance of this TOU or the performance of its obligations hereunder. Customer shall not disclose the terms of this TOU to any third party without the prior written consent of MoreCompetency, except pursuant to a valid and enforceable order of a court or government agency. Notwithstanding the foregoing, nothing herein shall limit MoreCompetency’s right to disclose its standard and other MoreCompetency Confidential Information to third parties.
Confidential Information shall not include Confidential Information that from and after the date of disclosure:
- (i) is or becomes a matter of public knowledge through no fault of the Receiving Party; or
- (ii) was rightfully in the Receiving Party’s possession prior to receipt from the Disclosing Party free of any obligation of confidence, as shown by Recipient’s written records; or
- (iii) was rightfully disclosed to the Receiving Party by another person without restriction as to use or disclosure; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information as shown by Receiving Party’s written records.
11.4 Independent Development
Receiving Party reserves the right to independently develop and market any technology, products or services or pursue business opportunities that compete with or are similar to those disclosed by Disclosing Party under this TOU without the use of the Disclosing Party’s Confidential Information.
12. MORECOMPETENCY LIMITED WARRANTY AND DISCLAIMER.
12.1 Limited Warranty
- (i) MoreCompetency warrants to Customer that, as of the Effective Date and for a period of sixty (60) days thereafter, the Site will provide substantially the features and functions described in the online help documentation for the version of the Site purchased by Customer under normal use and circumstances. MoreCompetency's entire liability and Customer’s exclusive remedy for breach of the warranty set forth in the preceding sentence is, at MoreCompetency's sole option, to attempt to correct or work around errors, or to refund the license fees actually paid by Customer and terminate this TOU. Customer must notify MoreCompetency of any claim under the warranty set forth in this Section 12.1(i) within thirty (30) days of occurrence of the event giving rise to such claim.
- (ii) MoreCompetency warrants to Customer that the Customer Support Services will be performed in a manner consistent with generally accepted industry standards and practices applicable to support services of a similar nature as the Customer Support Services. MoreCompetency’s entire liability and Customer’s exclusive remedy for breach of the warranty set forth in the preceding sentence is for MoreCompetency to use commercially reasonable efforts to correct or re-perform the non-conforming Customer Support Services in accordance with generally accepted industry standards and practices applicable to support services of a similar nature as the Customer Support Services. Customer must notify MoreCompetency of any claim under the warranty set forth in this Section 12.1(ii) within thirty (30) days of occurrence of the event giving rise to such claim.
12.2 DISCLAIMER OF WARRANTIES.
EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN SECTION 12.1 HEREOF, THE SOFTWARE AND ONLINE SERVICES ARE PROVIDED "AS IS" AND MORECOMPETENCY AND ITS SUPPLIERS MAKE NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION,
- (i) REGARDING THE USABILITY, SUITABILITY, CONDITION, OPERATION OR ACCURACY OF THE SOFTWARE OR THE ONLINE SERVICES, OR
- (ii) THAT ACCESS TO OR USE OF THE CONTENT, SOFTWARE OR ONLINE SERVICES WILL BE AVAILABLE, TIMELY, UNINTERRUPTED OR ERROR-FREE,
- (iii) THAT THE ONLINE SERVICES WILL DELIVER CUSTOMER’S DESIRED RESULTS OR MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, OR
- (iv) THAT THE CONTENT, ONLINE SERVICES AND SOFTWARE WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 12.1,
- MORECOMPETENCY AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. CUSTOMER'S AND USERS’ USE OF THE ONLINE SERVICES AND CONTENT IS AT ITS OWN RISK, AND CUSTOMER ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM USE OF OR INABILITY TO USE THE CONTENT, SOFTWARE, OR ONLINE SERVICES.
13. LIMITATION OF LIABILITY.
MORECOMPETENCY’S AND ITS SUPPLIERS’ ENTIRE CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS TOU, THE ONLINE SERVICES, THE SOFTWARE, AND THE CONTENT SHALL NOT EXCEED, IN THE AGGREGATE, THE TOTAL OF $0 USD.
IN ADDITION, IN NO EVENT SHALL MORECOMPETENCY OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, LOSS OF PROFITS, REVENUE OR DATA, OR COST OF COVER ARISING OUT OF OR IN CONNECTION WITH THIS TOU, THE ONLINE SERVICES, THE SOFTWARE OR THE CONTENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITATIONS OF LIABILITY IN THIS SECTION 13 SHALL APPLY TO ALL DAMAGES, CLAIMS AND LOSSES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT (INCLUDING, BUT NOT LIMITED TO, WARRANTY OR INDEMNIFICATION CLAIMS), TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, EVEN IF MORECOMPETENCY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE.
14. TERM, SUSPENSION AND TERMINATION.
The TOU takes effect on the start date specified in the Order Form (the “Effective Date”), and shall continue until the end date specified in the Order Form, or, if earlier, the date on which this TOU is terminated in accordance with the terms set forth herein (the “Term”).
This TOU may be renewed by mutual agreement of Customer and MoreCompetency if prior to the end of the then-current Term, Customer pays to MoreCompetency the then-applicable fees for such renewal. For free or evaluation subscriptions to the Online Services, MoreCompetency may suspend or terminate this TOU and/or Customer’s and Users’ access to the Online Services in its sole discretion at any time without notice. For all other versions of the Online Services, and without limiting any other rights or remedies available to MoreCompetency under contract or otherwise, MoreCompetency may
- (i) suspend Customer’s and Users’ access to the Online Services effective upon ten (10) days prior notice in the event that Customer is not current in its payments and
- (ii) terminate the TOU upon thirty (30) days prior notice for any breach of or failure by Customer or any User to comply with the provisions of this TOU, including, without limitation, its payment obligations hereunder.
MoreCompetency may terminate the TOU, without penalty or further obligation, for any reason upon ninety (90) days prior written notice to Customer. Should MoreCompetency elect termination for any reason other than Customer’s default, Customer shall only be liable for a pro rata payment for those Online Services delivered to Customer prior to the effective date of termination.
Termination is in addition to all other legal or equitable remedies available to MoreCompetency.
Sections 3, 5, 8, 9, 11, 12.2, 13, 14, 16, 18 and 19.4 shall survive any termination of this TOU.
15. EFFECT OF TERMINATION.
Upon termination of this TOU for any reason, Customer shall cease to access the Online Services. Upon termination of the TOU, all of Customer’s and each User’s rights hereunder shall cease. MoreCompetency may in its sole discretion make mutually agreed upon Content migration services available to Customer pursuant to a mutually agreed upon professional services agreement.
Customer agrees to indemnify, defend and hold harmless MoreCompetency and its officers, directors, owners, agents, employees and suppliers (collectively, the "MoreCompetency Indemnified Parties") from all damages, losses, liability, costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by the MoreCompetency Indemnified Parties in connection with any third party claim against an MoreCompetency Indemnified Party arising out of or related to any claim that the Content or Customer’s or Users’ use of the Online Services violates any applicable law, rule, regulation or the rights of any third party. MoreCompetency shall promptly notify Customer of any such claim and shall cooperate, at Customer’s expense, as reasonably required by Customer in the defense of any claim. Customer shall have the right to conduct the defense of any such claim, provided, however, that MoreCompetency shall have the right, at its own expense, to participate in the defense of any matter subject to indemnification hereunder, and Customer shall not settle any such claim without the consent of MoreCompetency. MoreCompetency reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer hereunder.
17. ADDITIONAL SERVICES
17.1. Customer Support.
Any Customer Support Services purchased by Customer are subject to the terms of MoreCompetency’s support policies, which are incorporated by reference into this TOU and are available for review on the MoreCompetency Online Services Web page (or any successor or replacement Web page designated by MoreCompetency) located on MoreCompetency’s Website at www.cadpilot.com.
17.2. Professional Services
The terms and conditions governing any consulting or professional services relating to the Online Services, including, without limitation, customization, configuration, training or other professional services, are not included in this TOU and shall be mutually agreed upon the by the parties in a separate agreement.
18. ENTIRE AGREEMENT.
This document (including the documents incorporated by reference herein) contains the entire agreement and understanding between Customer or User and MoreCompetency concerning the subject matter of this TOU, and supersedes all other prior or contemporaneous communications, representations, advertising, discussions, negotiations, proposed agreements and all other agreements, whether written or oral for the Online Services. MoreCompetency has not made and Customer has not relied upon any representations not expressly set forth in this document in making this TOU.
The TOU may be modified only by a written agreement duly executed by authorized signatories for each party. In addition, MoreCompetency may update or modify the terms of this TOU, the Acceptable Use Policy or its support policies at any time with or without notice, effective upon posting the updated version thereof on the MoreCompetency Online Services Web page (or any successor or replacement Web page designated by MoreCompetency) located on MoreCompetency’s Website at www.cadpilot.com.
Customer and Users are responsible for regularly reviewing such updates. If Customer or User does not accept a modification by MoreCompetency to the TOU or its policies, Customer must notify MoreCompetency of its cancellation of its subscription to the Online Services within thirty (30) days, and Customer or User must immediately discontinue accessing and using the Online Services. If Customer or User continues to use the Online Services, Customer and User will be deemed to have accepted the modifications.
19. GENERAL PROVISIONS
- (i) complying with those laws and regulations and
- (ii) monitoring any modifications to them.
No term or provision hereof will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against whom the waiver is asserted. No waiver (whether express or implied) will constitute a consent to, waiver of or excuse of any other, different or subsequent breach. If and to the extent any provision of this TOU is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and shall be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction shall not in any way affect the legality, validity, or enforceability of any other provision of this TOU in any other jurisdiction.
19.2. Force Majeure.
Except for the failure to make payments, neither party will be liable for any loss, damage or penalty resulting from delays or failures in performance resulting from acts of God, war, terrorism or terrorist act, civil unrest, strikes, lockouts or other labor disturbances, failure or interruption of a third party internet connection(s) or infrastructure, supplier delay or other causes beyond the non-performing party’s reasonable control and not caused by the negligence of the non-performing party, provided that the non-performing party promptly notifies the other party of the delay and the cause thereof and promptly resumes performance as soon as it is reasonably possible to do so.
19.3. Independent Contractor.
In performing their respective duties under this TOU, each of the parties will be operating as an independent contractor. Nothing contained herein will in any way constitute any association, partnership, or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither of the parties will hold itself out in any manner that would be contrary to the provisions of this Section 19.3.
19.4. Governing Law, Jurisdiction and Venue.
The Online Services are currently controlled by MoreCompetency and third party vendors from within the state of California, United States of America. By accessing or using the Online Services, Customer agrees that the statutes and laws of the State of California, without regard to the conflicts of laws principles thereof, shall govern all matters relating to Customer’s access to, or use of, the Online Services. Customer and MoreCompetency specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods. No choice of law rules of any jurisdiction apply. The parties hereby submit to the exclusive personal jurisdiction of and venue in the Superior Court of the State of California, County of Fresno in respect of all claims arising out of or related to the Online Services and the TOU. The TOU is void where prohibited by law, and the right to access the Online Services is hereby revoked in such jurisdictions.
In conformity with laws and regulations of the United States and other countries relating to international trade, Customer and its employees, agents and Users shall not disclose, export or re-export, directly or indirectly, any product, documentation or technical data (or direct products thereof) provided under this TOU or use the Online Services to disclose, export or re-export any Content to any country, entity or other party which is ineligible to receive such items under U.S. laws and regulations as modified from time to time by the U.S. Department of Commerce or the U.S. Department of the Treasury or under other laws or regulations to which Customer may be subject.
Customer shall be solely responsible for
MoreCompetency makes no representation that the Online Services or Content are appropriate or available for use in locations outside the United States, and accessing them from territories where their contents are illegal is prohibited. Those who choose to access the Online Services or Content from other locations do so on their own initiative and risk, and are responsible for compliance with local laws.
Notices to MoreCompetency under the TOU shall be sufficient only if in writing and transmitted via personal delivery or delivered by a major commercial rapid delivery courier service or by certified or registered mail, return receipt requested, to:
Attention: Legal Department
4460 W Shaw #118
Fresno , California 93722.
Neither party may make any public statement, press release, or other public announcement relating to the terms of or existence of the TOU or any relationship between the parties, without the prior written approval of the other party, except as required by law; provided, however, that MoreCompetency may identify Customer as a customer on any MoreCompetency customer list published orally, in print or electronically.
The TOU is in the English language only, which language shall be controlling in all respects, and all versions hereof, in any other language, shall not be binding on the parties hereto. All communications and notices to be made or given pursuant to the TOU shall be in the English language only.
The Online Services may contain links to third-party Web sites that are not under the control of MoreCompetency. When Customer accesses a non-MoreCompetency Web site, Customer does so at Customer’s own risk and MoreCompetency is not responsible for the accuracy or reliability of any information, data, opinions, advice, or statements made on these sites; or for the quality of any products or services available on such sites; or for any damage or loss caused or alleged to be caused through or in connection with use of or reliance on the content, goods, or services available on or through any such link, site, or resource.
Customer agrees that its rights and obligations under this TOU may not be transferred or assigned and its duties may not be delegated directly or indirectly without the prior written consent of MoreCompetency in its sole discretion. MoreCompetency may assign or otherwise transfer its rights and obligations to successors-in-interest (whether by purchase of stock or assets, merger, operation of law, or otherwise) of that portion of its business related to the subject matter hereof. Any attempted assignment in violation of this Section 19.8 shall be a material breach of this TOU and shall be void. Subject to the restrictions set forth in this Section 19.8, all of the terms and conditions of this TOU shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and permitted assigns of the parties hereto.