END USER LICENSE AGREEMENT
As of June 6th, 2014
IMPORTANT – READ CAREFULLY. THIS IS A LEGAL AGREEMENT BY AND BETWEEN (1) THE PERSON, COMPANY, OR ENTITY REGISTERING "PEDANCO" – A WEB-BASED APPLICATION TO HELP HOSPITALITY COMPANIES ORGANIZE, ENGAGE AND ANALYZE CONVERSATIONS TO IMPROVE TEAM PERFORMANCE AND DRIVE GROWTH (“PEDANCO”) – AND (2) DEVELOPMENTARC LLC (“DEVELOPMENTARC”). BY CLICKING THE "I ACCEPT" BUTTON, OR BY USING PEDANCO, YOU ARE CONSENTING TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”). YOU FURTHER AGREE THAT YOUR EMPLOYEES OR ANY PERSON YOU AUTHORIZE TO USE PEDANCO WILL ALSO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY TO THESE TERMS, THEN DO NOT USE PEDANCO.
- OWNERSHIP. DevelopmentArc owns and shall retain all right, title, and interest in and to Pedanco, any updates or maintenance releases, and any related media, online or electronic documentation, including all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights thereto. Pedanco is protected by the copyright laws of the United States, international copyright treaties and conventions, and other laws, and all rights are reserved.
DevelopmentArc hereby grants Licensee, and Licensee hereby accepts, a non-exclusive, non-sublicensable, non-transferable, fully revocable license to use Pedanco solely for internal use and operation upon the terms and conditions contained in this Agreement ("License").
The License is granted solely to Licensee, and not to any parent, subsidiary, or affiliate of Licensee. All rights not expressly granted hereunder are reserved to DevelopmentArc. The License does not include (a) maintenance, support, upgrades, or modifications to Pedanco, (b) derivative products developed by DevelopmentArc or anyone else to whom DevelopmentArc may license Pedanco, or (c) a license or transfer of any intellectual property rights owned or controlled by DevelopmentArc or any DevelopmentArc affiliate, subsidiary, or parent. Licensee shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from, or any internal data files generated by, Pedanco, rent, lease or loan Pedanco, or use Pedanco in any manner that constitutes a breach of this Agreement or violates any applicable law or regulation, including without limitation any third party copyright or other intellectual property or proprietary right, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
Grant of License to DevelopmentArc.
Licensee exclusively owns all rights in and to information it stores on Pedanco ("Information"). DevelopmentArc needs a limited license from Licensee to use (i.e., display, perform, and distribute) Information to make Pedanco available to you. By providing Information, you grant to DevelopmentArc a limited, perpetual, non-exclusive, fully-paid, royalty-free, sub-licensable, transferable and worldwide license to use, modify, perform, display, reproduce and distribute the Information for the sole purpose of operating Pedanco and providing related services. DevelopmentArc shall also have an unlimited, perpetual, non-exclusive, fully-paid, royalty-free, sub-licensable, transferable, and worldwide license to use, incorporate into Pedanco, modify, perform, display, reproduce and distribute any suggestions, enhancement requests, recommendations, or other feedback provided by you relating to the operation or features of Pedanco.
- TERM AND TERMINATION. The term of this Agreement commences as of the Effective Date and shall continue unless and until either Party provides written notice to the other terminating this Agreement, or if Licensee makes an assignment or other transfer of this Agreement or the License, by operation of law or otherwise. Upon the termination of this Agreement, all license rights granted hereunder shall terminate in full and without notice, and Licensee shall immediately cease use of Pedanco. Notwithstanding the foregoing, any provision that by its nature or context is intended to survive any termination or expiration of this Agreement, including but not limited to indemnification, shall so survive.
- OPEN SOURCE SOFTWARE. Pedanco may contain open source software components, each of which has its own copyright notice requirements and own applicable license conditions. These components are subject to the terms of third party open source licenses, and not the terms of this Agreement. If any such license requires DevelopmentArc to deliver the source code for such component to Licensee, DevelopmentArc shall do so upon request at a nominal fee.
- CONFIDENTIALITY. Licensee will not disclose Pedanco, or the terms and conditions or existence of this Agreement to any third party without DevelopmentArc's express prior written consent.
- INDEMNIFICATION BY LICENSEE. Licensee shall indemnify, defend, and hold harmless DevelopmentArc (and its officers, directors, employees, and agents) from and against any and all claims, suits, liability, damages, losses, costs, or expenses (including reasonable attorneys' fees) which result from claims that any modifications Licensee makes to Pedanco or any combination of Pedanco with software or other items not approved by DevelopmentArc infringes or violates any third party intellectual property right. In case any action or proceeding is brought against DevelopmentArc reason of any such claim, demand, action, damage, loss, liability, cost, or expense, Licensee's duty to defend shall begin upon receipt of written notice identifying the allegations that give rise to this duty to defend and shall be coextensive with Licensee's indemnification obligation.
- NO WARRANTIES. DEVELOPMENTARC LICENSES PEDANCO TO LICENSEE ON AN “AS IS” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, OR ARISING BY STATUTE, CUSTOM, COURSE OF DEALING, OR TRADE USAGE. TO THE MAXIMUM EXTENT PERMISSIBLE BY APPLICABLE LAW, DEVELOPMENTARC DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH REGARD TO PEDANCO. LICENSEE ACKNOWLEDGES THAT THE OPERATION OF PEDANCO MAY NOT BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALLOCATION ERRORS WILL BE CORRECTED.
- LIMITATION OF REMEDIES AND DAMAGES. TO THE EXTENT NOT PROHIBITED BY LAW AND EXCEPT FOR LIABILITIES DIRECTLY RESULTING FROM DEVELOPMENTARC’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (A) DEVELOPMENTARC SHALL NOT BE LIABLE TO THE LICENSEE UNDER THIS AGREEMENT ON ANY CLAIM (WHETHER IN CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY ACCESS TO OR USE OF PEDANCO; AND (B) IN NO EVENT SHALL DEVELOPMENTARC BE LIABLE TO LICENSEE FOR ANY CLAIM (WHETHER IN CONTRACT, TORT, OR OTHERWISE) FOR ANY CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS AND/OR BUSINESS INTERRUPTION, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, WHETHER FORESEEABLE OR NOT, ARISING OUT OF THIS AGREEMENT, EVEN IF DEVELOPMENTARC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. DEVELOPMENTARC'S LIABILITY FOR ANY LOSS OR DAMAGE SUFFERED BY LICENSEE AS A RESULT OF DEVELOPMENTARC'S NEGLIGENCE OR FAILURE TO COMPLY WITH THIS AGREEMENT SHALL BE LIMITED IN RESPECT OF ANY ONE INCIDENT, OR SERIES OF CONNECTED INCIDENTS, TO THE FEES PAID BY LICENSEE TO DEVELOPMENTARC IN THE PREVIOUS TWELVE (12) MONTHS.
- PRIVACY AND DATA SECURITY. DevelopmentArc agrees that it shall use best efforts to (i) keep and maintain Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use or disclosure; (ii) use and disclose Information solely and exclusively for the purposes for which the Information, or access to it, is provided pursuant to the terms and conditions of this Agreement, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available Information for DevelopmentArc's own purposes or for the benefit of anyone other than Company, in each case, without Company's prior written consent.
- MAINTENANCE AND SUPPORT. DevelopmentArc will provide maintenance and support services in accordance with the terms of the plan selected by Licensee. DevelopmentArc's obligations, if any, to provide maintenance and support is subject to the following: (a) Licensee shall provide DevelopmentArc with sufficient access to its account and personnel to duplicate and resolve errors; (b) Licensee shall provide supervision, control and management of the use of Pedanco; (c) Licensee shall document and promptly report all errors or malfunctions in Pedanco to DevelopmentArc, and (d) Licensee shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from DevelopmentArc.
- BACKUP OF DATA. Licensee shall maintain copies of all data and information inputted by Licensee into Pedanco. DevelopmentArc adheres to policies and procedures to prevent data and information loss, including a daily back-up regime, but does not make any guarantees that there will be no loss of data or information, or that DevelopmentArc policies and procedures will conform to industry best practices. DevelopmentArc expressly excludes and disclaims any liability for any loss of Licensee's data and information, no matter how such loss was caused.
NO UNLAWFUL OR PROHIBITED USE.
As a condition of your use of Pedanco, you warrant that you will not use Pedanco for any purpose that is unlawful or prohibited by this Agreement. You may not use Pedanco in any manner which could damage, disable, overburden, or impair Pedanco or interfere with any other party's use and enjoyment of Pedanco. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through Pedanco. The following is a non-exclusive list of actions that DevelopmentArc considers to be inappropriate and thus prohibited, and discussed in further detail following this Section. The examples identified in this list are provided as examples only for your guidance. If you are unsure whether any contemplated use or action is permitted, please contact DevelopmentArc.
- Using Pedanco for any activity that violates any local, state, federal or international law, order or regulation.
- Using Pedanco to transmit, distribute, store or access any material (by e-mail, publishing, uploading, posting or otherwise) which is inappropriate, profane, obscene, indecent, pornographic, libelous, harassing, constitutes a threat or encourages bodily harm or destruction of property, or otherwise objectionable or unlawful.
- Using Pedanco to transmit, distribute, store or access any material (by e-mail, publishing, uploading, posting, or otherwise) that infringes copyright, trademark, patent, trade secret, or other proprietary rights of any third party. You assume all risks regarding the determination of whether material is in the public domain.
- Using Pedanco to make fraudulent offers to buy or sell products, items, or services, or to advance any type of financial/soliciting scams including, but not limited to, “pyramid schemes,” “Ponzi schemes,” “mail bombing,” and “chain letters.”
- Using Pedanco to harm or attempt to harm a minor, including, but not limited to, hosting, possessing, distributing, or transmitting child pornography or other material that is unlawful.
- Any fraudulent activities, including impersonating any person or entity or forging anyone else's digital or manual signature.
- Disrupting or interfering with Pedanco in any way, including through the uploading of files which contain viruses, worms, “Trojan horses,” or other software or programs that may be damaging to Pedanco or another user’s computer.
- Using Pedanco to transmit, or to facilitate the transmission of, any unsolicited commercial e-mail or unsolicited bulk e-mail.
- Using Pedanco to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of Pedanco or another entity’s computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data.
- Using Pedanco to collect, or attempt to collect, personal information about third parties without their knowledge or consent.
- Reselling Pedanco.
- Using Pedanco for any activity that adversely affects the ability of other people or systems to use Pedanco or the Internet.
- Using Pedanco for excessive posting or cross-posting of the same or substantially similar messages, or binary files to newsgroups not specifically named for that purpose, or flooding or disruption of Usenet newsgroups.
- Using Pedanco to perform chat “flooding”, maintaining more than two simultaneous chat discussions, using Pedanco to connect to chat servers or channels from which they have been previously banned, or forging, altering, or obscuring your identity while participating in chat sessions.
- Using Pedanco to post any content that holds DevelopmentArc up to public scorn or ridicule or would any way damage or impair DevelopmentArc's reputation or goodwill.
- INJUNCTIVE RELIEF. Licensee understands and agrees that its breach of this Agreement will cause DevelopmentArc irreparable damage for which recovery of money damages would be inadequate, and that DevelopmentArc shall therefore be entitled to obtain timely injunctive relief to protect DevelopmentArc’s rights under this Agreement in addition to any and all remedies available at law, without the necessity of a bond.
- COPYRIGHT AND TRADEMARK NOTICES. All trademarks are owned by DevelopmentArc and their affiliates. The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to Pedanco are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights. Other than as expressly permitted in the "LICENSE" Section above, the copying, redistribution, use or publication by you of any such matters or any part of Pedanco, is strictly prohibited. You do not acquire ownership rights to any article, document or other materials viewed through Pedanco. The posting of information or materials on Pedanco does not constitute a waiver of any right in such information and materials. Some of the content on Pedanco may be the copyrighted work of third parties. Nothing contained in Pedanco should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by DevelopmentArc or any third party.
- CHANGES TO THIS AGREEMENT. Due to changing technological and marketing demands, DevelopmentArc reserves the right to revise, amend, or modify this Agreement from time to time. Notice of any revision, amendment, or modification will be posted on the website through which Licensee accesses Pedanco, and/or by email to your primary email, and/or in mailings to the address you provide, and will be effective on the date noted in the posting. This Agreement may not be amended or modified by Licensee except by means of a written document signed by both Licensee and an authorized representative of DevelopmentArc. By continuing to use Pedanco after the amendments are effective, Licensee accepts and agrees to abide by them.
- NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to DevelopmentArc, LLC.
- ARBITRATION. Any legal controversy or legal claim arising out of or relating to this Agreement or Pedanco (excluding legal action taken by us or you to collect or recover damages for, or obtain any injunction relating to, intellectual property ownership or infringement), shall be settled solely by confidential binding arbitration in accordance with the commercial arbitration rules of JAMS. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in San Diego, California. Each party shall bear one-half of the arbitration fees and costs incurred through JAMS, and each party shall bear its own attorneys' fees.
This Agreement is governed by and shall be construed in accordance with the domestic laws of the State of California, excluding (a) any conflicts-of-laws rule or principle that might refer the governance or the construction of this Agreement to the law of another jurisdiction, (b) the United Nations Convention on Contracts for the International Sale of Goods, and (c) any potentially applicable provisions of the Uniform Computer Information Transactions Act, to the extent it is, or has been, adopted in a governing jurisdiction.
This Agreement is the entire agreement between the parties on the subject matter hereof and supersedes all prior communications or agreements, written or oral. The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint venturer of the other. In the event that any provision of this Agreement is held to be unenforceable, this Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. Licensee may not assign or transfer this Agreement (by operation of law or otherwise) without the prior written consent of DevelopmentArc and any prohibited assignment or transfer will be null and void, but DevelopmentArc may freely assign or transfer this Agreement. This Agreement will be binding upon and will inure to the benefit of the parties permitted successors and/or assignees. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.
If you have any questions, comments or complaints concerning these Terms of Service, please contact us at 415-519-0125, e-mail us at email@example.com , or send any correspondence to DevelopmentArc, LLC, 3019 Caminito Niquel., San Diego, CA 92117. Our representatives will endeavor to contact you within fifteen (15) days of your inquiry.