1. DEFINITIONS. In addition to terms defined elsewhere in this Agreement, the following terms will have the meaning ascribed below:
2. SCOPE. This Agreement applies to Customer’s and its authorized users access to and use of any Service Technology, but does not apply to the installation and use of the Software, which is subject to a separate license agreement. The terms in the attached Exhibit A will only apply if Customer accesses or uses the Mobile App.
3. RIGHT TO USE SERVICES. Subject to the terms of this Agreement, Customer may access and use the Services for its internal business purposes (and not for personal, family or household purposes) during the subscription period purchased by Customer. Customer will comply with applicable Services restrictions, including any limitations on the amount of users it may authorize to access and use the Services on its behalf. Customer shall be responsible for all access and use of the Services under its account, and for its authorized users’ compliance with the terms of this Agreement. DaySmart reserves the right, in its sole discretion, to change, update or enhancement the Services at any time. DaySmart may add or remove functionalities or features, and may suspend or stop all or a portion of the Services.
5. RESTRICTIONS ON USE. Customer shall not: (A) allow any account password to be used by more than one individual; (B) modify, translate, copy, adapt, reverse engineer (except to the extent applicable laws specifically prohibit such restriction), decompile, disassemble, or create derivative works based on the Service Technology; (C) access or use the Service Technology in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas; (D) attempt to gain unauthorized access to the Service Technology or any other DaySmart customer’s account; (E) use the Service Technology in any manner that is not in accordance with applicable documentation and all applicable laws; (F) rent, lease, distribute, timeshare, use as a service bureau, grant a security interest in, transfer rights to, or make available the Service Technology to any third party; (G) use the Service Technology to build a competitive product or service or to benchmark with a third-party product or service; (H) interfere with or disrupt servers or networks used by DaySmart to provide the Service Technology, or harass or interfere with another customer’s full use and enjoyment of the Service Technology; (I) cause, in DaySmart’s sole discretion, inordinate burden on the Service Technology or DaySmart’s system resources or capacity; or (J) remove any proprietary notices or labels displayed in the Service Technology or on its output.
6. SENSITIVE DATA. Customer acknowledges and agrees that the Services are not suitable for hosting or processing any Sensitive Personal Information. “Sensitive Personal Information” means any personal information that: (a) must be protected in accordance with specific or heightened security requirements imposed by applicable law or industry standards; or (b) would require notification to government agencies, individuals or law enforcement if subject to unauthorized access, use or disclosure. Examples of Sensitive Personal Information include, but are not limited to, government-issued identification numbers (such as driver’s license numbers or Social Security numbers), financial account numbers, payment card data, and “protected health information,” as defined by the Health Insurance Portability and Accountability Act. Customer will ensure that no Sensitive Personal Information is hosted or otherwise processed via the Services.
7. CUSTOMER’S ACCOUNT. When registering to use the Services, Customer must: (a) provide true, accurate, current and complete information (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Customer must keep its account credentials secure and protect its account from unauthorized access and use. Customer is responsible for (y) managing access privileges for any user who may access the Service Technology on its behalf, and (z) ensuring that Customer’s users only use the Service Technology in accordance with the terms of this Agreement. Customer must immediately notify DaySmart of any unauthorized access or use of Customer’s account.
8. OWNERSHIP. DaySmart and its licensors and suppliers shall retain all title, ownership rights and interest in and to the Service Technology. Customer acknowledges and agrees that the copyright, patent, trademark, trade secret, and all other intellectual property rights of whatever nature in the Service Technology are and shall remain the property of DaySmart and its licensors and suppliers, and nothing in this Agreement, other than the limited license granted in Exhibit A, should be construed as transferring any aspects of such rights to Customer.
10. CUSTOMER MATERIALS.
12. SUSPENSION. DaySmart reserves the right, to temporarily suspend Customer’s access to the Services at any time in DaySmart’s sole discretion if DaySmart believes Customer is or is likely to be in breach of the terms of this Agreement or if DaySmart deems reasonably necessary to protect the Service Technology, DaySmart’s customers, or DaySmart’s networks and computer systems.
13. TERM; TERMINATION. This Agreement commences upon Customer’s use of the Service Technology and shall remain in full force until terminated in accordance with this section.
14. DISCLAIMER. THE SERVICE TECHNOLOGY IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS, DEFECTS AND ERRORS AND WITHOUT WARRANTY OF ANY KIND. NO DEALER, AGENT OR EMPLOYEE OF DAYSMART IS AUTHORIZED TO MAKE ANY OTHER WARRANTY REGARDING THE SERVICE TECHNOLOGY. DAYSMART, AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS CUSTOMER MAY OBTAIN BY USING THE SERVICE TECHNOLOGY, THAT THE SERVICE TECHNOLOGY IS SUITABLE FOR CUSTOMER’S BUSINESS, OR THAT THE SERVICE TECHNOLOGY CAN BE USED BY CUSTOMER IN COMPLIANCE WITH ALL LAWS APPLICABLE TO CUSTOMER’S BUSINESS. DAYSMART AND ITS SUPPLIERS DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING AS TO TITLE AND NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR ANY PARTICULAR PURPOSE. ALL CALCULATIONS THAT THE SERVICE TECHNOLOGY PERFORM (INCLUDING, BUT NOT LIMITED TO CALCULATIONS RELATING TO TICKET/SALES INFORMATION, TAXES, CLIENTS, TOTALS, SERVICES, OR PRODUCTS) ARE FOR REFERENCE ONLY, AND SHOULD BE VERIFIED BY MEANS INDEPENDENT OF THE SERVICE TECHNOLOGY. CUSTOMER ASSUMES ENTIRE RISK AS TO THE SELECTION AND SUITABILITY OF THE SERVICE TECHNOLOGY, FOR ITS USE IN ACCORDANCE WITH APPLICABLE LAW, AND FOR THE RESULTS OBTAINED FROM THE SERVICE TECHNOLOGY.
15. LIMITATION OF LIABILITY.
16. PRODUCT SUPPORT. Although DaySmart may provide voluntary support to Customer in connection with the Service Technology, DaySmart is not obligated to provide such support except for specific technical support purchased pursuant to monthly subscription Fees. The support policies and practices of DaySmart are subject to change without notice or obligation and may be viewed at the following website: http://www.inkbooktattoosoftware.com/policies/. Customer is solely responsible for incorporating any customer support information provided by DaySmart into its use of the Services and is solely responsible for any consequences thereof.
17. CONFIDENTIAL INFORMATION. In connection with this Agreement, Customer may obtain or receive non-public confidential information of DaySmart, including, but not limited to the Service Technology, software, processes, designs, plans, methods, data, or other non-public information of DaySmart (collectively, “DaySmart’s Confidential Information”). Customer will not use DaySmart’s Confidential Information except to exercise rights granted under this Agreement, and will not disclose DaySmart’s Confidential Information to any third party except to individuals authorized to use the Service Technology on its behalf. Customer will protect DaySmart’s Confidential Information from unauthorized access, use or disclosure, including (without limitation) by binding its employees, agents, and contractors to confidentiality obligations at least as strict as those contained in this Agreement. Customer acknowledges that DaySmart’s Confidential Information, regardless of form, is, and will always remain, the sole and exclusive property of DaySmart. Customer further acknowledges that the unauthorized use of DaySmart’s Confidential Information would cause irreparable injury to DaySmart. Consequently, Customer agrees that money damages would not be a sufficient remedy for a breach of this provision, and, in addition to all other remedies to which DaySmart may be entitled, DaySmart will also be entitled to specific performance and injunctive or other equitable relief as remedies for such breach or threatened breach by Customer. Customer agrees that on request or at the termination of this Agreement, Customer will immediately return all DaySmart’s Confidential Information and any other related tangible materials to DaySmart without retaining any copies, notes or extracts thereof.
18. INDEMNIFICATION. Customer will defend, indemnify, and hold harmless, DaySmart, and its employees, officers, directors, agents, successors, assigns, representatives and third party contractors (“Indemnitees”) from and against all claims, suits, liabilities, damages, costs, fees, expenses, losses, costs and expenses (including attorneys’ fees) arising out of or resulting from (i) breach of this Agreement by Customer, (ii) Customer’s use of the Services, or (iii) any claims or allegations arising from or related to the Customer Materials, including any claim that the Customer Materials infringe, violate or misappropriate any rights of any third party, including any intellectual property rights or privacy rights. DaySmart will have the right to control the defense of any such claim, at Customer’s expense.
19. MODIFICATION. DaySmart reserves the right to change or modify the terms of this Agreement or any other policies related to use of the Services at any time and at its sole discretion by posting the amended Agreement to DaySmart’s website. Customer’s continued use of the Services following the posting of these changes or modifications constitutes Customer’s acknowledgement and agreement to such changes or modifications.
20. GENERAL TERMS
1. LICENSE. Subject to the terms and conditions of the Agreement, DaySmart grants each authorized user of Customer, during the term of this Agreement, a non-exclusive, non-sublicensable, non-transferable, revocable license to install and use one copy of the Mobile App in object code form only on a single personal device solely to use the Services in accordance with the terms of the Agreement. Any DaySmart software that updates, supplements or replaces the original Mobile App is governed by this Agreement unless separate license terms accompany such update, supplement or replacement, in which case such separate terms will govern in the event of a conflict with this Agreement or as otherwise provided in such separate terms.
2. LEGAL COMPLIANCE; EXPORT RESTRICTIONS. The Mobile App is subject to applicable United States export laws and regulations. Customer must comply with all applicable laws and regulations, including without limitation all applicable United States and international export laws and regulations, with respect to the Mobile App and related technology. Without limitation, Customer may not export, re-export or otherwise transfer the Mobile App or related technology, without a United States government license: (i) to any person or entity on any United States export control list; (ii) to any country subject to a United States sanctions; or (iii) for any prohibited end use.
3. U.S. GOVERNMENT LICENSE RIGHTS. If acquired by any agency of the United States government, such agency acknowledges that (i) the Mobile App constitutes “commercial computer software” or “commercial computer software documentation” for purposes of 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-3, as applicable, and (ii) such agency’s rights are limited to those specifically granted pursuant to this Agreement.
4. ACCESS TO DEVICE. The Mobile App will transmit certain data to DaySmart and its licensors and suppliers about or relating to the device in which it is installed, including information about Customer and its users access and use of the Services via the Mobile App. The information collected will be deemed User Data under the Agreement and subject to applicable terms therein.
5. ADDITIONAL TERMS APPLICABLE TO APPLE DEVICES. The following terms apply if Customer or any authorized user of Customer is installing, accessing or using the Mobile App on any device that contains Apple Inc.’s (“Apple”) iOS mobile operating system.