CloudDocs Terms and Conditions of Use
1. Legal Agreement
The Terms of Use constitute a binding, legal agreement ("Agreement") between you as an individual, or if you are purchasing or using the service as part of your job responsibilities, the legal entity that you represent, and eGistics, Inc. ("EGISTICS").
By registering for and/or using the
Service, Client agrees to be bound by the terms and conditions of this Agreement, and represents and warrants to have full power, authority and legal capacity to enter into this Agreement.
2. Definitions
"Authorized User" means users who are permitted to access the Service pursuant to the Agreement.
"Client" or "you" means the individual, company or other legal entity for which you are accepting this Agreement.
"Client Data" means all electronic data or information submitted by Client to the Service.
"Downloaded Software" means software downloaded and installed on a Client machine by an Authorized User (defined below) from the Site that augments your use of the Service, including add-ins and ancillary programs.
"Order Form" means a signed paper order form or web-based order form completed by you when ordering the Service.
"Service" means the provision by eGistics to you of cloud-based document management services, in accordance with the tiers of service and other options as set forth in the Order Form. The Service includes the provision on a cloud-based basis of non-exclusive use and access to proprietary EGISTICS software, and associated hosting and support services as described herein.
"Site" means the web site at www.myclouddocs.net and/or such other web site or sites that eGistics communicates to you where you may access the Service.
"Software"
means eGistics' proprietary software used by eGistics to deliver the Service, made available to you through the Site on a "Software as a Service" basis, and all updates and associated documentation thereto made available as a part of the Service pursuant to this Agreement. The term "Software" includes the Downloaded Software.
"Trial Use"
means your use of the Service during a free trial period, as further described on the Site.
"Trial Period" means the period of time you are authorized for Trial Use, which is generally up to 30 days, as set forth on the Site.
3. Service
3.1. Under the terms of and subject to the restrictions in this Agreement, including payment of all applicable fees, eGistics will provide the Service on a subscription basis during the term of this Agreement. The right to use the Service is non-exclusive and non-transferable and can be accessed solely through the Site. Client may use the Service only for its own benefit, and not for the benefit of any other third party.
3.2. As part of the Service, EGISTICS will provide reasonable technical support via e-mail and an online support portal during EGISTICS' regular business hours. As applicable, additional terms and limitations regarding support for the Service based on the selected Service tier will be included on the Site.
3.3. EGISTICS will use commercially reasonable efforts to
make the Service available on a 24 hours a day, 7 days a week, and 365/366 days a year basis, subject to Section 14.2 (Force Majeure) below and to downtime for maintenance purposes. EGISTICS will, to the extent practicable, schedule maintenance downtime outside of regular business hours, as further defined and stated on the Site.
3.4. EGISTICS may from time to time modify the Site and the Service and add,
change, or delete features of the Service in its sole discretion, without notice. Continued use of the Service after any such changes to the Service constitutes acceptance of these changes. EGISTICS will use commercially reasonable efforts to post information on the Site regarding material changes to the Service.
3.5. The Service may be used and accessed only for its intended purpose and for your internal
business purposes and only by your employees, independent contractors, business partners and customers enabled by you to use the Service ("Authorized Users"). Such Authorized Users may use the Service only for the purpose of facilitating business transactions with you or for providing services to you, and in no event may third parties use and access the Service provided to you as a document management solution for their own or for another person's benefit. You agree not to charge any
Authorized Users to use the Service, either directly or indirectly. You shall be fully responsible for use of the Service by Authorized Users and their compliance with the terms of this Agreement. As part of your use of the Service, you provide registration information to EGISTICS. You warrant that all such registration information is accurate and truthful, and you agree to update such information as necessary.
3.6. You acknowledge sole responsibility for: (a) all use of the Service made using Authorized Users' user names and passwords, and (b) maintaining the confidentiality of Authorized Users' user names and passwords. Only one individual may access the Service at the same time using the same user name and password. The following terms shall apply in connection with Trial Use, notwithstanding anything to the contrary herein:
3.6.1. the Trial Use is provided "AS-IS", without warranty of any kind, express or implied;
3.6.2. Upon the conclusion of the Trial Use Period, the Trial subscription will automatically convert to a full subscription, unless you have notified EGISTICS that you do not wish to convert the trial to a full subscription prior to the end of the Trial Use period;
3.6.3. Upon termination of your Trial Use Period, unless you have previously converted to a full subscription, all Client Data stored by you as part of the Service will be permanently deleted without notice to you, and you will have no right to access the Service or any of your Client Data after termination.
3.7. Client warrants and agrees not to:
- Violate any local, state, national or international law or regulation in connection with use of the Service, or otherwise use the Service in any way that is in furtherance of criminal, fraudulent, or other unlawful activity;
-
Interfere with or disrupt the Service or servers or networks connected to the Service;
- Violate any codes of conduct, requirements, terms of use, policies or regulations of networks connected to the Service;
- Interfere with or attempt to interfere with any other person's use of the Service;
- use the Service for any fraudulent or inappropriate purpose;
- use the Service to facilitate sending "spam" or unsolicited commercial email;
- Gain access to or attempt to gain access to any account, computers or networks related to the Service
without authorization;
- Use the Service to send or otherwise make available any viruses, Trojan horses, worms, corrupted files, or any other similar software that may damage the operation of another's computer or property;
- Use the Service in a manner that results in excessive bandwidth usage, as determined in
EGISTICS' sole discretion;
- Impersonate any other person or entity, or misrepresent your affiliation with any other person or entity; or
- Forge headers or otherwise manipulate identifiers in order to disguise the origin of any content or communication transmitted through the Service.
EGISTICS reserves the right, but shall have no obligation, to investigate your use of the Service in order to determine whether a violation of the Agreement has occurred or to comply with any applicable law, regulation, legal process or governmental request. EGISTICS reserves the right to refuse service to anyone at any time without notice for any reason.
4. Intellectual Property
4.1. Client agrees that EGISTICS and its licensors own all intellectual property rights in and to the Service, the Software, and the Site, including but not limited to the structure, organization, design, algorithms, templates, data models, logic flow, text, graphics, logos, and screen displays associated therewith. Client will not
reverse engineer, decompile or disassemble the Software, or otherwise attempt to reconstruct or discover the source code or underlying trade secrets of the Software or Service. Client further agrees not to resell, lease, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party for such third party's benefit. Client may make a single copy of the Downloaded Software for backup purposes only; provided that any such copies contain the same
proprietary rights notices that appear on the Downloaded Software. EGISTICS reserves all rights in the Service not expressly granted hereunder.
4.2. Client shall retain ownership of the documents and related materials and information uploaded in connection with the Service. EGISTICS shall not access or otherwise use the contents of any Client Data, unless Client gives specific permission to such access in
connection with EGISTICS' handling of a support issue. Solely in order to provide the Service to you, EGISTICS may copy, archive, index, and create metadata relating to the Client Data. EGISTICS may derive and compile from your usage of the Service certain aggregated and/or analytical information, so long as such aggregated or analytical information does not reveal any information about you, any individual, or the contents of any Client Documents. Such aggregated data and metadata may be used
for EGISTICS' own purposes without restriction, including, but not limited to, using such data in conjunction with data from other sources to improve EGISTICS' products and services and create new products.
4.3. EGISTICS shall own all right, title and interest, including all accompanying worldwide intellectual property rights, in and to any suggestions, ideas, enhancement requests, feedback, or other
information provided by you or any Authorized User relating to the Service, and you and your Authorized Users make all assignments necessary to accomplish such ownership.
4.4. EGISTICS' trademarks include eGistics, CloudDocs, and the eGistics logo. Any other company or product names used on the Site or in connection with the Service are the property of the respective trademark owner.
5. Fees and Expenses
5.1. Client shall pay EGISTICS all applicable fees associated with the Service as set forth in the Site and/or Order Form, and in accordance with the terms set forth therein. All payments under this Agreement are non-refundable and shall be made in United States dollars. Past-due payments will be subject
to late payment charges of the lesser of: (a) one and one-half percent (1 ½ %) per month, or (b) the maximum rate allowed by law. The fees and rates under this Agreement are subject to change by EGISTICS upon at least thirty (30) days written notice, which notice may include by posting the updated fees and rates on the Site.
5.2. Client shall be responsible for all applicable taxes, however designated,
incurred in connection with this Agreement, including but not limited to state and local privilege, excise, sales, VAT, and use taxes and any taxes or amounts in lieu thereof paid or payable by EGISTICS, but excluding taxes based upon the net income of EGISTICS.
6. Confidentiality and Security
6.1. "Confidential
Information" means any information or data that is disclosed by one party to the other party pursuant to this Agreement that is marked as confidential. In addition, your Confidential Information includes the Client Data (whether or not marked), and Confidential Information of EGISTICS (whether or not marked) includes the Service and Software, as well as the structure, organization, design, algorithms, templates, data models, logic flow, and screen displays associated with the Service and
Software. Confidential Information does not include information that the receiving party can show: (a) is or becomes publicly known or available without breach of this Agreement; (b) is received by a receiving party from a third party without breach of any obligation of confidentiality; or (c) was previously known by the receiving party as shown by its written records.
6.2. A receiving party agrees: (a) to
hold the disclosing party's Confidential Information in confidence, and to protect the disclosing party's Confidential Information in the same manner that it protects the confidentiality of its own similar confidential information (but in no event using less than reasonable care); and (b) except as expressly authorized by this Agreement, not to, directly or indirectly, use, disclose, copy, transfer or allow access to the disclosing party's Confidential Information. Without limiting the
foregoing, Client shall disclose and allow access to the Service only for the purpose of supporting and augmenting your use of the Service. Notwithstanding the foregoing, a receiving party may disclose Confidential Information of the disclosing party as required by law, applicable regulatory authorities, or court order; in such event, such party shall use its best efforts to inform the other party prior to any such required disclosure.
6.3. Each party acknowledges and agrees that any violation of this Section 6 may cause the disclosing party irreparable injury for which the disclosing party would have no adequate remedy at law, and that the disclosing party shall be entitled to preliminary and other injunctive relief against the receiving party for any such violation. Such injunctive relief shall be in addition to, and not in limitation of, all other remedies or rights that disclosing
party shall have at law or in equity.
6.4. EGISTICS will take reasonable security measures designed to protect your Confidential Information, including your Client Data. These measures will include the use of reasonable physical, administrative, and technical security techniques and systems designed to prevent unauthorized access and disclosure, maintain data accuracy, and ensure appropriate use of your
Confidential Information.
6.5. Client agrees to the terms of EGISTICS' privacy statement, which is located at http://www.egisticsinc.com/privacy and is incorporated herein by reference (including any changes to EGISTICS' privacy statement made in accordance with its terms).
6.6. Upon termination or expiration of this
Agreement, the receiving party will return to the disclosing party or destroy all Confidential Information delivered or disclosed to the receiving party (including, with respect to you as receiving party, the Downloaded Software), together with all copies in existence thereof at any time made by the receiving party; provided that return of Client Data by EGISTICS to you is covered by Section 7.6 below.
7. Term and Termination
7.1. This Agreement will be effective as of the Effective Date and, unless sooner terminated as herein provided, will continue for the period of time set forth in the Order Form (the "Initial Term"). Thereafter, this Agreement shall automatically renew for successive renewal terms (each renewal term being the same length as the Initial Term) based on EGISTICS' then-current fees,
unless either party provides written notice of its intent to terminate this Agreement at least fifteen (15) days prior to the end of the Initial Term or applicable renewal term.
7.2. Either party may terminate this Agreement upon thirty (30) days prior written notice if the other party materially breaches any of the terms and conditions of this Agreement and such material breach is not cured within the
thirty (30) day period after written notification of such breech. EGISTICS will have the right to suspend use of or access to the Service in the event EGISTICS determines in its sole discretion that Client has breached this Agreement. Notwithstanding the foregoing, termination and suspensions relating to late payments by Client are covered in Section 7.3 below.
7.3. If a payment becomes ten (10) business
days or more overdue, EGISTICS reserves the right to suspend Client access to the Service without liability to you, until payment is made in full. If any payment becomes thirty (30) days or more overdue, EGISTICS may terminate this Agreement upon notice to you.
7.4. EGISTICS may terminate this Agreement without cause upon at least sixty (60) days prior written notice. In such event, Client will be entitled
to a refund of any prepaid amounts for Service not delivered.
7.5. The terms provided in Sections 4, 6, 9, 10, 11, and 12 of this Agreement shall survive any termination or expiration of this Agreement. In addition, upon termination Client shall promptly pay EGISTICS all outstanding amounts due to EGISTICS under this Agreement. If this Agreement is terminated by EGISTICS due to Client breach, which you
fail to cure after receipt of written notice, or if Client terminates this Agreement without cause prior to the end of the then-current term, then all fees unpaid for the remainder of the current term shall become immediately due and payable by Client to EGISTICS as liquidated damages, without any further demand by EGISTICS. The parties acknowledge that EGISTICS' actual damages arising from such termination would be difficult to determine with accuracy and, accordingly, have agreed to the
foregoing liquidated damages, which the parties acknowledge is a reasonable estimate of EGISTICS' potential losses.
7.6. Within thirty (30) days after termination, Client may request in writing that EGISTICS provide Client with access to a copy of all Client Data, and EGISTICS will provide such Client Data so long as Client pays the then-current fee for such service. After such 30-day period, EGISTICS
shall have no obligation to maintain or provide any Client Data and shall thereafter, unless legally prohibited, delete all Client Data in the Service.
7.7. Notwithstanding the forgoing, the termination of this Agreement pursuant to this Section 7 shall not affect or diminish the rights or claims or remedies available in equity, at law or otherwise to the terminating party arising by reason of the
circumstances surrounding such termination, nor will election by a party not to terminate this Agreement constitute a waiver of its other rights or remedies available in equity, at law or otherwise arising by reason of any breach of this Agreement.
8. Independent Contractors; Publicity
8.1. The parties are and intend to
be independent contractors with respect to the services contemplated hereunder. No form of joint employer, joint venture, partnership, or similar relationship between the parties is intended or hereby created.
8.2. Client agree that EGISTICS may include you as a customer in promotional material for the Software and/or for EGISTICS, including use of logos, trademarks, trade names and similar identifying
material. This right can be revoked by submitting a request via e-mail to EGISTICS at marketing@egisticsinc.com. Confirmation of such request (via reply e-mail) must be received for this to be effective. Upon receipt of such request, EGISTICS will use commercially reasonable efforts to remove any reference to Client from such promotional material within 30 days and make no further reference to Client.
9. Warranties; Disclaimers
9.1. Client and EGISTICS each warrant that they have full authority to enter into this Agreement and are not bound by any contractual or legal restrictions from fulfilling their obligations hereunder. In addition, EGISTICS warrants that the Service will substantially conform to the written or electronic documentation provided by EGISTICS in connection with the Service. In the
event of a breach of this warranty by EGISTICS, as the sole and exclusive remedy, EGISTICS will, at its expense, use commercially reasonable efforts to cause the Service to conform.
9.2. Client represents and warrants that all Client Data and associated content and data ("Client Data") provided to EGISTICS in connection with the use of the Site and the Service: (i) is owned by you, or you have the full
right to provide the Client Data to EGISTICS; (ii) does not infringe or misappropriate any copyright, trademark, trade secret or other intellectual property right; (iii) does not violate any person's right of privacy or publicity; and (iv) does not contain any unlawful, obscene, defamatory or libelous material. Client further represents and warrants that use of Client Data on the Site or in connection with the Service is not in breach of any covenant or obligation of confidentiality that you
have to any other person or entity. Client is solely responsible for the Client Data, and acknowledges that EGISTICS has no responsibility or intent to review or monitor any Client Data.
9.3. Client shall be solely responsible for the use of the Service, and, except as otherwise agreed in writing by the parties, for maintaining backup copies of the Client Data. Client acknowledges and agrees that the
Service is strictly a tool to be used in conjunction with good and reasonable business judgment by competent personnel.
9.4. The Service may contain features, functionality and information that are provided through or by third-party content, software, web sites, and/or systems ("Third-Party Materials"). Client's use and access of these features and functionality are subject to the terms published or
otherwise made available by the third-party providers of Third-Party Materials. EGISTICS has no responsibility for any Third-Party Materials, and you irrevocably waive any claim against EGISTICS with respect to such Third-Party Materials.
9.5. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, THE SERVICE IS PROVIDED "AS IS" AND EGISTICS MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND NON-INTERFERENCE. EGISTICS DOES NOT WARRANT OR GUARANTEE THAT THE SOFTWARE OR SERVICE WILL OPERATE UNINTERRUPTED OR ERROR-FREE OR THAT THEIR USE WILL BE SUITABLE FOR YOUR PURPOSES.
10. Indemnification
Client, at Client's
expense, shall indemnify, defend and hold EGISTICS and its officers, directors, owners, employees, and affiliates harmless from and against all liability, damages, injuries, losses, costs and expenses (including attorney's fees) arising out of or relating to Client's use of the Service, including but not limited to liability, damages, injuries, losses, costs and expenses arising from any claims relating to: (a) your breach of any representations, warranties, or covenants in this Agreement,
(b) your compliance or failure to comply with applicable laws and regulations, (c) your use of the Software and Service, and (d) the Client Data. EGISTICS shall provide Client with prompt written notice of any such claim.
11. Liability
11.1.EGISTICS' liability (whether in contract, tort, negligence, strict liability in
tort, or by statute or otherwise) to Client or to any third party concerning performance or non-performance by EGISTICS, or in any manner related to this Agreement or the Service, for any and all claims shall not exceed in the aggregate the Subscription Fees paid by Client to EGISTICS hereunder with respect to the Service at issue (excluding any fees or charges relating to approved expenses incurred by EGISTICS on behalf of Client) during the month that the relevant cause of action occurred.
11.2.Except with respect to a party's indemnification obligations or breach of Sections 4 or 6, in no event shall either party be liable for special, consequential, incidental, indirect or punitive loss, damage or expenses whether arising in contract or tort (including but not limited to lost profits, loss of data, or the cost of recreating lost data), even if it has been advised of their possible
existence.
11.3.The allocations of liability in this Section represent the agreed and bargained for understanding of the parties and EGISTICS' compensation reflects such allocation. These limitations of liability will apply notwithstanding any failure of essential purpose of any limited remedy.
12. Dispute Resolution
12.1.The parties agree to work together in good faith to resolve any dispute regarding this Agreement internally and by escalating it to higher levels of management and optional mediation, prior to resorting to binding arbitration.
12.2.Any dispute, controversy or claim arising out of or relating to this Agreement, or the
breach, termination or invalidity thereof, that cannot be resolved by good faith negotiations shall be finally settled by binding arbitration conducted in the English language in Dallas, TX (USA), under the commercial arbitration rules of the American Arbitration Association ("AAA"). The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in such amount as may be determined by the arbitrator. The award of the arbitrator shall
be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction. Notwithstanding anything contained in this Section to the contrary, each party shall have the right to institute judicial proceedings against the other party or anyone acting by, through or under such other party, in order to enforce the instituting party's rights hereunder through specific performance, injunction or similar equitable relief.
12.3.This Agreement shall be interpreted, construed, and governed by the laws of the State of Texas, without regard to its conflict of law provisions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
13. Notices
Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending be email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Notices to Client shall be
addressed to the system administrator designated by Client for the relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by Client.
14. Miscellaneous
14.1.Your information may be transferred to — and maintained on — computers located outside of your
state, province, country or other governmental jurisdiction where the privacy laws may not be as protective as those in your jurisdiction. If you are located outside the United States and choose to provide information to us, EGISTICS transfers Personal Information to the United States and processes it there. Your consent to these procedures followed by your submission of such information represents your agreement to that transfer and the use of such information for the uses identified above
and in accordance with EGISTICS' Privacy Policy.
14.2.Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any
government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication or internet service providers.
14.3.This Agreement (including the Order Form and any attachments thereto specifically agreed by the parties) constitutes the entire understanding of the parties with respect to its subject matter, and
supersedes all prior or contemporaneous written and oral communications, understandings or agreements with respect to its subject matter. No waiver of any provision of this Agreement, or of any rights or obligations of any party hereunder, will be effective unless in writing and signed by the party waiving compliance. The failure by any party to exercise any right provided herein shall not be deemed a waiver or forfeiture of any such right. Headings used in this Agreement are for convenience
of reference only and shall not be deemed a part of this Agreement.
14.4.Client shall have no right to assign this Agreement or any of the obligations hereunder, by operation of law or otherwise, without EGISTICS' prior written consent. EGISTICS may assign this Agreement and any of its rights hereunder to third parties. Subject to the foregoing, this Agreement shall be binding upon, and shall inure to the
benefit of, the parties and their respective successors and permitted assigns. Any assignment or assumption without EGISTICS' prior written consent shall be null and void.
14.5.Every provision of this Agreement is intended to be severable. If any section of this Agreement is found to be invalid or unenforceable, then such section will be deemed amended and interpreted, if possible, in a way that renders
it enforceable. If such an interpretation is not possible, then the section will be deemed removed from this Agreement and the rest of this Agreement will remain in full force and effect.
14.6.Client agrees to comply with all relevant export laws and regulations, including, but not limited to, the U.S. Export Administration Regulations and Executive Orders ("Export Controls"). Client warrants
that you are not a person, company or destination restricted or prohibited by Export Controls ("Restricted Person"). Client will not, directly or indirectly, export, re-export, divert, or transfer the Software or Service, any portion thereof or any materials, items or technology relating to EGISTICS' business or related technical data or any direct product thereof to any Restricted Person.
15. Agreement and Amendments
15.1.By completing the registration process, and/or using the Service, you represent that you are authorized to bind any legal entity that you represent, and agree to all of the terms in this Agreement. You may print and keep a copy of this Agreement.
15.2.EGISTICS reserves the right, in its
sole discretion, to modify or change this Agreement at any time by posting the changes to the Site. Continued use of the Site or Service following the posting of such changes constitutes acceptance of those changes. EGISTICS will use reasonable commercial efforts to provide notice of material changes to you. EGISTICS also reserves the right to modify the Site and the Service at any time without prior notice to Client.
