“Activation Date” means the date on which Customer is first given access to a Service ordered hereunder.
“Agreement” means any Order Form together with these General Terms and Conditions.
“User” means a person properly authorized by Customer to use the Service.
“Order Form” means any order form incorporating these General Terms and Conditions.
“Provider” means Dream Management Systems LLC, a Nevada limited liability company doing business as Performology, and its successors and assigns.
“Service” means the current release and version of each Provider service offering listed on an Order Form, together with all related documentation, updates, revisions, error corrections and enhancements thereof which are provided by Provider to Customer.
“Term” means, with respect to each Service, the term for such Service, commencing on the applicable Activation Date for such Service and continuing in effect for the duration of such term, in each case, as set forth on the applicable Order Form for such Service, unless such earlier terminated as provided in Section 4, and, with respect to this Agreement, the term as set forth in Section 4.1 hereof.
“Use” means the use by any person of the Services.
2.1. Services. Subject to the terms of this Agreement, and provided Customer is not in default hereunder, Provider hereby grants to Customer the non-exclusive, non-transferable right to permit Users to Use each Service ordered by Customer hereunder during the term applicable to such Service, solely in the manner permitted by this Agreement and Order Forms or other schedules or addendums hereto.
2.2. Restrictions. Customer shall not allow any User to use any Service in any manner which is not expressly authorized by this Agreement or which violates any applicable law. Customer shall not (i) copy or reproduce the Services in whole or in part; (ii) modify, translate or create derivative works of the Services; (iii) reverse engineer, decompile, disassemble or otherwise reduce the Services to source code form; (iv) distribute, sublicense, assign, share, timeshare, sell, rent, lease, grant a security interest in, use for service bureau purposes or otherwise transfer the Services or Customer’s right to Use the Services; or (v) remove or modify any copyright, trademark or other proprietary notice of Provider or its suppliers affixed to the media containing the Services or contained within the Services.
Customer shall pay the fees for each Service as set forth on the applicable Order Form to such Service. All invoices shall be due and payable in full within thirty (30) days from the invoice date. Provider may charge a late fee on all past due amounts at the rate of 1.5% per month or, if lower, the maximum rate permitted by applicable law. Customer shall pay all of Provider’s costs and expenses (including reasonable attorneys’ and auditors’ fees) if legal action is required to collect outstanding balances or to enforce any of Provider’s other rights hereunder or at law. All fees are payable in U.S. Dollars. Fees are exclusive of any applicable taxes, including without limitation, sales, use, value-added, and withholding taxes, and Customer shall pay all such taxes when due (other than taxes on Provider’s net income).
4.1. Term. This Agreement shall commence on the Effective Date and continue for the term specified in the applicable Order Form. Unless otherwise provided in the Order Form, this Agreement will automatically renew for an additional 1-year term (each, a “Renewal Term”) unless Customer provides Provider with written notice of termination at least 90 days before the end of the Initial Term or any Renewal Term. Each Service ordered hereunder shall continue for the applicable term for such Service as set forth on the applicable Order Form for such Service unless earlier terminated as provided herein.
4.2. Termination. Either party may terminate this Agreement and the Services ordered hereunder if the other party: (a) commits a material breach of this Agreement which is not cured within thirty (30) days after written notice thereof is given by the non-defaulting party; (b) in the case of non-payment by the Customer, Provider may terminate this Agreement and/or any Service within ten (10) days following written notice from Provider, or (c) if the other party is liquidated or dissolved, or suffers a receiver or trustee to be appointed for it, or makes a general assignment for the benefit of its creditors or institutes or has instituted against it any proceedings under any law relating to bankruptcy or relief of debtors, and such filing is not dismissed within sixty (60) days.
4.3. Effect of Termination. Immediately upon any termination of this Agreement, the Services ordered hereunder shall terminate. In such event, Customer shall, and shall cause all persons (including Users) to, cease Use of the Services. This Section 4.3 and the parties’ rights and obligations under Section 7.1 (Ownership of the Services) and Articles 5 (Disclaimer of Warranties), 6 (Limitation of Liability) and 8 (General), as well as any obligations to make payments of fees and other amounts accrued prior to termination, shall survive any termination of this Agreement.
PROVIDER DISCLAIMS ALL WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. PROVIDER SPECIFICALLY DISCLAIMS ANY WARRANTY THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR WILL OPERATE IN COMBINATIONS OR IN A MANNER SELECTED FOR USE BY CUSTOMER, OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
CUSTOMER’S EXCLUSIVE REMEDY AND PROVIDER’S SOLE LIABILITY WITH RESPECT TO ANY CLAIMS ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL BE GOVERNED BY THIS AGREEMENT, AND IN ALL CASES PROVIDER’S LIABILITY SHALL BE LIMITED TO THE FEES ACTUALLY RECEIVED BY PROVIDER UNDER THIS AGREEMENT DURING SHORTER PERIOD OF THE TERM OF APPLICABLE SERVICE GIVING RISE TO THE CLAIM OR THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
IN NO EVENT SHALL PROVIDER BE LIABLE TO CUSTOMER FOR ANY DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, LOSS OF USE OF EQUIPMENT OR LOST CONTRACTS OR FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE, EXEMPLARY DAMAGES IN ANY WAY ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED, EVEN IF PROVIDER HAS BEEN MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. Customer acknowledges and agrees that the level of the fees under this Agreement has been set based on the application of the limitations described in this Section 6.
7.1. Ownership of the Services. Customer acknowledges and agrees that this Agreement conveys a limited right to Use the Services and that Provider shall retain all right, title and ownership in the Services and any intellectual property therein. The Services and any and all materials relating thereto, including all associated intellectual property rights, shall remain at all times the sole, exclusive property of Provider or its licensors. All rights not expressly granted by this Agreement are any Order Form or other addenda hereto are reserved by Provider.
7.2. Security. Customer shall take all reasonable steps to ensure that no unauthorized persons have access to the Services, and to ensure that no persons authorized to have such access shall take any action which would be in violation of this Agreement. Such steps shall include, but shall not be limited to, imposing password restrictions on use of the Service, securing the Customer’s network on which such Service resides from outside intrusion, preventing the making of unauthorized copies of the Service, and administering and monitoring use of the Service. Customer shall promptly report to Provider any actual or suspected violation of Section 2 hereof and shall take such further steps as may reasonably be requested by Provider to prevent or remedy any such violation.
8.1. Gowerning Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of [State Name] without giving effect to its choice of law rules, and excluding any application of the United Nations Convention on Contracts for the International Sale of Goods. This Agreement shall be deemed to have been executed and delivered by both parties in the State of [State Name]. The courts of the State of [State Name] located in [County Name] County, or the United States District Court in [City], [State Name], shall have non-exclusive jurisdiction over any proceeding to enforce the rights of any party under this Agreement, and each party waives all rights to object to the jurisdiction of such courts because of inconvenience of forum.
8.2. Assignment. Neither this Agreement nor the Services ordered hereunder are transferable by Customer without the prior written consent of Provider, and any attempted transfer without such consent shall be void and have no force or effect. This Agreement shall inure to the benefit of the parties and their permitted successors and assigns.
8.3. Amendments. This Agreement may be amended or modified only by a writing signed by both parties. Any waiver by a party of any breach of any provision of this Agreement by the other party must be in writing to be effective and shall not constitute a waiver of any subsequent breach of the same or any other provision.
8.4. Complete Agreement. The parties agree that this Agreement (including the Order Form, the General Terms and Conditions, and all applicable Schedules) is the complete and exclusive statement regarding the subject matter hereof and supersedes all prior agreements, understandings and communications, oral or written, between the parties regarding the subject matter of this Agreement. Except as otherwise provided herein, additional or conflicting terms contained in any standardized form or correspondence of or from Customer are expressly unenforceable under this Agreement unless such terms and conditions are contained in an amendment to this Agreement duly executed by both parties hereto.
8.5. Notices. Any notice by a party under this Agreement shall be in writing and either personally delivered, delivered by facsimile or sent via reputable overnight courier (such as Federal Express) or certified mail, postage prepaid and return receipt requested, addressed to the other party at the address specified on the Order Form or such other address of which either party may from time to time notify the other in accordance with this Section 9.5. All notices shall be in English and shall be deemed effective on the date of personal delivery, upon confirmation of a facsimile transmission, one day after deposit with an overnight courier, or five days after deposit in the mail.
8.6. Publicity. Each party may issue press releases announcing the relationship contemplated by this Agreement, subject to the prior approval of the other party in such other party’s sole discretion. Provider shall be entitled to refer publicly to Customer as one of its customers of the Services.
8.7. Force Majeure. Except for the obligation to make payments, Provider will not be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet.