By paying your monthly membership fee, you agree to the following terms and
conditions (the "Agreement") governing your use of C-Ware, Inc. ("C-Ware") services and
website, including off-line components (collectively, the "Service"). If you are entering into
this Agreement on behalf of a company or other legal entity, you represent that you have the
authority to bind such entity to these terms and conditions, in which case the terms "you" or
"your" shall refer to such entity. If you do not have such authority, or if you do not agree
with these terms and conditions, you can decline the services and not use the Service. As part
of the Service, C-Ware will provide you with use of the Service, including all client
applications, server applications, server appliances, browser interface, data encryption,
transmission, access and storage. Your registration for, or use of, the Service shall be deemed
to be your agreement to abide by this Agreement including any materials available on the
related C-Ware websites incorporated by reference herein, including but not limited to C-Ware's
privacy policies. For reference, a Definitions section is included at the end of this
Agreement.
The Service is a combination of software applications, utilities and
consultation. Software applications includes a suite of desktop, web and mobile applications.
1. Privacy and Security; Disclosure
C-Ware provides a
privacy policy, C-Ware reserves the right to modify its
privacy policy in its
reasonable discretion from time to time. Note that because the Service is a hosted, on-line
application, C-Ware will occasionally notify all users of the Service of important announcements
regarding the operation of the Service. If you become a paying member of the Service, you agree
that C-Ware can disclose the fact that you are a paying member and the edition of the Service
that you are using.
2. License Grant and Restrictions
As a paying member, C-Ware hereby grants you a non-exclusive, non-transferable, right to use the
Service, solely for your own internal business purposes, subject to the terms and conditions of
this Agreement. All rights not expressly granted to you are reserved by C-Ware and its
licensors. You may not access the Service if you are a direct competitor of C-Ware, except with
C-Ware's prior written consent. In addition, you may not access the Service for purposes of
monitoring its availability, performance or functionality, or for any other benchmarking or
competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign,
distribute or otherwise commercially exploit or make available to any third party the Service or
the Content in any way; (ii) modify or make derivative works based upon the Service or the
Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any
other server or wireless or Internet-based device; or (iv) reverse engineer or access the
Service in order to (a) build a competitive product or service, (b) build a product using
similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features,
functions or graphics of the Service. User licenses cannot be shared or used by more than one
individual User but may be reassigned from time to time to new Users who are replacing former
Users who have terminated employment or otherwise changed job status or function and no longer
use the Service. You may use the Service only for your internal business purposes and shall not:
(i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
(ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious
material, including material harmful to children or violative of third party privacy rights;
(iii) send or store material containing software viruses, worms, Trojan horses or other harmful
computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity
or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized
access to the Service or its related systems or networks.
3. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all
applicable local, state, national and foreign laws, treaties and regulations in connection with
your use of the Service, including those related to data privacy, international communications
and the transmission of technical or personal data. You shall: (i) notify C-Ware immediately of
any unauthorized use of any password or account or any other known or suspected breach of
security; (ii) report to C-Ware immediately and use reasonable efforts to stop immediately any
copying or distribution of Content that is known or suspected by you or your Users; and (iii)
not impersonate another C-Ware user or provide false identity information to gain access to or
use the Service.
4. Account Information and Data
C-Ware does not own any data, information or material that you submit to the Service in the
course of using the Service ("Member Data"). You, not C-Ware, shall have sole responsibility for
the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual
property ownership or right to use of all Member Data, and C-Ware shall not be responsible or
liable for the deletion, correction, destruction, damage, loss or failure to store any Member
Data.
Trial Member Data is not made available to you upon
termination and will be removed when the trial concludes. C-Ware reserves the right to withhold,
remove and/or discard Member Data without notice for any breach, including, without limitation,
your non-payment. Upon termination for cause, your right to access or use Member Data
immediately ceases, and C-Ware shall have no obligation to maintain or forward any Member Data.
5. Intellectual Property Ownership
C-Ware alone (and its licensors, where applicable) shall own all right, title and interest,
including all related Intellectual Property Rights, in and to the C-Ware Technology, the Content
and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or
other information provided by you or any other party relating to the Service. This Agreement is
not a sale and does not convey to you any rights of ownership in or related to the Service, the
C-Ware Technology or the Intellectual Property Rights owned by C-Ware. The C-Ware name, the
C-Ware logo, and the product names associated with the Service are trademarks of C-Ware or third
parties, and no right or license is granted to use them.
6. Third Party Interactions
During use of the Service, you may enter into correspondence with, purchase goods and/or services
from, or participate in
promotions of advertisers or sponsors showing their goods and/or services through the Service.
Any such activity, and any terms, conditions, warranties or representations associated with such
activity, is solely between you and the applicable third-party. C-Ware and its licensors shall
have no liability, obligation or responsibility for any such correspondence, purchase or
promotion between you and any such third-party. C-Ware does not endorse any sites on the
Internet that are linked through the Service. C-Ware provides these links to you only as a
matter of convenience, and in no event shall C-Ware or its licensors be responsible for any
content, products, or other materials on or available from such sites. C-Ware provides the
Service to you pursuant to the terms and conditions of this Agreement. You recognize, however,
that certain third-party providers of ancillary software, hardware or services may require your
agreement to additional or different license or other terms prior to your use of or access to
such software, hardware or services.
7. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and
billing terms in effect at the time a fee or charge is due and payable. Fees are determined from
Service requirements and are due monthly. Discounts are given for annual prepayment or unlimited
prepayment. All monthly payment obligations are noncancelable and all amounts paid are
nonrefundable. With early termination, prepaid obligations are refunded pro rata after forfeit
of any discounts and a 10% processing fee assessed on the total prepaid amount. The term of five
years is used to pro rate unlimited terms. You are responsible for paying for all Service
ordered for the entire month, whether or not such Services are actively used. You must provide
C-Ware with valid credit card or approved purchase order information as a condition to signing
up for the Service. C-Ware reserves the right to modify its fees and charges and to introduce
new charges at any time, upon at least 30 days prior notice to you, which notice may be provided
by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third
party.
8. Excessive Use Fees
Service provided has prescribed limits on storage and traffic. Service in excess of these limits
is subject to additional fees. C-Ware will give reasonable notice if the Service is within 90%
of their respective limits; however, any failure by C-Ware to so notify you shall not affect
your responsibility for such additional storage charges. C-Ware reserves the right to establish
or modify its general practices and limits relating to storage or traffic of Member Data.
9. Billing
C-Ware charges and collects in advance for use of the Service. C-Ware will automatically bill
your credit card or issue an invoice to you every month, or when any prepaid amounts are
exhausted. The amount charged will be the then-current monthly service fee with optional
prepayment discounts, unless C-Ware has given you at least 30 days prior written notice of a fee
increase, which shall be effective upon the next period. Fees for other services will be charged
on an as-quoted basis. C-Ware's fees are exclusive of all taxes, levies, or duties imposed by
taxing authorities, and you shall be responsible for payment of all such taxes, levies, or
duties, excluding only United States (federal or state) taxes based solely on C-Ware's income.
You agree to provide C-Ware with complete and accurate billing and contact information. This
information includes your legal company name, street address, e-mail address, and name and
telephone number of an authorized billing contact and License Administrator. You agree to update
this information within 30 days of any change to it. If the contact information you have
provided is false or fraudulent, C-Ware reserves the right to terminate your access to the
Service in addition to any other legal remedies. Unless C-Ware in its discretion determines
otherwise, individuals or entities will be billed in U.S. dollars and subject to U.S. payment
terms and pricing schemes. If you believe your bill is incorrect, you must contact us in writing
within 60 days of the invoice date of the invoice containing the amount in question to be eligible
to receive an adjustment or credit.
10. Non-Payment and Suspension
In addition to any other rights granted to C-Ware herein, C-Ware reserves the right to suspend
or terminate this Agreement and your access to the Service if your account becomes delinquent
(falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0%
per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus
all expenses of collection. You will continue to be charged for Service during any period of
suspension. If you or C-Ware initiates termination of this Agreement, you will be obligated to
pay the balance due on your account computed in accordance with the Charges and Payment of Fees
section above. You agree that C-Ware may charge such unpaid fees to your credit card or
otherwise bill you for such unpaid fees. C-Ware reserves the right to impose a reconnection fee
in the event you are suspended and thereafter request access to the Service. You agree and
acknowledge that C-Ware has no obligation to retain Member Data and that such Member Data may be
irretrievably deleted if your account is 30 days or more delinquent.
11. Termination upon Expiration
This Agreement commences upon receipt of monthly payment or in the case of free trial period at
sign up. Service term is at least 28 days and covers the month ending on the same day of
following month, limited to 32 days for any single month. For uninterrupted Service, payment
must be received before the beginning of the next monthly period. There is a 5-day grace period
to account for billing issues, and is the sole discretion of C-Ware to extend or reduce the
grace period. Prepaid Service terminates when the number of prepaid months lapse, returning to
monthly terms until another prepayment is received. For an unlimited prepaid membership, the
term is indefinite but may be terminated at any time in C-Ware's sole discretion. Either party
may terminate this Agreement or reduce the amount of Service, effective only upon the expiration
of the then current License Term, by notifying the other party in writing at least five (5)
business days prior to the date of the invoice for the following term. In the case of free
trials, notifications provided through the Service indicating the remaining number of days in
the free trial shall constitute notice of termination. In the event this Agreement is terminated
(other than by reason of your breach), C-Ware will make available to you a file of the Member
Data within 30 days of termination if you so request at the time of termination. You agree and
acknowledge that C-Ware has no obligation to retain the Member Data, and may delete such Member
Data, more than 30 days after termination.
12. Termination for Cause
Any breach of your payment obligations or unauthorized use of the C-Ware Technology or Service
will be deemed a material breach of this Agreement. C-Ware, in its sole discretion, may
terminate your password, account or use of the Service if you breach or otherwise fail to comply
with this Agreement. In addition, C-Ware may terminate a free account at any time in its sole
discretion. You agree and acknowledge that C-Ware has no obligation to retain the Member Data,
and may delete such Member Data, if you have materially breached this Agreement, including but
not limited to failure to pay outstanding fees, and such breach has not been cured within 30
days of notice of such breach.
13. Representations and Warranties
Each party represents and warrants that it has the legal power and authority to enter into this
Agreement. C-Ware represents and warrants that it will provide the Service in a manner
consistent with general industry standards reasonably applicable to the provision thereof and
that the Service will perform substantially in accordance with the online C-Ware help
documentation under normal use and circumstances. You represent and warrant that you have not
falsely identified yourself nor provided any false information to gain access to the Service and
that your billing information is correct.
14. Mutual Indemnification
You shall indemnify and hold C-Ware, its licensors and each such party's parent organizations,
subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and
against any and all claims, costs, damages, losses, liabilities and expenses (including
attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use
of the Member Data infringes the rights of, or has caused harm to, a third party; (ii) a claim,
which if true, would constitute a violation by you of your representations and warranties; or
(iii) a claim arising from the breach by you or your Users of this Agreement, provided in any
such case that C-Ware (a) gives written notice of the claim promptly to you; (b) gives you sole
control of the defense and settlement of the claim (provided that you may not settle or defend
any claim unless you unconditionally release C-Ware of all liability and such settlement does
not affect C-Ware's business or Service); (c) provides to you all available information and
assistance; and (d) has not compromised or settled such claim. C-Ware shall indemnify and hold
you and your parent organizations, subsidiaries, affiliates, officers, directors, employees,
attorneys and agents harmless from and against any and all claims, costs, damages, losses,
liabilities and expenses (including attorneys' fees and costs) arising out of or in connection
with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued
as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would
constitute a violation by C-Ware of its representations or warranties; or (iii) a claim arising
from breach of this Agreement by C-Ware; provided that you (a) promptly give written notice of
the claim to C-Ware; (b) give C-Ware sole control of the defense and settlement of the claim
(provided that C-Ware may not settle or defend any claim unless it unconditionally releases you
of all liability); (c) provide to C-Ware all available information and assistance; and (d) have
not compromised or settled such claim. C-Ware shall have no indemnification obligation, and you
shall indemnify C-Ware pursuant to this Agreement, for claims arising from any infringement
arising from the combination of the Service with any of your products, service, hardware or
business process(es).
15. Disclaimer of Warranties
C-WARE AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY,
TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE
OR ANY CONTENT. C-WARE AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE
SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY
OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR
EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS,
SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL
MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE
SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL
COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL
CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW BY C-WARE AND ITS LICENSORS.
16. Internet Delays
C-WARE'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE
OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. C-WARE IS NOT RESPONSIBLE FOR ANY DELAYS,
DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
17. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR
DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH
CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT,
PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND
(INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR
IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE
THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION,
INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH
DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
18. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or
limitation of liability for incidental, consequential or certain other types of damages, so the
exclusions set forth above may not apply to you.
19. Local Laws and Export Control
This site provides services and uses software and technology that may be subject to United
States export controls administered by the U.S. Department of Commerce, the United States
Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. The user of
this site ("User") acknowledges and agrees that the site shall not be used, and none of the
underlying information, software, or technology may be transferred or otherwise exported or
re-exported to countries as to which the United States maintains an embargo (collectively,
"Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on
the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department
of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of
Embargoed Countries and Designated Nationals are subject to change without notice. By using the
Service, you represent and warrant that you are not located in, under the control of, or a
national or resident of an Embargoed Country or Designated National. You agree to comply
strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to
export or re-export as may be required. This site may use encryption technology that is subject
to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts
730-774 and Council Regulation (EC) No. 1334/2000 C-Ware and its licensors make no
representation that the Service is appropriate or available for use in other locations. If you
use the Service from outside the United States of America, you are solely responsible for
compliance with all applicable laws, including without limitation export and import regulations
of other countries. Any diversion of the Content contrary to United States law is prohibited.
None of the Content, nor any information acquired through the use of the Service, is or will be
used for nuclear activities, chemical or biological weapons, or missile projects, unless
specifically authorized by the United States government.
20. Notice
C-Ware may give notice by means of a general notice on the Service, electronic mail to your
e-mail address on record in C-Ware's account information, or by written communication sent by
first class mail or pre-paid post to your address on record in C-Ware's account information.
Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or
posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by
email). You may give notice to C-Ware (such notice shall be deemed given when received by
C-Ware) at any time by any of the following: letter sent by confirmed facsimile to C-Ware at the
following fax numbers 503-682-4975; letter delivered by nationally recognized overnight delivery
service or first class postage prepaid mail to C-Ware at the following addresses (whichever is
appropriate): C-Ware, Inc., PO Box 224, Tualatin OR, 97062, addressed to the
attention of: Chief Financial Officer.
21. Modification to Terms
C-Ware reserves the right to modify the terms and conditions of this Agreement or its policies
relating to the Service at any time, effective upon posting of an updated version of this
Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued
use of the Service after any such changes shall constitute your consent to such changes.
22. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of C-Ware but may
be assigned without your consent by C-Ware to (i) a parent or subsidiary, (ii) an acquirer of
assets, or (iii) a successor by merger. Any purported assignment in violation of this section
shall be void. Any actual or proposed change in control of you that results or would result in a
direct competitor of C-Ware directly or indirectly owning or controlling 50% or more of you
shall entitle C-Ware to terminate this Agreement for cause immediately upon written notice.
23. General
This Agreement shall be governed by Oregon law and controlling United States federal law,
without regard to the choice or conflicts of law provisions of any jurisdiction, and any
disputes, actions, claims or causes of action arising out of or in connection with this
Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal
courts located in Portland, Oregon. No text or information set forth on any other purchase
order, preprinted form or document (other than an Order Form, if applicable) shall add to or
vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a
court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be
construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable
provision(s), with all other provisions remaining in full force and effect. No joint venture,
partnership, employment, or agency relationship exists between you and C-Ware as a result of
this agreement or use of the Service. The failure of C-Ware to enforce any right or provision in
this Agreement shall not constitute a waiver of such right or provision unless acknowledged and
agreed to by C-Ware in writing. This Agreement, together with any applicable Order Form,
comprises the entire agreement between you and C-Ware and supersedes all prior or
contemporaneous negotiations, discussions or agreements, whether written or oral, between the
parties regarding the subject matter contained herein.
24. Definitions
As used in this Agreement and in any Order Forms now or hereafter associated herewith:
"Agreement" means these terms of use, any Order Forms, whether written or submitted on-line, and
any materials available on the C-Ware website specifically incorporated by reference herein, as
such materials, including the terms of this Agreement, may be updated by C-Ware from time to
time in its sole discretion; "Content" means the audio and visual information, documents,
software, products and services contained or made available to you in the course of using the
Service; "Member Data" means any data, information or material provided or submitted by you to
the Service in the course of using the Service; "Effective Date" means the earlier of either the
date this Agreement is accepted or the date you begin using the Service; "Intellectual Property
Rights" means unpatented inventions, patent applications, patents, design rights, copyrights,
trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other
trade secret rights, and all other intellectual property rights, derivatives thereof, and forms
of protection of a similar nature anywhere in the world; "Account Administrator" means those
Users designated by you who are authorized to purchase Service and to create User accounts and
otherwise administer your use of the Service; "Service Term(s)" means the period(s) during which
a specified number of Users are permitted by C-Ware to use the Service pursuant to the Order
Form(s); "Order Form(s)" means the form evidencing the initial subscription for the Service and
any subsequent order forms submitted on-line or in written form, specifying, among other things,
the number of authorized Users and other services contracted for, the applicable fees, the
billing period, and other charges as agreed to between the parties, each such Order Form to be
incorporated into and to become a part of this Agreement (in the event of any conflict between
the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement
shall prevail); "C-Ware" means collectively C-Ware, Inc., an Oregon corporation, having its
principal place of business at 29895 SW Kinsman Rd, Wilsonville, OR 97070; "C-Ware Technology"
means all of C-Ware's proprietary technology (including software, hardware, products, processes,
algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible
technical material or information) made available to you by C-Ware in providing the Service;
"Service(s)" means the software provided to C-Ware's on-line information storage, management,
and retrieval systems, billing, data analysis, or other corporate ERP services identified during
the ordering process, developed, operated, and maintained by C-Ware, accessible via
http://www.c-ware.com or another designated web site or IP
address, or ancillary on-line or off-line products and services provided to you by C-Ware, to which
you are being granted access under this Agreement, including the C-Ware Technology and the Content;
"User(s)" means your employees, representatives, consultants, contractors or agents who are
authorized to use the Service and have been supplied user identifications and passwords by you (or
by C-Ware at your request).
Questions or Additional Information
If you have questions regarding this Agreement or wish to obtain additional information, please
send an e-mail to
agreement@c-ware.com.
