Last updated 5/6/2016
PLEASE READ THESE TERMS CAREFULLY BEFORE USING THE SOFTWARE AND SERVICES OFFERED BY STANDARD CYBORG, INC. (“STANDARD CYBORG”). BY SIGNING A STANDARD CYBORG ORDER FORM WHICH REFERENCES THESE TERMS (AN “ORDER FORM”), YOU OR THE ENTITY THAT YOU REPRESENT (“CUSTOMER”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE MASTER LICENSE AGREEMENT CONSISTING OF THIS PARAGRAPH AND THE FOLLOWING TERMS (THE “AGREEMENT”). PROVISION OF THE SERVICES IS CONDITIONED ON, AND CUSTOMER’S ACCESSING OR USING THE SERVICES SHALL CONSTITUTE, CUSTOMER’S ASSENT TO THE TERMS OF THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS. IN THE EVENT OF A CONFLICT BETWEEN THIS AGREEMENT AND THE ORDER FORM, THE ORDER FORM SHALL CONTROL.
a. Subject to the terms and conditions of this Agreement, Standard Cyborg will use reasonable efforts to provide Customer with access to the software and services set forth on the Order Form (the “Services”) through the internet and hereby grants Customer a personal, nonsublicensable, non-exclusive right to access and use the Services during the Term solely for the purposes and subject to any limitations described on the Order Form.
b. Subject to the terms hereof, Standard Cyborg will use reasonable efforts to (i) make the Services available twenty-four (24) hours a day, seven (7) days a week, and (ii) provide Customer with the Support Services listed on the Order Form.
c. Notwithstanding anything to the contrary, Standard Cyborg reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Standard Cyborg. The Services are subject to modification from time to time at Standard Cyborg’s sole discretion, for any purpose deemed appropriate by Standard Cyborg. Standard Cyborg will use reasonable efforts to give Customer prior written notice of any such modification.
a. Customer will not (and will not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation, data, or API related to the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Standard Cyborg or authorized within the Services); (iii) use the Services or any Software for timesharing, outsourced or service bureau purposes or otherwise for the benefit of a third party (other than Customer’s end users); (iv) transfer, distribute, sell, resell, lease, sublease, license, sub-license or assign the Services or any Software; or (v) store or transmit infringing, libelous, or otherwise unlawful or tortious material, or store or transmit material in violation of third party privacy rights.
c. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords and files, and for all uses of Customer account or the Equipment.
a. Standard Cyborg (and its licensors, where applicable) exclusively owns all right, title and interest in and to the Services and Software and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Service and/or the Software, which are hereby assigned to Standard Cyborg. Except as expressly granted hereunder, Standard Cyborg reserves all rights, title and interests in and to the Services and Software.
b. As between the parties, the Customer Content (as defined below) will be owned by Customer. Customer will be solely responsible for the accuracy, quality, integrity and legality of Customer Content. Customer hereby grants to Standard Cyborg a non-exclusive, worldwide license to copy, modify (including the right to create derivative works of), display and use Customer Content in connection with performing the Services and otherwise for Standard Cyborg’s business purposes. “Customer Content” means any data and other material uploaded to or created using the Services or supplied directly to Standard Cyborg by Customer or Customer’s end-users in the course of receiving or using Services, including, without limitation, any designs or specifications.
c. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Standard Cyborg includes non-public information regarding features, functionality and performance of the Service. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except as expressly permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required by law. Customer acknowledges that Standard Cyborg does not wish to receive any Proprietary Information from Customer that is not necessary for Standard Cyborg to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Standard Cyborg may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information. Under no circumstances may Customer upload or otherwise provide to Standard Cyborg any protected health information or third-party personally identifiable information.
d. Notwithstanding anything to the contrary, Standard Cyborg shall have the right to collect and analyze data and other information relating to the use and performance of various aspects of the Services and related systems and technologies, and Standard Cyborg will be free to (i) use such information and data (during and after the Term hereof) to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Standard Cyborg offerings, and (ii) disclose such data in aggregate or other de-identified form in connection with its business.
a. Customer will pay Standard Cyborg the then applicable fees set forth in the Order Form for the Services (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form (if any) or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein without any right of set-off or deduction. Standard Cyborg reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Term or any renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Standard Cyborg has billed Customer incorrectly, Customer must contact Standard Cyborg no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. All payments will be made in accordance with the Payment Frequency indicated on the Order Form. If not otherwise specified, payments will be due within thirty (30) days of invoice.
b. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Standard Cyborg’s net income.
a. The term of this Agreement will begin on the Effective Date, and, subject to earlier termination as provided below, is for the duration as specified in the Order Form (the “Term”).
b. Either party may terminate this Agreement, with or without cause, upon thirty (30) days’ notice. Either party may terminate this Agreement immediately (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings that are not dismissed within ninety (90) days, (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
c. For a period of thirty (30) days after any request by Customer or any termination of this Agreement, Standard Cyborg will use reasonable commercial efforts to make available to Customer electronically all Customer Content. After such thirty (30) -day period, Standard Cyborg will have no obligation to maintain or provide any Customer Content and may thereafter, unless legally prohibited, delete all Customer Content in its systems or otherwise in its possession or under its control.
a. THE SERVICES, SOFTWARE, AND ANY PROFESSIONAL SERVICES PROVIDED BY STANDARD CYBORG ARE PROVIDED “AS IS” AND STANDARD CYBORG HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND TITLE. FURTHER, STANDARD CYBORG DOES NOT WARRANT RESULTS OF USE OR THAT ANY PRODUCTS OR PROTOTYPES PROVIDED TO CUSTOMER IN CONNECTION WITH THE SERVICES ARE FREE OF DEFECTS OR HARMFUL COMPONENTS, OR THAT ANY SUCH PRODUCTS OR PROTOTYPES WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER ACKNOWLEDGES AND AGREES THAT SOME COMPONENTS OF THE SOFTWARE, SERVICES, AND ANY PRODUCTS OR PROTOTYPES PROVIDED IN CONNECTION THEREWITH MAY BE PROVIDED BY A THIRD PARTY, AND STANDARD CYBORG MAKES NO WARRANTY REGARDING SUCH THIRD-PARTY PRODUCTS OR SERVICES.
a. Standard Cyborg will hold Customer harmless from liability to unaffiliated third parties resulting from infringement by the Service of any United States patent or copyright or misappropriation of any trade secret; provided that Customer: (i) provides prompt written notice of any and all threats, claims, and proceedings related thereto; (ii) gives Standard Cyborg sole control of the defense and settlement (and Standard Cyborg will not be responsible for any settlement it does not approve); and (iii) provides Standard Cyborg, at Standard Cyborg’s expense, all reasonable assistance necessary for defense and settlement. Standard Cyborg may, at its sole option and expense: (a) procure for Customer the right to continue using the Service under the terms of this Agreement; (b) replace or modify the Service to be non-infringing without material decrease in functionality; or (c) if the foregoing options are not reasonably practicable, terminate this Agreement and refund Customer all prepaid Fees for the remainder of the Term. Notwithstanding the foregoing, Standard Cyborg shall have no liability for any Claim to the extent it is based on (x) Customer’s breach of this Agreement (including but not limited to any unauthorized use of the Service or any modification of the Service by any person other than Standard Cyborg or its authorized agents); (y) any combination of the Service with other non-Standard Cyborg products, equipment, software, uses or data, to the extent such claim would not have arisen absent such combination; or (z) any activity after Standard Cyborg has provided Customer with a work around or modification that would have avoided such issue without adversely affecting the functionality of the Service.
a. EXCEPT FOR A BREACH OF SECTION 2(a) OR SECTION 3, IN NO EVENT SHALL EITHER PARTY BE RESPONSIBLE OR LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND; (C) FOR ANY MATTER BEYOND A PARTY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID (PLUS ANY ACCOUNTS PAYABLE) BY CUSTOMER TO STANDARD CYBORG FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
a. Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof (collectively, “Controlled Subject Matter”) in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or 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. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
a. Customer represents, warrants and covenants that: (A) all services performed by Customer for end users in connection with using the Services (collectively, the “Customer Work”) will be performed in a professional and workmanlike manner; (B) Customer shall comply with all applicable laws and Standard Cyborg safety rules in the course of performing the Customer Work and its use of the Product; (C) if Customer’s work (including Customer Work) requires a license, Customer has obtained that license and the license is in full force and effect; and (D) Customer will ensure that its employees, contractors and others involved in the Customer Work, if any, are bound in writing to the foregoing, and Customer will be responsible for any noncompliance by them. Customer agrees to indemnify Standard Cyborg from any and all claims, damages, liability, settlement, attorneys’ fees and expenses, as incurred, on account of the foregoing or any breach of this Agreement or any other action or inaction by or for or on behalf of Customer.
b. Customer agrees that notwithstanding any rights of publicity, privacy or otherwise (whether or not statutory) anywhere in the world, and without any further compensation, Standard Cyborg may and is hereby authorized to (and to allow others to) use Customer’s name and/or logo in connection with promotion of Standard Cyborg’s business, products or services. To the extent any of the foregoing is ineffective under applicable law, Customer hereby provides any and all ratifications and consents necessary to accomplish the purposes of the foregoing to the extent possible. Customer will confirm any such ratifications and consents from time to time as requested by Standard Cyborg.
a. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Standard Cyborg’s prior written consent. Standard Cyborg may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Standard Cyborg in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions.