USER TERMS AND CONDITIONS OF THE MAKER SYSTEM, LLC FieldFlo Platform
Date of Last Revision: March 14, 2019
Maker System, LLC (“Maker System”) provides a set of online tools to it’s customers (“Client”) whereby Client can manage their projects, employees, certifications, clients, time tracking and overall business processes (“System”). The System will be provided on an online platform accessible to Client (“FieldFlo Platform”). The following are the terms and conditions for use of the System between Client and Maker System (“Terms”), along with any amendments thereto and any operating rules or policies that may be published from time to time by Maker System. The Authorized Agent of Client as Client has provided Maker System pursuant to Section 1.4 of these Terms agrees that they have read, understand, and have the capacity and authority to accept, agree to bind Client by these Terms. Client further agrees that it has had the opportunity to seek legal counsel with respect to review of these Terms.
1.1The System is provided subject to these Terms and any operating rules or policies that Maker System may publish from time to time (collectively, the “Agreement”). Maker System may make changes or modifications to this Agreement at any time, and such changes or modifications are effective immediately only upon the written acceptance of any and all modifications by the Client.
1.2Client acknowledges that it has completed the SaaS Services Agreement and registration form in order to use the System. Client represents and warrants that it has provided true, accurate, current, and complete information as requested in the SaaS Services Agreement and registration form, and agrees to update such information in order to maintain such information’s accuracy. As part of the registration process, Client has identified an email address and password for Client’s account. Client is solely responsible for maintaining the security of Client’s account, passwords, and files, and for all uses of Client’s account and of the System in Client’s name. Maker System reserves the right to refuse registration of, or cancel, Client’s account in its sole discretion at any time. Upon the refusal of Maker System to register the Client or upon the cancelation of the Client’s account by Maker System, all payments from the Client shall cease and the Client will not be responsible for making any future payments.
1.3In providing information such as is listed in Section 1.2 to Maker System, Client agrees that Maker System may use this information and any technical information regarding Client’s use of the System to improve the System
1.4Client acknowledges and agrees that: (a) the System includes without limitation, any modifications, enhancements and updates, and any originals and copies thereof, in whole or in part, and all intellectual property rights therein (collectively, “Proprietary Information”) are owned by Maker System, (b) the Proprietary Information contains valuable copyrighted material and is protected by U.S. and international copyright and other intellectual property laws, and (c) Client has no rights in the Proprietary Information.
1.5Maker System and FieldFlo Trademarks. “Maker System” and its logos (both words and design) either are trademarks, service marks, or registered trademarks of Maker System, and may not be copied, imitated or used, in whole or in part without Maker System’s prior express written consent. In addition, all page headers, custom graphics, design and user interface elements, and scripts are service marks, trademarks, and/or trade dress of Maker System and may not be copied, imitated, or used, in whole or in part without our prior written permission, which consent may be withheld.
1.6Reservation of Rights. Except for the rights expressly granted to Client pursuant to these Terms, Client acknowledges that it has no right, title or interest in or to the System or Proprietary Information. All rights not expressly granted by Maker System in these Terms are hereby reserved by Maker System. This Agreement contains no implied rights and Client agrees that it may not rely on any representation or warranties not contained in this Agreement.
2 Restrictions and Responsibilities
2.1Client agrees that it is not granted any license to any Software owned or used by Maker System by this Agreement. Client represents and warrants that it will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of or included in the System or any Software, documentation or data related to the System (“Software”); modify, translate or create derivative works based on the System or any Software; or copy, distribute, pledge, assign or otherwise transfer or encumber rights to the System or any Software; use the System or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
2.2Client represents and warrants that Client will use the System only in compliance with these Terms, or otherwise furnished to Client and all applicable laws (including but not limited to policies and laws related to spamming, privacy, obscenity, copyright, libel or defamation). Client may not access or otherwise use third party mailing lists in connection with preparing or distributing unsolicited emails to any third party. Client hereby agrees to indemnify and hold harmless Maker System and is directors, officers, employees and agents against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing. Although Maker System has no obligation to monitor the content provided by Client or Client’s use of the System, Maker System may monitor Client’s content and may remove any such content or prohibit any use of the System in its sole discretion.
2.3For every email message sent in connection with the System, Client represents and warrants that the recipient has agreed to receive such communication and that Client will not engage in the act of sending unsolicited emails.
3 Term and Termination
3.1Client may terminate, with cause, this Agreement at any time subject to Section 7 below and section 3 of the SaaS Services Agreement.
3.2Maker System may terminate this Agreement or Client’s use of the System at any time with or without cause, and with or without notice.
3.3Upon termination of this Agreement by either party for any reason, (a) Maker System will cease providing the System, (b) Client will not be entitled to any refunds of any usage fees or any other fees, pro rata or otherwise and (c) in the event that the Client terminates without cause within the (12 month) period any outstanding balance owed to Maker System for usage of the System through the end of the SaaS Services Agreement period (12 months) no matter the effective date of such termination will immediately become due and payable in full unless termination is caused by Maker System at which point any outstanding balance owed to Maker System for usage of the system through the date of the termination will immediately become due. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, warranty disclaimers and limitations of liability.
3.4Upon termination of this Agreement by either party for any reason, Maker System may delete any of Client’s data within 30 days after the date of termination.
4 Disputes Regarding Account Ownership
The Client is the Account Owner. For security reasons, only the authorized agent or agents designated by Client, will be allowed to make changes, cancellations, or designate a new Authorized Agents. Disputes sometimes arise between or among multiple persons claiming ownership of or rights regarding Client’s Maker System account. Maker System is not obligated to, and will not resolve, any such disputes.
5 Client’s Name and Trademarks; Client Feedback; Client Submissions
5.1Client Name and Trademarks. “Client Name” and its logos (both words and design) either are trademarks, service marks, or registered trademarks of the Client, and may not be copied, imitated or used, in whole or in part without Client’s prior express written consent. Client understands that Maker System will use Client’s Name and Trademark throughout Client’s Personalized FieldFlo Platform.
5.2Client Content. Some of the features of the System may allow Client to view, post, publish, share, store, or manage (a) ideas, opinions, recommendations, feedback or advice (“Client Content”), or (b) literary, artistic or other content, including but not limited to photos and videos By providing Client Content to Maker System via any method (e.g. site submission, email, survey responses, etc.), Client represents and warrants to Maker System that (i) Client has all necessary rights to distribute Client Content via this website or via the System found at this website, either because Client is the author of the Client Content and has the right to distribute the same, or because Client has the appropriate distribution rights, licenses and/or permissions to use, in writing, from the copyright or other owner of the Client Content, and (ii) Client does not violate the rights of any third party.
5.3License to Maker System. Client agrees that, unless otherwise specifically provided herein or agreed by Maker System in writing, the Software, including the specific design and structure of individual programs, features, and services, provided to Client by Maker System constitute confidential proprietary information of Maker System. Client also agrees that any information about defects or bugs in the Software and also the performance of the Software are confidential information. Client shall permit only authorized users access to the Software. Client agrees not to transfer, copy, make available for others to copy to download, disclose, provide or otherwise make available such confidential information in any form to any third party without the prior written consent of Maker System. Client agrees to implement reasonable security measures to protect such confidential information, but without limitation to the foregoing, shall use best efforts to maintain the security of the Software provided to Client by Maker System. Client will use best efforts to cooperate with and assist Maker System in identifying and preventing any unauthorized use, copying, or disclosure of the Software, documentation, or any portion thereof. Furthermore, Maker System and its agents agrees to not make available or disclose any confidential information created by Client in the Software such as Client information, Client employees’ information, Client project information and Client company information in any form to any third party. In the process of using the Software; Client recognizes that certain sensitive and proprietary information shall be stored by Maker System. All related information is considered highly sensitive and proprietary in nature and shall not be accessed, assembled, copied, transferred or otherwise handled in any manner without Client full knowledge and permission. Upon Client’s termination of using the Software and or agreed long term use of the Software; all information created by Client and of Client’s stored data will be returned to Client for their use.
5.4Maker System makes no representations or warranties with respect to any forums, blogs, private messages, emails, or other electronic discussion mediums made available on or via the System (collectively, “Discussion Areas”) or with respect to any messages, information, or materials contained in the Discussion Areas. Client’s use of, or reliance upon, any such messages, information, or materials is at Client’s sole risk and expense. Maker System does not, and cannot, review all of the information and materials provided in the Discussion Areas and has no responsibility or liability for any such information or materials or their use. If Maker System becomes aware of any information or materials that it determines violate these Terms or the Discussion Areas’ policies promulgated by Maker System from time to time or that Maker System otherwise deems inappropriate in its sole discretion, Maker System reserves the right to delete, move, or edit any such information or materials.
6 Export of System or Technical Data
Client may not remove or export from the United States or allow the export or re-export of the System, or any direct product thereof, including technical data, in violation of any restrictions, laws, or regulations of the United States or any other applicable country.
7 Fees and Payment; Upgrade, Downgrade and Cancellation of System
7.1Fees. In consideration of the System provided, Client will pay Maker System all fees due according to the prices and terms listed on the SaaS Services Agreement. Fees for use of the System are PREPAID and NON-REFUNDABLE FOR THE TERM OF SYSTEM USAGE PURCHASED. UPON ANY TERMINATION BY CLIENT, MAKER SYSTEM DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY USE OF THE SYSTEM NOT YET PERFORMED. Maker System reserves the right to modify its pricing and terms annually, and such changes or modifications will be delivered to Client and effective upon the next renewal, or upgrade or downgrade of the System with and/or without notice to Client. All such changes shall only become effective upon written approval by the Client. Client’s failure to provide written approval by the agreement renewal date will result in termination and The Maker System will cease in providing the FieldFlo Platform to the Client.
7.2Taxes. All taxes are included in Client’s annual/monthly pricing provided in the SaaS Services Agreement.
7.3Billing Policies and Cycles. All billing invoices and payment notifications will be maintained directly in Client’s Account Portal. The billing cycle begins on the day Client converts to a paid Client and is due on that day each month, partial year or year thereafter, based on the System plan selected.
7.4Payment. Client agrees to pay Maker System via ACH E-Check Authorization. Maker System fees are prepaid and NON-REFUNDABLE. MAKER SYSTEM DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL DAYS, MONTHS OR YEARS.
7.5Unpaid Accounts. Unpaid amounts are subject to a late payment charge of 1.5% per month, or the maximum legal rate allowed by law, whichever is less. If payment is not received within 30 calendar days of the billing date, Maker System will automatically revoke access to Client’s account. Maker System may or may not contact Client directly to notify Client of its unpaid account. Accounts past due over 90 days will automatically be deactivated.
7.6Disputed Charges/Billing Inquiries. It is Client’s obligation to review all charges for accuracy. Client has 30 days from the date of billing to contact Maker System and/or dispute the charge.
7.7Upgrades. Should Client elect to upgrade its System or if Client is automatically upgraded pursuant to the last sentence of this Section 7.7, the commencement date of the next renewal period will remain the same; however, such Client will be charged and responsible for paying for the full monthly fee amount of the upgraded plan in the following billing cycle. In addition, if a Client exceeds his, her or its storage limitation or other stated limitations for their System plan for two consecutive billing periods, such Client will be automatically upgraded effective at the commencement of the next billing period to a System plan that accommodates such Client’s greatest storage usage or other applicable usage limit for such period.
7.8Downgrades. Should Client elect to downgrade its System, the downgrade will take effect on the next monthly billing.
7.9Cancellations. Client’s use System will continue in effect until Client validly terminates the System with written notice. Please be aware it might take weeks to provide a Client a zip file of Client’s data.
7.9aTermination. A party may terminate this Agreement for cause (i) upon written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.9bRefund or Payment upon Termination. If this Agreement is terminated by Client in accordance with Section 7.9a (Termination), Maker System will refund Client any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Client within the period in accordance with Section 3.3, Client will pay any unpaid fees covering the remainder of the term set out in the SaaS Services Agreement. In no event will termination relieve Client of obligation to pay any fees payable to Maker System for the period prior to the effective date of termination.
8 Prohibited Practices
8.1Prohibited Offerings. Client may not utilize the System to provide, sell or offer to sell the following: replicas; controlled substances; illegal drugs and drug contraband; (except cannabis related products and tobacco or cannabis pipes, vaporizers or other smoking devices manufactured and sold in states, countries or other jurisdictions allowing for regulated tobacco and cannabis use); weapons; pirated materials; instructions on making, assembling or obtaining illegal goods or weapons to attack others; information used to violate the copyright(s) of, violate the trademark(s) of or to destroy others’ intellectual property or information; information used to illegally harm any people or animals; pornography, nudity, sexual products, programs or services; escort services or other content deemed adult related.
8.2Profanity. Profanity, profane or otherwise inappropriate subject matter in the site content and in the domain name are prohibited.
8.3Private Information and Images. Client may not post or disclose any personal or private information about or images of children or any third party without the consent of such party (or a parent’s consent in the case of a minor).
8.4Violations of Intellectual Property Rights. Any violation of any person’s or entity’s intellectual property rights, rights of privacy, rights of publicity or other personal rights is prohibited. Maker System may remove or block access to content appearing on or through the System upon receipt of proper notice of copyright infringement (see “Reporting Claims of Copyright Infringement” below).
8.5Misrepresentation of Transmission Information. Forging, misrepresenting, omitting, or deleting message headers, return mailing information and/or Internet protocol addresses to conceal or misidentify the origin of a message is prohibited.
8.6Viruses and Other Destructive Activities. Use of the System for creating or sending Internet viruses, worms or Trojan horses, or for pinging, flooding or mail bombing, or engaging in denial of System attacks is prohibited. It is also prohibited for Client to engage in other activity that is intended to disrupt or interfere with, or that results in the disruption of or interference with, the ability of others to effectively use the System (or any connected network, system, service or equipment) or conduct their business over the Internet.
8.7Hacking. “Hacking” and related activities are prohibited. “Hacking” includes, but is not limited to, the following activities: illegally or without authorization, accessing computers, accounts or networks, penetrating or attempting to penetrate security measures, port scans, stealth scans, and other activities designed to assist in hacking.
8.8Anonymous Proxies. Maker System does not allow the use of anonymous proxy scripts on its servers. They can be very abusive to the server resources, affecting all users on that server. Client will not access or copy any portion of the System through any automated viewing, downloading or crawling systems.
8.9Export Control Violations. The exportation of encryption Software outside of the United States and/or violations of United States law relating to the exportation of Software is prohibited. Client may not export or transfer, directly or indirectly, any regulated product or information to anyone outside the United States without complying with all applicable statues, codes, ordinances, regulations, and rules imposed by United States federal, state or local law, or by any other applicable law.
8.10Child Pornography. The use of the System to store, post, display, transmit, sell, advertise or otherwise make available child pornography is prohibited. Maker System is required by law to, and will, notify law enforcement agencies when it becomes aware of the presence of child pornography on, or being transmitted through, the System.
8.11Other Illegal Activities. The use of the System to engage in any activity that is determined by Maker System, in its sole and absolute discretion, to be illegal is prohibited. Such illegal activities include, but are not limited to, storing, posting, displaying, transmitting, selling or otherwise making available ponzi or pyramid schemes, fraudulently charging credit cards or displaying credit card information of third parties without their consent, and failure to comply with applicable online privacy laws. Maker System will cooperate fully with appropriate law enforcement agencies in connection with any and all illegal activities occurring on or through the System.
8.12Other Activities. This list of prohibitions provides examples of prohibited conduct, and is not intended to be a complete or exclusive list of all prohibitions. Engaging in any activity that, in Maker System’s sole and absolute discretion, disrupts, interferes with or is harmful to (or threatens to disrupt, interfere with, or be harmful to) the System, Maker System’s business, operations, reputation, goodwill, Clients and/or Client relations, or the ability of Maker System’s Clients to effectively use the System is prohibited. Such prohibited activities include making available any program, product or service that is designed to or could be used to violate these Terms. In addition, the failure of Client to cooperate with Maker System in correcting or preventing violations of these Terms by, or that result from the activity of, a Client, patron, subscriber, invitee, visitor, or guest of Client constitutes a violation of these Terms by Client. Without limiting the rights and remedies available to it, Maker System reserves the right in its sole discretion, to suspend or terminate Client’s access to its account and the System, with or without notice, and to take any other action that Maker System determines in its sole discretion is necessary as a result of any behavior by Client that is illegal, inappropriate, disruptive to this website, the System, or to any other user of this website or the System, or which otherwise breaches these Terms. Maker System may report to law enforcement authorities any actions that may be illegal, and any reports it receives of such conduct. When legally required, or otherwise in Maker System’s sole discretion, Maker System will cooperate with law enforcement agencies in any investigation of alleged illegal activity conducted using this website or the System. These prohibitions do not require Maker System to monitor, police, remove or reject any Client Content or other information submitted by Client or any other user.
9 Backup Storage
Maker System offers its System to host the FieldFlo Platform and store Client’s data. All backups and storage are provided through Liquid Web Hosting Services
10 Interrupted Service
Client agrees that the System is provided to Client through Liquid Web Hosting Services. Client further agrees that Maker System will not be liable to Client for any website failures, internet, power or telecommunication failures, computer viruses or “hacking” incidents that may affect Client’s business in connection with Client’s use of the System.
11 Copyright Infringement
11.1Reporting Claims of Copyright Infringement. Maker System will respond to notices of copyright infringement that comply with applicable law. If a copyright holder believes that there has been a violation of his/her copyright on a site that is hosted by Maker System or a Maker System subsidiary, the copyright holder may request that Maker System remove or disable the material by submitting written notification. The written notice must include substantially the following:
- A signature (physical or electronic) of a person authorized to act on the copyright owner’s behalf.
- Identification of the copyrighted work that is claimed to have been infringed, or, if the claim involves multiple copyrighted works, a representative list of such works.
- Identification of the material that is claimed to be infringing, with information sufficient to permit us to locate the material.
- Contact information for the person giving the notification, including name, address, telephone, and email address.
- A statement that the person giving the notification has a good faith belief that use of the copyrighted material is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the person giving the notification is authorized to act on behalf of the copyright owner.
11.2Copyright Counter-Notifications. If Client believes that it has had material removed or disabled by mistake or misidentification, Client may file a counter-notification with Maker System by submitting written notification to our copyright agent (identified above). Pursuant to the DMCA, the Counter-Notice must contain substantially all the following:
- A signature (physical or electronic) of the person submitting the counter-notification.
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access disabled.
- Contact information for the person submitting the counter-notification, including name, address, telephone, and email address.
- A statement under penalty of perjury by the person submitting the counter-notification that he/she has a good faith belief that the material was removed or disabled as a result of a mistake or misidentification.
- A statement by the person submitting the counter-notification that Client will consent to the jurisdiction of the Federal District Court for the judicial district in which it is located (or if Client resides outside the United States for any judicial district in which Client’s website may be found) and that Client will accept service from the person (or an agent of that person) who submitted the DMCA notice at issue.
The DMCA allows Maker System to restore the removed content if the party filing the original DMCA Notice does not file a court action against Client within ten business days of receiving the copy of Client’s Counter-Notice.
12 DISCLAIMER AND INDEMNIFICATION
12.1WARRANTY DISCLAIMER. CLIENT SPECIFICALLY ACKNOWLEDGES AND AGREES THAT ITS USE OF THE FIELDFLO PLATFORM AND THE SYSTEM WILL BE AT ITS OWN RISK AND THAT THE FIELDFLO PLATFORM AND THE SYSTEM ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”. MAKER SYSTEM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, CONDITIONS AND REPRESENTATIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MAKER SYSTEM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS MAKE NO WARRANTIES, CONDITIONS OR REPRESENTATIONS ABOUT (A) THE ABILITY OF THE SYSTEM OR SOFTWARE TO PERFORM WITHOUT LIMITATION OR RESTRICTION IN ANY GIVEN ENVIRONMENT, (B) THE ACCURACY, COMPLETENESS, OR CONTENT OF THE SYSTEM OR SOFTWARE, (C) THE ACCURACY, COMPLETENESS, OR CONTENT OF ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS WEBSITE, AND/OR (D)) THE SYSTEM FOUND AT THIS WEBSITE OR ANY SITES LINKED (THROUGH HYPERLINKS, BANNER ADVERTISING OR OTHERWISE) TO THIS WEBSITE, AND MAKER SYSTEM ASSUMES NO LIABILITY OR RESPONSIBILITY FOR THE SAME.
IN ADDITION, CLIENT SPECIFICALLY ACKNOWLEDGES AND AGREES THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY MAKER SYSTEM, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS (INCLUDING WITHOUT LIMITATION ITS CALL CENTER OR CLIENT SERVICE REPRESENTATIVES), WHETHER DIRECTLY OR INDIRECTLY, WILL (A) CONSTITUTE PERSONAL, LEGAL OR FINANCIAL ADVICE OR (B) CREATE A WARRANTY, CONDITION OR REPRESENTATION OF ANY KIND WITH RESPECT TO THIS WEBSITE OR THE SYSTEM FOUND AT THIS WEBSITE. CLIENT SHOULD NOT RELY ON ANY SUCH INFORMATION OR ADVICE, AND CLIENT SHOULD CONSULT AN APPROPRIATE PROFESSIONAL FOR SPECIFIC ADVICE TAILORED TO ITS SITUATION.
THE FOREGOING DISCLAIMER OF REPRESENTATIONS, CONDITIONS AND WARRANTIES WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THIS AGREEMENT OR CLIENT’S USE OF THE FIELDFLO PLATFORM OR THE SYSTEM.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION AND/OR LIMITATION OF IMPLIED REPRESENTATIONS, CONDITIONS OR WARRANTIES, OR ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CLIENT. IN SUCH EVENT, MAKER SYSTEM’S WARRANTIES, CONDITIONS AND REPRESENTATIONS WITH RESPECT TO THE FIELDFLO PLATFORM, THE SYSTEM, AND SOFTWARE WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW IN SUCH JURISDICTION.
12.2LIMITATION OF LIABILITY. MAKER SYSTEM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS ASSUME NO RESPONSIBILITY WITH RESPECT TO CLIENT’S OR ITS END USER’S USE OF THE SYSTEM AND WILL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXTRAORDINARY, EXEMPLARY OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OF DATA, LOSS OF PROFITS, AND LOST REVENUE, WHETHER SUCH DAMAGES ARE ALLEGED IN TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, AND WHETHER OR NOT MAKER SYSTEM IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES CAUSED BY THE CLIENT’S OR ITS END USER’S USE. MAKER SYSTEM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS WILL IN NO EVENT BE LIABLE IN AGGREGATE FOR MORE THAN THE TOTAL FEES ACTUALLY RECEIVED BY MAKER SYSTEM FROM CLIENT FOR THE SYSTEM DURING THE 12-MONTH PERIOD BEFORE THE CLAIM OR CAUSE OF ACTION AROSE. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
IN ADDITION, CLIENT SPECIFICALLY ACKNOWLEDGES AND AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE FIELDFLO PLATFORM OR THE SYSTEM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION WILL BE PERMANENTLY BARRED.
SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHER DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CLIENT. IN SUCH EVENT, THE LIABILITY OF MAKER SYSTEM, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FOR SUCH DAMAGES WITH RESPECT TO THIS WEBSITE AND THE SYSTEM WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW, AND WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
12.3INDEMNIFICATION OF MAKER SYSTEM. CLIENT AGREES TO DEFEND, INDEMNIFY AND HOLD MAKER SYSTEM AND ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES AND COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COURT COSTS) ARISING OUT OF OR RELATING TO CLIENT’S BREACH OF ANY OF THESE TERMS OR USE BY CLIENT OR ANY THIRD PARTY (AUTHORIZED, PERMITTED OR ENABLED BY CLIENT) OF THE SYSTEM, EXCEPT TO THE EXTENT THE FOREGOING DIRECTLY RESULT FROM MAKER SYSTEM’S OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. MAKER SYSTEM RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY CLIENT. THIS FOREGOING INDEMNIFICATION WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
12.4CLIENT AGREES TO INDEMNIFY AND HOLD HARMLESS MAKER SYSTEM AND ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES AND COSTS (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COURT COSTS) ARISING OUT OF OR RELATING TO ANY THIRD PARTY’S USE OF CLIENT’S PRODUCTS OR SERVICES OR MANUFACTURE OF CLIENT’S PRODUCTS INCLUDING SUCH CLAIMS THAT MAY BROUGHT BY ANY OF CLIENT’S, OFFICERS, DIRECTORS, MANAGERS, EMPLOYEES, AGENTS OR ASSIGNS. MAKER SYSTEM RESERVES THE RIGHT, AT ITS OWN EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY CLIENT. THIS FOREGOING INDEMNIFICATION WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
12.5CLIENT AGREES THAT MAKER SYSTEM IS IN NO WAY LIABLE FOR ANY OF CLIENT’S ONLINE TERMS AND CONDITIONS THAT IT MAY HAVE WITH CLIENT’S CUSTOMERS OR END USERS. THIS SECTION WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
13.1Governing Law and Jurisdiction. The laws of the State of Colorado will govern the validity and construction of these Terms and any dispute arising out of or relating to these Terms, without regard to the principles of conflict of laws. Client hereby consents (and waives all defenses of lack of personal jurisdiction and forum non conveniens with respect to the jurisdiction and venue of the federal and state courts located in Denver, Colorado (USA). Client agrees to waive the right to trial by jury in any action or proceeding that takes place relating to or arising out of this Agreement. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms and is hereby expressly excluded.
13.2Severability. 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.
13.3No Assignment by Client. Client may not assign this Agreement without the prior written consent of Maker System, which Maker System may refuse in its sole discretion. Any attempt by Client to assign this Agreement without prior written consent from Maker System will be deemed null and void. Maker System may assign this Agreement at any time. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.4Waiver. The failure of Maker System to exercise or enforce any right or provision of these Terms or this Agreement will not constitute a waiver of such right or provision.
13.5Entire Agreement. Both parties agree that the 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. The section headings and titles in these Terms and this Agreement are for convenience only and have no legal or contractual effect. These Terms and this Agreement will be interpreted without application of any strict construction in favor of or against Client or Maker System.
13.6Independent Contractors. No agency, partnership, joint venture or employment is created as a result of this Agreement, and Client does not have any authority of any kind to bind Maker System in any respect whatsoever.
13.7Attorneys’ Fees. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its costs and attorneys’ fees.
13.8Force Majeure. Maker System will have no liability to Client or any third party for any failure by Maker System to perform its obligations under these Terms in the event that such non-performance arises as a result of the occurrence of an event beyond the reasonable control of Maker System, including without limitation an act of war or terrorism, natural disaster, failure of electricity supply, riot, civil disorder, or civil commotion or other event of force majeure. Alternatively, the Client will have no liability to Maker System or any third party for any payments in the event that such non-performance arises as a result of the occurrence of an event beyond the reasonable control of Maker System, including without limitation an act of war or terrorism, natural disaster, failure of electricity supply, riot, civil disorder, or civil commotion or other event of force majeure.
13.9FieldFlo Platform provides SMS Opt-In training to all subscribers allowing each Client to educate their employees on how SMS messages are used and how to Opt-Out. The training is the recommended form to Opt-In for all employees and is the responsibility of the Client to make sure to Opt-In each employee before sending any SMS messages.
14 ADDITIONAL SERVICE SPECIFIC TERMS
In addition to the Terms above, Client also agrees to be bound by the additional service specific terms applicable to the System Client purchases or uses provided by Maker System or its partners. The following Service Specific Terms are hereby incorporated by reference and are binding upon Client.
Given the continual feature updates that Maker System will be introducing to the FieldFlo Platform, the Software licensed hereunder, may contain defects. Client is required to provide feedback on Software performance and the identification of defects. Maker System has disaster recovery resources in place and redundant backups every 15 minutes, but Client is advised to safeguard important data, to use caution and not to solely rely in any way on the correct functioning or performance of the Software and its accompanying services.
Through the use of web services and APIs, the SaaS Service interoperates with a range of third party service features. Maker System does not make any warranty or representation on the availability of those features. Without limiting the previous sentence, if a third party feature provider ceases to provide that feature or ceases to make that feature available on reasonable terms, Maker System may cease to make available that feature to the Client. To avoid doubt, if Maker System exercises its right to cease the availability of a third party feature, the Client is not entitled to any refund, discount or other compensation
MAKER SYSTEM MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THIRD PARTY SOFTWARE, PRODUCTS OR SYSTEM AND WILL NOT BE LIABLE FOR ANY SOFTWARE, PRODUCTS OR SYSTEM CLIENT RECEIVES FROM THIRD PARTIES.