Enterprise Technology Services
License Agreement, Warranty & Restrictions
This Agreement ("AGREEMENT") is a legal agreement between you, the user of the Services (as defined herein), a corporation, partnership, sole proprietor, or other business entity ("You(r)" or "Customer") and Enterprise Technology Services, LLC (“Entechserv”) with whom an order for Services is placed. By downloading, installing, activating or otherwise using the Services you agree to be bound by the terms of the AGREEMENT.
1. Definitions.
1.1. "Documentation" means any materials (including online materials) provided or made available to You by Entechserv in connection with the Services.
1.2. "Effective Date" means the effective date of Purchase Agreement as indicated thereon.
1.3. "Purchase Agreement" means the order acknowledgement, invoice, purchase order, service contract, service description, statement of work or sales agreement identifying services that are subject to the terms of this AGREEMENT.
1.4. "Services" means the software, remote helpdesk or monitoring services, hosted or online services, software-enabled services or any other services to be provided by Entechserv to You pursuant to a Purchase Agreement.
2. Limited License Grant.
2.1. Entechserv Services. Subject to the terms and conditions of this AGREEMENT, Entechserv hereby grants to You a limited, personal, non-exclusive, non-assignable, non-transferable license to use the Services in accordance with the Documentation and, if so contracted, in accordance with our technicians.
2.2. Third-party Software. Third-party software delivered to You as part of or to facilitate access to the Service is subject to the license agreement accompanying the third-party software. If there is no separate license agreement between You and the manufacturer or owner of the third-party software, the terms and conditions set forth in the Entechserv Software License Agreement shall apply.
3. Restrictions on License Grant.
You acknowledge and agree that except as otherwise authorized under this AGREEMENT or otherwise specified in writing between the parties:
3.1. Your use of the Services is limited to the scope of the license granted in this AGREEMENT and that this AGREEMENT does not permit You to use the Services other than as provided herein. You acknowledge that the Services constitute valuable trade secrets and/or the confidential information of Entechserv or its licensors;
3.2. You shall not knowingly or negligently permit other individuals or entities to use or copy the Services, or create Internet "links" to the Services or "frame" or "mirror" the Services on any other server or wireless or Internet-based device unless approved in writing by Entechserv;
3.3. You shall not modify, translate, alter, adapt, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), reproduce, distribute or display, or create derivative works, compilations or collective works based on the Services;
3.4. You shall not reverse engineer the Services, or access the Services for any reason, including without limitation, in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Services, or (c) copy any ideas, features, functions or graphics of the Services;
3.5. You shall not license, sublicense, sell, resell, rent, lease, grant a security interest in or otherwise transfer the distribution rights to or commercially exploit the Services. You may not use the Services to run or as part of a service bureau, outsourced, or managed services arrangement;
3.6. If applicable, Your usage of the Services shall be restricted to the licensed seats of concurrent users specified in the Purchase Agreement; and
3.7. You may not access the Services if You are a direct competitor of Entechserv, except with Entechserv's prior 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.
4. Restrictions on Use.
You agree not to use the Services for one or more of the following:
4.1. Attempt to use or gain unauthorized access to data, accounts, hosts, systems or networks of Entechserv or any of its customers or suppliers, or those of any other party;
4.2. Attempt to probe, scan or test the vulnerability of a system or network of Entechserv or any of its customers or suppliers, any Entechserv product or service, or those of any other party;
4.3. Interfere, or any attempt to interfere, with service to any user, host or network including, without limitation, mail-bombing, flooding, and attempting to deliberately overload the system;
4.4. Forge of any TCP-IP packet header or any part of the header information in an e-mail or a newsgroup posting;
4.5. Falsify address information or other modification of e-mail headers to conceal the sender's or the recipient's identity;
4.6. Engage in activities that violate any terms or conditions of any other network access provider or Internet service provider; or
4.7. Engage in activities that violate any applicable law or governmental regulation.
5. Intellectual Property Rights.
5.1. Ownership of Intellectual Property Rights. All right, title and interest in the Services, including technology and trade secrets embodied therein and any custom developments created or provided in connection with or related to this AGREEMENT, including all copyrights, patents, trade secrets, trade dress and other proprietary rights, and any derivative works thereof, shall belong solely and exclusively to Entechserv or its licensors, and You shall have no rights whatsoever in any of the foregoing. Nothing in this AGREEMENT or otherwise will be deemed to grant to You an ownership interest in the Services, in whole or in part. All content and materials included as part of the Services, such as text, graphics, logos, button icons, images, audio clips, information, data, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material, and software (the "Materials") are the property of Entechserv or its content suppliers and is protected by copyrights, trademarks, trade secrets, or other proprietary rights and these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Materials are copyrighted as individual works and as a collective work under the U.S. copyright laws (17 U.S.C. Section 101, et. seq.) and international treaty provisions, and Entechserv owns a copyright in the selection, coordination, arrangement and enhancement thereof. You may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Materials, in whole or in part. Any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, republication, display, or performance, of the Materials, except as specifically permitted herein, is strictly prohibited. You understand and acknowledge that unauthorized disclosure, use or copying of the proprietary products and services provided pursuant to this AGREEMENT may cause Entechserv and its licensors irreparable injury, which may not be remedied at law, and You agree that Entechserv and its licensors' remedies for breach of this AGREEMENT may be in equity by way of injunctive or other equitable relief.
5.2. Trademarks. The Entechserv name, logo, other related names, design marks, product names, feature names and related logos are trademarks of Entechserv and may only be used with the express written permission of Entechserv.
5.3. You represent and warrant that You have obtained all rights, permissions and consents necessary to use and transfer Your Data within and outside of the country where You are located (including Your customer and other information) in conjunction with the Services, upload Your Data as part of the Services, and permit Entechserv to exercise all of its rights under this Section 5.3. To the extent required for Entechserv to provide or is otherwise provided as part of the functionality of the Services, You further grant to Entechserv a license to store and process such Data as may be required by Entechserv to provide the Services to You.
6. Patent and Copyright Infringement.
6.1. Entechserv will defend or settle, at its own expense, any suit or proceeding brought against You, Your officers, agents, employees and authorized contractors claiming that the Services or Documentation furnished hereunder and used within the scope of a license granted to You hereunder, infringes a copyright or patent arising under applicable local law, including the laws of the United States and Canada. Such indemnification shall be available to You provided that (1) You notify Entechserv promptly in writing of any claim as soon as You becomes aware of any such claim, (2) Entechserv has sole control of the defense of any such claim and all related settlement negotiations, and (3) You cooperate in a reasonable manner with Entechserv with respect to the defense and disposition of such claim. Entechserv shall have no liability for any claim based upon (a) use of anything other than a current, unaltered version of the Services or Documentation supplied by Entechserv, or (b) use, operation or combination of the Services or Documentation with any non-Entechserv programs, services or data.
6.2. Should the Services or Documentation become, or be likely to become, in Entechserv's opinion, the subject of a claim of infringement, Entechserv may, at its option, procure for You the right to continue using such Services or Documentation, or replace or modify the Services or Documentation with functionally equivalent, compatible programs so the Services becomes non-infringing. In the event that neither of the foregoing remedies is reasonably available, Entechserv may terminate the Services, and may terminate Your license, by refunding to You the unused fees.
6.3. THE REMEDY PROVISIONS IN THIS SECTION 7 CONSTITUTE ENTECHSERV'S SOLE LIABILITY, AND YOUR SOLE RECOURSE AND REMEDY, IN THE EVENT OF ANY INFRINGEMENT OF THIRD-PARTY RIGHTS BY THE SERVICES OR THE DOCUMENTATION.
7. Disclaimer of Warranties; Limitation of Remedies & Liabilities.
7.1. Except as otherwise expressly provided in this agreement, (a) the services are provided "as-is" and, to the maximum extent permitted by applicable law, Entechserv, including its affiliates , subsidiaries, licensors, subcontractors, distributors, services partners, agents and marketing partners) and each of their respective employees, directors and officers (collectively, the "Entechserv party(ies)") disclaim all representations, warranties and conditions of any kind, express or implied, regarding the services, or otherwise relating to this agreement, including warranties and conditions of fitness for a particular purpose, merchantability, merchantable quality, non-infringement and accuracy; (b) neither Entechserv nor any Entechserv party warrants that the software or services are or will be accurate, complete, uninterrupted, without error, or free of viruses, worms, other harmful components, or other program limitations; (c) you assume the entire cost of all necessary servicing, repair, or correction of problems caused by viruses or other harmful components, unless such errors or viruses are the direct result of Entechserv's gross negligence or wilful misconduct; (d) Entechserv and the Entechserv parties, jointly and severally, disclaim and make no warranties or representations as to the accuracy, quality, reliability, suitability, completeness, truthfulness, usefulness, or effectiveness of the reports, data, results or other information obtained, generated or otherwise received by you from accessing and/or using the services or otherwise relating to this agreement, and (e) use of the services is entirely at your own risk and neither Entechserv nor any of the Entechserv parties shall have any liability or responsibility therefor.
7.2. In no event shall Entechserv and/or any of the Entechserv parties be liable for any loss of profits, loss of business, loss of use or of data, interruption of business, or for indirect, special, incidental, exemplary or consequential damages of any kind whether under this agreement or otherwise, even if Entechserv has been advised of the possibility of such damages, or for any claim against you by any other party. in no case will Entechserv and/or any of the entechserv parties be liable for any representation or warranty made to you by any third party. except for claims that the services (excluding third party products) caused bodily injury (including death) due to Entechserv's negligence or willful misconduct, Entechserv and the Entechserv parties' cumulative liability to you for all claims of damages arising out of or related to this agreement and regardless of whether the claim for such damages is based in contract, strict liability, negligence or tort, shall not exceed the amount of the payments made by you to Entechserv for the specific service(s) giving rise to such claim in the twelve (12) months prior to such claim.
7.3. you agree that the operation and availability of the systems used for accessing and interacting with the services, including, the public telephone, computer networks and the internet or to transmit information, whether or not supplied by you or Entechserv, can be unpredictable and may, from time to time, interfere with or prevent the access to and/or the use or operation of the services. neither Entechserv nor any of the Entechserv parties shall be liable for any interference with or prevention of your access and/or use of the services.
8. Confidential Information & Security.
8.1. Where use of the Services is contingent on You and Your users accessing an "account" and/or inserting a "user-identification" and/or "password", You agree that You will be solely responsible for the user-ids and passwords that are provided to You and the users (as such passwords may be changed from time to time in accordance with features of the Services) to log-in to the password protected Services. If non-authorized individuals have access to Your systems or to Your users' user-id and password, they may be able to use the Services. You and Your users shall keep any correspondence You receive relating to or through the use of the Services (including, but not limited to, Your user-id, passwords, and other registration or sign-in information) confidential and in a safe place and not disclose it to any third party. You will be responsible and liable for all communications and actions that take place through the use of Your user-ids, including without limitation, any actions that occur without Your authorization. Accordingly, it is Your responsibility to take appropriate actions immediately if any password has been stolen, leaked, compromised or otherwise used without proper consent.
8.2. Any transmission of data over the Internet carries some risk. Entechserv recommends that Customer transmit data to Entechserv only via a secure connection, such as SSL protocol (Secure Socket Layer) or FTPS connection. Regardless of the means of transmission, Customer acknowledges and agrees that any data transmitted between Customer and Entechserv will be at the Customer's own risk.
8.3. Each party acknowledges that, from time to time, it may be exposed to certain information of the other party that the other party considers and treats as confidential and proprietary information and that is not generally known to the public ("Confidential Information"), including without limitation the Services. The receiving party agrees that it will take appropriate steps to protect such Confidential Information from unauthorized disclosure, that it will not disclose such information to any third party except its independent contractors and agents who are under an obligation of confidentiality with a reasonable need to know, and that it will not use any Confidential Information (other than as authorized by this AGREEMENT) without the prior written consent of the disclosing party. The obligations with respect to Confidential Information shall continue for three (3) years from the date of initial disclosure under this AGREEMENT.
9. Indemnification.
You accept responsibility for, and agree to indemnify and hold Entechserv harmless from, any and all liability, damages, expenses, claims, actions or proceedings arising out of Your breach of this AGREEMENT, including, but not limited to (i) Your failure to obtain the appropriate license, intellectual property rights, or any other permissions, regulatory certifications or approvals required for Your use of the Services, (ii) Your violation of any privacy right, or (iii) any inaccurate representations regarding the existence of an export license.
10. Term; Termination, Modification and Suspension of Service.
10.1. The term of this AGREEMENT shall commence on the Effective Date and shall terminate as specified in the Purchase Agreement, unless earlier terminated as provided in this AGREEMENT.
10.2. Entechserv may, at its option, terminate this AGREEMENT and, the license granted hereunder, if (1) You fail to make any payment when due, (2) You declare bankruptcy or are adjudicated bankrupt, or (3) a receiver or trustee is appointed for You or substantially all of Your assets.
10.3. Either party may terminate this AGREEMENT in the event of a material breach by the other party if such breach is not cured within thirty (30) days after written notice is received by the breaching party identifying the material breach.
10.4. Subject to the expiration of the term of Services identified on Customer's Purchase Agreement, Entechserv may terminate this AGREEMENT for convenience for any reason or no reason, in which case Entechserv shall provide Customer thirty (30) days advance written or electronic notice.
10.5. Entechserv may suspend, withdraw, or discontinue all or part of the Services or Your access or one or more users' access to the Services in the event that You (or Your users) breach any term of the AGREEMENT, including, without limitation, a breach of Section 3 or 4 of the AGREEMENT.
10.6. Entechserv may amend, revise and/or alter all or any part of the Services for any reason or no reason, in its sole and absolute discretion, immediately, at any time, without Entechserv being liable to You, Your users or anyone else.
10.7. Sections 3-5, 8-11, and 14 shall survive any termination or expiration of this AGREEMENT.
11. Assignment.
11.1. You may not assign, sublicense, or otherwise transfer this AGREEMENT or the license granted to You herein, or any of Your rights or obligations under this AGREEMENT, to any party without the prior written consent of Entechserv.
12. High Risk Activities.
The Services are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Services could lead directly to death, personal injury, or severe physical or property damage (collectively, "High-Risk Activities"). Entechserv expressly disclaims any express or implied warranty of fitness for High-Risk Activities.
13. General.
13.1. If any provision hereof is declared invalid by a court of competent jurisdiction, such provision shall be ineffective only to the extent of such invalidity, so that the remainder of that provision and all remaining provisions of this AGREEMENT shall be valid and enforceable to the fullest extent permitted by applicable law.
13.2. No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this AGREEMENT shall constitute a consent to any prior or subsequent breach.
13.3. You acknowledge that the Services, which may include technology and software, are subject to the customs and export control laws and regulations of the United States and may also be subject to the customs and export laws and regulations of the country in which the Services are rendered and/or received. You agree to abide by those laws and regulations. You are solely responsible for obtaining any specific licenses relating to the export of software if a license is needed. Entechserv's acceptance of a Purchase Agreement for Services is contingent upon the issuance of any applicable export license required by the United States Government; Entechserv is not liable for delays or failure to deliver Services or a product resulting from Customer's failure to obtain such license or to provide such certification.
13.4. Neither party shall be liable to the other party for any failure to perform any of its obligations (except payment obligations) under this AGREEMENT during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, fire, flood, war, embargo, strike, riot or the intervention of any governmental authority (a "Force Majeure"). The delayed party's time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure events lasts longer than thirty (30) days, the other party may immediately terminate the applicable Services by giving written notice to the delayed party.
13.5. This AGREEMENT, including the other documents referred to herein, constitutes the entire understanding between Entechserv and You and supersedes all proposals, oral or written, and all communications between the parties relating to the subject matter of this AGREEMENT. The terms and conditions of this AGREEMENT shall prevail, notwithstanding any variance with any purchase order or other written instrument submitted by You, whether formally rejected by Entechserv or not.
13.6. Notices under this AGREEMENT shall be sufficient only if in writing and mailed by certified or registered mail, return receipt requested or personally delivered to the parties. Notice by mail shall be deemed received three days after deposit for mail deposited in the U.S. and five days after deposit for mail outside the U.S.
13.7. The construction and performance of this AGREEMENT shall be governed by the following:
For disputes arising out of Services performed or delivered in the following Regions, the following laws shall apply without regard to choice of law provisions or the United Nations Convention on the International Sale of Goods:
Region Choice of Law
New York City and its surrounds: New York law and jurisdiction;
New Jersey: New Jersey law and jurisdiction
This AGREEMENT will be interpreted and construed in accordance with the English language.
For all actions in New York City the parties hereby consent to the venue of courts located in Kings County, New York and acknowledge that these courts are proper and convenient forums for the resolution of any actions between the parties and agree that these courts will be the sole and exclusive forums for the resolution of any actions between the parties.
13.8. The parties have required that this AGREEMENT and all documents relating thereto be drawn-up in English.
13.9. Neither party will institute an action in any form arising out of this AGREEMENT more than two (2) years after the cause of action has arisen.
13.10. Entechserv reserves the right to update this AGREEMENT at any time and from time-to-time, effective upon posting of an updated version of this AGREEMENT on the Services or to the Entechserv website available at http://www.Entechserv.com/termsandconditions. You are responsible for regularly reviewing this AGREEMENT. You should closely monitor the revision date below and any change of this posted date shall be deemed notice to You that the AGREEMENT has been changed or amended. Continued use of the Services after any such changes shall constitute Your consent to such changes.
