Terms & Conditions
The following terms & conditions as well as our privacy policy cover the use of our software.
Terms and Conditions
THE KAIMON GROUP, INC. DBA SCRAPRIGHT
MASTER SERVICES AND END USER LICENSE AGREEMENT
BEFORE CONTINUING, READ THE FOLLOWING LICENSE AGREEMENT ("AGREEMENT") CAREFULLY.
THIS AGREEMENT DESCRIBES THE TERMS ON WHICH THE KAIMON GROUP, DBA SCRAPRIGHT ("CONSULTANT," "WE" OR "US") OFFERS YOU AND THE COMPANY OR ORGANIZATION YOU REPRESENT THAT WILL USE THE SOFTWARE (COLLECTIVELY "YOU" OR "CUSTOMER") ACCESS TO, AND USE OF, ITS SOFTWARE. IF YOU WISH TO USE THE SOFTWARE, YOU MUST AGREE TO ALL OF THE TERMS OF THIS AGREEMENT. IF ANY OF THE FOLLOWING TERMS OR ANY UPDATES OR CHANGES TO THE FOLLOWING TERMS ARE NOT ACCEPTABLE TO YOU, DO NOT USE THE SOFTWARE.
BY CLICKING "I AGREE," YOU AGREE TO BIND THE COMPANY/ORGANIZATION YOU REPRESENT OR, IF NO SUCH COMPANY/ORGANIZATION EXISTS, YOU AGREE TO BIND YOURSELF TO THESE TERMS. IF YOU DO NOT HAVE AUTHORITY TO BIND THE COMPANY/ORGANIZATION THAT WILL USE THE SOFTWARE, YOU MAY NOT ASSENT TO THESE TERMS OR USE THE SOFTWARE.
Terms and Conditions of Master Services Agreement
1. DEFINITIONS. In addition to any terms defined elsewhere in this Agreement, the following terms have the following meanings:
1.1 “Affiliate” means any entity that directly or indirectly controls, or is controlled by, or is under common control with a Party through the ownership of 50 percent or more of an entity’s voting equity interests.
1.2 “Confidential Information” means all designs, specifications, drawings, and documents; business, technical and financial information; computer software (including all algorithms, source code and object code), valuation and costing data included in or accessed by the Software, machine and operator instructions and other documentation; business methods, procedures, plans and strategies; customer, supplier, and employee lists and information; know-how, trade secrets and other information of every kind that relates to the business of a Party and is marked or identified as confidential, or disclosed in circumstances that would lead a reasonable person to believe the information is confidential.
1.3 “Consulting Services” means the software development, customization, installation, and other services as described in each Statement of Work. To the extent there may be any improvements, modifications, developments, enhancements, upgrades, updates or derivative works made to the Software as part of the Services, they shall be automatically part of the Software and shall be exclusively owned by Consultant as more particularly provided for herein.
1.4 “Deliverables” means all Hardware, Software, Documentation, and Third Party Products to be provided by Consultant pursuant to a Statement of Work.
1.5 “Documentation” means all manuals, instructions, directions, training materials and other materials and information related to the use of the Software or the Deliverables.
1.6 “Expenses” means all reimbursable expenses as identified in a Statement of Work or other schedule to this Agreement.
1.7 “Fees” are described in Section 5.1.
1.8 “Hardware" all Hardware provided or installed as part of the Deliverables as specified in the Scope of Work.
1.9 “Intellectual Property Rights” means all known or hereafter existing worldwide copyrights, trademarks, service marks, trade secrets, patents, know-how, moral rights, contract rights, inventions, discoveries and other proprietary rights, and all enhancements, improvements, derivatives, registrations, applications, renewals, extensions, and combinations of the foregoing.
1.10 “Party (Parties)” means You, the organization/company which You represent (and which uses or will use the Software) and Consultant.
1.11 “Support Services” are described at https://portal.scrapright.com/content/support-terms
1.12 “Authorized Users” are employees or agents of Customer or its Affiliates who are authorized by Customer to use the Software.
1.13 “Services” means the services to be performed by Consultant as set forth in this Agreement, which includes all of the Consulting Services and Support Services described in the Statement of Work.
1.14 “Software” means Consultant’s ScrapRight, software program currently licensed to you.
1.15 “Specifications” means the performance standards for the Consulting Services and Deliverables as described in the Statement of Work attached hereto.
1.16 “Statement of Work” means the statement of work signed as part of your current agreement with Consultant or any invoice or additional statement of work signed by both Parties.
1.17 “Third Party Products” means any software, hardware, technology or Intellectual Property Rights, including all improvements and modifications, that are identified in a Statement of Work as advisable or necessary for use of any of the Deliverables, and are owned by and licensed from an entity other than Consultant, Customer or any Affiliates of either Party.
2. LICENSE.
2.1 Grant of License. Consultant grants Customer a limited, nontransferable, revocable license (but revocable only in the event of a termination of said license as specifically provided herein), to access and use the Software and Documentation for internal purposes only, all in accordance with the terms and conditions of this Agreement (the "License"). The License of the Software shall be for the object code only except as expressly permitted hereunder. Moreover, Customer may without any fee, assign the License to a purchaser of substantially all of Customer’s assets in the event that the following conditions are satisfied: (i) Customer provides Consultant with reasonable advance notice of the assignment and the identity of the purchaser, (ii) such purchaser assumes in writing to Consultant all obligations of Customer under this Agreement, (iii) Customer is not in breach of the terms of this or any other agreement with Consultant, and (iv) such
purchaser agrees to pay Consultant for any additional fees that Consultant would otherwise charge a customer if said customer expanded the use of the Software to include different or additional sites.
2.2 Use. Customer will not, and will not allow any third party to: (a) access or use the Software or Documentation, or any copy thereof, in whole or in part for any purpose other than as necessary for use by Customer for its internal purposes in accordance with the terms of this Agreement; (b) modify, reproduce, create derivative works of, distribute, sell, resell, assign, encumber, (except as part of a blanket lien granted to a third party lender of Customer who is approved in writing by Consultant in advance), lend, loan, lease, license, sublicense or except as provided in Section 2.1 above, transfer the Software, or any portion thereof, to any third party; (c) remove or modify any notice of any patent, copyright, trademark or other proprietary rights that appears on or in the Software and Documentation; (d) use the Software to process any data belonging to third parties that are not Customer's Affiliates except in connection with Customer’s ordinary course of business; or (e) reverse engineer, disassemble, decompile, or translate the Software, or otherwise attempt to derive the source code of the Software; or (f) decompile, reverse engineer, reprogram, disconnect from, modify, or otherwise alter any of the Services or Consultant's databases, or any access or connections to same. Consultant retains all right, title and ownership of the Software and Documentation, including any improvements, modifications, developments, enhancements, upgrades, updates or derivative works thereto made as part of the Services or otherwise, all of which shall be exclusively owned by Consultant,
2.3 Exception. If any restriction in Section 2.2 is prohibited by applicable law, Customer will upon being informed of such prohibition, notify Consultant in writing before engaging in any of the restricted activities, and, in any event, Customer will not create, or engage any other party to create any software that performs the same or similar functions as the Software.
2.4 Access. Customer will not allow any access to or use of the Software or Documentation by anyone other than Authorized Users or personnel employed by Customer which provide information technology service for Customer who have a need to access the Software to properly perform their responsibilities to Customer. Any such use must be consistent with the terms, conditions and restrictions set forth in this Agreement and any further restrictions required by Consultant be approved by Consultant. Any breach of this term shall be a material breach of this Agreement and shall permit Consultant to terminate this agreement and Customer’s access to the Software immediately.
2.5 Safeguards/Internet Connectivity. (a) Customer shall be responsible for all reasonable and customary administrative, technical and physical safeguards associated with its use of the Software and any Third Party Products including, but not limited to, anti-virus software, firewalls, and other physical or technological means of protecting the integrity of the Software, Third Party Products, data or information. (b) Customer shall maintain and shall not interfere with or disable Consultant’s internet connection to the Software and Customer’s equipment used in connection with the Software.
Customer shall not change any access credentials which permit Consultant to remotely access the Software without providing the updated access credentials to Consultant immediately.
Any disabling of Consultant’s remote access to the Software shall be deemed a material breach of the terms of this Agreement.
2.6 Site Specific License. The Software may only be installed, used or accessed from the Site(s) previously approved by us provided; however, if Customer relocates, such Site license shall automatically transfer to such replacement Site if approved by Consultant.
The method for this transfer shall be by written request on company letterhead with the president / CEO signature to request relocation.
The Software may be accessed remotely from any other fixed location only for purposes of retrieving and processing information, but may not be accessed by any wireless devices, including, but not limited to, wireless devices affixed in vehicles; provided however, Customer may access information using handheld devices if same are used on the Site.
The Software may not be used to transact business or to process data from a Site not approved by us.
3. SERVICES.
3.1 Consultant Services. All Consulting Services (including any development and customization services which may be a part thereof) to be performed pursuant to this Agreement will be set forth in a Statement of Work, each of which is expressly made part of this Agreement and made subject to the terms and conditions of this Agreement.
Each Statement of Work will describe the nature of each engagement, the scope of the Consulting Services, Specifications, nature of the Customer Work Product and other Deliverables to be provided, and the Fees and Expenses.
In case of any inconsistency between this Agreement and a Statement of Work, the terms of this Agreement prevail.
All Consulting Services to be performed pursuant to this Agreement will be performed in accordance with accepted industry standards using qualified personnel.
It is agreed that time is of the essence in performing such Services.
3.2 Subcontractors. Consultant may delegate the performance of any portion of the Services to its Affiliates or to a subcontractor of Consultant’s choosing.
Consultant will remain responsible for the performance of all Services delegated to its Affiliates and subcontractors consistent with the terms and conditions of this Agreement.
3.3 Relationship of the Parties. Consultant is an independent contractor for Customer, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the Parties.
Neither Party is an agent of the other nor is authorized to make any representation, contract, or commitment on behalf of the other Party.
4. MODIFICATION.
4.1 Modification. Any changes, additions or deletions to the Services and applicable Deliverables other than those necessary to cause the Deliverables to conform to the Specifications (each, a “Services Modification”) will comply with this Section 4.1.
Customer will request any Services Modification in writing to Consultant. Consultant will then submit a written proposal to Customer describing the change and any effect on price, schedules, or other anticipated effects of the proposed Services Modification, and the Parties will negotiate in good faith the adoption of Customer’s requested Services Modification.
If Consultant desires a modification to any Services or Deliverables, Consultant will propose a Services Modification and the Parties will negotiate in good faith the adoption of Consultant’s proposed Services Modification.
No changes to any Services, Deliverables or Statement of Work will be valid or binding unless and until accepted in writing by both Parties.
5. FEES, EXPENSES, AND PAYMENT.
5.1 Fees. In consideration for the License, Services and Deliverables to be provided by Consultant under this Agreement and each Statement of Work, Customer will pay Consultant the Fees set forth the respective invoice or Statement of Work (“Fees”) when due.
5.2 Expenses. Customer will reimburse Consultant for all Expenses identified as reimbursable in each schedule and Statement of Work when due.
5.3 Payment. Amounts that are past due will be subject to a late charge of 15% per annum or any applicable legal maximum, whichever is less.
Customer and Consultant will in good faith diligently attempt to resolve disputed amounts.
5.4 Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature associated with the Services (collectively, “Taxes”).
Customer is responsible for paying all Taxes associated with its purchases hereunder. If Consultant has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount will be invoiced to and paid by Customer unless Customer provides Consultant with a valid tax exemption certificate authorized by the appropriate taxing authority.
6. INTELLECTUAL PROPERTY.
6.1 Ownership. Except as expressly provided in this Agreement, as between Customer and Consultant, Consultant retains all right, title and interest in and to the Deliverables and any and all intellectual property rights therein.
6.2 License. Subject to the terms and conditions of this Agreement, Consultant grants to Customer a non-exclusive, non-transferable, worldwide license to use the Deliverables solely for its own internal business purposes.
6.3 Confidentiality. Each Party will hold the other Party’s Confidential Information in confidence and, unless required by law, not make the other Party’s Confidential Information available to any third party or use the other Party’s Confidential Information for any purpose other than the implementation of this Agreement.
7. WARRANTIES AND DISCLAIMERS.
7.1 Warranties. Consultant represents and warrants to Customer that (i) it has the necessary rights and permissions to grant the License and to perform its obligations hereunder, and (ii) the Services and Deliverables will not violate any applicable laws or regulations or cause a breach of any agreements between Consultant and third parties.
7.2 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES AND DELIVERABLES ARE PROVIDED “AS IS” AND CONSULTANT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. WARRANTIES AND LIABILITY.
8.1 Warranties. Consultant warrants that:
(a) It has all right, title and interest in the Software, the same does not infringe on the rights of any third party, all parties that have developed the Deliverables (except for third-party software to the extent included in the Software) have done so on a work made for hire basis to Consultant, and Consultant has the full authority to enter into this Agreement and to grant the licenses in the Software;
(b) The Services will be performed in a professional manner by qualified personnel consistent with industry standards and the provisions of this Agreement and the applicable Statement of Work;
(c) The Deliverables will be provided in conformance with the Specifications; and
(d) Consultant will abide by all applicable laws, regulations, and orders in performing the Services.
Such warranties shall extend for thirty (30) days after acceptance.
8.2 Remedies. If after the acceptance of the Deliverables and prior to the end of the warranty period, Customer identifies in writing to Consultant any deficiencies in the Services or Deliverables with respect to the warranties set forth in Section 8.1, Consultant will:
(a) Re-perform or modify the Services or Deliverables in a manner that resolves the deficiency forming the basis for the breach of warranty claim; or
(b) Replace the media upon which the Software or Deliverables are provided in a manner that resolves the alleged deficiency forming the basis for the breach of warranty claim.
8.3 DISCLAIMER AND LIMITATIONS. THE EXPRESS WARRANTIES AND REMEDIES REFERENCED IN SECTIONS 8.1 AND 8.2 ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY CONSULTANT TO CUSTOMER AND REMEDIES AVAILABLE TO CUSTOMER UNDER THIS AGREEMENT OR ANY STATEMENT OF WORK. CONSULTANT DOES NOT WARRANT THAT THE SOFTWARE WILL BE SECURE, UNINTERRUPTED, OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA. CONSULTANT SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND WITH REGARD TO ANY SUBJECT MATTER OF THIS AGREEMENT, THE DELIVERABLES, THE SERVICES AND ANY THIRD PARTY PRODUCTS, INCLUDING, BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. CONSULTANT MAKES NO REPRESENTATION OR WARRANTY THAT THE SOFTWARE WILL FUNCTION IN ACCORDANCE WITH ANY PARTICULAR ACCOUNTING PRACTICE AND CUSTOMER ACKNOWLEDGES AND AGREES THAT IT MUST ENSURE THAT THE SOFTWARE IS CONFIGURED PROPERLY TO FUNCTION WITH THE ACCOUNTING OR RECORD KEEPING METHOD OR PRACTICE DESIRED BY THE CUSTOMER.
8.4 Third Party Product Warranties. The exclusive warranties for Third Party Products shall be those provided by the manufacturer or licensor of such Third Party Products which shall be assigned to Customer to the fullest extent possible.
8.5 Hosted Services. In the event Customer engages Consultant to provide any hosting of the Software or any data, Customer understands that such hosting services may be provided by a third party engaged by Consultant and, as such, are deemed Third Party Products. Consultant makes no representation or warranty regarding the availability, reliability or security of such hosting services and Customer agrees that it shall not be entitled to receive from Consultant any level of service, security, availability or other representation or warranty in excess of what is provided to Consultant by the third party that provides the service.
9. LIMITATION OF LIABILITY. TO THE GREATEST EXTENT PERMISSIBLE UNDER LAW, BUT WITHOUT LIMITING CONSULTANT’S OBLIGATIONS UNDER SECTIONS 7, 8 AND 10, AND EVEN IF CONSULTANT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES: (A) IN NO EVENT SHALL CONSULTANT’S LIABILITY TO CUSTOMER ARISING FROM OR RELATING TO THIS AGREEMENT OR ANY STATEMENT OF WORK EXCEED THE TOTAL AMOUNT PAID TO CONSULTANT BY CUSTOMER UNDER THE SPECIFIC STATEMENT OF WORK TO WHICH THE CLAIM RELATES WITHIN THE PRECEDING NINE (9) MONTHS; (B) IN NO EVENT SHALL CONSULTANT HAVE ANY LIABILITY FOR THE PERFORMANCE OR NON-PERFORMANCE OF ANY THIRD PARTY OTHER THAN CONSULTANT’S SUBCONTRACTORS; (C) IN NO EVENT SHALL CONSULTANT HAVE ANY LIABILITY RELATED TO THIRD PARTY PRODUCTS; (D) IN NO EVENT SHALL CONSULTANT HAVE ANY LIABILITY RELATED TO THE FAILURE OF CUSTOMER’S OR ANY THIRD PARTY’S NETWORK, SYSTEM OR SERVICES; (E) IN NO EVENT SHALL CONSULTANT HAVE ANY LIABILITY FOR FAILURE OF OR INTERRUPTIONS IN THE INTERNET; (F) IN NO EVENT SHALL CONSULTANT HAVE ANY LIABILITY FOR FAILURE OF CUSTOMER’S SECURITY DEVICES, PROCEDURES, SYSTEMS, NETWORKS OR ANTIVIRUS SOFTWARE; (G) IN NO EVENT SHALL CONSULTANT SHALL BE LIABLE TO CUSTOMER FOR ANY LOST PROFITS OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES; (H) IN NO EVENT SHALL CONSULTANT HAVE LIABILITY FOR ANY LOSS OF CUSTOMER'S DATA OR ANY DATA ON CUSTOMER'S NETWORK OR SYSTEM; AND (I) IN NO EVENT SHALL CONSULTANT HAVE LIABILITY FOR ANY MISCONFIGURED OR IMPROPERLY CONFIGURED INTEGRATION OF THE SOFTWARE WITH ANY OTHER SOFTWARE OR FOR FAILURE OF THE CUSTOMER TO PROPERLY CONFIGURE THE SOFTWARE FOR ITS NEEDS. INDEMNITY:
10.1 Indemnity by Consultant. Subject to Section 10.3 and except to the extent of any negligent or intentionally wrongful act or omission of, or unlawful or improper use of the Software by, Customer or its Affiliates or their respective employees or agents, Consultant will, at its expense, indemnify, defend and hold Customer harmless from and against all, costs, fees (including reasonable attorneys’ fees), damages, liabilities and expenses to the extent arising from any third party claim that the Software infringes any U.S. patent or copyright.
10.2 Indemnity by Customer. Except with respect to any negligent or intentionally wrongful act or omission of Consultant or its Affiliates or their respective employees or agents, Customer will, at its own expense, indemnify, defend and hold Consultant harmless from and against any and all claims, costs, fees (including reasonable attorneys’ fees), damages, liabilities and expenses to the extent arising from (a) any third party claim for or relating to unlawful or improper use of the Deliverables, or (b) any claim by Consultant for non-payment by Customer or (c) any breach by Customer of Section 7 of this Agreement.
10.3 Certain Remedies. If the Software is, or in Consultant’s opinion is likely to become, the subject of any claim, action, suit or proceeding for infringement of a third party’s Intellectual Property Rights, then Consultant at its discretion and expense will: (a) procure for Customer the right to continue using the Software; or (b) replace or modify the Software so as not to infringe while maintaining the functionality of the Software and all of the same features as described on the Statement of Work and the Specifications; or (c) accept the return of the Software and reimburse Customer for the cost of the License Fee paid. This provision does not apply to Third Party Products.
10.4 Indemnification Procedures. Each Party’s indemnification obligations are conditioned upon the other Party: (a) giving the indemnifying Party prompt written notice of any claim, action, suit or proceeding for which the indemnified Party is seeking indemnity; (b) granting control of the defense and settlement to the indemnifying Party; and (c) reasonably cooperating with the indemnifying Party at the indemnifying Party’s expense. In no event may the indemnifying Party make any admission or agree to the entry of any judgment for money to be entered on behalf of the indemnified Party without the prior express written consent of the indemnified Party.
TERM, TERMINATION, AMENDMENT:
11.1 Term. The initial term of the License and of this Agreement shall be three (3) years (the “Initial Term”) unless earlier terminated under the provisions of this Section 11. Thereafter, this Agreement shall automatically renew for successive “Renewal Terms” of one (1) year each unless either you or we provide the other with written notice of your or our intent not to renew the Term of this Agreement no less than thirty (30) days prior to the end of the then-current Term. Throughout this Agreement the word “Term” may refer to either the Initial Term or Renewal Term as the case may be. If you have a current agreement with us, you and we hereby agree to terminate that agreement commensurate with the execution of this Agreement, and your right to access and use the Software on the terms of the License shall be thereafter governed by this Agreement.
11.2 Termination for Cause. (a) Either Party may terminate this Agreement immediately upon written notice at any time if: (i) The other Party is in material breach of any warranty, term, condition or covenant of this Agreement and fails to cure that breach within 15 days after the delivery of written notice thereof to the defaulting Party, subject to Section 11.2(c); or (ii) The other Party is adjudicated insolvent or bankrupt, or if any proceedings are instituted by the other Party or against it, if not dismissed within 90 days of filing, seeking relief, reorganization or arrangement under any laws relating to insolvency, or upon any assignment for the benefit of its creditors, or upon the appointment of a receiver, liquidator or trustee of any of its property or assets, or upon the dissolution or winding up of its business.
(b) Consultant may terminate this Agreement upon any default by the Customer under any other agreement between Customer and Consultant and, in doing so, may declare all obligations under any agreements between Customer and Consultant immediately due and payable which shall include the balance of any amounts that would be paid to Consultant during the balance of the current Term.
11.3 Right to Amend. Consultant shall have the right to amend the terms of this Agreement and Customer hereby agrees to such amended terms if (a) Consultant reasonably determines that such an amendment is necessary to comply with any applicable law, regulation or government order, (b) Consultant reasonably determines that amending this Agreement is necessary to implement security processes and procedures intended to protect the Software or any of Consultant or Customer’s data or (c) any of the terms of Consultant’s agreements with any Third Party Product providers or third party service providers require that changes to this Agreement be implemented. Notwithstanding the foregoing, changes to the Fees shall be pursuant to Paragraph 5.5. Substantive changes to the Agreement not consistent with this Paragraph 11.3 or Paragraph 5.5 shall be mutually agreed upon by the Parties.
11.4 Termination upon failure to Amend. Apart from its right to amend the terms of this Agreement pursuant to Paragraph 11.3 and 5.5, Consultant shall have the right to amend the terms of this Agreement by written amendment but only if such amendment is agreed to by the Customer. In the event Customer fails to agree to an amendment proposed by the Consultant which requires Customer agreement, either Consultant or Customer may terminate the Agreement.
11.5 Effect of Termination. (a) Upon the termination or expiration of this Agreement or any Statement of Work, Consultant will wind up all Services in order to minimize further expense to Customer, and Customer will pay Consultant all undisputed Fees and Expenses due as of the effective date of termination including demobilization and transition costs. Upon full payment of all Fees and Expenses due, Consultant will promptly deliver to Customer all materials and information supplied by Customer in connection with this Agreement and any terminated Statement of Work, together with all work in progress on the date of termination, whether complete or partially complete. In the event of a breach by Consultant, Consultant shall reimburse Customer for an amount not to exceed the amounts paid to Consultant by Customer for License Fee. Notwithstanding the foregoing, in the event this Agreement is terminated by Consultant due to an uncured breach by Customer, Consultant shall be entitled to payment of the remainder of any unpaid license Fees for any months of the then current remaining term. Upon any termination or expiration of this Agreement the License shall also terminate, the Consultant shall remove access to the Software and Documentation and Customer shall cease all use of the Software and Documentation.
(b) Sections 5, 6, 7, 8, 9, 10, 11.5, 12, and 13 and any terms or provisions necessary to enforce any of the foregoing or any terms which due to their nature and intended effect should survive, will survive termination or expiration of this Agreement for any reason.
12. Non-Solic
itation of Personnel. During the Term and for a period of one (1) year after the termination or expiration of this Agreement, neither Party shall solicit, offer, employ or hire, directly or indirectly, any present or former employee, consultant or agent of the other Party or its Affiliates, who works or has worked within a 12 month period preceding the date of such activity on a project covered by this Agreement or in any way encourage any such person to leave the other Party or such Affiliate, to work for the soliciting, offering or encouraging Party; provided, that the response by such a person to a general advertisement and the subsequent employment of that person is not a violation of this provision.
13. GENERAL. 13.1 Assignment. Except as provided above, Customer shall not assign the rights and obligations under this Agreement without the prior written consent of Consultant and any assignment by Customer that is permitted under the terms of this Agreement shall require that Customer provide Consultant with notice of the Assignment not less than thirty (30) days prior to the date that the assignment becomes effective. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of each Party’s respective successors and permitted assigns.
13.2 Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
13.3 Entire Agreement. This Agreement, together with each executed schedule and Statement of Work, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior letters of intent and oral and written agreements between the Parties regarding the subject matter of this Agreement. This Agreement will not be modified by the Customer except by a written agreement signed by authorized representatives of both Parties. Unless otherwise expressed and agreed to by the Parties in writing, any modifications to the terms of this Agreement set forth in any subsequent Statement of Work will apply solely to the Services to be performed under the applicable Statement of Work and will not apply to any other Statement of Work.
13.4 Force Majeure. If the performance of this Agreement or any obligation hereunder (other than the payment of money) is prevented, restricted or interfered with by any act or condition whatsoever beyond the reasonable control of the affected Party, the Party so affected will be excused from such performance to the extent of and for the duration of such prevention, restriction or interference.
13.5 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania without reference to its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any action or proceeding arising from or relating to this Agreement will be brought solely in the state and federal courts in Franklin County, Pennsylvania and each Party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.
13.6 Notices. All notices and requests in connection with this Agreement will be deemed given as of the day they are received either by facsimile, messenger, delivery service, or in the United States of America mails, postage prepaid, certified or registered, return receipt requested. All notices and requests will be given at the address specified in the first paragraph, or at such other address as a Party will specify in writing.
13.7 No Third Party Beneficiaries. Nothing in this Agreement is intended to confer any rights, benefits, remedies, obligations or liabilities on any third party (including, without limitation, any employees or agents of either Party) other than the Parties or their respective successors and permitted assigns.
13.8 No Waiver. No delay or omission by either Party hereto to exercise any right, power or remedy occurring upon any noncompliance or
default by the other Party with respect to any of the terms of this Agreement will impair any such right, power or remedy or be construed to be a waiver thereof. A waiver by either of the Parties hereto of any of the covenants, conditions or agreements to be performed by the other will not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition or agreement herein contained. No waiver of a breach on one occasion will be deemed a waiver on another occasion.
13.9 Severability. If any provision of this Agreement is deemed unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
13.10 Exports. Customer will not export the Software or Deliverables outside of the United States of America, re-import the Software or Deliverables into the United States of America, or transport data using the Software or Deliverables except as permitted by and in full compliance with all applicable laws, regulations, treaties and conventions.
13.11 Audit. During, and for two (2) years after the expiration or termination of this Agreement, Customer agrees to allow Consultant or its agent to inspect or audit Customer’s use of the Software, remotely and/or including at Customer’s facilities at Consultant’s discretion, to verify Customer’s compliance with this Agreement or any Statement of Work and, in the case of a post-expiration/termination audit or inspection, to verify that the Software is no longer in use by the Customer. In the event that any audit reveals an underpayment by Customer of more than five percent (5%) of the amounts due Consultant in the period being audited or if the Software is found to be in use in breach of these terms or following the expiration/termination of this Agreement, then, in addition to any other remedies Consultant may have, Customer will promptly pay to Consultant any underpayments and shall reimburse the Consultant for its internal and external costs incurred in conducting the audit/inspection.
13.12 Attorneys’ Fees and Costs. In any action brought by Consultant against Customer for breach of this Agreement, including for non-payment, the Consultant will be entitled to recover its reasonable attorneys’ fees and court costs from the Customer unless the Customer is found not to be in breach or not to owe amounts to Consultant or as otherwise excepted by law.
Privacy Policy
BEFORE CONTINUING, READ THE FOLLOWING PRIVACY POLICY CAREFULLY.
This privacy policy has been compiled to better serve those who are concerned with how their 'Personally identifiable information' (PII) is being used online. PII, as used in US privacy law and information security, is information that can be used on its own or with other information to identify, contact, or locate a single person, or to identify an individual in context. Please read our privacy policy carefully to get a clear understanding of how we collect, use, protect or otherwise handle your Personally Identifiable Information in accordance with our website.
What personal information do we collect from the people that visit our blog, website or app?
When ordering or registering on our site, as appropriate, you may be asked to enter your name, email address, mailing address, phone number, credit card information or other details to help you with your experience.
When do we collect information?
We collect information from you when you register on our site, place an order, subscribe to a newsletter, fill out a form or enter information on our site.
How do we use your information?
We may use the information we collect from you when you register, make a purchase, sign up for our newsletter, respond to a survey or marketing communication, surf the website, or use certain other site features in the following ways: • To personalize user's experience and to allow us to deliver the type of content and product offerings in which you are most interested.
• To improve our website in order to better serve you.
• To allow us to better service you in responding to your customer service requests.
• To quickly process your transactions.
• To send periodic emails regarding your order or other products and services.
How do we protect visitor information?
Our website is scanned on a regular basis for security holes and known vulnerabilities in order to make your visit to our site as safe as possible.We use regular Malware Scanning. Your personal information is contained behind secured networks and is only accessible by a limited number of persons who have special access rights to such systems, and are required to keep the information confidential. In addition, all sensitive/credit information you supply is encrypted via Secure Socket Layer (SSL) technology. All transactions are processed through a gateway provider and are not stored or processed on our servers.
Do we use 'cookies'?
We do not use cookies for tracking purposes You can choose to have your computer warn you each time a cookie is being sent, or you can choose to turn off all cookies. You do this through your browser (like Internet Explorer) settings. Each browser is a little different, so look at your browser's Help menu to learn the correct way to modify your cookies. If you disable cookies off, some features will be disabled that make your site experience more efficient and some of our services will not function properly. However, you can still place orders .
Third Party Disclosure
Third party links
We do not include or offer third party products or services on our website.
Google's advertising requirements can be summed up by Google's Advertising Principles. They are put in place to provide a positive experience for users. https://support.google.com/adwordspolicy/answer/1316548?hl=en We have not enabled Google AdSense on our site but we may do so in the future.
California Online Privacy Protection Act
CalOPPA is the first state law in the nation to require commercial websites and online services to post a privacy policy. The law's reach stretches well beyond California to require a person or company in the United States (and conceivably the world) that operates websites collecting personally identifiable information from California consumers to post a conspicuous privacy policy on its website stating exactly the information being collected and those individuals with whom it is being shared, and to comply with this policy. - See more at: http://consumercal.org/california-online-privacy-protection-act-caloppa/#sthash.0FdRbT51.dpuf
According to CalOPPA we agree to the following:
Users can visit our site anonymously Once this privacy policy is created, we will add a link to it on our home page, or as a minimum on the first significant page after entering our website. Our Privacy Policy link includes the word 'Privacy', and can be easily be found on the page specified above. Users will be notified of any privacy policy changes: • On our Privacy Policy Page Users are able to change their personal information: • By logging in to their account
How does our site handle do not track signals?
We honor do not track signals and do not track, plant cookies, or use advertising when a Do Not Track (DNT) browser mechanism is in place.
Does our site allow third party behavioral tracking?
It's also important to note that we do not allow third party behavioral tracking
COPPA (Children Online Privacy Protection Act)
When it comes to the collection of personal information from children under 13, the Children's Online Privacy Protection Act (COPPA) puts parents in control. The Federal Trade Commission, the nation's consumer protection agency, enforces the COPPA Rule, which spells out what operators of websites and online services must do to protect children's privacy and safety online.We do not specifically market to children under 13.
Fair Information Practices
The Fair Information Practices Principles form the backbone of privacy law in the United States and the concepts they include have played a significant role in the development of data protection laws around the globe. Understanding the Fair Information Practice Principles and how they should be implemented is critical to comply with the various privacy laws that protect personal information.
In order to be in line with Fair Information Practices we will take the following responsive action, should a data breach occur:
We will notify the users via email • Within 7 business days
We also agree to the individual redress principle, which requires that individuals have a right to pursue legally enforceable rights against data collectors and processors who fail to adhere to the law. This principle requires not only that individuals have enforceable rights against data users, but also that individuals have recourse to courts or a government agency to investigate and/or prosecute non-compliance by data processors.
CAN SPAM Act
The CAN-SPAM Act is a law that sets the rules for commercial email, establishes requirements for commercial messages, gives recipients the right to have emails stopped from being sent to them, and spells out tough penalties for violations.
We collect your email address in order to:
To be in accordance with CANSPAM we agree to the following:
If at any time you would like to unsubscribe from receiving future emails, you can email us at and we will promptly remove you from ALL correspondence.
Contacting Us
If there are any questions regarding this privacy policy you may contact us using the information below.
ScrapRight Software
206 Madison Ave
Waynesboro, PA 17268 USA
shon.duty@scrapright.com
+1 (877) 897-6422