Customer has a 7-day free trial to evaluate the Cloud Portal. Upon the expiration of this 7-day period, Solid Square will charge Customer's credit card for the applicable fee. If Customer wishes to discontinue its use of the Cloud Portal upon the expiration of the 7-day free trial, Customer will cancel their subscription online at the InspectARide website or will provide Solid Square with notice of its intention to terminate this Agreement via e-mail or otherwise in writing. So long as such notice is received by Solid Square at least two days prior to Customer's credit card being charged the applicable fee, the credit card will not be charged.
1.1 Grant. Subject to the terms and conditions of this Agreement, Solid Square grants Customer a personal, non-exclusive, and non-transferable license to access and use the Solid Square InspectARide Cloud Portal ("Cloud Portal"). Access to the Cloud Portal via Solid Square's InspectARide software application ("App") is limited to the number of devices, such as a smart phone or a tablet, covered by the App license purchased by Customer.
1.2 Cloud Portal. Customer will have up to the standard account storage amount for data generated by Customer's use of the App. Additional storage is available for an additional charge. Since the Cloud Portal operates using computer equipment, computer software programs, and the Internet, Solid Square shall not be responsible for delays or service interruptions attributable to causes beyond its reasonable control, including, without limitation, limitations on the availability of telephone transmission lines and facilities, failures of other communications equipment, Internet access delays or failures, failures or deficiencies of Customer's equipment, or Customer's failure to meet its responsibilities under this Agreement. Solid Square will maintain adequate back-up arrangements and equipment in order to maintain Customer's data stored on or through the Cloud Portal in the event of the failure of any of Solid Square's equipment. Solid Square will retain Customer's data on Solid Square's server for a minimum of 12 months from the date the data is first uploaded via the Cloud Portal unless deleted by Customer. Service interruptions for maintenance and system upgrades will be scheduled, to the extent reasonably practicable, to minimize interference with Customer's daytime business activities. For unscheduled service interruptions attributable to causes within Solid Square's reasonable control, as Solid Square's sole obligation and Customer's exclusive remedy, Solid Square shall make reasonable efforts to restore the Cloud Portal.
1.3 Proprietary Rights. Customer acknowledges that the Cloud Portal, and associated report formats, screen displays, and menu features, and all derivative works, constitute copyrighted works protected by federal and international copyright laws and are owned by Solid Square or its licensors. The Cloud Portal and all copies, versions, and derivative works of the Cloud Portal shall remain the sole property of Solid Square or its licensors. Customer shall not make and shall not permit anyone else to make any copies of the Cloud Portal. Except as otherwise permitted in this Agreement, Customer shall not allow any third party to access or use the Cloud Portal. Customer shall not modify or create any derivatives of the Cloud Portal. Customer shall not decompile or otherwise reverse engineer or decode the Cloud Portal. Customer shall not take or refrain from taking, directly or indirectly, any action that may in any way lead to the unauthorized dissemination, reproduction, access, or use of the Cloud Portal. Customer shall not export the Cloud Portal, or any direct product thereof, directly or indirectly, in violation of the export laws and regulations of the United States of America.
1.4 Consent to Use Data. Solid Square may collect and use information about Customer's devices and usage of the Cloud Portal to facilitate support, updates, and improvements to the Cloud Portal and Solid Square's services. Solid Square will not use such information in any way that personally identifies Customer.
1.5 U.S. Government Rights. The Cloud Portal and related materials are commercial in nature and developed solely at private expense. The Cloud Portal and related materials are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end-users only as Commercial Items and with only those rights as are granted to all other end-users pursuant to the terms and conditions of this Agreement.
1.6 Survival; Injunctive Relief. Customer's obligations under this Section 1 shall survive termination of this Agreement. Customer acknowledges that a breach of its obligations under this Section 1 will cause irreparable harm to Solid Square or its licensors for which monetary damages would be inadequate. Solid Square or its licensors will be entitled to injunctive relief for any such breaches, threatened or actual.
2.1 Support. During its normal business hours, Solid Square will provide helpdesk support to Customer on the use of the Cloud Portal via e-mail or telephone, as Solid Square deems appropriate, at no additional charge. Self-help support is available via the InspectARide website, at no additional charge.
2.2 Customer Responsibilities. Customer is responsible for the operational aspects of accessing and using the Cloud Portal, including, but not limited to, (a) acquiring, installing, and maintaining computer equipment and computer software programs compatible with and as necessary to use the Cloud Portal; (b) obtaining access to the Internet; and (c) downloading and installing any necessary plug-ins.
3.1 Fees. Customer shall pay Solid Square the applicable subscription fees due under this Agreement for the version of the Cloud Portal and device quantity selected by Customer. Customer shall have 7 days to evaluate the Cloud Portal at no charge. Should the subscription be activated, upon expiration of the free trial period Solid Square shall charge Customer's credit card for the applicable fee and periodically thereafter, in accordance with the subscription term. Fees are non-refundable.
3.2 Taxes. Customer shall pay when due or, if necessary, reimburse Solid Square for, all sales, use, property, excise, and other similar taxes, including penalties and interest arising from Customer's failure to pay such taxes timely, resulting from any activities under this Agreement, exclusive of taxes based on Solid Square's net income or corporate franchise. If Customer has tax exempt status, it shall supply Solid Square with its tax-exempt certificate or number as necessary. Taxes are due as assessed.
3.3 Payment. Payment of the subscription fees is due in advance on the first day of the applicable subscription period. Customer shall pay the subscription fees and any other applicable charges via automatic credit card debit. While this Agreement is in effect, Customer shall provide and maintain proper authorization for Solid Square to debit Customer's credit card account for the amounts owed under this Agreement. Solid Square shall debit such accounts in advance for any fees due under this Agreement. Customer represents that the accounts from which Customer pays Solid Square are valid and that Customer is an authorized user of the accounts. Customer will promptly notify Solid Square of any pertinent changes in Customer's account information.
4.1 Right. Solid Square warrants that it has the right to grant the license and other rights granted to Customer under this Agreement.
4.2 Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SOLID SQUARE MAKES NO WARRANTY, EXPRESS OR IMPLIED, REGARDING ANY MATTER WHATSOEVER. SOLID SQUARE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF TITLE, ACCURACY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTY ARISING FROM A COURSE OF DEALING OR PERFORMANCE OR FROM USAGE OF TRADE.
5.1 Indemnification by Customer. Customer shall indemnify and hold Solid Square harmless from any claims resulting from Customer's use of the Cloud Portal, except to the extent such claims arise from Solid Square's gross negligence or willful misconduct.
5.2 Limitation of Liability. The total liability of Solid Square for all claims, whether in contract, tort, or otherwise, arising out of, connected with, or resulting from the Cloud Portal or any other services under this Agreement shall not exceed the amounts paid by Customer to Solid Square under this Agreement during the 12 months immediately preceding the claim.
5.3 Exclusion of Liability. SOLID SQUARE SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR CAUSED, IN WHOLE OR IN PART, BY ANY ERRORS OR OMISSIONS IN ANY DATA, CONTENT, OR OTHER INFORMATION PROVIDED THROUGH THE CLOUD PORTAL. IN NO EVENT SHALL SOLID SQUARE, ITS LICENSORS, SUPPLIERS, OR SUBCONTRACTORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST REVENUE, OR LOST SAVINGS, INCURRED BY CUSTOMER OR ANY THIRD PARTY, EVEN IF SOLID SQUARE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.4 Survival. The indemnification obligations and the limitations of liability under this Agreement shall survive the termination of this Agreement.
6.1 Term. This Agreement shall commence upon Customer's acceptance of the terms and conditions of this Agreement and shall continue on a month-to-month basis until terminated in accordance with this Agreement.
6.2 Free Trial Period Expiration Termination. If Customer wishes to discontinue its use of the Cloud Portal upon the expiration of the 7-day free trial period, Customer will cancel their subscription online at the InspectARide website or will provide Solid Square with notice of its intention to terminate this Agreement via e-mail or otherwise in writing. So long as such cancellation or notice is received by Solid Square at least two days prior to Customer's credit card being charged the applicable fee, the credit card will not be charged and this Agreement will terminate.
6.3 Termination for Convenience. Customer may terminate this Agreement as of the end of the then-current subscription period by cancelling its account online at the InspectARide website. Solid Square may terminate this Agreement at any time upon 60 days' prior written notice to Customer.
6.4 Termination for Default. If Customer fails to comply with any material term or condition of this Agreement, this Agreement shall automatically terminate without notice from Solid Square. Such termination is in addition to any other rights and remedies provided under this Agreement or otherwise under law.
6.5 Effect of Termination. Upon termination of this Agreement, Customer shall cease all use of the Cloud Portal. Upon cancellation, Solid Square will retain Customer's data for a period of six months and is thereafter released to remove Customer's data from all InspectARide storage and properties. No termination of this Agreement shall release Customer from any obligation to pay Solid Square any amount that has accrued or becomes payable at or prior to the date of termination. Customer shall not be entitled to any refund of any amounts paid to Solid Square as a result of a termination, unless based on Solid Square's default, and then only with respect to the unused period paid for by Customer.
7.1 Excused Performance. Neither party shall be liable for any delay in or failure of performance (excluding failure to make payments required by this Agreement) resulting from any cause or condition beyond its reasonable control, whether foreseeable or not.
7.2 Waiver. The failure of either party to act upon any right, remedy, or breach of this Agreement shall not constitute a waiver of that or any other right, remedy, or breach. No waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
7.3 Notices. Unless provided otherwise in this Agreement, any notice required or permitted under this Agreement shall be personally delivered, or sent by e-mail, telefax, courier, express or overnight delivery service, or by certified mail, postage prepaid, return receipt requested, if to Solid Square, to the address set forth at the end of this Agreement, if to Customer, to the address Customer specified at the time it originally entered this Agreement, or to such other address as shall be advised by either party to the other in writing. Notices shall be effective as of the date of receipt.
7.4 Third-Party Beneficiaries. Solid Square's licensors shall be third-party beneficiaries under this Agreement.
7.5 Dispute Resolution. Any claim or controversy arising out of or relating to this Agreement, including any anticipatory breach or disagreement as to interpretation of this Agreement, that is not resolved by the parties themselves or through mediation, shall be settled by binding arbitration in Cincinnati, Ohio administered by Cincinnati Bar Association Arbitration Services pursuant to its rules and procedures in effect at the time the dispute is submitted. The arbitrator(s) shall decide all discovery issues. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Neither party nor the arbitrator(s) may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. All fees and expenses of the arbitration shall be borne by the parties equally. However, each party shall bear the expense of its own counsel, experts, witnesses, and preparation and presentation of proofs, except that the prevailing party shall be entitled to an award of reasonable attorney's fees.
7.6 Governing Law. This Agreement and any claim arising out of this Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, excluding its conflict of laws principles. The United Nations Convention on Contracts of the International Sale of Goods shall not apply to this Agreement.
7.7 Provisions Severable. The provisions of this Agreement are severable. If any provisions are held to be invalid, unenforceable, or void, all other provisions shall remain valid.
7.8 Entire Agreement. This Agreement constitutes the entire agreement and understanding between the parties relating to the object and scope of this Agreement. Any representation, statement, or warranty not expressly contained in this Agreement shall not be enforceable by the parties. This Agreement may be amended from time to time by Solid Square upon notice to Customer.
Solid Square, LLC