This Agreement is between Carr Engineering, Inc. ("CEI")
and "you":
1. the
individual or legal entity purchasing or opening an account for VolunteerHub
services under this Agreement ("Customer"); or as the case may be
2. the
individual accessing or using VolunteerHub services or installing the Software
("User").
You agree to be bound by these Terms of Service by installing,
copying, or otherwise using the Software, or accessing or using the Services.
Please read these Terms of Service (the "Agreement") carefully before
installing, accessing, or otherwise using the Software or Services. Please
maintain a copy for your records.
Note for Users who are not Customers: Section 7 (Credit
Card Authorization) and Section 20 (Indemnity) of this Agreement do not apply
to you. If your employer is a Customer and has an existing written agreement
with CEI ("Written Agreement"), the Written Agreement will govern (and will be
deemed to supersede the applicable terms of this Agreement) solely to the
extent of any conflict between this Agreement and the Written Agreement.
1. Definitions.
All capitalized terms defined in this Agreement have the meanings set forth
herein.
"Affiliated Entities" means CEI and any licensors and
suppliers providing any part of the Software and/or Services; and all
subsidiaries, affiliates, officers, employees, consultants, and agents of any
of the foregoing.
"Content" means all data, text, images, sounds,
computer programs, and any other information, including without limitation
everything that is uploaded by or for you in connection with your use of the
Services including without limitation photographs, caricatures, illustrations,
designs, icons, articles, audio clips, trademarks, logos, and video clips.
"Services" means VolunteerHub services acquired by a Customer
as described in the applicable order for such services accepted by CEI.
"Site" means the website created for you by CEI for
the purposes of accessing the Services.
"Software" means the software and all associated
documentation and other materials provided to you by CEI for accessing the
Services.
"Term" means the duration of this Agreement
commencing with the earliest of: (i) the date that CEI accepts your order for
Services, or (ii) that you first access or use the Services, or (iii) that you
install the Software, and continuing until the end of the applicable Services
period as designated by CEI, subject to earlier termination in accordance with
this Agreement.
2. Software
License. Subject to your compliance with the terms and conditions of this
Agreement, CEI hereby grants you a non-exclusive license during the Term: (i)
to install the Software (in object code and executable code format only), and
(ii) to use such Software (as installed) solely for the purpose of accessing
and using the Services.
3. Access
to Services; Suspension and Termination. Subject to your compliance with
the terms and conditions of this Agreement, CEI grants to you a non-exclusive,
revocable right to access and use the Services during the Term. CEI reserves
the right to suspend or discontinue without notice all or a part of the
Services (or otherwise terminate this Agreement) at any time if CEI reasonably
believes that you are in breach of this Agreement or may harm CEI or anyone
else. Upon any cancellation or expiration of this Agreement, your access and
other rights to the Services will be cancelled and cease. In the event that the
CLIENT elects to terminate SkyScheduler service, the CLIENT will pay for the
service and this Agreement will remain in effect through the end of the current
monthly billing cycle. Any prepaid fees are non-refundable. You are prohibited
from reselling or acting as a service bureau for the Services or any component
thereof.
4. Ownership
of Software, Services, and Marks. The Software and Services are licensed,
not sold, solely for use under the terms of this Agreement. Except as
specifically set forth herein, CEI and the other Affiliated Entities retain all
right, title, and interest, including all intellectual property rights,
relating to or embodied in the Software and Services, including without
limitation all technology, software, and copies relating to the Software and
Services. All graphics, logos, service marks, and trade names, including
third-party names, product names, and brand names (collectively, the "Marks")
relating to the Software and Services are the trademarks of CEI or the other
Affiliated Entities. You are prohibited from using any Marks without the prior
written permission of CEI or the applicable Affiliated Entities. CEI reserves
all rights not expressly granted in this Agreement.
5. Restrictions.
You agree not to reverse engineer, decompile, disassemble, translate, or
attempt to learn the source code of the Software or Services. Unless expressly
set forth herein, you may not use, copy, modify, create derivative works of,
distribute, sell, assign, pledge, sublicense, lease, loan, rent, timeshare,
deliver, or otherwise transfer, directly or indirectly, the Software (in whole
or in part) or any rights in the Services. You may not remove from the Software
or Services, or alter or add, any Marks or copyright notices or other
proprietary rights markings. IF YOU ARE NOT AN EMPLOYEE, INDEPENDENT
CONTRACTOR, OR INVITEE OF A CUSTOMER, YOU ARE NOT AUTHORIZED TO INSTALL OR
OTHERWISE USE THE SOFTWARE OR SERVICES.
6. No
Training or Technical Support. CEI has no obligation under the terms of
this Agreement to provide support or maintenance services in connection with
the Software or Services.
7. Credit
Card Authorization; Use Under Your Account. If you order Services and are
paying by credit card, only valid credit cards acceptable to CEI may be used by
you to make payment, and all refunds will be credited to the same card.
Throughout the Term and until all amounts due have been paid in full, you
hereby authorize CEI to charge any credit card provided by you to CEI all
amounts due under this Agreement from time to time, including without
limitation, all payments, taxes, and additional fees. If the card cannot be
verified, is invalid, or is not otherwise acceptable, the Services may be
deferred, suspended, or cancelled by CEI without notice, and CEI may generate
invoices for payment. All invoices are payable net thirty (30) days. You agree
to update your card information to keep it current at all times and that CEI may
submit charges for processing even if the card appears to have expired. All
prices are given and must be paid in U.S. dollars. All prices exclude
applicable taxes, duties, and similar charges, which will be charged to and
paid for by you. A finance charge of 1.5% per month or the maximum interest
permitted by law, whichever is less, will be applied on any balances unpaid
after thirty (30) days. In the event of termination of Services at the request
of the CLIENT, the CLIENT will be billed for Services through the end of the
current monthly billing cycle. You will cause those who access the Services
through your account, including Users, to comply with the terms and conditions
of this Agreement. You agree to pay all amounts due under this Agreement and to
be responsible for all activity in your account for the Services, including
payment of fees incurred at the direction of any User(s).
8. Electronic
Communications. The Services are conducted electronically, and you agree
that CEI may communicate electronically with you for matters relating to the
Services and Software, including educational information and notifications
regarding product updates, incentive and rewards programs, training
opportunities and ways to more efficiently use the Service.
9. Updates;
Applicable Terms and Authorization for Auto Updates. CEI may, in its sole
discretion, provide, and this Agreement applies to, all updates, supplements,
add-on components, features, or other functionality or messages related
thereto, including without limitation alterations of functionality, features,
storage, security, availability, content, and other information relating to the
Software or Services (collectively, "Updates") that CEI may provide or
make available generally to its customers after the date that Services
commence, subject to any additional terms and conditions provided by CEI
applicable to such Updates. You hereby authorize CEI to, and agree that CEI may,
in accordance with CEI's standard VolunteerHub operating procedures,
automatically and in good faith transmit, access, install, and otherwise
provide Updates to the Software upon your access to the Service or Software
without further notice or need for consent. CEI has no obligation to, and
nothing in this Agreement may be construed to require CEI to, create, provide,
or install Updates.
10. Privacy Statement.
The CEI VolunteerHub Statement can be accessed at the Site via (http://www.volunteerhub.com/privacy.aspx)
("Privacy Statement"). You hereby acknowledge that you have accessed and
read the Privacy Statement and that it is a part of this Agreement. Personal
information collected on the Site may be stored and processed in the United States or any other country in which CEI or its affiliates, subsidiaries, or agents
maintain facilities, and by using the Site, you consent to any such transfer of
information outside of your country.
11. NOTICE REGARDING
RECORDING AND PRIVACY FEATURES. THE SOFTWARE AND/OR SERVICES MAY ALLOW YOU
TO COLLECT AND UTILIZE IDENTIFYING INFORMATION ABOUT SERVICE PARTICIPANTS, such
as a name that is displayed, transmitted, processed, or stored. THE LAWS OF
SOME STATES OR COUNTRIES REQUIRE THE CONSENT OF INDIVIDUALS PRIOR TO RECORDING
THEIR COMMUNICATIONS AND/OR RESTRICT COLLECTION, STORAGE, AND USE OF PERSONALLY
IDENTIFYING INFORMATION. You agree to comply with all applicable laws and to
obtain all necessary consents and make all necessary disclosures before using
the Software and/or Services.
12. You Retain Ownership of
Content. CEI does not claim ownership of any Content. You hereby grant to CEI
a nonexclusive, worldwide, royalty-free, fully-paid, transferable license to
host, cache, record, copy, and display Content solely for the purpose of
providing the Services. Except as licensed in this Agreement, as between you
and CEI, you retain all right, title, and interest in and to the Content.
13. Limited Purpose Access to
Content. You acknowledge that the Services are provided by automated means
(e.g., uploading Content via the applicable software tools) and that CEI
personnel will not access, view, or listen to any Content, except as permitted
under the Privacy Policy or as otherwise necessary to perform the Services,
including but not limited to the following: (i) if during a Services interruption
as necessary to restore the applicable Content at your request; or (ii) as
deemed necessary or advisable by CEI in good faith to conform to legal
requirements or comply with legal process. If you are authorized by a Customer
to access or use any recordings or Content you agree that you will only
download, use, and/or display copies of Content made during use of the Services
for internal business purposes. You are not authorized to download or use such
recordings or Content for the benefit of any third party or to sell access to
or otherwise commercialize any such recording.
14. Representations and
Warranties About Content. You represent and warrant that you: (i) are the
owner or authorized licensee of any and all Content; and (ii) will not publish,
post, upload, record, or otherwise distribute or transmit Content that: (a)
infringes or would infringe any copyright, patent, trademark, trade secret, or
other proprietary right of any party, or any rights of publicity or privacy of
any party; (b) violates any law, statute, ordinance, or regulation (including
without limitation the laws and regulations governing export control, unfair
competition, anti-discrimination, or false advertising); (c) is inappropriate,
profane, defamatory, libelous, obscene, indecent, threatening, harassing, or
otherwise unlawful; (d) is harmful to minors or otherwise pornographic; (e)
contains any viruses, Trojan horses, worms, time bombs, bots, corrupted files,
or any other similar software, data, or programs that may damage, detrimentally
interfere with, surreptitiously intercept, or expropriate any system, data,
personal information, or property of another; or (f) is materially false,
misleading, or inaccurate.
15. Submissions. You may
submit questions or comments to CEI from time to time at http://www.volunteerhub.com/contact.aspx.
CEI reserves the right to edit and post such questions or comments along with
answers, if any. All such communications, comments, feedback, suggestions,
ideas, and other submissions related to the Software and/or Services submitted
to CEI (collectively, "Submissions") will be and remain CEI's property,
and all worldwide right, title, and interest in all copyrights and other
intellectual property in all Submissions are hereby assigned (and in the future
deemed to be assigned) by you to CEI.
16. Confidentiality. You
agree to hold in strictest confidence and not to use or disclose to any third
party, any information designated by CEI as confidential or proprietary or
which by the nature of such information would reasonably be considered
confidential or proprietary, including without limitation passwords or access
keys to the Services. You agree that all use of passwords and access keys to
the Services will be attributed to the Customer, even if the Customer did not
actually authorize the use, including uses that incur additional fees.
17. Links to Third Party
Sites. Links within the Site may let you leave the Site and visit web sites
that are not controlled by CEI. Neither CEI nor any of the other Affiliated
Entities is responsible for any content of any such linked web site. Links are
provided only as a convenience and do not imply any endorsement by CEI or any
of the Affiliated Entities.
18. Compliance with Applicable
Law. You agree (i) not to use the Software or Services for any illegal
purposes and (ii) to comply with all applicable local, state, national, and
international laws and regulations, including without limitation laws relating
to recording conversations, privacy, and data protection and public displays or
performances, and United States export laws and regulations regarding the
transmission of technical data exported from the United States through the
Software and/or the Services. You further agree that neither this Agreement nor
any other right or remedy of CEI requires CEI or any of the Affiliated Entities
to exercise any right or remedy in order to benefit or protect anyone, although
CEI reserves the right to do so in its sole discretion.
19. Use Restrictions. You
agree not to:
a. use
the Services in connection with any use of distribution lists to any person who
has not given specific permission to be included in such a process (commercial
or otherwise);
b. harvest
or otherwise collect information about others, including e-mail addresses,
without their express consent;
c. use,
download, or otherwise copy, or provide (whether or not for a fee) to a person
or entity any directory of CEI's users or other user or usage information or
any portion thereof other than in the context of use of the Services as
permitted under the Agreement;
d. interfere
with any other party's use and enjoyment of the Services or otherwise use the
Services in any manner that could damage, disable, overburden, impair, or
otherwise interfere with or disrupt the Site or Services or any networks
connected to the Services;
e. attempt
to gain unauthorized access to the Services, other accounts, computer systems,
or networks connected to the Services, through password mining or any other
means;
f. rent,
lease, grant a security interest in, or otherwise transfer any rights to use
the Services under this Agreement;
g. reverse-engineer,
modify, decompile, disassemble, translate, or otherwise attempt to derive or
view source code from any part of the Software or the Services;
h. defraud,
defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights
(such as rights of privacy and publicity) of others;
i.
upload, or otherwise make available, files that contain images,
photographs, software, or other material protected by intellectual property
laws, including, by way of example, and not as limitation, copyright or
trademark laws (or by rights of privacy or publicity) unless you own or control
the rights thereto or have received all necessary consent to do the same;
j.
upload files that contain viruses, Trojan horses, worms, time bombs,
bots, corrupted files, or any other similar information that may damage the
operation of another's computer or property or information; and
k. falsify
or delete any copyright management information, such as author attributions,
legal or other proper notices or proprietary designations, or labels of the
origin or source of software or other material contained in a file that is
uploaded.
20. Indemnity. If you are
a Customer, you agree to defend, indemnify, and hold harmless each of the
Affiliated Entities from and against any and all claims, liabilities, damages,
and/or costs (including, but not limited to, fees, costs and other expenses of
attorneys and expert witnesses) arising out of or related to the Software or
Services (including without limitation, any person accessing the Services using
your password or access key), any actual or alleged violation of this Agreement
or applicable law, or any actual or alleged infringement or violation by you or
any person accessing the Services using your password or access key of any
intellectual property or privacy or other right of any person or entity.
21. DISCLAIMER OF WARRANTIES.
ALL SOFTWARE AND SERVICES ARE PROVIDED "AS IS" AND "WITH
ALL FAULTS" AND WITHOUT ANY WARRANTY.
EACH OF THE AFFILIATED ENTITIES HEREBY DISCLAIMS ALL
WARRANTIES, CONDITIONS, AND DUTIES OF ANY KIND (IF ANY), EXPRESS, IMPLIED, OR
STATUTORY, INCLUDING WITHOUT LIMITATION, ANY OF MERCHANTABILITY, OF FITNESS FOR
ANY PARTICULAR PURPOSE, OF ACCURACY, OF SYSTEM INTEGRATION OR COMPATIBILITY, OF
WORKMANLIKE EFFORT, OR OF LACK OF NEGLIGENCE. THE FOREGOING DISCLAIMERS
INCLUDE, WITHOUT LIMITATION, ANY WARRANTY, DUTY, OR CONDITION THAT: THE
SOFTWARE OR SERVICES WILL BE UNINTERRUPTED, RELIABLE, AVAILABLE AT ANY
PARTICULAR TIME, SECURE, ERROR-FREE, VIRUS-FREE, OR CORRESPOND TO ANY
CONDITION; THAT MESSAGES OR REQUESTS WILL BE DELIVERED; THAT DEFECTS WILL BE
CORRECTED; OR THAT THE SOFTWARE OR SERVICES, ANY CONTENT, SYSTEMS, SERVERS, AND
INFORMATION THAT IS IN OR UTILIZED BY THE SOFTWARE AND/OR SERVICES WILL BE FREE
OF HARMFUL ASPECTS.
ALSO, THERE IS NO WARRANTY OF TITLE OR AGAINST INTERFERENCE
WITH ANYONE'S ENJOYMENT OF THE SOFTWARE OR SERVICES OR AGAINST INFRINGEMENT.
22. NO LIABILITY FOR CONTENT.
YOU AGREE THAT NONE OF THE AFFILIATED ENTITIES (as defined above) WILL BE
LIABLE FOR: ANY CONTENT, INCLUDING BUT NOT LIMITED TO CONTENT THAT IS SENT,
RECEIVED, HELD, RELEASED OR OTHERWISE CONNECTED IN ANY RESPECT TO THE SOFTWARE
OR SERVICES; CONTENT THAT IS SENT BUT NOT RECEIVED; ANY ACCESS TO OR ALTERATION
OF CONTENT; ANY CONTENT SENT USING AND/OR INCLUDED IN THE SERVICES, INCLUDING
WITHOUT LIMITATION ANY THREATENING, DEFAMATORY, OBSCENE, OFFENSIVE, OR ILLEGAL
CONTENT; THE CONDUCT OF ANYONE; OR ANY INFRINGEMENT OF ANOTHER'S RIGHTS,
INCLUDING PRIVACY, INTELLECTUAL PROPERTY, OR DATA PROTECTION RIGHTS.
23. EXCLUSION OF CERTAIN
DAMAGES. YOU AGREE THAT THE FOLLOWING DAMAGES ARE EXCLUDED AND THAT YOU
WILL NOT BE ENTITLED TO ANY OF THEM: ALL SPECIAL, INCIDENTAL, PUNITIVE, AND
CONSEQUENTIAL DAMAGES; DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER
INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF
PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE
CARE, OR FOR NEGLIGENCE OR NEGLIGENT MISREPRESENTATION; AND FOR ANY OTHER
PECUNIARY OR OTHER LOSS WHATSOEVER OTHER THAN THE "DIRECT DAMAGES" DESCRIBED IN
SECTION 24 BELOW. THE FOREGOING DAMAGES WILL BE EXCLUDED EVEN IN THE EVENT OF
THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT OR PRODUCT LIABILITY, AND/OR
BREACH OF CONTRACT OF CEI OR ANY OF THE OTHER AFFILIATED ENTITIES, AND EVEN IF CEI
OR ANY OF THE AFFILIATED ENTITIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. YOU AGREE THAT THESE EXCLUSIONS AND THE BELOW LIMITATION ON LIABILITY
WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
24. LIMITATION ON LIABILITY.
EXCEPT FOR DAMAGES THAT ARE REQUIRED BY LAW TO BE PAID, YOU AGREE THAT ALL
DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED
BY YOU IN REASONABLE RELIANCE, UP TO THE GREATER OF THE AMOUNT OF A REFUND OF
THE PRICE THAT YOU ACTUALLY PAID FOR THE SERVICES DURING THE TERM OF THE
SERVICES (E.G., QUARTERLY OR MONTHLY) IMMEDIATELY PRECEDING THE FILING OF SUCH
CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY,
TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY) OR ONE DOLLAR
(US$1.00).
25. Survivability.
Sections 1, 3 (to the extent of any limitations on your rights), and 4-32 will
survive any cancellation, termination, expiration, or suspension of this
Agreement.
26. Governing Law; Exclusive
Forum; Jurisdiction. This Agreement and all causes of action related to the
Software or Services will be governed by and construed in accordance with the
laws of the State of Ohio, USA, without giving effect to the conflict-of-laws
principles thereof that would require application of the laws of a different
state or jurisdiction. You consent to exclusive jurisdiction and venue in the State
of Ohio or in the United States District Court for the Southern District of
Ohio, unless no federal subject matter jurisdiction exists, in which case you
consent to exclusive jurisdiction and venue in Franklin County, Ohio. You waive
all defenses of lack of personal jurisdiction and forum non conveniens. You
agree that any claim or cause of action arising out of or related to this
Agreement must be commenced by you within one (1) year after the cause of
action arose.
27. Miscellaneous. If any
part of this Agreement is determined to be invalid or unenforceable, then such
invalid or unenforceable provision will be deemed superseded by a valid,
enforceable provision that most closely matches the intent of the original
provision and the allocation of risks, and the remainder of the Agreement will
continue in effect. If any provision(s) is found to be contrary to law, then
such provision(s) will be construed, as nearly as possible, to reflect the
intentions of the parties with the other provisions remaining in full force and
effect. CEI's failure to exercise or enforce any right or provision of this
Agreement will not constitute a waiver of such right or provision unless agreed
to by CEI in a non-electronic writing manually signed by a duly authorized
officer of CEI.
28. Force Majeure. CEI
and its Affiliated Entities will not be liable for non-performance or delay in
performance caused by any event reasonably beyond the control of such party
including, but not limited to wars, hostilities, revolutions, riots, civil
commotion, national emergency, epidemics, fire, flood, earthquake, force of
nature, explosion, embargo, or any act of God.
29. Third Party
Beneficiaries; Assignment. The Affiliated Entities are third party
beneficiaries to this Agreement. However, there are no other third party
beneficiaries. No party may assign this Agreement, or any rights or obligations
hereunder, whether by contract, operation of law, or otherwise without the
express written consent of the other party to the Agreement, except that CEI
may assign this Agreement to one (1) or more of the Affiliated Entities without
your prior consent.
30. Export Restrictions.
You acknowledge that the laws and regulations of the United States restrict the
export and re-export of commodities and technical data of United States origin, including the Software and Services. Without limiting the foregoing,
you acknowledge that the Software and Services are or may be an
"encryption item" subject to controls under the Export Administration
Regulations promulgated by the U.S. Department of Commerce. You agree not to
export or re-export the Software or Services in any form in violation of the
export laws of the United States or any foreign jurisdiction. You will defend,
indemnify, and hold the Affiliated Entities harmless from and against any
violation of such laws or regulations.
31. Entire Agreement. The
Agreement (including the Privacy Policy and any related consents provided by or
disclosures provided to you in connection with the Software or Services)
constitutes the entire agreement between CEI and you with respect to the
Software and Services and supersedes all other (prior or contemporaneous)
communications and proposals, whether electronic, oral, or non-electronic,
between CEI and you regarding them. You agree that any terms or conditions
contained in any document, including but not limited to a purchase order,
acknowledgement, email, or other document that you may now or later provide to CEI,
will have no effect and that this Agreement is the only contract between CEI and
you regarding the Software and Services and may only be amended as set forth
herein. The application of the United Nations Convention on the International
Sale of Goods is hereby expressly excluded. CEI's performance of this Agreement
(including the Privacy Policy) is subject to existing laws and legal process,
and you agree that CEI may comply with law enforcement or regulatory requests
or requirements notwithstanding any contrary term of this Agreement or that
policy. A printed version of this Agreement and of any notice given to you in
electronic form will be admissible in judicial or administrative proceedings
based upon or relating to this Agreement to the same extent and subject to the
same conditions as other business documents and records originally generated
and maintained in printed form.
32. Amendments. CEI may,
at any time, amend the provisions of this Agreement and/or the Privacy Policy,
and you may accept the amended provisions in the manner indicated in the
amendment notice as communicated by CEI. Any amendment proposed by you may only
be accepted by CEI in a non-electronic writing manually signed by authorized
representatives of the parties. Notwithstanding anything in this Section 32 to
the contrary, if CEI posts amended terms on the Site, such terms will
automatically become effective ten (10) days after they are posted on the Site.
By using the Software or the Services after such revised terms are posted, you
agree to be bound by any such amended provisions. Therefore, you agree to
periodically visit the Site to examine the then-current Agreement (including
the Privacy Policy).
Last Updated: April 7, 2006