THIS MASTER SUBSCRIPTION AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE AND ONGOING USE OF THE SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN EDUCATIONAL INSTITUTION, COMPANY, OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on October 6, 2010. This Agreement is effective between You and Us as of the date of You accepting this Agreement.
As part of the Services, Netchemia will provide You with use of the Services, including a browser interface and data encryption, transmission, access and storage. Your use of the Services shall be deemed to be Your agreement to abide by this Agreement including any materials available on the Netchemia website incorporated by reference herein, including but not limited to Netchemia’s privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.
1. Privacy & Security; Disclosure
Netchemia’s privacy and security policies may be viewed at www.netchemia.com/privacy.asp. Netchemia reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Note that because the Service is a hosted, online application, Netchemia occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service. If You are a customer of the Service, You agree that Netchemia can disclose the fact that You are a customer.
2. License Grant & Restrictions
Netchemia hereby grants You a non-exclusive, non-transferable, right to use the Service, solely for Your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Netchemia and its licensors.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet “links” to the Service or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
You may use the Service only for Your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
3. Your Responsibilities
You are responsible for all activity occurring under Your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with Your use of the Service,including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Netchemia immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Netchemia immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by You or Your Users; and (iii) not impersonate another Netchemia user or provide false identity information to gain access to or use the Service.
4. Account Information and Data
Netchemia does not own any data, information or material that You or other authorized users submit to the Service in the course of using the Service (“Customer Data”). You, not Netchemia, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Netchemia shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of Your breach), Netchemia will make available to You a file of the Customer Data within 30 days of termination if You so request at the time of termination. Netchemia reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, Your non-payment. Upon termination for cause, Your right to access or use Customer Data immediately ceases, and Netchemia shall have no obligation to maintain or forward any Customer Data.
We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Your data. We shall not (a) modify Your data, (b) disclose Your data except as expressly compelled by law or as permitted in writing by You, or (c) access Your Data except to provide the Services or prevent or address service or technical problems, or at Your request in connection with customer support matters.
5. Intellectual Property Ownership
Netchemia alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Netchemia Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by You or any other party relating to the Service. This Agreement is not a sale and does not convey to You any rights of ownership in or related to the Service, the Solution Technology or the Intellectual Property Rights owned by Netchemia. The Netchemia name, the Netchemia logo, and the Software Product names and any logos associated with the Service are trademarks of Netchemia or third parties, and no right or license is granted to use them. No rights are granted to You hereunder other than as expressly set forth herein.
6. Third Party Interactions
Netchemia does not endorse any sites on the Internet that are linked through the Service. Netchemia provides such links to You only as a matter of convenience, and in no event shall Netchemia or its licensors be responsible for any content, products, or other materials on or available from such sites. Netchemia provides the Service to You pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of ancillary software, hardware or services may require Your agreement to additional or different license or other terms prior to Your use of or access to such software, hardware or services. The Software Products may incorporate or reuse selected third-party or open-source software components or tools (see Disclosure Statement; www.netchemia.com/LicensingandCredits.asp).
If You install or enable Third-Party Applications for use with the Services, You acknowledge that We may allow providers of those Third-Party Applications to access Your Data as required for the interoperation of such Third-Party Applications with the Services. We shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by Third-Party Application providers.
7. Charges and Payment of Fees
You shall pay all fees or charges to Your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You are responsible for paying for all Subscription Fees ordered for the entire Subscription Term in advance; either annually or in accordance with any different billing frequency stated in the applicable Order Form, whether or not the Services are actively used. You must provide Netchemia with an approved purchase order or purchase agreement as a condition to signing up for the Services. All pricing terms are confidential, and You agree not to disclose them to any third party. We shall make the Services available to You pursuant to this Agreement and the relevant Order Form during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.
8. Billing and Renewal
Netchemia charges and collects in advance for use of the Service. Netchemia will automatically renew, and Netchemia will issue an invoice to You each year on the subsequent anniversary or as otherwise mutually agreed upon. The renewal charge will be equal to the then-current Subscription Fees. Fees for other mutually agreed upon services will be charged on an as-quoted basis.
You agree to provide Netchemia with complete and accurate billing and contact information. This information includes Your legal organization name, street address, e-mail address, and name and telephone number of both an authorized billing contact and a License Administrator. You agree to update this information within 30 days of any change to it. If the contact information You have provided is false or fraudulent, Netchemia reserves the right to terminate Your access to the Service in addition to any other legal remedies. If You believe Your bill is incorrect, You must contact Us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
9. Non-Payment and Suspension
In addition to any other rights granted to Netchemia herein, Netchemia reserves the right to suspend or terminate this Agreement and Your access to the Service if Your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) may be subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for use of the Service during any period of suspension. If You or Netchemia initiates termination of this Agreement, You will be obligated to pay the balance due on Your account computed in accordance with the Charges and Payment of Fees section above. You agree that Netchemia may bill You for such unpaid fees.
Netchemia reserves the right to impose a reconnection fee in the event You are suspended and thereafter request access to the Service. You agree and acknowledge that Netchemia has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if Your account is 60 days or more delinquent.
10. Termination upon Expiration
This Agreement commences on the Effective Date. For Netchemia Customers, the Initial Term will be stated in the approved purchase order or purchase agreement. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (or one year, if the Initial Term is greater than one year) at Netchemia’s then-current fees. Either party may terminate this Agreement by notifying the other party in writing at least sixty (60) days prior to the date of the invoice for the following term. In the event this Agreement is terminated (other than by reason of Your breach), Netchemia will make available to You a file of the Customer Data within 30 days of termination if You so request at the time of termination. You agree and acknowledge that Netchemia has no obligation to retain the Customer Data, and may delete such Customer Data, more than 30 days after termination.
11. Termination for Cause
Any breach of Your payment obligations or unauthorized use of the Netchemia Technology or Service will be deemed a material breach of this Agreement. Netchemia, in its sole discretion, may terminate Your password, account or use of the Service if You breach or otherwise fail to comply with this Agreement. You agree and acknowledge that Netchemia has no obligation to retain the Customer Data, and may delete such Customer Data, if You have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
12. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Netchemia represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Netchemia help documentation, or other product documentation provided, under normal use and circumstances. You represent and warrant that You have not falsely identified Yourself nor provided any false information to gain access to the Service and that Your billing information is correct.
13. Mutual Indemnification
You shall indemnify and hold Netchemia, its licensors and any such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by You of Your representations and warranties; or (iii) a claim arising from the breach by You or Your Users of this Agreement, provided in any such case that Netchemia (a) gives written notice of the claim promptly to You; (b) gives You sole control of the defense and settlement of the claim (provided that You may not settle or defend any claim unless You unconditionally release Netchemia of all liability and such settlement does not affect Netchemia’s business or Service); (c) provides to You all available information and assistance; and (d) has not compromised or settled such claim.
Netchemia shall indemnify and hold You and Your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Netchemia of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Netchemia; provided that You (a) promptly give written notice of the claim to Netchemia; (b) give Netchemia sole control of the defense and settlement of the claim (provided that Netchemia may not settle or defend any claim unless it unconditionally releases You of all liability); (c) provide to Netchemia all available information and assistance; and (d) have not compromised or settled such claim. Netchemia shall have no indemnification obligation, and You shall indemnify Netchemia pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of Your products, service, hardware, or business process(s).
14. Disclaimer of Warranties
NETCHEMIA AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. NETCHEMIA AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) ERRORS OR DEFECTS WILL BE CORRECTED, OR (E) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY NETCHEMIA AND ITS LICENSORS.
15. Internet Delays
NETCHEMIA’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. NETCHMEMIA IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
16. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
17. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to You.
Netchemia may give notice by means of a general notice on the Service, electronic mail to Your e-mail address on record in Netchemia’s account information, or by written communication sent by first class mail or pre-paid post to Your address on record in Netchemia’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or prepaid post) or 12 hours after sending (if sent by e-mail). You may give notice to Netchemia (such notice shall be deemed given when received by Netchemia) at any time by any of the following: letter sent by confirmed facsimile to Netchemia at 1(800) 877-9586; letter delivered by nationally recognized overnight delivery service or first class postage-prepaid mail to Netchemia, LLC at 3520 West 75th St., Suite 300, Prairie Village, KS 66208, addressed to the attention of: Chief Operating Officer.
19. Modification to Terms
Netchemia reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute Your consent to such changes.
20. Assignment; Change in Control
This Agreement may not be assigned by You without the prior written approval of Netchemia but may be assigned without Your consent by Netchemia to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of You that results or would result in a direct competitor of Netchemia directly or indirectly owning or controlling 50% or more of You shall entitle Netchemia to terminate this Agreement for cause immediately upon written notice.
This Agreement shall be governed by Kansas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Johnson or Wyandotte Counties in Kansas. In the event of any breach by You of this Agreement, Netchemia shall be entitled to the following particular forms of relief as a result of such breach, in addition to any remedies otherwise available at law or equity: (a) injunctions, both preliminary and permanent, enjoining or restraining such breach or anticipatory breach, and You hereby consent to the issuance thereof, without bond, by any court of competent jurisdiction which has personal jurisdiction over You; and (b) Netchemia shall be entitled to recover all reasonable sums and costs, including attorneys’ fees, incurred by Netchemia in any such action.
- means the audio and visual information, documents, software, products and services contained or made available to You in the course of using the Service.
- “Customer Data”
- means any data, information or material provided or submitted by You to the Service in the course of using the Service.
- “Effective Date”
- means the earlier of either the date this Agreement is accepted by selecting an “I Accept” option presented on a Software Product screen or the date You begin using the Service.
- “Initial Term”
- means the contract term, beginning on the contract start date and ending on the contract end date, specified on the applicable Order Form.
- “Intellectual Property Rights”
- means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.
- “Order Form(s)”
- means the form or other approved purchase agreement evidencing the initial subscription for the Service and any subsequent order forms submitted in electronic or written form, specifying, among other things, the subscription rate and other services contracted for, the applicable fees, the billing period, and other charges as agreed to between You and Netchemia, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail).
- means the specific edition of the Software Products identified during the ordering process, developed, operated, and maintained by Netchemia, accessible via the designated web site or IP address, or ancillary online or offline products and services provided to You by Netchemia, to which You are being granted access under this Agreement, including the Solution Technology and the Content. The Services may be delivered in the form of one or several Software Products, including but not necessarily limited to those listed below; note that in some cases different product editions offer feature differences: · TalentEd Recruit & Hire™ – Applicant Tracking and Hiring Management System o Professional Edition o Essentials Edition o Single-User Edition · TalentEd Perform™ – Performance Evaluation and Management System · netIEP™ – Special Education Management System · netRtI™ – Response to Intervention Management System Please see Our company Web site (www.netchemia.com) for additional Software Product details and feature differences between product editions.
- ” Software Product(s)”
- means any edition of the web-based software solutions owned by Netchemia, LLC, a Kansas Limited Liability Company, located at 3520 West 75th Street, Suite 300, Prairie Village, Kansas 66208.
- “Solution Technology”
- means all of Netchemia’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, and other tangible or intangible technical material or information) made available to You by Netchemia in providing the Service.
- “System Administrator(s)”
- means those Users designated by You who are authorized to administer Your use of the Service.
- “Third-Party Application(s)”
- means online, Web-based applications or offline software products that are provided by third parties and interoperate with the Services.
- means Your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by You (or by Netchemia at Your request).
- “We”, “Us”, or “Our”
- means Netchemia, LLC, a Kansas Limited Liability Company (the entity with which You are contracting).
- “You” or “Your”
- means the educational institution, company, or other legal entity for which You are accepting this Agreement, and Affiliates of that company or entity.
- “Your Data”
- means all electronic data or information submitted by You to the Services.
If You have questions regarding this Agreement or wish to obtain additional information, please send an email to MSA@netchemia.com.