END USER LICENSE AGREEMENT©
By using our technology services, you agree to the following Terms of Service. Please read them carefully.
LeadTrac ™, ServiceTrac™ and FlexNote®, hereinafter “Service,” are technology services owned by National Data Systems, LLC, a California Limited Liability Company (“NDS”). This Service is being provided under a master Technical Services Agreement, hereinafter “TSA,” and this End User License Agreement, hereinafter “EULA.” Collectively, the TSA and EULA are hereinafter referred to as “Agreement.”
Summary of Terms of Service
A. As part of the Service, NDS will provide you with use of the Service, including a browser interface, data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by the Agreement including any materials available on the NDS website, incorporated by reference herein, including but not limited to NDS’ privacy and security policies.
B. You agree to provide, or you acknowledge that you have provided, true and correct information about yourself within the system.
C. You agree not to use the Service for illegal purposes or for the transmission of material that is unlawful, harassing, libelous, invasive of another's privacy, abusive, threatening, harmful, vulgar, obscene, tortious, or otherwise objectionable, or that infringes or may infringe the intellectual property or other rights of another.
D. You agree not to use the Service for the transmission of “junk mail,” “spam,” “chain letters,” or unsolicited mass distribution of messages or use the Service to collect or harvest personal information about or belonging to other users.
E. You agree that NDS may in its sole discretion terminate or suspend your account at any time if it believes you have in any way violated the Agreement.
F. You agree to report any violations of the Agreement to mailto:.
I. ACKNOWLEDGMENT AND ACCEPTANCE
The Service is owned by NDS and is provided to you (“User”) under the terms and conditions of this EULA, the TSA and any amendments thereto and any operating rules or policies that may be published from time to time by NDS. NDS hereby grants you a nonexclusive,
nontransferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of the Agreement. All rights not expressly granted to you are reserved by NDS 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 its contents (“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. User licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Service. Any such new User accepts and agrees to and these Terms of Service and the Agreement as a condition of using 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 tortious 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; (v) attempt to gain unauthorized access to the Service or its related systems or networks; or (vi) otherwise violate the Agreement or any state or federal law or regulation.
BY CLICKING THE “I ACCEPT” BUTTON (IN ORDER TO ACTIVATE YOUR ACCOUNT), YOU ARE AGREEING TO BE BOUND BY THIS LICENSE AND THESE TERMS AND CONDITIONS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS LICENSE AND THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO BE BOUND BY THIS LICENSE AND THESE TERMS AND CONDITIONS, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICE.
II. DESCRIPTION OF SERVICE
The Service is an online proprietary database application which enables users to securely store and manage information via digital and nondigital means. The application is accessible through an encrypted interface over the World Wide Web.
To use the Service, a User must:
(a) provide for User's own access to the World Wide Web and pay any service fees associated with such access, and
(b) provide all equipment necessary for User to make such connection to the World Wide Web, including a computer, gateway and internet connection. User acknowledges and understands that NDS provides no assistance, including any technical or customer support, to the User, and that your use of the Service is of your own volition unless you have contracted for a support option with NDS.
III. USER'S REGISTRATION OBLIGATIONS
In consideration of use of the Service, User agrees:
(a) to provide true, accurate, current and complete information about User as requested;
(b) to maintain and update this information to keep it true, accurate, current and complete. Information about a User shall be referred to as “User Data.” If any information provided by User is untrue, inaccurate, not current or incomplete, NDS has the right to terminate User's account and refuse any and all current or future use of the Service by user;
(c) to use the services solely in conjunction with its intended business purposes; and
(d) to abide by all of the terms of this Agreement.
In addition to any other rights granted herein, NDS may suspend or terminate this Agreement and your access to the Service at any time if payment is not timely made to NDS per the TSA.
1. User will receive a password and account. User is responsible for maintaining the confidentiality of the password and account, and is fully responsible for all activities that occur under User's password or account. User agrees to immediately notify NDS at mailto: of any unauthorized use of User's password or account or any other breach of security.
2. Responsibilities Regarding Use and Security. User is responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and international laws and regulations, as applicable, in relation to use of the Service provided by NDS.
VI. USER CONDUCT
User agrees to abide by all applicable local, state, national, and international laws and regulations in User's use of the Service, and agrees not to interfere with the use and enjoyment of the Service by any other user or users. User agrees to be solely responsible for the contents of User's transmissions through the Service.
User agrees as follows:
to not use the Service for any illegal purposes;
to not interfere with or disrupt the Service or servers or networks connected to the Service;
to comply with all requirements, procedures, policies and regulations of networks connected to the Service, as posted or provided by NDS from time-to-time;
to comply with all applicable laws regarding the transmission of data exported from the United States. User agrees not to transmit through the Service any unlawful, harassing, libelous, privacy invading, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind. User agrees not to transmit any material that violates the rights of another, including but not limited to the intellectual property rights of another;
to not transmit any material that violates any applicable local, state, national, or international law or regulation;
to not attempt to gain unauthorized access to other computer systems or networks connected to the Service;
to not impersonate or create a false identity of any person, including but not limited to, an NDS official, forum leader, guide or host; and
to not transmit “junk mail,” “spam”, “chain letters”, or unsolicited mass distribution of commercial messages.
You shall indemnify, defend and hold harmless NDS, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents 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.
VIII. NO RESALE OF SERVICE
User agrees not to resell the Service or resell the use of or access to the Service to any third party. Any person or entity that resells any product owned by NDS including but not limited to the Service may be subject to civil and/or criminal penalty as prescribed by law.
Initial Term. The initial term of this Agreement shall commence upon the date of acceptance of the Service and shall continue in full force for the term specified in the TSA unless earlier terminated in accordance with the provisions of this Agreement.
Termination. This Agreement may be terminated immediately by a Party on written notice to the other Party in the event that the other Party: (i) ceases to function as a going concern or ceases to conduct its operations in the normal course of business; or (ii) is in default of its obligations under this Agreement and fails to cure such default within thirty (30) days after written notice thereof.
Termination Obligations: In the event of termination of this Agreement for any reason, you shall (i) cease using the Service for any purpose; (ii) certify to NDS within thirty (30) days of termination that you have complied with all termination provisions of this Agreement; (iii) return Confidential Information in your possession to NDS in accordance with Section 10; and (iv) pay all outstanding sums due and payable.
X. PROPRIETARY RIGHTS
NDS and its licensors, where applicable, shall alone own all right, title and interest, including all related Intellectual Property Rights, in and to the Content and the Service, including but not limited to 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, NDS Technology or the Intellectual Property Rights owned by NDS. The NDS name, the NDS logo, and the product names associated with the Service are the intellectual property of National Data Systems, LLC and/or its licensees, and no right or license is granted to you to use them apart from the terms specified in this Agreement.
XI. DISCLAIMER OF WARRANTIES
NATIONAL DATA SYSTEMS, LLC 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. NATIONAL DATA SYSTEMS, LLC 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) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) 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.
XII. LIMITATION OF LIABILITY
USER AGREES THAT NDS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR FOR ANY COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES OR RESULTING FROM ANY SERVICES PURCHASED OR OBTAINED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE OR RESULTING FROM UNAUTHORIZED ACCESS TO OR ALTERATION OF USER'S TRANSMISSIONS OR DATA, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR OTHER INTANGIBLE, EVEN IF NDS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. USER FURTHER AGREES THAT NDS SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM INTERRUPTION, SUSPENSION OR TERMINATION OF SERVICE, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER SUCH INTERRUPTION, SUSPENSION OR TERMINATION WAS JUSTIFIED OR NOT, NEGLIGENT OR INTENTIONAL, INADVERTENT OR ADVERTENT. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
XIII. MODIFICATIONS TO TERMS OF SERVICE
NDS may change this license from time to time. User will be notified of any such changes by a startup screen describing the changes. By clicking on the “I Accept” button that follows the posted changes User agrees to be bound by the modifications to this license. If User does not click the “I Accept” button, User will not be entitled to use the changes in the Service.
With the exception of communications regarding billing or payment issues (including fee changes), any notice required or permitted to be given by any Party under this Agreement will be in writing and personally delivered or sent by commercial courier service (e.g., DHL), or by first class airmail (certified or registered if available), to User at the address provided by User at the time of registration or such new address as may from time to time be supplied in writing by User, and to NDS at 15941 Red Hill Ave, Suite 205, Tustin, CA 92780 or such new address as may from time to time be provided in writing by NDS. Notices relating to billing or payment issues (including fee changes) shall be in writing and delivered by any of the above methods or electronically by email or facsimile sent to an email address or fax number used for routine communications between the Parties, unless the sending Party receives an error message indicating that the communication was not successfully completed in which case the sending Party shall use an alternative method provided by this Section XIV for delivering the notice.
The relationship between User and NDS shall be governed by the laws of the State of California without regard to its conflict of law provisions. User and NDS agree to submit to the personal and exclusive jurisdiction of binding arbitration before a panel of three arbitrators pursuant to the JAMS Comprehensive Arbitration Rules. Such arbitration shall be conducted in Orange County, California pursuant to the terms of the TSA Agreement. The failure to exercise or enforce any right or provision of this license shall not constitute a waiver of such right or provision. If any provision of this license is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this license remain in full force and effect. User agrees that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this license must be filed within one (1) year after such claim or cause of action arose or be forever barred. The section titles in this license are for convenience only and shall have no legal or contractual effect.
END USER LICENSE AGREEMENT 6/6/2017