Introduction
These Terms of Service, together with the Schedule A attached hereto (collectively, “TOS”) are agreed to between the entity identified in Schedule A (“Customer”) and Custom Software INC., a Michigan corporation (“Provider”).
Definitions
“Customer Data” means information, data and other content, in any form or medium, that is submitted, posted or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services.
“Hosted Services” means the software-as-a-service offering provided by Provider through MapItRight.com for fiber management.
“Harmful Code” means any software, hardware or other technologies, devices or means which is designed to have harmful effects, including viruses, malware, time bombs, Trojan horses, worms and other malicious code.
“Provider Disabling Device” means any software, hardware or other technology, device or means used by Provider or its designee to disable Customer’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under Provider’s control.
“Intellectual Property Rights” means all intellectual property rights worldwide, whether registered or unregistered, including patents, copyrights, trademarks, trade secrets, database protections and other proprietary rights.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, judgment, decree or other requirement of any governmental authority.
“Losses” means any and all losses, damages, liabilities, costs or expenses of whatever kind, including reasonable attorneys’ fees.
“Permitted Use” means any use of the Services by an Authorized User for the benefit of Customer.
“Person” means an individual or legal entity.
“Process” means any action undertaken by the Services on any data or other content.
“Provider Materials” means the Service Software, Documentation and Provider Systems and any other information, data, documents, materials, works and content provided or used by Provider in connection with the Services.
“Provider Systems” means the information technology infrastructure used by Provider, including computers, software, hardware, databases and networks.
“Resultant Data” means data derived from the Services from processing Customer Data that cannot be reverse engineered to identify Customer Data.
“Service Software” means the software application(s) provided as part of the Services, along with all updates, upgrades and modifications.
“Specifications” means the specifications for the Services as described in Schedule A.
“Subcontractor” means any third party engaged by Provider to perform Services.
“Third Party Materials” means materials and information that are not proprietary to Provider and are provided by third parties.
1. Services
1.1 Services. Subject to Customer’s compliance with this TOS, Provider will provide the Services described in Schedule A.
1.2 Specifications. The Services will be accessible using a supported web browser no more than two releases older than the current release.
1.3 Service and System Control. Provider retains control over the operation and management of the Services and Provider Materials, while Customer retains control over Customer Systems and use of the Services.
1.4 Service Management. Each party will maintain a service manager as the primary contact for the Services.
1.5 Changes. Provider may modify the Services to improve quality, performance or compliance with Law.
1.6 Subcontractors. Provider may engage Subcontractors to perform the Services.
1.7 Suspension or Termination. Provider may suspend or terminate access to the Services under certain circumstances, including legal requirements or Customer’s breach.
2. Authorization and Customer Restrictions
2.1 Authorization. Provider grants Customer a non-exclusive, non-transferable right to access and use the Services during the Term.
2.2 Reservation of Rights. Provider retains all rights in the Services and Provider Materials.
2.3 Use Restrictions. Customer shall not copy, modify, reverse engineer, bypass security, or use the Services in violation of Law or this TOS.
3. Customer Obligations
3.1 Cooperation. Customer shall cooperate to enable Provider to deliver the Services.
3.2 Effect of Customer Failure. Provider is not liable for delays caused by Customer’s failure to meet its obligations.
4. Data Security
Provider will collect and process Customer Data in accordance with Provider’s Privacy Policy.
5. Security
5.1 Provider Systems. Provider will employ security measures consistent with its privacy policy.
5.2 Customer Responsibility. Customer is responsible for Customer Data, Customer Systems and safeguarding access credentials.
5.3 Access and Security. Customer shall manage access credentials and control Customer Data uploaded to the Services.
6. Fees; Payment Terms
6.1 Fees. Customer will pay the fees in Schedule A.
6.2 Fee Increases. Provider may increase fees with notice.
6.3 Taxes. Fees exclude taxes; Customer is responsible for applicable taxes.
6.4 Payment. Fees are due within thirty (30) days of invoice. Late payments accrue interest at 1.5% per month.
6.5 Collection Costs. Customer will reimburse Provider for costs of securing overdue payments.
7. Intellectual Property Rights
7.1 Services and Provider Materials. Provider retains ownership of the Services and Provider Materials. Customer assigns rights in Resultant Data to Provider.
7.2 Customer Data. Customer owns Customer Data.
7.3 License to Customer Data. Customer grants Provider the right to use Customer Data as needed to deliver the Services.
8. Term and Termination
8.1 Initial Term. The initial term is six (6) months from the Effective Date.
8.2 Renewal. The TOS renews automatically for 30-day terms unless terminated per this Section.
8.3 Termination. Either party may terminate for material breach not cured within thirty (30) days, insolvency or bankruptcy.
9. Effect of Expiration or Termination
All rights granted hereunder terminate upon expiration or termination. Provider may disable access to the Services and retain backups containing Customer Data per standard retention practices.
10. Representations and Warranties
10.1 Mutual Warranties. Each party represents that it is validly existing, has authority to enter this TOS and has authorized the execution of this TOS.
10.2 Customer Warranties. Customer warrants it has rights to Customer Data and that its use will not infringe third-party rights.
10.3 Disclaimer. Except for the express warranties, the Services and Provider Materials are provided “as is”. Provider disclaims all implied warranties.
11. Indemnification
Customer shall indemnify Provider against claims arising from Customer Data, Customer’s negligence or use of the Services.
12. Limitations of Liability
12.1 Exclusion of Damages. Provider is not liable for indirect, special, incidental or consequential damages.
12.2 Cap. Provider’s aggregate liability is limited to the fees paid by Customer under this TOS.
13. DMCA Notices
To submit a notice under the DMCA, provide the required information to Provider’s Designated Agent: Glenn Wilson, CEO, Custom Software, 380 Borden Rd, Rose City, MI 48654, Fax: 989-685-5447, Email: glenn@customsoft.net.
14. Publicity
Provider may identify Customer as a customer in marketing materials without disclosing confidential information.
15. Force Majeure
Neither party is liable for failures caused by events beyond their control (Force Majeure). Either party may terminate if such event continues for thirty (30) days.
16. Miscellaneous
16.1 Relationship. The parties are independent contractors.
16.2 Notices. Notices must be in writing and sent to the contacts in Schedule A.
16.3 Entire Agreement. This TOS and Schedule A constitute the entire agreement.
16.4 Assignment. Customer may not assign the TOS without Provider’s consent.
16.5 Amendments. Changes must be in writing signed by both parties.
16.6 Governing Law; Arbitration. This TOS is governed by the laws of the State of Maine. Disputes will be resolved by arbitration in Maine under the Commercial Arbitration Rules of the American Arbitration Association.
MapItRight.com is provided by Custom Software INC, 380 Borden Road, Rose City, MI 48654.
