Terms and Conditions

CETRUS USER LICENSE AGREEMENT IMPORTANT – READ CAREFULLY: BY CLICKING THE “ACCEPT” BUTTON OR OTHERWISE ACCEPTING THIS AGREEMENT, YOU AND ANY COMPANY, ENTITY, PERSON(S) YOU REPRESENT OR FOR WHOM YOU ARE EMPLOYED, AGREES TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND ALL USERS TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICE. FOR THE PURPOSES OF THIS AGREEMENT, A “USER” IS ANY INDIVIDUAL, PERSON OR EMPLOYEE WTHIN THE LEGAL ENTITY FOR WHICH THIS AGREEMENT IS ACCEPTED. THIS USER LICENSE AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (“ACCOUNT MANAGER”), INCLUDING ANY AND ALL COMPANIES, ENTITIES OR PERSON(S) YOU REPRESENT OR FOR WHOM YOU ARE EMPLOYED, AND CETRUS, INC. (“CETRUS”), REGARDING THE FACILITATION OF ELECTRONIC COMMERCE AND THE PROVISION OF ACCOUNT SERVICES ASSOCIATED WITH THE LICENSING OF ON-DEMAND SOFTWARE BY CETRUS (“SERVICE”) AND ALL OTHER SERVICES PROVIDED BY CETRUS UNDER THIS AGREEMENT (“SERVICES”). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE CONTINUING REGISTRATION. The following describes the terms on which Cetrus offers access to our services. 1. Provision of Service. A. Cetrus is a transaction intermediary engaged in the facilitation of electronic commerce and the provision of account services associated with the licensing of on-demand software. An “Account” is initially created when the Account Manager successfully completes a purchase transaction for one or more on-demand software licenses. The Account Manager has the option of providing login name access to the Account for Users solely within his/her corporate entity. Each such User provided with login name access to the Account (“Account User”) will be assigned access and use privileges within the “Account Profile.” Account Users and the Account Manager (collectively known as “Member” or “Members”) are assigned one or more access privileges (Application User for application usage, Account Administrator for account administration, Usage and Report Viewer for usage management, and Purchasing for allowing Account Users to purchase additional licenses should a credit card be on file within the Account profile). By acknowledging and accepting this Agreement, the Account Manager agrees to all of the terms and conditions on behalf of yourself, the legal entity which you represent or for whom you are employed and all such Account Users and Users, whether or not such Users were provided login name access to the Account. No Member or User is permitted to grant access to the account to anyone outside the legal entity. B. Members may utilize any on-demand Application within their Account Profile for which there has been established and is currently maintained a valid on-demand license, and for which the Member has been properly assigned for use of the specific on-demand Application by one of the Account Administrators. A valid, current on-demand license is any license, obtained through Cetrus or any of its affiliates or designates, for which a positive prepaid account balance is maintained for that specific on-demand Application, or for which a prepaid fixed-term license has been established. A license expires and is no longer valid at the end of the pre-paid license term, or when the monetary balance in the pre-paid account is no longer positive. For continuous billing license options (continuous monthly and on-going metered usage), the Account Manager authorizes Cetrus to charge against the Account credit card, the applicable on-demand license fee required for renewal or continuation of the license. The Account Manager is required to maintain a valid credit card with sufficient credit on file within the Account Profile for all on-demand licenses that are billed continuously or on an on-going basis. THIS AGREEMENT AND THE SERVICE DO NOT ALLOW MEMBER TO USE ANY SOFTWARE APPLICATION FOR WHICH THEY ARE NOT LICENSED, OR ACCESS OR USE OR CAUSE TO BE USED THE SOFTWARE APPLICATIONS OTHER THAN FOR THE VALID LICENSE PERIOD FOR THE SOFTWARE APPLICATION. C. From time to time, Cetrus may change the Service features and functionality, and may change, alter, add or delete the on-demand Software Applications available through the Service, and may change the terms and conditions of this Agreement. Notice of such change will be posted in the Cetrus website, which Member agrees to review periodically. If Cetrus or the On- Demand Software Vendor elects to terminate the on-demand license offering, the Member will be provided with one month notice prior to the expiration of the on-demand license. Cetrus will continue to provide support for the license up to one month after the formal termination of the on-demand Application. 2. License and Site Access The Service allows the Member, on Member’s request, to access and use, on a temporary basis, the Cetrus website Service associated with the provisioning of an On Demand Application. The Service is made available to Members as long as there is at least one currently licensed on- demand Application in the Member’s Account. For Accounts that no longer have at least one currently licensed on-demand Application (“Inactive Account”), Cetrus will maintain Member access to the Member Account for a minimum of one year following the account becoming an Inactive Account. Access to the Service is subject to the Account Manager accepting the terms of this Agreement and the terms of the On-Demand Software Vendor’s User License Agreement, which is provided by the On-Demand Software Vendor for access to and use of the on-demand Application. Continued use of the Service is subject to Member’s acceptance of any additional terms and conditions from Cetrus and from any specific On-Demand Software Vendor which Cetrus or the Software Vendor may from time to time require. If Member enters into correspondence with, purchases goods or services from, or participates in promotions of advertisers or sponsors through the Service, any such activity, and any terms, conditions, warranties or representations associated with such activity, is governed solely by the terms of the agreement between Member and the applicable third party. Cetrus grants Member a limited license to access and make use of this site and not to download (other than page caching) or modify it, or any portion of it, except with express written consent of Cetrus. This license does not include any resale or commercial use of this site or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of this site or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools. This site or any portion of this site may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Cetrus. Member may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Cetrus and our affiliates without express written consent. Member may not use any meta tags or any other “hidden text” utilizing Cetrus’ name or trademarks without the express written consent of Cetrus. Any unauthorized use terminates the permission or license granted by Cetrus. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of Cetrus as long as the link does not portray Cetrus, its affiliates, or their products or services in a false, misleading, derogatory, or otherwise offensive matter. Member may not use any Cetrus logo or other proprietary graphic or trademark as part of the link without express written permission from Cetrus. 3. Member Account If Member uses this site, Member is responsible for maintaining the confidentiality of Member account, login name and password and for restricting access to Member’s computer, and Member agrees to accept responsibility for all activities and charges that occur under Member’s account, login name or password. Cetrus and its affiliates reserve the right to refuse service, terminate accounts, remove or edit content, or cancel orders at their sole discretion. 4. Privacy The Cetrus Privacy Statement (“Privacy Statement”) is hereby incorporated by reference. Please review the Privacy Statement, which governs all visits to the Cetrus website and explains Cetrus’ privacy practices and policies By accepting this Agreement, Member is also accepting the terms and conditions of the Privacy Statement. 5. Electronic Communications When Member visits the Cetrus site or sends e-mails to Cetrus, Member is communicating with Cetrus electronically. Member consents to receive communications from Cetrus electronically. Cetrus will communicate with Member by e-mail or by posting notices on the Cetrus site. Member agrees that all agreements, notices, disclosures and other communications that Cetrus provides to Member electronically satisfy any legal requirement that such communications be in writing. 6. Copyright All content included on this site, such as text, graphics, logos, button icons, images, audio clips, digital downloads, data compilations, and software, is the property of Cetrus or its content suppliers, and is protected by United States and international copyright laws. The compilation of all content on this site is the exclusive property of Cetrus and is protected by U.S. and international copyright laws. All software used on this site is the property of Cetrus or its software suppliers and is protected by United States and international copyright laws. Cetrus hereby grants Member a non-exclusive, limited license to use Cetrus’ software associated with the Service (the “Cetrus Software”). Member shall not, and shall not permit, assist or allow others to, reverse engineer, decompile, disassemble, re-engineer or otherwise discover or recreate or attempt to discover or recreate the Cetrus Software or any of the on-demand Applications. Member agrees not to use or permit use of the Service(s), including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may cause damage or injury to any person or property, or that may violate applicable laws, ordinances or regulations. Member shall not modify the Cetrus Software or any of the on-demand Applications, or sublicense or charge others to use or access the Cetrus Software or any of the one-demand Applications, or use the Cetrus Software or any of the on-demand Applications in any way not expressly authorized by this Agreement. Without limiting its other remedies, Cetrus may terminate immediately, without prior mailed notice, this Agreement if Member infringes any third party’s intellectual property rights or, in Cetrus’s opinion, behaves with reckless disregard for such rights or intellectual property rights generally. Member agrees to defend and indemnify Cetrus against any claim arising out of a violation of Member’s obligations under this section. 7. Fees and Charges. A. Member’s use of the Service to access and use any on-demand Application shall result in a fee, as set forth on Cetrus’ site (the “License Use Fee”), for each use of each on-demand Application for each Use Period. Use Periods may be in terms of fixed-length time periods or variable duration metered usage login periods. All License Use Fees are payable in advance in U.S. Dollars. At any time, Cetrus may change the License Use Fee for any on-demand Application by providing notice of such change on Cetrus’ site and during the application login process for the on-demand Application. Any such License Use Fee change shall be effective immediately for all subsequent non-prepaid Use Periods for such on-demand Application, except that the change shall not affect the License Use Fee for such on-demand Application for any Use Period in effect at the time of the change in the Use Fee, unless the Use Period is for metered usage, for which the change will be implemented on the day the change is scheduled to take effect. B. The License Use Fee for each Time Period or Metered Usage Option is payable in advance using a valid credit card or other Cetrus approved purchase instrument and is due immediately upon Member’s completion of a purchase transaction for the on-demand Application. The License Use Fee for “Continuous Monthly” will be automatically charged, on a monthly basis, 10 days prior to when the next month’s time-period begins, to the Member’s credit card, which must be on file for this Time Period option. The Use Fee for “Ongoing Metered Usage” will be automatically charged, when the prepaid account balance drops below the Recharge Floor, as indicated on the Cetrus website. The Recharge Amount will be based on the minimum Recharge amount for each on-demand Application, or the Member selected recharge amount (as long as it is above the recharge minimum), or a Cetrus determined amount, as indicated in the acknowledgement the Account Manager provides on the site while purchasing an on-going Metered Usage license. Member hereby authorizes Cetrus to charge the applicable prepaid License Use Fee(s) for the on- demand Application against Member’s credit card as set forth in the Purchase Request. In the event that Member’s Credit Card Company or bank refuses any charge against Member’s credit card or Cetrus is otherwise unable to charge any License Use Fee against Member’s credit card, such amount shall be deemed past due at the time when the license Time Period expires, or the prepaid Account balance goes to zero. However, Member acknowledges that any license that has expired due to any cause, whether at Member’s request or any failure of the license to be renewed by Member, shall result in all Member access to cease for the specific on-demand Application whose license has expired. Should the use of the credit card result in any past due amounts to Cetrus, Member shall pay Cetrus an interest charge of one and one-half percent (1.5%) per month, computed from the due date of each such amount, or the maximum rate allowed by law in the State of California. Member shall be liable for all attorney’s fees and/or collection fees arising from Cetrus’ efforts to collect unpaid balances. At the time of the Member’s transaction a Use Period with a Start Date shall be selected by the Member. All fees under this Agreement are irrevocable and non refundable. No credit card charge will be reversed after the Use Period begins. Member may delay the start date of the Use Period, only prior to the Use Period Start Date/Time. A Member, who wishes to cancel/reverse a completed credit card transaction, but only prior to the first use of an on-demand Application, will be charged a minimum fee of $10 per transaction or the amount posted on the Cetrus site. Under no circumstances will a credit card charge be reversed for any on-demand license for any amount whose start time has already begun. C. Cetrus’ fees are exclusive of all taxes, levies, or duties imposed by taxing authorities. Member agrees to pay all state and local sales, use, property, or other taxes, except for taxes on Cetrus’s net income, which may be assessed against Cetrus with respect to this Agreement and any services provided hereunder. At its option, Cetrus may include such taxes in its charge(s) against Member’s credit card and/or Use Fees, in which event Member shall pay to Cetrus the taxes so charged or included. 8. Security A. Member will ensure that any use of the Services(s) by Members and Users is in accordance with the terms of this Agreement, and that Member obtains any consents required for Cetrus and Vendors to provide the Service(s) under this Agreement. Member is responsible for ensuring that Member’s network and systems comply with specifications that Cetrus and Vendors provide. Cetrus is not responsible for Member’s network connections or for conditions or problems arising from or related to Member’s network connections or caused by the Internet. B. Cetrus agrees to exercise reasonable care to prevent any unauthorized person or entity from gaining access to the Member’s Account Data. Both parties agree to promptly notify the other of any unauthorized access or use of Account Data or passwords. Both parties agree to use all reasonable efforts to take remedial measures to rectify any such unauthorized access. Cetrus shall not be liable for any damages incurred by Member in connection with any unauthorized access to or disclosure of Member Data resulting from the actions of Member, any third party, or from the failure of electronic or other security measures. 9. Limited Warranty; Limitation of Liability A. Each party represents and warrants that it has the power and authority to enter into this Agreement. B. For any breach of this express warranty for Service, Member’s exclusive remedy shall be performance of the deficient Service. EXCEPT FOR THE FOREGOING, CETRUS AND ON DEMAND VENDORS OF ALL SOFTWARE APPLICATIONS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OF VALIDITY OR NON-INFRINGEMENT, WITH RESPECT TO THE SERVICE PROVIDED HEREUNDER AND ALL ON DEMAND SOFTWARE APPLICATIONS. Further, under no circumstances, including negligence, shall Cetrus or its vendors and suppliers of On Demand Software Applications be liable to Member or any third party for any lost profits, lost savings, or other indirect, special, cover, exemplary, incidental, or consequential damages arising out of the use or inability to use the Service or any On Demand Software Application. In no event shall the total liability of Cetrus for all damages, losses, and causes of action, whether in contract or tort, including negligence or otherwise, either jointly or severally, exceed the aggregate dollar amount paid by Member to Cetrus for use of the On Demand Software Application upon which Member bases Member’s causes of action or claim for damages and/or losses in the thirty (30) days prior to the claimed injury or damage. C. By accepting and acknowledging this Agreement, the Member understands and agrees to the general condition that Cetrus and its vendors and suppliers of all on-demand Applications are not liable for the accuracy, truthfulness or validity of any data entered by Members or Users or intermediated through the Service. Neither Cetrus nor its vendors and suppliers of the on-demand Applications guarantee or make any representation regarding the Member’s use of, or the results from the Member’s use of the Service or any on-demand Application, including without limitation with respect to the accuracy, reliability, correctness, or currency thereof. Member further understands and agrees that each on-demand Application is for use by appropriate licensed professionals, who have adequate knowledge of the principles involved in the use of each on-demand Application. Member further understands and agrees that all of the information, including technical and engineering data, processes, and results, presented in any of the on- demand Applications, and the accuracy, suitability, and applicability thereof for any specific application, use, or purpose, should be examined and verified by an independent, competent professional or other appropriate licensed professional and that Member assumes all risk and liability for such use, examination and verification. The Member also understands that while each installation of the on-demand Application requires acceptance of that applications specific license agreement prior to first use, that the first acceptance by an Account Member of the Agreement is an acceptance for and on behalf of the Account and Users, regardless of whether those Users individually acknowledged the Agreement. D. Member warrants and represents to Cetrus that any Member Data or other input or data that Member enters into or sends to Cetrus’ website or Service shall not contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, interfere with, surreptitiously intercept, or expropriate any system, data, or personal or entity information. Member shall not use any device, software, or routine to interfere or attempt to interfere with the proper working of Cetrus’ site or Service. E. Member releases, forgives, discharges, and relinquishes any and all claims that Member now has or may have against Cetrus and its affiliates, subsidiaries, parents, shareholders, members, directors, officers, employees, agents and representatives from claims, demands, and damages of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with this Agreement or Cetrus’ performance hereunder. Member waives all rights or benefits which Member now has, or in the future may have, under Section 1542 of the Civil Code of the State of California, which section reads as follows: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. 10. Indemnification Member agrees to indemnify and hold harmless Cetrus and its affiliates, subsidiaries, parents, shareholders, employees, agents, licensors, successors, and assigns from all claims, losses, actions, causes of action, expenses, damages, and/or liabilities, including reasonable attorneys’ fees, that arise out of or relate to: (a) this Agreement; (b) Member’s violation of its obligations under this Agreement; (c) Member’s actions, including without limitation the negligence or willful acts of Member; or (d) the violation by Member of Cetrus’ or any third party’s rights, including, but not limited to, privacy rights, other property rights, trade secret, proprietary information, trademark, copyright, or patent rights and claims for libel and slander, or unfair trade practices in connection with the use or operation of the Service and/or the on-demand Applications. Member’s obligation to indemnify shall survive the expiration or termination of this Agreement by either party for any reason. 11. Termination Either party may cancel this Agreement at any time by giving notice as set forth in Section 9(H). Cetrus may terminate this Agreement immediately, without prior emailed notice to Member, if Member breaches this Agreement or engages in any fraudulent activity or any activity that, in the sole discretion of Cetrus, may create liability for Cetrus, or may cause Cetrus to lose, in whole or in part, the services of its Internet Service Provider or of any Software Application vendor or supplier. The following obligations will survive the termination of the Agreement for any reason: (a) indemnification; (b) obligations to make payments of amounts that become due under this Agreement before termination; and (c) any other provision hereof where the context of such provision indicates an intent that it shall survive the term or termination of this Agreement. 12. Interruption of Service A. Member will access the Cetrus Service over the public Internet, and temporary disruptions of network connectivity will occur from time to time. Internet traffic is usually routed through many different Internet backbone providers on the way to its destination. Cetrus will not be liable for interruption or delays in transmission or errors or defects in transmission or failure to transmit when caused by any Internet backbone provider. B. On-demand Applications require an active internet connection for license verification and application execution purposes. Without an active internet connection, the application will cease to function, preventing further use, until such time as the internet connection is reestablished. Cetrus will not be liable for interruption in or delays of the use of the on demand application due to an interruption in internet connectivity. C. Cetrus will not be liable for interruption or delays in transmission, errors or defects in transmission, or failure to transmit when caused by acts of God, fire, water, riots, acts of Government, or any other causes beyond the control of Cetrus. D. Service may be temporarily interrupted or curtailed due to equipment modifications, upgrades, relocations, repairs, interruptions in internet service and other similar activities necessary during the operation and upgrade of Service. No reduction of payments will be made in the case of temporary interruption of Service. In no event shall Cetrus be liable for any damages due to temporary interruption of Service. 13. Miscellaneous. A. This Agreement constitutes the entire Agreement between Cetrus and Account Manager, and expressly supersedes any prior or contemporaneous written or oral agreements between the parties regarding the subject matter hereof, including without limitation any unilateral offer, purchase order, or other similar instrument in writing. Except as set forth in this Agreement, this Agreement may not be amended, altered, or changed except by a written agreement signed by both parties. Neither party shall be considered as, or hold itself out as, an agent, partner, joint venturer, employer/employee, or franchiser/franchisee of the other party, and neither party may act for or bind the other party in any dealings with a third party, except as expressly authorized by this Agreement. B. In the event that any arbitrator(s) or court having jurisdiction shall determine that any provision contained in the Agreement is unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the extent that such arbitrator(s) or court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force and effect. C. Account Manager and Member’s rights in this Agreement are not assignable or transferable. Cetrus may, in its sole discretion, assign its rights and obligations under this Agreement to third parties. D. This Agreement will be governed by and construed in accordance with the laws of the State of California and the United States. The parties agree that any claim, controversy, or dispute arising out of or relating to this Agreement shall be settled by final and binding arbitration to be conducted by an arbitration tribunal in Contra Costa County, California in accordance with the commercial arbitration rules of the American Arbitration Association, and the decision of the arbitrator(s) shall be binding; provided that Cetrus may bring or defend an action (1) involving allegations of personal injury to a third party, or (2) for injunctive or other equitable or extraordinary relief, in a court of law of competent jurisdiction in Contra Costa County, California. Any claim, controversy, or dispute must be submitted to arbitration within one (1) year after such claim or cause of action arose or it shall be forever barred. E. The remedies provided in this Agreement and otherwise at law or in equity are cumulative and not exclusive. The failure by either party to exercise any right or remedy under this Agreement or otherwise available at law or in equity will not be deemed a waiver of any subsequent right or remedy. F. Except as set forth in this Agreement, no person or entity who is not a party to this Agreement shall derive any rights whatsoever hereunder as a third party beneficiary of this Agreement. G. Member warrants and represents to Cetrus that all Members shall comply with all laws, regulations, and professional and licensing requirements applicable to Member and that this Agreement constitutes and will constitute the valid and binding obligations of Member, enforceable in accordance with its terms. If Member is an entity, Member further warrants and represents to Cetrus that (i) it is a legal entity lawfully formed and existing under the laws of the jurisdiction of its formation and is authorized to transact business in the jurisdictions in which transacts business; (ii) it has the legal authority to enter into and perform this Agreement in accordance with its terms; and (iii) the execution and delivery of this Agreement and the consummation by Member of the transactions contemplated by this Agreement have been duly and validly authorized by all authorities necessary to authorize this Agreement. Member acknowledges and understands that Cetrus reasonably relies on each of the warranties and representations that Member makes in this Agreement and that, but for these warranties and representations, Cetrus would not enter into this Agreement. H. Except as set forth in this paragraph, all communications between the parties shall be sent via electronic medium (i.e. via Internet e-mail). Member shall send all notices to Cetrus concerning the modification or termination of Member’s contractual or legal relationship with Cetrus by registered mail, postage pre-paid, to the address set forth in the first paragraph of this Agreement. Cetrus shall send all notices to Member concerning the modification or termination of Member’s contractual or legal relationship with Cetrus by registered mail, postage pre-paid, to the person and address set forth in Account Manager Account Application Form. All mailed notices shall be deemed given three (3) business days after the date of mailing. 14. Acceptance. Account Manager acknowledges that he/she has read the terms and conditions of this Agreement and hereby agrees and accepts this Agreement on behalf of their self, the companies, entities or person(s) you represent or for whom you are employed and any and all users provided access to the Account and to be bound by the terms thereof. This Agreement will become effective upon Account Manager’s acceptance by electronic acknowledgment on the Cetrus website, prior to the execution of a purchase transaction. Account Manager represents and warrants that the person who accepts this Agreement on Member’s behalf is authorized to do so. Each time Member logs onto the Service, Member is reaffirming Member’s continued acceptance of this Agreement.