Circuit ID MSA
Master Service Agreement
Published: November 2019
Effective: December 2019
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Circuit ID™ may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter in this document. Except as expressly provided in any written license agreement from Circuit ID™, the furnishing of this document does not give the customer any license to these patents, trademarks, copyrights, or other intellectual property.
©2019 Circuit ID™. All rights reserved.
These terms (“Terms”) cover the use of Circuit ID™ products, websites and services (the “Services”). You accept these Terms by creating a Circuit ID account, through your use of the Services, or by continuing to use the Services after being notified of a change to these Terms. This Agreement is between You and Circuit I, Inc., (Circuit ID™) a California Corporation – You agree to be bound by all of the terms and conditions of (i) this Master Service Agreement (MSA) with Circuit ID™ and (ii) the following:
• The attached Appendix A: Microsoft Software Use – Terms and Conditions,
• Circuit ID™’s Service Level Agreement (the “SLA” or “Service Level Agreement”), and
• Circuit ID™’s No-SPAM Policy, and
• Circuit ID™’s Hardware Warranty/Return Policy, and
• Circuit ID™’s Acceptable Use Policy (the “AUP”), (collectively, this “Agreement”).
If you are an individual entering into this Agreement on behalf of an Entity (defined below), you represent and warrant that you have the authority to bind such Entity to this Agreement. If you do not have such authority, neither you nor such Entity may accept this Agreement or use the Services.
Definitions. For the purposes of this Master Service Agreement, the following definitions apply:
“Access Information” means information that alone or together with other information, can provide access to any portion of Your Account, including but not limited to Your Account number, login names, passwords, credit card or other financial information, security questions and their respective answers, and any other similar information. For the avoidance of doubt, Your Access Information will include any similar information for each of Your Users.
“Account” means the account created with Circuit ID™ in connection with this Agreement that relates to Your purchase or subscription to and use of Services by You and Your Users.
“Applicable Law” means any applicable foreign, federal, state or other laws, rules, regulations or interpretations of relevant Governmental Authorities.
“Beta Offerings” means any portion of the Services offered on a “beta” basis, as designated by Circuit ID™, including but not limited to products, plans, services and platforms.
“Data” means all data submitted by Your Users to Circuit ID™ in connection with the Services, including all content, material, IP and similar addresses, recordings, messages, software, Account Information and Account-related settings.
“Entity” means a company, corporation, partnership, association, trust, unincorporated organization, government or political subdivision or any other legal entity.
“Governmental Authority” means a government, regulatory organization, self-regulatory organization, court of competent jurisdiction or similar body.
“Circuit ID™ Parties” means Circuit ID™’s affiliates (including parents and subsidiaries), vendors, licensors and partners, and it and their officers, employees, agents, representatives, resellers, distributors, third-party apps, service providers.
“Services” means Circuit ID™ services, software and products, as such services, software and products are offered by Circuit ID™ from time-to-time in its discretion and subscribed to or purchased by You through Circuit ID™’s website or otherwise, or as otherwise used by You.
“Third-Party Service” means any service or product offered by a party that is not Circuit ID™. “User” means any of Your employees, consultants or independent contractors to whom You grant permission to access the Services in accordance with Circuit ID™’s entitlements procedures and this Agreement.
“You” and “Your” means the individual or Entity on whose behalf this Agreement is accepted.
1.1. Access to Services. Subject to and in accordance with the terms of this Agreement, Circuit ID™ grants You a non-exclusive, non-sublicensable, nontransferable, non-assignable, revocable license for the term of this Agreement to access and use the Services only by Your Users for internal business purposes only. You agree to comply with the terms and conditions of this Agreement and with all applicable Circuit ID™ procedures and policies that further define use of the Services. You acknowledge and agree that the actions of any of Your Users with respect to the Services will be deemed to be actions by You and that any breach by any of Your Users of the terms of this Agreement will be deemed to be a breach by You.
Information and Ownership. You agree to maintain accurate Account
information by providing updates to Circuit ID™ promptly, but no later than seven
(7) business days, when any of Your Account information requires change,
including any relevant Account contact information. Failure by You, for any
reason, to respond within seven (7) business days to any inquiries made by Circuit
ID™ to determine the validity of information provided by You will constitute a
material breach of this Agreement. You acknowledge and agree, and expressly
consent, that in the event of any dispute regarding access to or legal
ownership of any Circuit ID™ account or any portion thereof, including Your
Account, Circuit ID™ will resolve such dispute in its sole discretion. In
addition, in the event of such a dispute, Circuit ID™ may immediately suspend,
alter or terminate any relevant account, including Your Account, or any portion
thereof. You will reimburse Circuit ID™ for any legal and other fees incurred
with respect to any dispute regarding control or ownership of Your Account or
Your Data or the same of another Circuit ID™ customer. You acknowledge and
agree that (i) the legal owner of all Data on the
Account is You, the counterparty to this Agreement, and not any individual
User, including any Account contact registered with Circuit ID™, regardless of
any administrative designation (e.g., “Administrator,” “Billing Contact,”
“Owner,” etc.) and (ii) Circuit ID™ may request any documentation it requires
to establish ownership and rights to Your Account and any related Data;
provided that any User with an administrative designation has the authority to
bind You to any amendments, modifications or acknowledgements regarding this
Agreement or otherwise relating to the Services.
1.3. Account Security and Activity. You acknowledge and agree that You are solely responsible for (i) maintaining the confidentiality and security of Your Access Information, and (ii) all activities that occur in connection with Your Account, whether initiated by You, by others on Your behalf or by any other means. You will notify Circuit ID™ immediately of any unauthorized use of Your Account, Access Information or any other actual or potential breach of security. You acknowledge and agree that Circuit ID™ will not be liable for any loss that You may incur as a result of any party using Your Access Information, either with or without Your knowledge and/or authorization. You further agree that You may be held liable for losses incurred by Circuit ID™, any Circuit ID™ Party or another party due to any party using Your Access Information. Circuit ID™ strongly recommends that You keep Your Access Information in a secure location, take precautions to prevent others from accessing it and change it when necessary to maintain its confidentiality and security. Circuit ID™ specifically disclaims all liability for any activity in Your Account, whether authorized by You or not.
2.1. Term. The Agreement term is either the Initial
Term or Renewal Term (each, a “Term”) as defined herein.
(a) Yearly Plan Agreement Term. For a Yearly Plan with Circuit ID™, the Initial Term is the Term Start Date as described in Section 2.1(c) and ends after a period of 12-months. A Renewal Term for a Yearly Plan is defined as one calendar year beginning at the end of the Initial Term and each subsequent calendar year thereafter.
(b) Automatic Renewal. This Agreement will renew automatically at the end of the then-current Term for a Renewal Term unless terminated in accordance with this Agreement by either You or Circuit ID™.
(c) Initial Term / Term Start Date. For all plans and Services, the initial term / service start date is the date of Your initial payment, when the Services are added to your account, when the Services are purchased from Circuit ID Parties, or acceptance of this Agreement, whichever occurs earlier.
2.2. Termination by You.
(a) All Plans. All plans (e.g. Yearly, Monthly etc.) require that you submit a one-month or thirty-day notice whichever is greater prior to the beginning of any Renewal Term. If You terminate your plan prior to the end of the then current Term, Circuit ID™ will not be required to refund to You any fees already paid and you are liability for all applicable charges remaining in the term. You may terminate this Agreement for any reason by removing all services from your account via the administrative control panel to cancel automatic renewal, and then by submitting a request to terminate your account to the billing department via the administrative control panel ticket system prior to the beginning of any Renewal Term. If you fail to remove services from your account prior to the automatic renewal date, you will not be entitled to a refund.
(b) Yearly Plan. For a Yearly Plan, You may terminate this Agreement for any reason submitting a 30-day termination notice via Circuit ID™ ticketing system in the administrative control panel online, or by certified written notification 30-days prior to the beginning of any Renewal Term. If You terminate a Yearly Plan prior to the end of the then current Term, Circuit ID™ will not be required to refund to You any fees already paid and you are liable for all applicable charges remaining in the term. All Office 365 & Skype for Business plans require a minimum one (1) year term.
(c) Monthly Plan. For a Monthly, You may terminate this Agreement for any reason by removing the service online via the administrative control panel prior to the renewal date of the service.
(d) Refunds/Fees for Termination by You. Fees for non-recurring Services and set up fees will not be refunded. Any fees previously waived or discounts applied may be reinstated if You terminate the account during the Term or if You breach this Agreement.
2.3. Termination by Circuit ID™.
(a) 30-Day Termination. Circuit ID™ may terminate this Agreement for any reason by providing a thirty (30) calendar day notice. If Circuit ID™ terminates this Agreement pursuant to this Section 2.3(a), (i) for a Yearly Plan, if the effective termination date occurs prior to the end of the then-current Term, Circuit ID™ will refund (or refrain from charging You) the pro rata monthly fees for the month in which Services terminate and (ii) for a Prepaid Hosting Plan, Circuit ID™ will provide a refund equal to the prepaid hosting fees attributable to the remaining month(s) PLUS the fee for the month in which the contract is terminated LESS any unpaid fees shall be issued within thirty (30) calendar days of account termination to the credit card on record at time of termination. This refund shall be Your sole remedy for Circuit ID™’s early termination of the Agreement under this Section 2.3(a). For either a Monthly Plan or Prepaid Plan, if Circuit ID™ terminates this Agreement pursuant to this Section 2.3(a), Circuit ID™ will not charge You monthly fees for any month following the month in which Circuit ID™ terminates this Agreement.
(b) Immediate Termination. Circuit ID™ may terminate this Agreement (or suspend Your Account) immediately and without prior notice for any of the following reasons:
(i) Any material breach of this Agreement by You, as determined by Circuit ID™ in its sole discretion, including, but not limited to, failure to make any payment when due, violation of the AUP or any other Circuit ID™ policy or procedure applicable to the Services as notified to You from time to time;
(ii) If Your use of the Services results in, or is the subject of, actual or potential legal action or threatened legal action, against Circuit ID™ or any of its affiliates, vendors, partners, representatives or customers, without consideration for whether such actual or potential legal action or threatened legal action is eventually determined to be with or without merit; and
(iii) Any non-material breach of this Agreement by You which remains uncured beyond ten (10) calendar days from notice by Circuit ID™.
(c) Termination or Suspension of Users. In lieu of terminating or suspending Your entire Account, Circuit ID™ may suspend Your Account or terminate or suspend individual Users.
(d) No Refunds; Further Payment Due. If Circuit ID™ terminates this Agreement pursuant to Section 2.3(b), (i) Circuit ID™ will not refund to You any paid fees and (ii) You will be liable for any payment that would have been due had You terminated pursuant to section 2.2.
2.4. Following Termination. Termination will not cancel or waive any fees owed to Circuit ID™ or incurred prior to or upon termination. You agree that Circuit ID™ may charge such unpaid balance to Your Account on file or otherwise bill You for such unpaid balance. Upon termination, You must promptly uninstall all software provided by Circuit ID™ in connection with the Services. All of Your Data may be irrevocably deleted upon termination, including but not limited to, databases, contacts, calendars, e-mail, website content, and any Data hosted by Circuit ID™. It will be solely Your responsibility to secure all necessary Data from Your Account prior to termination. Circuit ID™ will not be responsible or otherwise liable for any loss of Your Data or any damages arising from the deletion of Your Data following termination of the Services.
3.1. Fees. The fees initially charged upon ordering any Service will be effective for the Initial Term and each Renewal Term of this Agreement, provided, that Circuit ID™ will have the right to increase these fees at any time upon thirty (30) calendar days notice to You after such term has expired. If You do not agree with such fee increase, You will have the right to terminate this Agreement immediately upon notice, provided, that such notice of termination must be received within thirty (30) calendar days of date of notice of the fee increase. All payments made to Circuit ID™ shall be in US Dollars.
3.2. Billing and Payment Arrangements. Circuit ID™ will bill You monthly for all established and recurring fees, and any applicable one-time fees in that month, including but not limited to interest. Pro rata billing may occur throughout the course of a billing cycle for feature add-ons that You enable on your Account during any given month.
3.3. Payment by Automated Means.
(a) You may view and print an invoice for Your Account using the administrative control panel made available to You. On or about the first day of each month, Circuit ID™ will apply the current monthly charges to Your automated payment method, the relevant information of which You entered on the billing information page in the administrative control panel. Payment by automated means includes any form of automated payment accepted by Circuit ID™ from time-to-time, including credit card, debit card, direct debit or other means.
(b) You must provide Circuit ID™ with valid automated payment information as a condition to receive or use the Services. You are responsible for and agree to update Circuit ID™ with any changes to Your billing and/or automated payment information (e.g. new or updated credit card, credit card expiration date or other payment account information). By providing Circuit ID™ with the automated payment information, You authorize Circuit ID™ to charge Your automated payment account for any amounts arising from or relating to the Services without further authorization from You. It is Your responsibility to keep Your automated payment information up-to-date. If charges to Your automated payment account fail, Circuit ID™ will email a warning to Your Account billing contacts.
(c) If Circuit ID™ is unable to successfully process Your payment by automated means by the seventh (7th) calendar day of the month for which the payment is due, Your payment will be considered late and not paid in full. Circuit ID™ may suspend or terminate Your Account in accordance with Section 2.3(b)(i) for failure to timely pay in full. Late payments are subject to a late-payment charge as described as described in Section 3.9.
3.4. Fees for Excess Use. You will monitor and maintain Your Accounts within all Circuit ID™-specified limits and in a manner that does not disrupt the activities of Circuit ID™ and other Circuit ID™ customers and users. If Your usage exceeds the limits for Your Account or may disrupt the activities of other Circuit ID™ customers, You agree that Circuit ID™ may immediately, in its sole discretion, (i) charge You for such excess usage via Your automated payment account, (ii) upgrade You to a plan or increase the limits on Your Account to address this excess usage, and/or (iii) suspend Your Account or terminate Your Account upon notice To You. Usage and associated charges for excess usage will be determined based solely upon Circuit ID™’s collected usage information. Unused monthly allotments will not accrue or carry over from one month to any other month. Upon any upgrade or increase on the limits of Your Account, You will be responsible for the new costs and fees.
3.5. Taxes. In addition to Circuit ID™’s charges, You will be liable for all taxes, governmental fees and assessments related to fees and charges charged to You under this Agreement or otherwise in respect of Your use of the Services.
3.6. Fees for Additional Services. You agree to pay Circuit ID™’s then-current rates and expenses, including the cost of Circuit ID™’s vendors, for any requests related to information retrieval, subpoenas, consulting and advisory services or similar work.
3.7. Bill Disputes. You will notify Circuit ID™ of any dispute relating to charges billed to Your Account by submitting written notice to Circuit ID™ within sixty (60) days of the date the disputed charges appeared on Your Account. The existence of a dispute will not relieve You from paying any and all amounts billed hereunder. You waive all rights to dispute any charges not disputed by written notice as required above.
3.8. Electronic Billing and Documentation. All billing and other documentation regarding the Services may be provided electronically (“Electronic Documentation”). You acknowledge and agree that You are able to view all Electronic Documentation and consent to receiving Electronic Documentation and decline to receive hard copies of any such materials.
3.9. Late Fees. You acknowledge and agree that a late fee will be assessed to all past due amounts not received by the due date. Late payments are subject to a late-payment charge of the greater of (i) interest calculated at the lesser of (x) 5% (five percent) per 30 days past the due date, and (y) the maximum amount permitted by law and (ii) $25 (twenty-five dollars). Such interest will accrue daily from the due date until the date of actual payment of the overdue amount, whether before or after judgment. You will pay the interest immediately on demand. You will pay all collection costs incurred by Circuit ID™ (including, without limitation, reasonable attorney’s fees).
4.1. Internal Use. You will use the Services for Your own internal business, non-residential and non-personal use. You acknowledge and agree that You will not allow any third party, including Your vendors and service providers, to access or use the Services.
4.2. Restricted Activities. You will not (A) use any Service for any purpose outside the Service’s intended scope, features, and function set, (B) use any Service for third-party training, (C) use any Service as an application service provider or service bureau, (D) use any Service for timesharing or rental, (E) use any Service to design software or other materials or services with similar or competitive functionality for any purpose, including distribution to third parties, (F) except with respect to Your Data, duplicate any portion of the Services or display, distribute, publish, or otherwise disclose any Service; (G) use any of the Services to interface with any other service or application that is outside the scope of intended use; (H) decompile, disassemble, or otherwise reverse engineer any portion of the Services; (I) without prior written consent of Circuit ID™, make any modification or interface to any Service that is not specifically authorized by Circuit ID™; and (J) resell or sublicense any portion of the Services, and any purported resale or sublicense will be void. You may not access the Services for purposes of monitoring their performance, availability, or functionality, or for any other benchmarking or competitive purposes, without Circuit ID™’s prior written consent. You may not, without Circuit ID™’s prior written consent, access the Services if You are a direct competitor of Circuit ID™.
4.3. Applicable Law. You acknowledge and agree that access and use of the Services may be restricted or limited as a result of Applicable Laws and that You will not use, or allow the use of the Services in contravention of, and will comply with, any Applicable Law. You represent that You and Your Users are not named on any Government Authority list of persons or entities prohibited from receiving exports, and (ii) You will not permit Users to access or use Services in violation of any export embargo, prohibition or restriction. You acknowledge and agree that that it is Your sole responsibility to use the Services in a lawful manner.
5.1. Submission of Your Data. Any Data You provide to Circuit ID™ in connection with the Services must comply with the AUP. Attempting to place or transmit, or requesting placement or transmission, of Data that does not comply with the AUP will be a material breach of this Agreement. Circuit ID™ may, in its sole discretion, reject or remove Data that You have used or attempted to use with respect to the Services. Any Data used with respect to the Services by or through You will be free of any and all malicious code, including without limitation, disabling devices, drop dead devices, time bombs, trap doors, trojan horses, worms, computer viruses and mechanisms that may disable or negatively impact the Services or Circuit ID™’s servers. You hereby represent and warrant to Circuit ID™ that You have the right to use any patented, copyrighted, trademarked, proprietary or other material in connection with Data that You use, post, or otherwise transfer or transmit with respect to the Services.
5.2. Public Disclosure of Data. You are solely responsible for ensuring that You do not accidentally make any private Data publicly available. Any Data made public may be publicly accessible through the internet and may be crawled and indexed by search engines or other third parties. By making any Data publicly available on any of the Services You affirm that You have the consent, authorization or permission, as the case may be from every person who may claim any rights in such Data to make such Data available in such manner.
5.3. Data Takedown. By making any Data publicly available in the manner aforementioned, You expressly agree that Circuit ID™ will have the right to block access to or remove such Data made available by You, if Circuit ID™ receives complaints, inquiries or notices concerning any illegality or infringement of rights in such Data. You expressly consent to determination of questions of illegality or infringement of rights in such Data by the agent designated by Circuit ID™ for this purpose.
5.4. Filtering. Circuit ID™ may employ various filtering methods to reduce unwanted content, such as SPAM e-mail, from reaching Your Circuit ID™ Account. You acknowledge and agree that such methods may prevent legitimate content from reaching Your Account and that Circuit ID™ will not be liable therefor.
5.5. Control. Circuit ID™ is not obligated to exercise control over the content of information, including Your Data, passing through Circuit ID™’s network except any controls expressly provided in this Agreement.
6.1. Confidential Information. “Confidential
Information” is all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information will include Your Data. Circuit ID™’s Confidential Information will include the Services (and any portion thereof), the terms and conditions of this Agreement and all related Service order forms, as well as Circuit ID™’s business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by Circuit ID™. Confidential Information will not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2. Protection of Confidential Information. Except as otherwise permitted by this Agreement or in writing by the Disclosing Party, (i) the Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) the Receiving Party will limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement.
6.3. Use and Disclosure by Circuit ID™.
This SLA does not apply to any Beta Offerings. Notwithstanding anything else set forth in this agreement, Circuit ID™ does not make any representations or warranties regarding any Beta Offering or the integrity of any data stored in connection with any Beta Offering. You are strongly discouraged from using any Beta Offering in connection with sensitive data. Circuit ID™ may change or terminate any Beta Offering in its sole discretion without notice and does not represent or warrant the result of any such action. Circuit ID™ may convert any Beta Offering to a paid service upon notice to You in Circuit ID™’s sole discretion. To avoid incurring increased charges following such a conversion, You must terminate (i) the individual converted service (if possible) by contacting Circuit ID™ as directed in the conversion notice, or (ii) if You subscribe to no other services under Your Account, the entire Account, pursuant to section 2 of this Agreement.
8.1. Limited Warranty; Limitation on Liability. Circuit ID™ provides the Services and any related products on an “as is” basis. You expressly agree that use of the Services is at Your sole risk. Circuit ID™ and the Circuit ID™ Parties expressly disclaim all warranties of any kind, whether express or implied, oral or written, including, but not limited to the implied warranties of merchantability, fitness for a particular purpose and non-infringement. You hereby agree that the terms of this Agreement will not be altered due to custom or usage or due to the parties’ course of dealing or course of performance under this Agreement. Circuit ID™ and the Circuit ID™ Parties will not be liable for any direct, indirect, incidental, special, punitive or consequential damages (including but not limited to damages for lost profits, business interruption, loss of programs or information, and the like) that result from the use or inability to use the Services or from mistakes, the Services not meeting Your requirements or expectations, omissions, hardware failures, translations and system wordings, functionality of filters, migration issues, interruptions, deletion of files or directories, unavailability of backups, errors, defects, delays in operation, or transmission, regardless of whether Circuit ID™ or any Circuit ID™ Party has been advised of such damages or their possibility. Circuit ID™ will not be liable for any harm that may be caused by the execution or transmission of malicious code or similar occurrences, including without limitation, disabling devices, drop dead devices, time bombs, trap doors, trojan horses, worms, viruses and similar mechanisms. If you have any basis for recovering damages (including breach of these Terms), you agree that the total liability and your exclusive remedy is to recover, from Circuit ID or any affiliates, resellers, distributors, Third-Party Apps and Services providers, and vendors, direct damages up to an amount equal to your Services fee for the month during which the loss or breach occurred (or up to $5.00 if the Services are free), not exceeding one month of Services fees. You can't recover any other damages or losses, including direct, consequential, lost profits, special, indirect, incidental, or punitive. These limitations and exclusions apply even if this remedy doesn't fully compensate you for any losses or fails of its essential purpose or if we knew or should have known about the possibility of the damages. To the maximum extent permitted by law, these limitations and exclusions apply to anything or any claims related to these Terms, the Services, or the software related to the Services.
8.2. Other Liability. None of the Circuit ID™ Parties is responsible to You for any warranty provided by Circuit ID™.
8.3. Third-Party Services. Circuit ID™ may link to or offer Third-Party Services on Circuit ID™’s website or otherwise through the Services. Any purchase, enabling or engagement of Third-Party Services, including but not limited to implementation, customization, consulting services, and any exchange of Data between You and any Third-Party Service, is solely between You and the applicable Third-Party Service provider and is subject to the terms and conditions of such Third-Party Provider. Circuit ID™ does not warrant, endorse or support Third-Party Services and is not responsible or liable for such Services or any losses or issues that result as Your use of such services. If You purchase, enable or engage any Third-Party Service for use in connection with the Services, You acknowledge that Circuit ID™ may allow providers of those Third-Party Services to access Your Data used in connection with the Services as required for the interoperation of such Third-Party Services with the Services. You represent and warrant that Your use of any Third-Party Service signifies Your independent consent to the access and use of Your Data by the Third-Party Service provider, and that such consent, use and access is outside of Circuit ID™’s control. Circuit ID™ will not be responsible or liable for any disclosure, modification or deletion of Data resulting from any such access by Third-Party Service providers.
9.1. No Transfer. Except for rights expressly granted herein, this Agreement does not transfer any intellectual or other property or proprietary right to You. All right, title, and interest in any Service provided to You, including without limitation any copyright, trade secret and vested or potential trademark and patent rights, is solely the property of Circuit ID™ and its vendors and licensors. As between You and Circuit ID™, all materials distributed by Circuit ID™ in connection with the Services will at all times remain the property of Circuit ID™, and upon the request of Circuit ID™ or upon termination of this Agreement, You will promptly return any and all such materials.
9.2. Control. Circuit ID™ will have sole and complete control over, and reserves the right at any time to make changes to, the configuration, appearance, content and functionality of the Services. In addition, Circuit ID™ reserves the right, at any time, without prior notice, to the exercise of its sole discretion to suspend or terminate any Service for the protection of the security and integrity of the Services or other business, technical or financial considerations as determined by Circuit ID™.
9.3. Feedback License. Circuit ID™ will have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You and Your Users to Circuit ID™ or any Circuit ID™ Party.
9.4. Circuit ID™ shall own all rights, title and interest (including patent rights, copyrights, trade secret rights, mask work rights, trademark rights, database rights and all other rights of any sort throughout the world) whether or not patentable, works of authorship, mask works, designations, designs, know-how, ideas and information made or conceived or reduced to practice, in whole or in part, by Customer in connection with the development of Circuit ID™ products and/or services.
You are responsible for and must provide all hardware, software, services and other components necessary to access and use the Services. Circuit ID™ makes no representations, warranties, or assurances that Your hardware, software, services and other components will be compatible with any Service. Circuit ID™ reserves the right to change or upgrade any equipment or software that it uses to provide the Services without notice to You. Circuit ID™ will install security patches, updates, upgrades and service packs (“Updates”) as it determines in its sole discretion, and reserves the right, but not the obligation, to roll back any Updates. Updates may change system behavior and functionality and as such may negatively affect the Services used by You. Circuit ID™ cannot foresee nor can it be responsible or liable for service disruption or changes in functionality or performance due to Updates. Circuit ID™ is not responsible or liable for issues that may arise from incompatibilities between Your Data and use of the Services and any Update or hardware or software change or configuration, regardless of whether discretionary or requested.
You will defend, indemnify, save, and hold Circuit ID™ and the Circuit ID™ Parties harmless from any and all demands, liabilities, losses, costs, and claims, including reasonable attorneys’ fees, asserted against them that may arise or result from Your use of the Services, Your breach of this Agreement, Your negligence or willful misconduct, or any of Your own services or products.
13.1. Governing Law; Jurisdiction; Forum; Attorneys’ Fees. This Agreement will be governed by and construed in accordance with the laws of the State of California without regard to its conflicts of laws or its principles. Any claim or suit arising out of or relating to this Agreement will be brought in any court of competent jurisdiction located in the County and State of California. In any action to enforce this Agreement, including, without limitation, any action by Circuit ID™ for the recovery of fees due hereunder, You will pay Circuit ID™ reasonable attorneys’ fees and costs in connection with such action if Circuit ID™ prevails in such action. You agree to waive the right to trial by jury with respect to any proceeding related to or arising out of this Agreement.
13.2. Written Communications and Notice. You accept that communication from Circuit ID™ may be electronic. Circuit ID™ may contact You by e-mail or provide You with information by posting notices on Circuit ID™’s website or to Your Account. You agree to this electronic means of communication and You acknowledge that all contracts, notices, information and other communications that Circuit ID™ provides to You electronically are acceptable and effective as notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder will be in writing and will be deemed to have been given (i) immediately upon personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email or, if from Circuit ID™ to You, online posting. Notices to You may be addressed by Circuit ID™ to any e-mail address, postal address or facsimile number registered with Circuit ID™, or through means of online posting through the Services. Notices to Circuit ID™ that are not expressly authorized by administrative control panel under this Agreement shall be mailed to Circuit ID™,” Inc, 1055 West 7th Street, Penthouse 33rd Floor, Los Angeles, California 90017., Attn: Legal Department, or such other address as designated on Circuit ID™’s website from time to time.
13.3. Age and Capacity. You hereby represent and warrant that each User has reached the older of (i) the age of eighteen and (ii) the age of majority in the User’s jurisdiction, and that You are not subject to a limitation on Your ability to enter into this Agreement.
13.4. Severability. If any one or more of the provisions contained herein will, for any reason, be held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any of the other provisions of this Agreement, and this Agreement will be construed as if such provision(s) had never been contained herein, provided that such provision(s) will be curtailed, limited, or eliminated only to the extent necessary to remove the invalidity, illegality, or unenforceability.
13.5. Waiver. No waiver by Circuit ID™ of any breach by You of any of the provisions of this Agreement will be deemed a waiver of any preceding or succeeding breach of this Agreement. No such waiver will be effective unless it is in writing signed by the parties hereto, and then only to the extent expressly set forth in such writing.
13.6. No Assignment. No benefit or duty of You under this Agreement will, without the consent of Circuit ID™,
be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt to do so will be void. Circuit ID™ may assign this Agreement without Your consent and without notice.
13.7. Force Majeure. Except for monetary obligations, this Agreement and Your obligations hereunder will not be affected or impaired because Circuit ID™ is unable to fulfill any of its obligations hereunder or is delayed in doing so, if such inability or delay is caused by reason of Force Majeure Event and Circuit ID™’s obligations under this Agreement will be suspended by any such Force Majeure Event. “Force Majeure Event” is any cause beyond Circuit ID™’s reasonable control or anticipation, including, without limitation, acts of war, acts of god, terrorism, earthquake, hurricanes, flood, fire or other casualty, embargo, riot, sabotage, labor shortage or dispute, governmental act, insurrections, epidemics, quarantines, inability to procure materials or transportation facilities, failure of power, restrictive governmental laws or regulations, condemnation, acts of
third parties, failure of the Internet or other reason that is beyond Circuit ID™’s reasonable control or anticipation.
13.8. Survival. The preamble and Sections 2, 3, 4, 5, 6, 8, 9, 11, 12, 13 and 14 of this Agreement will survive termination.
13.9. Entire Agreement; Third Party Beneficiaries. This Agreement constitutes the entire agreement for provision of the Services to You and supersedes all other prior agreements and understandings, both written and oral, between You and Circuit ID™ with respect to the Services. You understand and agree that (a) Circuit ID™ and You intend to include, as the sole third party beneficiaries of this Agreement, the Circuit ID™ Parties, including Research in Motion Limited, and (b) in the event of any breach of this Agreement, such Circuit ID™ Parties shall have all rights and remedies available to them as if they were parties to this Agreement, including claiming the benefit of Section 8.
APPENDIX A. MICROSOFT SOFTWARE USE – TERMS AND CONDITIONS
This document (hereinafter, “Appendix A”) concerns Your use of Microsoft software, which includes computer software provided to You by Circuit ID™ as described below, and may include associated media, printed materials, and “online” or electronic documentation (individually or collectively “Licensed Products”). Circuit ID™ does not own the Licensed Products and the use thereof is subject to certain rights and limitations of which Circuit ID™ needs to inform You. Your right to use the Licensed Products is subject to Your agreement with Circuit ID™, and to Your understanding of, compliance with and consent to the following terms and conditions, which Circuit ID™ have authority to vary, alter or amend.
For purposes of this Appendix, the following definitions will apply:
“Client Software” means software that allows a Device to access or utilize the services or functionality provided by the Server Software.
“Device” means each of a computer, workstation, terminal, handheld PC, pager, telephone, personal digital assistant, “smart phone”, or other electronic device.
“Server Software” means software that provides services or functionality on a computer acting as a server.
“Redistribution Software” means software described in Paragraph 6 (“Use of Redistribution Software”) below.
2. OWNERSHIP OF LICENSED PRODUCTS. The
Licensed Products are licensed to Circuit ID™ from an affiliate of the Microsoft Corporation (“Microsoft”). All title and intellectual property rights in and to the Licensed Products (and the constituent elements thereof, including but not limited to any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the Licensed Products) are owned by Microsoft or its suppliers. The Licensed Products are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Your possession, access, or use of the Licensed Products does not transfer any ownership of Licensed
Products or any intellectual property rights to You.
3. COPYRIGHT, TRADEMARK AND PATENT
NOTICES. You must not remove, modify or obscure any copyright, trademark or other proprietary rights notices that are contained in or on the Licensed Products. You must include Microsoft’s copyright notice on any labels or documentation (including online documentation) for Circuit ID™’s products that include the Licensed Products. You have no right under this Agreement to use any Microsoft logos in any manner whatsoever. Whenever a Licensed Product is first referenced in any written or visual communication, You must use the appropriate trademark, Licensed Product descriptor and trademark symbol (either ™ or ®), and clearly indicate Microsoft’s (or Microsoft’s suppliers’) ownership of such marks. For information on Microsoft trademarks, including a listing of current trademarks, see http://www.microsoft.com/trademarks. You must not undertake any action that will interfere with or diminish Microsoft’s (or Microsoft’s suppliers’) right, title and/or interest in the trademark(s) or trade name(s). At Microsoft’s or Circuit ID™’s request, You must provide Microsoft with samples of all of Your written or visual materials that use a Licensed Product name.
4. ANTI-PIRACY. You must not engage in the manufacture, use, distribution or transfer of counterfeit, pirated or illegal software. You may not distribute or transfer Licensed Products to any party that You know is engaged in these activities. You must report to Microsoft any suspected counterfeiting, piracy or other intellectual property infringement in computer programs, manuals, marketing materials or other materials owned by Microsoft, its Affiliates and/or its licensors as soon as You become aware of it. You will cooperate with Microsoft in the investigation of any party suspected of these activities.
5. USE OF CLIENT SOFTWARE. You may use the Client Software installed on Your Devices by Circuit ID™ only in accordance with the instructions, and only in connection with the services, provided to You by Circuit ID™. The terms of this Appendix A permanently and irrevocably supersede the terms of any Microsoft End User License Agreement that may be presented in electronic form during Your use of the Client Software.
6. USE OF REDISTRIBUTION SOFTWARE. In connection with the services provided to You by Circuit ID™, You may have access to certain “sample,” “redistributable” and/or software development (“SDK”) software code and tools (Individually and collectively “Redistribution Software”). YOU MAY NOT USE, MODIFY, COPY, AND/OR DISTRIBUTE ANY REDISTRIBUTION SOFTWARE UNLESS YOU EXPRESSLY AGREE TO AND COMPLY WITH CERTAIN ADDITIONAL TERMS CONTAINED IN THE SERVICES PROVIDER USE RIGHTS (“SPUR”) APPLICABLE TO CIRCUIT ID™, WHICH TERMS MUST BE PROVIDED TO YOU BY CIRCUIT ID™. Microsoft does not permit You to use any Redistribution Software unless You expressly agree to and comply with such additional terms, as provided to You by Circuit ID™.
7. COPIES. You may not make any copies of the Licensed Products; provided, however, that You may
(a) make one (1) copy of Client Software on Your Device as expressly authorized by Circuit ID™; and (b) You may make copies of certain Redistribution Software in accordance with Paragraph 6 (Use of Redistribution Software). You must erase or destroy all such Client Software and/or Redistribution Software upon termination or cancellation of Your agreement with Circuit ID™, upon notice from Circuit ID™ or upon transfer of Your Device to another person or entity, whichever first occurs. You may not copy any printed materials accompanying the Licensed Products.
8. LIMITATIONS ON REVERSE ENGINEERING, DECOMPILATION AND DISASSEMBLY. You may not reverse engineer, decompile, or disassemble the Licensed Products, except and only to the extent that applicable law, notwithstanding this limitation expressly permits such activity.
9. NO RENTAL. You may not rent, lease, lend, pledge, or directly or indirectly transfer or distribute Licensed Products to any third party, and You may not permit any third party to have access to and/or use the functionality of the Licensed Products.
10. TERMINATION. Without prejudice to any other rights, Circuit ID™ may terminate Your rights to use the Licensed Products if You fail to comply with these terms and conditions. In the event of termination or cancellation, You must stop using and/or accessing the Licensed Products, and destroy all copies of the Licensed Products and all of their component parts.
11. NO WARRANTIES, LIABILITIES OR REMEDIES BY MICROSOFT. ANY WARRANTIES, LIABILITY FOR DAMAGES AND REMEDIES, IF ANY, ARE PROVIDED SOLELY BY CIRCUIT ID™ AND NOT BY MICROSOFT OR ITS AFFILIATES OR
12. PRODUCT SUPPORT. Any product support for the Licensed Products is provided to You by Circuit ID™ and is not provided by Microsoft or its affiliates or subsidiaries.
13. NOT FAULT TOLERANT. THE LICENSED PRODUCTS MAY CONTAIN TECHNOLOGY THAT IS NOT FAULT TOLERANT AND IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS OR APPLICATIONS IN WHICH THE FAILURE OF THE Licensed
Products COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL, PROPERTY OR ENVIRONMENTAL DAMAGE.
14. EXPORT RESTRICTIONS. The Licensed Products are of U.S. origin for purposes of U.S. export control laws. You agree to comply with all applicable international and national laws that apply to the Licensed Products, including U.S. Export Administration Regulations, as well as end-user, endues and destination restrictions issue by U.S. and other governments. For additional information, see http://www.microsoft.com/exporting/.
DISCLOSURE OF INFORMATION. You hereby consent to Circuit ID™ providing information regarding Your Account to Microsoft to the extent it is required to do so under the terms of its license agreement with Microsoft.
15. LIABILITY FOR BREACH. In addition to any liability You may have to Circuit ID™, You agree that You will also be legally responsible directly to Microsoft for any breach of these terms and conditions.
16. OWA ACCESS RESTRICTIONS. You acknowledge and agree that if You have an Outlook Web access only (OWA-only) Account (Basic SAL license), You are restricted from and will not use shared folders, shared calendars, shared contacts, shared tasks and public folders with respect to such access.