Terms of Usage - Radics Network

TERMS OF USE

Last modified August 13, 2013.

The following are the terms and conditions for use of RADICS product and service, downloadable components and documentation (referred to collectively as the “Service”) between EYES INC. (“RADICS”) and you (either an individual or a legal entity that you represent as an authorized employee or agent). If you are entering into this Agreement on behalf of your company, the terms “You” and “Your” in this Agreement means your company and all of its employees. PLEASE READ THIS AGREEMENT CAREFULLY. BY CLICKING THE “I ACCEPT” BUTTON OR CHECKING THE ACCEPT CHECKBOX DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT USE THE SERVICE. You also agree to the RADICS Privacy Policy, and if your level of service includes SLA, you also agree to the RADICS Service Level Agreement.

1. TERM, RENEWAL AND TERMINATION

The term of this Agreement is as set forth in your Order Form. In the absence of an Order Form, the term of Corporate and Enterprise packages is annual. For other paying packages the term is equal to the length of the billing cycle that you have chosen. The term of non-paying accounts is monthly. Trial accounts have a term of 15 days and, if are not converted to a paying account, expire at the end of their term. This agreement renews automatically for another term of equal length at the end of each term, unless it is previously terminated by either party. Annual terms require a 30 day written notice for cancelation. Monthly accounts must terminate the Service by signing into their account and completing the cancelation process. Either party may terminate this Agreement upon 30 days prior written notice in the event of a material breach that is not cured within thirty (30) days after notice. Cancelations that occur in the middle of a payment term (month, quarter, or year depending on payment schedule) will be made effective on the cancelation date. Accounts will not receive refunds for prepayment. You will be charged for the billing period in which you terminate your account according to the terms of this agreement. Upon the expiration or termination of the Agreement, You will cease to use the Service and remove all references to RADICS from your websites. Your account including all its data and applications is permanently deleted.

2. LICENSE

For the term of the Agreement, RADICS grants to You a limited, non-transferable, non-exclusive right to access and use its proprietary, commercially available Service for Your internal business use. The Service is made available to You as a hosted service. We host and retain physical control over the software and only make it available for access, and use by You and Your end users over the Internet through a web-browser. Nothing in this Agreement obligates RADICS to deliver or make available any copies of computer programs or code from the software to You. You may not rent, lease, distribute, or resell the Service, or use the Service as the basis for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, branding, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Service.

3. USAGE RULES

The Service is offered to you to help you with the operation of your business. You may not access the Service if you are a direct competitor of RADICS, or the RADICS Network application. You may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You may not, without RADICS prior written consent, allow any employee or consultant to perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan. You agree not to use the Service to: (i) conduct any business that is unlawful, (ii) infringe or otherwise violate a third party’s rights, (iii) collect information about third parties, without their express consent; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein, (v) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (vi) send or store infringing, obscene, pornographic, threatening, libelous, or otherwise unlawful or tortuous material, including material harmful to children or violative of third party privacy rights; (vii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (viii); attempt to gain unauthorized access to the Service or its related systems or networks, or (ix) falsify the origin of an email by forging the sender address or email header. RADICS reserves the right to disclose any information or materials as necessary to satisfy any applicable law, regulation, legal process or government request, or to edit, refuse to post or to remove any information or materials, in whole or in part, from the Service, at RADICS’s sole discretion, without any notice.

4. FREE PACKAGE

If you are using a RADICS Free package you agree (i) that your account and its applications will be disabled for the remainder of any month when it goes over its allocated capacity and resources, (ii) that RADICS is not liable for any loss or damage caused as a result of this practice, (iii) that you will not hide or otherwise tamper with any branding on your reports or screens, (iv) that you maintain accurate and up to date contact information, (v) that you do not sign up for more than one free account, and (vi) agree to receive sales and marketing emails from us and our partners. RADICS at its sole discretion immediately terminates your service if any of the requirements above are not met. RADICS reserves the right to discontinue free packages at any time at its sole discretion.

5. SUSPENSION DUE TO HARM

RADICS may suspend your account if it reasonably concludes that the activity of Your account is unlawful, or causes immediate harm to RADICS and/or others. If we suspend Your access to the Service, we will use commercially reasonable efforts to notify you and to resolve the issues causing the suspension of Service. RADICS shall not be liable to You nor to any third party for any suspension of the Service under such circumstances. It is Your responsibility to ensure that the contact information in your account is accurate for reaching You or Your representative.

6. FEES

Fees and any other charges for the use of the Service and for any add-ons and overages are described on the Order Form or RADICS website. They may change from time-to-time. If we change them, we will give you at least 30 days’ notice. If they do change, your continued use of the Service after the effective date indicates your agreement with the new fees and charges. Any change to fees and other charges will not be applicable to the Term in which the change occurs.

7. LATE PAYMENT

All Service fees are billed in advance according to Your chosen billing cycle. Overage fees are billed monthly arrears. All Fees shall be paid in United States dollars. If undisputed amounts are not paid within 30 days, your account is automatically suspended. Suspended accounts including their data and applications are automatically deleted 30 days after suspension. Reactivation of a suspended account requires the payment of all past due invoice and the reactivation fee. You must notify RADICS within 15 days of the end of a billing cycle regarding any amount in dispute and must include reasonable detail regarding such dispute.

8. OWNERSHIP OF INTELLECTUAL PROPERTY

You retain all right, title and interest to all the data that you, your employees or your app users upload or submit to your account in the course of using the Service “Customer Data”. You, not RADICS, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and RADICS shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. RADICS reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and RADICS shall have no obligation to maintain or forward any Customer Data. RADICS shall own all rights, title and interest in and to all intellectual property rights in the Service and software, and transactional and performance data. The license granted to You does not convey any rights in the Service, express or implied, or ownership in the Service or any intellectual property rights thereto. Any rights not expressly granted herein are reserved by RADICS.

9. UPGRADES AND UPDATES

RADICS reserves the right to enhance, upgrade, or modify the Service with or without notice to you. At RADICS’s sole discretion some upgrade and updates may be made available to You free of charge and some other features and functionalities may require additional fees if you choose to use them.

10. CONFIDENTIAL INFORMATION

For purposes of this Agreement, confidential information shall include Customer Data, and any information that is clearly identified in writing at the time of disclosure as confidential (“Confidential Information”). Each party shall: (a) keep confidential all Confidential Information disclosed to it by the other party or by a third-party; (b) not use the Confidential Information of the other party except to the extent necessary to perform its obligations or exercise rights under this Agreement; and (c) protect the confidentiality thereof in the same manner as it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of such Confidential Information). Either party may disclose Confidential Information on a need-to-know basis to its employees or contractors who have executed written agreements requiring them to maintain such information in strict confidence and use it only to facilitate the performance of their services in connection with the performance of the Services. Confidential Information shall not include information which: (1) is known publicly; (2) is generally known in the industry before disclosure; (3) has become known publicly, without fault of the recipient, subsequent to disclosure by the disclosing party; or (4) the recipient becomes aware of from a third party not bound by non-disclosure obligations to the disclosing party and with the lawful right to disclose such information to the recipient. Notwithstanding the foregoing, this Section will not prohibit the disclosure of Confidential Information to the extent that such disclosure is required by law or order of a court or other governmental authority or regulation. With respect to any information received by either party from the other as a result of any other relationship between the parties other than in the course of performance hereunder (e.g., business development, partnership, alliance, etc.), the parties will abide by the terms and conditions of any applicable Nondisclosure Agreement (or similar agreement) executed between the parties.

11. TAXES

All payments, fees and other charges payable by you to RADICS under this Agreement are exclusive of all federal, state, local and foreign taxes, levies and assessments. You are responsible for the payment of all such taxes, levies and assessments imposed on You or RADICS arising out of this Agreement, excluding any tax based on RADICS net income.

12. WARRANTIES

RADICS represents and warrants that (i) RADICS has all rights necessary to grant to You the rights set forth in this Agreement; (ii) the Service will perform substantially in accordance with the user manuals and/or technical requirements documents that are generally provided by RADICS in connection with the Service.

13. DISCLAIMER OF WARRANTIES

THE SERVICE AND THE SOFTWARE ARE PROVIDED “AS IS” AND RADICS. HEREBY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE, SOFTWARE, DOCUMENTATION, DELIVERABLES AND OTHER MATERIALS AND/OR SERVICES. RADICS DOES NOT WARRANT THAT OPERATION OF THE SOFTWARE OR SERVICE IS ERROR-FREE OR THAT ITS OPERATION WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE.

14. LIMITATION OF LIABILITY

In no event will either party be liable for any indirect, consequential, special, punitive, or exemplary damages arising out of this Agreement. The aggregate liability of either party to the other with respect to this Agreement is limited, to the extent possible under applicable law, to the fees collected by RADICS from You pursuant to this Agreement in the twelve months preceding the imposition of liability.

15. INDEMNIFICATION

RADICS will, at its expense, defend or at its option, settle any claim brought against You that the Service infringes any copyright, patent, trade secret, or any other proprietary right of any third party and will pay any final judgments awarded or settlements entered into; provided that You give prompt written notice to RADICS of any such claim and give RADICS the authority to proceed as contemplated herein. RADICS has the exclusive right to defend any infringement claim and make settlements thereof at its own discretion, and You may not settle or compromise such claim except with prior written consent of RADICS. You must give such assistance and information as RADICS reasonably requires. In the event any infringement claim, action or allegation is brought or threatened, RADICS may, at its sole option and expense: (i) procure for You the right to continue use of the Service or infringing part thereof; (ii) modify, amend, or replace the Service or infringing part thereof, with other software having reasonably comparable capabilities; or, if neither of the foregoing is commercially practicable, (iii) terminate this Agreement and refund to You the prorated amount of the fees prepaid by You that were to apply to the remainder of the unexpired Term, as calculated from the termination date through the remainder of the unexpired Term. The foregoing obligations will not apply to the extent the infringement arises as a result of: (i) any use of the Service in a manner other than as specified in this Agreement; (ii) any use of the Service in combination with other products, equipment, devices, software, systems or data not supplied by RADICS to the extent such claim is directed against such combination; or (iii) any alteration, modification or customization of the Service made by any party other than RADICS or RADICS’s authorized representative if such infringement would not have occurred without such modification or combination. This Section states the entire liability of RADICS with respect to infringement of any patent, copyright, trade secret or other intellectual property right. You shall indemnify, hold harmless and defend RADICS, at your expense, against any and all third-party claims, actions, proceedings, and suits brought against RADICS or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys’ fees and other litigation expenses) incurred by RADICS or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) your breach of this Agreement, (ii) your negligence or willful misconduct in connection with the Service, or (iii) your violations of applicable law in connection with the Services.

16. MODICATIONS TO TERMS OF SERVICE AND OTHER POLICIES

RADICS reserves the right to modify any of the terms and conditions contained in this Agreement, or any policy governing the Service, at any time, by posting the new agreement to the RADICS website. You are responsible for regularly reviewing the site. Your continued use of the Service following RADICS’s posting of the changes will constitute your acceptance of such changes.

17. COMPLIANCE WITH LAWS

Each party must comply with all laws, rules or regulations applicable to such party’s activities in relation to this Agreement, including export control laws of the United States which are applicable to the Service. RADICS will not provide You with any legal advice regarding compliance with data privacy or other relevant laws, rules or regulations in the jurisdictions in which You use the Service (“Laws”). You understand that the Service can be configured and used in ways that do and do not comply with Laws and it is Your sole responsibility to monitor its compliance and Your employee’s compliance with all relevant Laws.

18. SEVERABILITY AND WAIVER

If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach.

19. GOVERNING LAW

Unless prohibited by law, This Agreement shall be governed by and construed in accordance with the laws of the state of New Jersey without regard to its conflicts of laws or its principles. You agree, in the event any claim or suit is brought in connection with the RADICS’s provision of the Services to you, to submit to the jurisdiction of the state of Pennsylvania, and agree to the courts of Monroe County, Pennsylvania as the appropriate forum. IN NO EVENT MAY THIS AGREEMENT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.

20. U.S. GOVERNMENT RIGHTS

If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, shall be subject in all respects to the commercial license rights and restrictions provided in this Agreement.

21. ASSIGNMENT; CHANGE IN CONTROL

This Agreement may be assigned by RADICS to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any actual or proposed change in control of You that results or would result in a direct competitor of RADICS directly or indirectly owning or controlling 50% or more of You shall entitle RADICS to terminate this Agreement for cause immediately upon written notice.

22. NOTICES AND SERVICE OF PROCESS

RADICS may notify you via postings on radicsnetwork.net, or by the email as provided in your account. You may contact RADICS at the address below or by email at info@radicsnetwork.net .

Address

EYES INC / RADICS ATTN: Legal Department P O Box 229 Effort, PA 18330 USA

Additionally, RADICS accepts service of process at this address. Any notices that you provide without compliance with this section on Notices shall have no legal effect.