Software as a Service
Subscription and License Agreement
9999 Hamilton Blvd. Suite 220
a. “Software” means FiberBase Software with the current functionality provided by FiberOptic.com, (FOM). It also includes any accompanying instructions, documentation, technical data, images, and other related materials.
b. “Use” means storing, loading, installing, executing, or displaying the Software on a device, and use of the Software by way of FOM’s server(s).
c. “Product” means Software product and its documentation as built at the time of the download.
d. “License” means the Software license grant and general license terms set forth herein.
f. “Term of Agreement” means the period from the date a subscription is purchased to the date of termination by either the user or FOM.
g. “Subscriber” (sometimes referred to as “you” or “your”), means the individual or entity that purchases the subscription under this Agreement.
h. “Customer” means Subscriber and any entity or individual who uses the Software through Subscriber’s subscription.
i. “This Agreement” means this entire Software as a Service Subscription and License Agreement.
j. “Reissue” means a product similar to the original Product downloaded, but updated to include those features and fixes that are included in the current release.
k. “Upgrade” means a new release of the Product that includes substantial new features.
2. SUBSCRIPTION TERMS
a. As part of this subscription, Subscriber receives a License as described below for the term of the paid subscription. FOM will provide updates to the Software, such as correction of “bugs” and certain limited improvements to existing functionality of the Software as FOM may choose to provide. The subscription does not automatically include the right to receive any Upgrades, Reissues or new Product Releases by FOM. FOM will at its own discretion determine whether and on what terms any Upgrade, Reissue or new Product Release will be made available to existing Subscribers.
b. The subscription entitles Customer to receive limited support as provided in the FOM published Maintenance Agreement and Support Agreement at the time said Agreement becomes effective.
c. FOM charges an annual fee, which can be billed monthly, per subscriber for the Software, a onetime establishment fee for initial setup and a per student charge for online training session(s). Additional training requirements will be provided at the rate quoted at the time of the request. Annual increases, if any, will not exceed 3 percent of the current rate per year.
The term of this agreement is for one year unless otherwise noted on the Sales Order. Billing must be paid in advance of the anniversary date. Contract renewal is extended upon the receipt of payment for an additional year and is based on the anniversary date of contract. If renewal of this subscription is not paid by the anniversary date, this Agreement and your subscription and license to Use the Software will automatically terminate without notice. It is your sole responsibility to ensure that payment is made prior to the anniversary date and to notify FOM (via firstname.lastname@example.org) of any billing, cancellation or seat count changes.
d. FOM will not pro-rate or refund any fees paid for the month (or year) in which termination occurred.
f. Subscriber may not assign or transfer this Agreement. Any such attempted assignment or transfer will be null and void. FOM may terminate this Agreement in the event of any such attempted assignment or transfer.
g. The data contained in the FiberBase database remains the property of FOM. Should either party choose to end the subscription license and access to the FOM server, the Subscriber will be provided an electronic copy of the data base in a mutually agreeable format. The rate of $200.00 per hour will be charged for this service.
h. Cancellation may be effected by written notification to FOM at 9999 Hamilton Blvd. Suite 220, Breinigsville, PA 18031, or email to email@example.com 45 days prior to the time you wish to cancel.
3. LICENSE GRANT AND TERMS
b. The Software is owned by FOM. The Software License confers no title or ownership and is not a sale of any rights in the Software. Customer is granted only the right to use the Software without right of sublicense.
c. Customer must retain all patent, copyright notices and other proprietary legends in or on the original Software. Customer may not remove from the Software, or alter, any of the FOM trademarks, trade names, logos, patent or copyright notices or markings, or add any other notices or markings to the Software. Customer may not copy the Software onto any public, private or distributed network.
d. Customer may not modify, reverse engineer, disassemble, decompile or otherwise attempt to access or determine the source code of the Software, copy, reproduce or distribute the Software in any way in whole or in part or create any derivative work based on the Software. Any use of these materials on any other website or networked computer environment for any purpose is prohibited. The Software is copyrighted and any unauthorized use of it is prohibited. If Customer breaches any of these terms, the License to Use the Software automatically terminates and Customer must immediately destroy any downloaded or printed materials.
e. Customer may not export or re-export this software or any copy or adaptation in violation of any applicable laws or regulations.
f. Customer agrees that Software contains proprietary information including trade secrets, knowhow and confidential information that is the exclusive property of FOM. During the period this Agreement is in effect and at all times after its termination, Customer and its employees and agents shall maintain the confidentiality of this information and not sell, license, publish, display, distribute, disclose or otherwise make available this information to any third party nor use such proprietary information concerning the Software, including any flow charts, logic diagrams, user manuals and screens, to persons not an employee of Customer without the prior written consent of FOM.
4. DISCLAIMERS AND LIMITATIONS
a. TO THE EXTENT ALLOWED BY LAW, THIS SOFTWARE AND THE ACCESS TO OUR SERVER ARE PROVIDED TO YOU “AS IS” WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED. FOM SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT, TITLE, ACCURACY OF INFORMATIONAL CONTENT, AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FOM OR FOM’s AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY. FOM DOES NOT REPRESENT THAT ITS SERVER WILL BE AVAILABLE AT ALL TIMES OR WILL BE FUNCTIONING PROPERLY WHEN YOU OR OTHERS WISH TO ACCESS THE FUNCTIONALITY OF THE SOFTWARE. OUR SERVER MAY BE UNAVAILABLE AT TIMES FOR MAINTENANCE OR FOR A VARIETY OF OTHER REASONS. WE ARE NOT LIABLE TO YOU FOR ANY PERIODS OF UNAVAILABILITY AND YOU WILL NOT BE ENTITLED TO ANY REFUNDS FOR THOSE PERIODS WHEN THE SERVER IS NOT AVAILABLE OR IS NOT FUNCTIONING PROPERLY. FOM SYSTEM BACK UP PROCEEDURE IS AS FOLLOWS: FILE SYSTEM FULL SNAPHOT EVERY FRIDAY AND DIFFERENTIAL AND INCREMENTAL MONDAY THROUGH THURSDAY. DATA BASE BACKUP: FULL EVERYDAY.
b. EXCEPT TO THE EXTENT PROHIBITED BY LAW, IN NO EVENT WILL FOM OR ITS SUBSIDIARIES, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, CONTRACTORS OR SUPPLIERS BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR OTHER DAMAGES (INCLUDING LOST PROFIT, LOST DATA, OR DOWNTIME COSTS), ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SOFTWARE, WHETHER BASED IN WARRANTY, CONTRACT, TORT OR OTHER LEGAL THEORY, AND WHETHER OR NOT FOM WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOM AND ITS SUPPLIERS’ ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDY SHALL BE, AT FOM’S OPTION, FROM TIME TO TIME EXERCISED SUBJECT TO APPLICABLE LAW, (a) RETURN OF THE PRICE PAID (IF ANY) FOR THE PRODUCT, OR (b) REPAIR OR REPLACEMENT OF THE PRODUCT.
c. NOTE, EXCEPT TO THE EXTENT ALLOWED BY LOCAL LAW, THESE WARRANTY TERMS DO NOT EXCLUDE, RESTRICT OR MODIFY, AND ARE IN ADDITION TO, THE MANDATORY STATUTORY RIGHTS APPLICABLE TO THE LICENSE OF THE SOFTWARE TO YOU.
d. FOM DOES NOT PROMISE THAT THE SOFTWARE WILL FUNCTION ON OR BE COMPATIBLE WITH YOUR DEVICE. FOM DOES NOT PROMISE OR WARRANT THAT YOUR DEVICE WILL BE COMPATIBLE WITH THE FUNCTIONALITY AVAILABLE THROUGH OUR SERVER. IT IS CUSTOMER’S SOLE RESPONSIBILITY TO ENSURE THAT CUSTOMER’S DEVICE AND INTERNET ACCESS ARE COMPATIBLE WITH THE SOFTWARE AND THE SERVER FUNCTIONALITY.
b. Customer agrees not to use the Software or the Subscription to interfere with or disrupt servers or networks connected to the Software.
6. GENERAL PROVISIONS
a. This Agreement and any disputes arising hereunder shall be governed by the laws of the State of Pennsylvania, without regard to conflicts of laws principles. Customer hereby expressly consents to the jurisdiction and venue in Lehigh County, PA over any disputes arising from or related in any manner to this Agreement.
b. If any term or provision herein is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the terms or provisions herein will remain in full force and effect. Failure or delay in enforcing any right or provision of this Agreement shall not be deemed a waiver of such right or provision with respect to any subsequent breach. Provisions herein which by their nature extend beyond the termination of any license of Software will remain in effect until fulfilled.
c. This Agreement is the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Customer’s additional or different terms and conditions will not apply.