This Customer Agreement and Terms of Service (this “Agreement”) contains the terms and conditions that govern your access to and use of the Service (as defined below) and is an agreement between Engineering Semantics, LLC ( “_____,” “we,” “us,” or “our” ) and you or the entity you represent ( “you” ). This Agreement takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you use the Service (the “Effective Date” ). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company or organization you work for, you represent to us that you have legal authority to bind that entity. See Section 13 for definitions of certain capitalized terms used in this Agreement.
You may access and use the Service in accordance with this Agreement. You will adhere to all laws, rules, and regulations applicable to your use of the Service, including the Acceptable Use Policy as defined in Section 13. You understand and agree that:
(a) Your use of the Service is at your sole risk. The service is provided on an “as is” and “as available” basis;
(b) Support for the Services is only available in English, via email;
(c) We use third-party vendors (e.g. payment provider used to process fees and charges) and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service; and
(d) We may, but have no obligation to, remove Content and Accounts containing Content that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, or otherwise objectionable or violates any party’s intellectual property, the Acceptable Use Policy or these Terms of Service.
To access the Service, you must create an account associated with a valid e-mail address and any other information requested to complete the signup process. Unless explicitly permitted, you may only create one account per email address.
You are solely responsible for the development, content, operation, maintenance, and use of Your Content. For example, you are solely responsible for:
(a) the technical operation of Your Content, including ensuring that calls you make to the Service are compatible with then-current APIs for the Service;
(b) compliance of Your Content with the Acceptable Use Policy, and the law;
(c) any claims relating to Your Content; and
(d) properly handling and processing notices sent to you (or any of your affiliates) by any person claiming that Your Content violates such person’s rights, including notices pursuant to the Digital Millennium Copyright Act.
You are responsible for properly configuring and using the Service and taking your own steps to maintain appropriate security, protection and backup of Your Content, which may include the use of encryption technology to protect Your Content from unauthorized access and routine archiving Your Content. Your log-in credentials and private keys generated by the Service are for your internal use only and you may not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf. You are responsible for all activities that occur under your account and maintaining the security of your account, regardless of whether the activities are undertaken by you, your employees or a third party (including your contractors or agents) and, except to the extent caused by our breach of this Agreement, we and our affiliates will not be responsible for unauthorized access to your account or for any loss or damage from your failure to comply with this security obligation. You will contact us immediately if you believe an unauthorized third party may be using your account or if your account information is lost or stolen. You may terminate your account and this Agreement at any time in accordance with Section 7.
We may change, discontinue, or deprecate the Service or change or remove features or functionality of the Service. We will notify you of any material change to or discontinuation of the Service.
We may change, discontinue or deprecate any APIs for the Service from time to time but will use commercially reasonable efforts to continue supporting the previous version of any API changed, discontinued, or deprecated for 6 months after the change, discontinuation, or deprecation (except if doing so (a) would pose a security or intellectual property issue, (b) is economically or technically burdensome, or (c) is needed to comply with the law or requests of governmental entities).
3.1 Security.Without limiting Sections 9 and 10 or your obligations under Section 1.4, we will implement reasonable and appropriate measures designed to help you secure Your Content against accidental or unlawful loss, access or disclosure.
We will specify the _________ regions in which Your Content will be stored and accessible by You. We will not move Your Content from the selected _____ regions without notifying you, unless required to comply with the law or requests of governmental entities. You consent to our collection, use and disclosure of information associated with the Service, and to the processing of Your Content in, and the transfer of Your Content into, the _______ regions We select.
We calculate and bill fees and charges in advance on a monthly basis. We may bill you more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment. You will pay us the applicable fees and charges for use of the Service using one of the payment methods we support as described on our Site.
All amounts payable under this Agreement must be made without setoff or counterclaim, and without any deduction or withholding. There will be no refunds or credits for partial months of service, or for months unused with an open account. In order to treat everyone equally, no exceptions will be made.
Fees and charges for any new Service or new feature of a Service will be effective when we post updated fees and charges on our Site unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Service by giving you at least 30 days’ advance notice.
In addition to any rights We have under Sections 5 and 6, We may charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.
All fees and charges are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes.
We may suspend your right to access or use any portion or all of the Service immediately upon notice to you if we determine that:
(a) your use of or registration for the Service (i) poses a security risk to the Service or any third party, (ii) may adversely impact the Service or the systems or Content of any other customer, (iii) may subject us, or any third party to liability, or (iv) may be fraudulent;
(b) you are in breach of this Agreement, including if you are delinquent on your payment obligations for more than 10 days; or
(c) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
If we suspend your right to access or use any portion or all of the Service:
(a) you remain responsible for all fees and charges you have incurred through the date of suspension;
(b) you remain responsible for any applicable fees and charges for the portion of the Service to which you continue to have access, as well as applicable data storage fees and charges, and fees and charges for in-process tasks completed after the date of suspension;
(c) you will not be entitled to any credit for any period of suspension; and
(d) we will not erase any of Your Content as a result of your suspension, except as specified elsewhere in this Agreement.
Our right to suspend your right to access or use the Service is in addition to our right to terminate o this Agreement pursuant toSection 6.2.
The term of this Agreement will commence on the Effective Date and will remain in effect until terminated by you or us in accordance with Section 6.2.
(a) Termination for Convenience. You may terminate this Agreement for any reason by: (i) providing us notice and (ii) closing your account for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you 30 days advance notice.
(b) Termination for Cause.
(a) Generally. Upon any termination of this Agreement:
(i) all your rights under this Agreement immediately terminate;
(ii) you remain responsible for all fees and charges you have incurred through the date of termination, including fees and charges for in-process tasks completed after the date of termination;
(iii) you will immediately return or, if instructed by us, destroy all Our Content in your possession; and
(iv) Sections 1.3, 4, 6.3, 7 (except the license granted to you in Section 7.3), 8, 9, 10, 12 and 13 will continue to apply in accordance with their terms.
(b) Post-Termination Assistance. Unless we terminate your use of the Service pursuant to Section 6.2(b), during the 30 days following termination:
(i) we will not immediately erase any of Your Content as a result of the termination;
(ii) you may retrieve Your Content from the Service for up to 3 months after termination only if you have paid any fees or charges for any post-termination use of the Service and all other amounts due; and
(iii) we will provide you with the same post-termination data retrieval assistance that we generally make available to all customers.
Any additional post-termination assistance from us is subject to mutual agreement by you and us.
As between you and us, you own all right, title, and interest in and to Your Content. Except as provided in this Section 7, we obtain no rights under this Agreement from you to Your Content, including any related intellectual property rights. You consent to our use of Your Content to provide the Service to you. We may disclose Your Content to provide the Service to you or to comply with any request of a governmental or regulatory body (including subpoenas or court orders).
You represent and warrant to us that:
(a) you own all right, title, and interest in and to Your Content and Your Submissions;
(b) you have all rights in Your Content and Your Submissions necessary to grant the rights contemplated by this Agreement; and
(c) none of Your Content, Your Submissions or your use of Your Content, Your Submissions or the Services will violate the Acceptable Use Policy or any law.
As between you and us, we own and reserve all right, title, and interest in and to the Service, the Content, Our Content and Our Confidential Information. We grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following during the term of this Agreement: (i) access and use the Service solely in accordance with this Agreement; and (ii) copy and use the Content solely in connection with your permitted use of the Service. Except as provided in this Section 7.3, you obtain no rights under this Agreement from us to the Service, the Content, Our Content or Our Confidential Information, including any related intellectual property rights, trademarks and/or brand features.”Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.
You cannot use the Service in any manner or for any purpose other than as expressly permitted by this Agreement. You will not, nor attempt to, (a) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Service, (b) reverse engineer, disassemble, or decompile the Service or apply any other process or procedure to derive the source code of any software included in the Service, (c) access or use the Service in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Service. All licenses granted to you in this Agreement are conditional on your continued compliance this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement. During and after the term of this Agreement, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us any patent infringement or other intellectual property infringement claim regarding any Service you have used.
If you provide any Suggestions to us, we will own all right, title, and interest in and to the Suggestions, even if you have designated the Suggestions as confidential. We will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we may require to document, perfect, and maintain our rights in the Suggestions.
You will defend, indemnify, and hold harmless us, and each of our employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) your use of the Service (including any activities under your account and use by your employees and personnel); (b) breach of this Agreement or violation of applicable law by you; (c) Your Content or the combination of Your Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by Your Content or by the use, development, design, production, advertising or marketing of Your Content; or (d) a dispute between you and any third-party. If we are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for all of our reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.
We will promptly notify you of any claim subject toSection 8.1, but our failure to promptly notify you will only affect your obligations underSection 8.1 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
THE SERVICE IS PROVIDED “AS IS.” WE MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE, INCLUDING ANY WARRANTY THAT THE SERVICE WILL MEET YOUR SPECIFIC REQUIREMENTS, BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE OR FREE OF HARMFUL COMPONENTS, OR THAT ANY CONTENT, INCLUDING YOUR CONTENT, WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. EXCEPT TO THE EXTENT PROHIBITED BY LAW, WE DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE.
WE WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA OR OTHER INTANGIBLE LOSSES), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, WE WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICE, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE, (II) OUR DISCONTINUATION OF ALL OR A PORTION OF THE SERVICE, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICE FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 6MONTHS PRECEDING THE CLAIM.
WE WILL NOT BE LIABLE FOR ANY DELAY or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
We may modify this Agreement at any time by posting a revised version on Our Site or by otherwise notifying you in accordance with Section 12.4; provided, however, that we will provide at least 60 days advance notice in accordance with Section 12.4 for adverse changes to any Agreement. Subject to the 60-day advance notice requirement with respect to adverse changes to the Agreement, the modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Service after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check Our Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the end of this Agreement.
We and you are independent contractors, and neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
This Agreement does not create any third party beneficiary rights in any individual or entity that is not a party to this Agreement.
The Service is provided to the U.S. Government as commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Service. If you are using the Service on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Service. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Our Site; or (ii) sending a message to the email address then associated with your account. Notices we provide by posting on Our Site will be effective upon posting, and notices we provide by email will be effective when we send the email. It is your responsibility to keep your email address current. You will be deemed to have received any email sent to the email address then associated with your account when we send the email, whether or not you actually receive the email.
(b) To Us. To give us notice under this Agreement, you must contact us by personal delivery, overnight courier or registered or certified mail to ______________________________________, Fairfax, VA __________. We may update the address for notices to us by posting a notice on Our Site. Notices provided by personal delivery will be effective upon delivery. Notices provided by overnight courier will be effective one business day after they are sent. Notices provided registered or certified mail will be effective three business days after they are sent.
(c) Language. All communications and notices to be made or given pursuant to this Agreement must be in the English language.
You will not assign this Agreement, or delegate or sublicense any of your rights under this Agreement, without our prior written consent. Any assignment or transfer in violation of this Section 12.5 will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.
The laws of the State of Virginia, without reference to conflict of law rules, govern this Agreement and any dispute of any kind that might arise between you and us. Any dispute relating in any way to the Service Offerings or this Agreement where a party seeks aggregate relief of $7,500 or more will be adjudicated in any state or federal court in Fairfax County, Virginia. You consent to exclusive jurisdiction and venue in those courts. We may seek injunctive or other relief in any state or federal court of competent jurisdiction for any actual or alleged infringement of our or any third party’s intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.
This Agreement is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement. Notwithstanding any other agreement between you and us, the security and data privacy provisions in Section 3 of this Agreement contain our entire obligation regarding the security, privacy and confidentiality of Your Content. We will not be bound by, and specifically object to, any term, condition or other provision which is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and which is submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document.
“Acceptable Use Policy” means You may not use, or encourage, promote, facilitate or instruct others to use, the Service for any illegal, harmful or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, or offensive.
“API”means an application program interface.
“Our Confidential Information”means all nonpublic information disclosed by us, or our employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Our Confidential Information includes: (a) nonpublic information relating to our technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us. Our Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act, including but not limited to a breach of this Agreement; or (iv) can be shown by documentation to have been independently developed by you without reference to the Our Confidential Information.
“Our Content”means Content we make available in connection with the Service or on Our Site to allow access to and use of the Service, including WSDLs Documentation; sample code; software libraries; command line tools; and other related technology. Our Content does not include the Service.
“Our Site” means http://engineeringsemantics.com and any successor or related web sites or other URLs designated by us.
“Content”means software (including machine images), data, text, audio, video, images or other content.
“Service” means the web services made available by us, including associated APIs, the Content, Our Site, and any other product or service provided by us under this Agreement. Service does not include Third Party Content.
“Suggestions” means all suggested improvements to the Service that you provide to us.
“Third Party Content” means Content made available to you by any third party on Our Site or in conjunction with the Service.
“Your Content”B> means Content you (a) run on the Service, (b) cause to interface with the Service, or (c) upload to the Service under your account or otherwise transfer, process, use or store in connection with your account.
Last Modified 24 May 2017