THIS IS A LEGAL DOCUMENT -- RETAIN FOR YOUR RECORDS
Important - Read Carefully. Notice to User:
This Software Agreement (“Agreement”) is a legal document by and between you and the corporation that you represent having a principal place of business at << customer address >> and Redwood Software Inc. and Affiliates (“REDWOOD”), a corporation having a principal place of business at 3005 Carrington Mill Blvd, Suite 510, Morrisville NC 27560, USA.
It is important that you read this document before using the RunMyJobs software (“Software”) and any accompanying documentation, including, without limitation printed materials, ‘online’ files, or electronic documentation. The terms and conditions of this Agreement shall govern and control your use of any and all of the services you purchased as indicated on the RunMyJobs website.
1. SOFTWARE LICENSE
(a) Limited License Grant. Upon your acceptance of this Agreement Redwood grants you a non-exclusive, non-transferable and non-sub-licensable, limited right and license to use the Software for your own internal business purposes for the duration of the Term (as defined in the Order Form). The limited license granted to you hereunder is expressly conditioned upon you not using the Software to distribute, timeshare, operate a service bureau or subscription service, use the Software for third party training services or distribute or market the Software by interactive cable or remote processing services or otherwise.
You acknowledge and agree:
(1) The Software may incorporate technical means of enforcing the licensing terms which may result in your inability to install the Software on hardware outside the terms of this Agreement or the ability to use the Software beyond the Term.
(2) Use of the Software implies the necessity to download and install a Software Agent on your local hardware.
(b) Reverse Engineering. You may not reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatsoever, directly or indirectly, or disclose any of the foregoing.
(c) Other Restrictions. You may not loan, rent, lease, sublicense, distribute or otherwise transfer all or any portion of the Software to third parties. You may not modify, adapt or translate the Software. You may not, directly or indirectly, encumber or suffer to exist any lien or security interest on the Software; knowingly take any action that would cause the Software to be placed in the public domain; or use the Software in any computer environment not specified in this Agreement. You will comply with applicable law and Redwood’s instructions regarding the use of the Software. You agree to notify your employees and agents who may have access to the Software of the restrictions contained in this Agreement and to ensure their compliance with these restrictions. YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE FOR THE ACCURACY AND ADEQUACY OF THE SOFTWARE FOR YOUR INTENDED USE AND YOU WILL INDEMNIFY AND HOLD HARMLESS REDWOOD FROM ANY THIRD PARTY SUIT TO THE EXTENT BASED UPON THE ACCURACY AND ADEQUACY OF THE SOFTWARE IN YOUR USE. WITHOUT LIMITATION, THE SOFTWARE IS NOT INTENDED FOR USE IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION, COMMUNICATION SYSTEMS OR AIR TRAFFIC CONTROL EQUIPMENT, WHERE THE FAILURE OF THE SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
2. INTELLECTUAL PROPERTY RIGHTS
You acknowledge the Software is the intellectual property of and is owned by Redwood. The structure, organization and code of the Software are the valuable trade secrets and confidential information of Redwood. The Software is protected by copyright, including without limitation by United States copyright law, international treaty provisions and applicable laws in the country in which it is being used. You acknowledge that Redwood retains all right, title and interest in and to all patents, copyrights, trade secrets, trademarks and other intellectual property rights pertaining to the Software. You will take no actions adversely affecting Redwood’s intellectual property rights in the Software. Except as expressly stated above, this Agreement does not grant you any intellectual property rights in the Software and you hereby agree to waive any such rights that may be afforded to you by applicable law. Notifications of claimed copyright infringement should be sent to Redwood’s copyright agent as further provided on the Redwood Web Site.
3. DISCLAIMER AND LIMITATION OF LIABILITY
(a) Disclaimer. REDWOOD AND ITS AFFILIATES DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE, THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR OPERATE IN THE COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL ERRORS WILL BE CORRECTED. A WARRANTY FOR LOSS OF DATA IS NOT IMPLIED. REDWOOD AND ITS AFFILIATES MAKE NO WARRANTIES, CONDITIONS, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED, WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE AS TO ANY OTHER MATTERS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, REDWOOD AND ITS SUPPLIERS DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, INFORMATIONAL CONTENT OR ACCURACY, QUIET ENJOYMENT, TITLE AND NON-INFRINGEMENT, WITH REGARD TO THE SOFTWARE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES.
(b) ) Limitation Of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW EVEN IF A REMEDY FAILS ITS ESSENTIAL PURPOSE, IN NO EVENT SHALL REDWOOD OR ITS SUPPLIERS BE LIABLE FOR: (A) ANY SPECIAL, INCIDENTAL, DIRECT, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE OR THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF REDWOOD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (B) ANY CLAIM OR DEMAND MADE BY A THIRD PARTY AGAINST YOU EXCEPT FOR CLAIMS OF PERSONAL INJURY OR DAMAGES TO TANGIBLE PROPERTY. IN ANY CASE, REDWOOD’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU FOR THE USE OF THE SOFTWARE IN THE 12 MONTHS PRECEDING THE EVENT CAUSING THE DAMAGES. THE DISCLAIMER AND LIMITED LIABILITY ABOVE ARE FUNDAMENTAL TO THIS AGREEMENT BETWEEN REDWOOD AND YOU.
(c) Infringement Claims. Redwood will indemnify and hold you harmless and will defend or settle any claim, suit or proceeding brought against you by a third party that is based upon a claim that the content contained in the Software infringes a copyright or violates an intellectual or proprietary right protected by United States or European Union law (“Claim”), but only to the extent the Claim arises directly out of the use of the Software and subject to the limitations set forth below, except as otherwise expressly provided. You must notify Redwood in writing of any Claim within ten (10) business days after you first receive notice of the Claim, and you shall provide to Redwood at no cost with such assistance and cooperation as Redwood may reasonably request from time to time in connection with the defense of the Claim. Redwood shall have sole control over any Claim (including, without limitation, the selection of counsel and the right to settle on your behalf on any terms Redwood deems desirable in the sole exercise of its discretion). You may, at your sole cost, retain separate counsel and participate in the defense or settlement negotiations. Redwood shall pay actual damages, costs, and attorney fees awarded against you (or payable by you pursuant to a settlement agreement) in connection with a claim to the extent such direct damages and costs are not reimbursed to you by insurance or a third party, limited to the amount actually paid by you for the use of the software in the 12 months preceding the date the claim was brought against you. If the Software or its use becomes the subject of a Claim or its use is enjoined, or if in the opinion of Redwood’s legal counsel the Software is likely to become the subject of a Claim, Redwood shall attempt to resolve the Claim by using commercially reasonable efforts to modify the Software or obtain a license to continue using the Software. If in the opinion of Redwood’s legal counsel the Claim, the injunction or potential Claim cannot be resolved through reasonable modification or licensing, Redwood, at its own election, may terminate this Agreement without penalty, and will, upon deactivation of the Software which you agree to perform immediately, refund to you on a pro rata basis any fees paid in advance by you to Redwood. Redwood shall have no liability for any Claim based upon: (a) use of a superseded or altered release of the Software or documentation if such infringement would have been avoided by the use of a current unaltered release of the Software or documentation; (b) the combination, operation or use of the Software with software, data, hardware or other materials not furnished by Redwood if such infringement would have been avoided by the use of the Software and documentation without such software, data, hardware or other materials or data; or (c) the combination, operation or use of the Software with hardware other than the devices named on the RunMyJobs website if such infringement would have been avoided by the use of Software and documentation without such hardware. THE FOREGOING CONSTITUTES REDWOOD’S SOLE AND EXCLUSIVE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT. This indemnity does not apply to infringements that would not be such, except for customer-supplied elements.
(d) Your Indemnity Obligations. You agree to defend, indemnify and hold Redwood and its affiliates harmless from all loss, liability, and settlement costs, including court costs and reasonable fees of attorneys, resulting from any claims brought against or incurred by Redwood arising from your any use of any product not provided by Redwood, but used in conjunction with Software, if such claim for damages would have been avoided by the exclusive use of the Software.
4. SUPPORT SERVICES
During the Term of this Agreement, Redwood shall provide the following support services:
(a) use all reasonable efforts to provide identification and resolution of bugs or errors reported by you in the then current release of the Software provided the Software is(are) unaltered; and
(b) access to the Redwood support web site.
You can find the support conditions at http://www.runmyjobs.com/info/support-terms. The support conditions are incorporated by reference into this Agreement. Redwood has the right in its sole discretion to amend the support provisions of the Agreement at any time.
Redwood neither warrants that the Software will work without delay or bugs nor that all bugs can be corrected. Redwood can charge you for the costs of support in case of errors in use by you or in case the Software has been altered or maintained by third parties. Recovery of lost data is not included in the support services. You agree to cooperate with Redwood in its delivery of support services by providing to Redwood troubleshooting assistance according to Redwood’s reasonable request and detailed instructions.
The following matters are not covered by support services:
You agree that in addition to paying the fees appropriate to your use of the service, you are responsible for procuring, installing, and maintaining all equipment, telephone lines, communications interfaces, and other hardware necessary in order to access the Software and receive the support services. Redwood will not be responsible for delays in providing support services caused by events or circumstances beyond its reasonable control.
You consent to and permit Redwood to electronically monitor the Software in connection with providing support services, and to review your configurations of the Software in a non-disruptive manner.
You agree that, in order for Redwood to perform support and maintenance services to the Software, scheduled down time of the services might be necessary. The scheduled downtime (“Service Window”) as well as the corresponding functional changes to the Software, will be announced on the RunMyJobs Web site with the applicable period of time for notice.
5. PAYMENT PROVISIONS
(a) Fees and Prices; Taxes. Fees for the use of the Software, documentation or support services supplied under this Agreement shall be as specified on the RunMyJobs website. Fees and other charges are exclusive of, and you are responsible for, all other duties or taxes (except taxes based on Redwood income). All taxes (except taxes based on Redwood income) shall be billed to and paid by you in addition to the fees at the rate in effect on the date of invoice. Redwood may increase or add new fees for any existing or new Service by giving you at least 30 days’ advance notice.
(b) Definition of a Job. For RunMyJobs billing purposes a 'job' is defined as an execution of either a RunMyJobs job or job chain definition, where a job chain is a group of job definitions linked together to run in a specific sequence. For example if a job chain definition submits 10 jobs this will count as 11 jobs for billing purposes (1 for the job chain itself and 10 for the jobs it submitted).
(c) Invoicing and Payment. You can find the invoicing and payment conditions on the RunMyJobs Web site. The invoicing and payment conditions are incorporated by reference into this Agreement. Redwood has the right in its sole discretion to amend this provision of the Agreement at any time.
In any case, you will pay Redwood the applicable fees using a payment method as described at www.runmyjobs.com/info/pricing-terms, without setoff or counterclaim, and without any deduction or withholding.
6. TEMPORARY SUSPENSION
(a) Generally. Redwood reserves the right to suspend your right to the services immediately upon notice if Redwood determines:
(b) Effect of Suspension.
7. TERM AND TERMINATION
The Term of this agreement will commence on the acceptance of the Agreement and/or the effective use of the Software.
This Agreement will terminate automatically if you have become subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
Except for termination under the provisions 6 (b) 2,3 and 4, either party may terminate this Agreement for convenience by cancelling the customer's RunMyobs account via the RunMyJobs website at any time. Termination for convenience will take effect the day following the end of the current payment period. Upon termination of this Agreement, the parties' rights and obligations under Sections 7, 9 and 10 shall survive termination of this Agreement.
Upon termination of this Agreement your user account as well as its content will be deleted.
8. RESTRICTED RIGHTS NOTICE AND EXPORT RESTRICTIONS.
The Software was developed entirely at private expense and is commercial computer software provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government or a U.S. Government contractor or subcontractor is subject to the restrictions set forth in this Agreement and as provided in FAR 12.211 and 12.212 (48 C.F.R. §12.211 and 12.212) or DFARS 227. 7202 (48 C.F.R. §227-7202) as applicable. Consistent with the above as applicable, Commercial Computer Software and Commercial Computer Documentation licensed to U.S. government end users only as commercial items and only with those rights as are granted to all other end users under the terms and conditions set forth in this Agreement. You may not use or otherwise export or re-export the Software or documentation except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software or documentation may not be exported or re-exported (i) into (or to a national or resident of) any U.S. embargoed country or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. By using the Software, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
Following execution of this Agreement, the parties may have access to information that is confidential to one another ("Confidential Information"). Confidential Information shall be limited to the Software and documentation, all knowhow, techniques, ideas, principles and concepts which underlie elements of the Software and documentation, the terms and the pricing under this Agreement and all information clearly identified as confidential. A party's Confidential Information shall not include information which: (a) is or becomes a part of the public domain through no act or omission of the other party; or (b) was in the other party's lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; or (c) is lawfully disclosed to the other party by a third party without restriction or disclosure; or (d) is independently developed by the other party without breach of the Agreement; or (e) is disclosed by operation of law. The parties agree that the Software, documentation and any other Confidential Information disclosed by one party to the other party shall be kept confidential for the term of this Agreement and thereafter. Such Confidential Information shall be maintained and protected by the other party with the same effort used to protect its own Confidential Information. Except to the extent required by this Agreement, both parties agree not to duplicate in any manner the other's Confidential Information or to disclose it to any third party or any of their employees not having a need to know and solely for the express purposes of this Agreement. The parties further agree not to use each other's Confidential Information for any purpose other than the implementation of this Agreement. In the event that you wish to permit access to the Software to a third party for the performance of services for you then you shall seek Redwood’s prior written consent which, if granted, will be on the basis that the same conditions of confidentiality will be placed upon such third party.
10. GENERAL PROVISIONS
The validity, interpretation, and performance of this Agreement shall be controlled by and construed under the laws of the State of California, United States of America, as if performed wholly within the State of California and without giving effect to the principles of conflicts of laws. The parties hereby consent to the exclusive jurisdiction of the State and Federal Courts located in San Diego County, California. Neither party shall contest the venue for he adjudication of disputes on the basis of inconvenient forum. The parties specifically exclude application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement. In any suit or proceeding between the parties relating to this Agreement, the prevailing party will have the right to recover from the other its costs and reasonable fees and expenses of attorneys, and other professionals incurred in connection with the suit or proceeding, including costs, fees and expenses upon appeal, separately from and in addition to any other amount included in such judgment. This provision is intended to be severable from the other provisions of this Agreement, and shall survive and not be merged into any such judgment.
This Agreement and any referenced documents or other amendments contains the entire agreement and understanding of the parties with respect to the subject matter hereof, and supersedes all prior written and oral understandings of the parties with respect to the subject matter hereof. Any notice or other communication given under this Agreement shall be in writing and shall have been properly given by either of us to the other if sent by certified or registered mail, return receipt requested, or by overnight courier to the address shown on Redwood’s Web site for Redwood and the address shown in Redwood’s records for you, or such other address as the parties may designate by notice given in the manner set forth above. Such notice shall be deemed received within five (5) business days if sent by first class post or within one business day if sent by courier or overnight delivery service. This Agreement will bind and inure to the benefit of the parties and our respective heirs, personal and legal representatives, affiliates, successors and permitted assigns. The failure of either of us at any time to require performance of any provision hereof shall in no manner affect such party’s right at a later time to enforce the same or any other term of this Agreement. This Agreement may be amended only by a document in writing signed by both of us. In the event of a breach or threatened breach of this Agreement by either party, the other shall have all applicable equitable as well as legal remedies. Each party is duly authorized and empowered to enter into and perform this Agreement. If, for any reason, any provision of this Agreement is held invalid or otherwise unenforceable, such invalidity or unenforceability shall not affect the remainder of this Agreement, and this Agreement shall continue in full force and effect to the fullest extent allowed by law. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party’s reasonable control, including without limitation acts of God, earthquake, labor disputes, shortages of supplies, actions of governmental entities, riots, war, fire, epidemics, terrorism, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay.
You consent to and permit Redwood, in its sole discretion, to transfer this Agreement in whole or in part to any affiliate of the Redwood International Business Group with or without notice.
The parties knowingly and expressly consent to the foregoing terms and conditions