End-User License Agreement
This End-User License Agreement (this “Agreement”) is entered into by and between you, the end user of the Software and Services (each as defined below) (“you”), and Konica Minolta Business Solutions U.S.A., Inc. (“Konica Minolta”), for the express benefit of the parties hereto and Officeware Corporation (“Officeware”). Before using the Software, you should carefully read this Agreement. By using the Software and Services, you are affirmatively indicating that you accept the terms and conditions of this Agreement.
In consideration of the mutual obligations herein made, and for other good and valuable consideration, the parties hereto agree as follows:
1. Grant of License; Non-Transferable Membership. Subject to the terms of this Agreement, Konica Minolta grants you a limited, non-exclusive and non-transferable license to use the FileAssist products and software (collectively, the “Software”) made available to you by Konica Minolta. All rights related to the Software not expressly granted to you are retained. You shall use the Software only as specifically permitted by this license and in accordance with the requirements of applicable federal, state and local law. You shall not modify, enhance or otherwise alter the Software without Konica Minolta’s express prior written consent and under Konica Minolta’s direct supervision. You further agree not to alter, obscure or remove any copyright notices and other proprietary notices, regardless of form, contained in or affixed to the Software. You must have a valid, registered user account to access the Software. The Software may only be accessed and used by those authorized individuals who are registered with Konica Minolta. Your password may be maintained by you as often as you like, however this password is non-transferable and your account may not be shared for other individuals to use. Upon termination of your membership subscription by non-payment, cancellation or suspension of service, this Agreement will automatically terminate and the license to use the Software under this Agreement shall be permanently revoked. YOU AGREE THAT YOUR ACCOUNT PASSWORD MUST BE KEPT PRIVATE AND MAY NOT BE USED BY ANY OTHER INDIVIDUAL OR AUTOMATED PROCESS TO ACCESS YOUR ACCOUNT UNLESS THEY ALSO HAVE AN ASSIGNED USER LICENSE OR "SUBACCOUNT" USER LICENSE. This includes access via Web, FTP, Secure FTP or WebDAV protocols. You hereby grant Konica Minolta and Officeware a world-wide, royalty-free, non-exclusive, non-sublicensable and non-transferable license to use your logos, trademarks, service marks, and/or word marks in such parties’ advertising, marketing and promotional materials, including but not limited to such parties’ website.
2. Scope of Services. The services provided by Konica Minolta (the “Services”) include all online virtual data room, offline services and any related support services that Konica Minolta makes available to you in accordance with the license. Konica Minolta shall host your documents and files made available to Konica Minolta or its platform (the “Materials”) in a secure site and in accordance with a customary service level. Konica Minolta shall keep all Materials supplied by the customer confidential, secure, and in accordance with those standards required under ISO 27002 (Security) and SSAE16 SOC3; and ensure that all Konica Minolta personnel having access to Materials are required to maintain the confidentiality and security of those Materials. In the event that you require any additional services not provided for herein, Konica Minolta may provide such additional services upon mutual written agreement with you. All such additional services that Konica Minolta agrees to provide will be subject to this Agreement and any order or work statement applicable thereto.
3. No Liability for Data Stored. Konica Minolta and Officeware assume no liability for the content of any of the data which is stored through your use of the Software and the Services, be it obscene, offensive, illegal, or if it is an infringement of property rights of anyone. Individual users are solely responsible for the file content they upload and store. You warrant and represent that you own or otherwise control all of the intellectual property rights necessary for the data you store using the Software and Services.
4. Individual Account Security, Privacy, and Personal Use. You agree that you are the only person responsible for the security and confidentiality of your passwords or other identifiers required to be used in order to access the site and Konica Minolta is not responsible for such security or confidentiality. Furthermore, you are entirely responsible for any and all activities that occur under your account. You agree to notify Konica Minolta immediately of any unauthorized use of your account or any other breach of security. Konica Minolta and Officeware will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. However, you could be held liable for losses incurred by Konica Minolta, Officeware or another party due to someone else using your account or password. You may not use anyone else’s account at any time without the permission of the account holder.
5. Term. This Agreement shall commence as of the Effective Date and continue in effect thereafter until superseded or otherwise terminated in accordance with this Agreement (the “Term”). Each of the Services ordered shall be provided for the term specified by you in your initial order (the “Initial Term”). After the expiration of the Initial Term, this Agreement will be extended and automatically renew for the same amount of time as the Initial Term until either party terminates this Agreement in accordance with the provisions set forth in this Agreement. Each extension and automatic renewal shall be deemed a “Renewal Term.” This Agreement may not be terminated by you during the Initial Term or during a Renewal Term unless terminated pursuant to this Agreement with such termination to be effective on the last day of such Initial Term or Renewal Term, as the case may be, such that no extension or automatic renewal will take place. You acknowledge and agree that your commitment to each Initial Term and Renewal Term is an important factor in Konica Minolta’s decision to agree to the pricing in this Agreement. However, you may terminate the Agreement prior to the end of the applicable Initial Term or Renewal Term if you (i) notify Konica Minolta at least thirty (30) days before the effective date of such termination and (ii) pay Konica Minolta all amounts already invoiced plus all amounts due under this Agreement through the end of the current Initial Term or Renewal Term, as the case may be, such that 100% of all remaining amounts due for the remainder of such Initial Term or Renewal Term are paid (the “Early Cancellation Fee”). In the event of your breach of this Agreement, Konica Minolta may at any time immediately terminate this Agreement by providing notice to you of such termination. If Konica Minolta terminates this Agreement for your breach, you shall pay the Early Cancellation Fee in addition to, and not instead of, any other remedies provided elsewhere in this Agreement, or by law, including without limitation Konica Minolta’s right to seek injunctive relief and to sue for damages. Upon termination of this Agreement, (a) you agree to immediately cease using the Software and Services and (b) Konica Minolta shall provide you with the information, assistance, and cooperation, as may be reasonably required, to assure an orderly return or transfer of your Materials to you or your designee.
6. Disclaimer of Warranties. Konica Minolta and Officeware ARE NOT RESPONSIBLE FOR ANY LOSS OF DATA DUE TO TRANSMISSION ERROR, CLIENT SOFTWARE ERROR, SERVER SOFTWARE ERROR, USER ERROR, OR ANY OTHER CAUSE. DUE TO THE NATURE OF THE INTERNET AND THE ONLINE BACKUP SERVICE, IT IS STRONGLY RECOMMENDED THAT YOU PERFORM ROUTINE TESTS OF THE FILE RESTORE FEATURES AND FAMILIARIZE YOURSELF WITH THE COMPLETE OPERATION OF THE BACKUP SOFTWARE BEFORE AN EMERGENCY SITUATION ARISES. You agree that no warranty IS MADE WITH RESPECT TO THE SOFTWARE AND SERVICES AND SUCH SOFTWARE AND SERVICES ARE "AS IS" and "AS AVAILABLE" only. The FileAssist system is not intended to be the sole backup location for any data; users are responsible for backing up their own data files to a location other than FileAssist. You assume all risks associated with accepting a service of this kind. TO THE EXTENT PERMITTED BY APPLICABLE LAW, Konica Minolta and Officeware expressly disclaim every type of warranty whether express or implied, including, but not limited to, the warranties of merchantability, fitness for a particular purpose and non-infringement. Konica Minolta and Officeware make no warranties that the Software and Services will meet your requirements or will be uninterrupted, timely, secure or error-free. Konica Minolta and Officeware shall have no responsibility for damage done to your property as a result of your unauthorized use, misuse, unauthorized modifications, neglect, or by accident, fire, power surge or failure, other hazard, or force majeure, of or to the Software or the FileAssist system. In addition, Konica Minolta and Officeware do not make any warranty for any goods which are purchased through FileAssist.
7. Confidentiality. Konica Minolta shall keep all your confidential and proprietary information, including the Materials (“Confidential Information”), in strict confidence and shall exercise at least the same degree of care with respect to your Confidential Information that Konica Minolta exercises to protect its own confidential or proprietary information; and, at a minimum, Konica Minolta shall adopt, maintain, and follow security practices and procedures that are sufficient to safeguard your Confidential Information from any (i) unauthorized disclosure, access, use or modification; (ii) misappropriation, theft, destruction, or loss; or (iii) inability to account for such Confidential Information. Without limiting the generality of the foregoing, Konica Minolta shall only use or reproduce your Confidential Information to the extent necessary to enable Konica Minolta to fulfill its obligations under this Agreement. In addition, Konica Minolta will only disclose your Confidential Information to its personnel who have a “need to know” such Confidential Information (and only to the extent necessary) in order to fulfill the purposes contemplated by the Agreement. Konica Minolta shall ensure that each of its personnel who will be providing Services for you shall comply with the obligations of confidentiality set forth herein. Konica Minolta shall notify you promptly of any confidentiality breach that it becomes aware of, and shall promptly take all necessary and advisable corrective actions, and shall cooperate fully with you in all reasonable and lawful efforts to prevent, mitigate, or rectify such breach. You acknowledge that the Software and Services embody trade secrets and/or intellectual property of Konica Minolta and Officeware, and you agree that you (and, if applicable, your directors, officers, employees, agents, and contractors) will not disclose any such trade secrets and/or intellectual property to any other party.
8. Limitation of Liability. To the extent permitted by applicable law, you also agree that Konica Minolta and Officeware will not be liable for any special, direct, consequential, indirect, punitive, or incidental damages which result from use, cost, errors, security breaches, or anything else related to the use of the Software or Services. These excluded damages include, but are not limited to, loss of data, loss of goodwill, loss of profits, loss of savings, loss of use, interruption of business, or other economic loss. Konica Minolta’s and Officeware’s aggregate liability and your exclusive remedy under this agreement, for any claim, whether in contract (including breach of warranty) or tort (including negligence) shall be limited to 100% of the amount paid by you under this Agreement. The existence of more than one claim will not enlarge or extend these limits.
9. U.S. and Other Laws. When using the Software, you agree to follow U.S. laws regarding transmitting data and not to make illegal use of the Software or use it for purposes which are illegal. The Software and Services, including technical data and data you store, are subject to U.S. export control laws, including the International Emergency Economic Powers Act and the U.S. Export Administration Act and their associated regulations, and may be subject to export or import regulations in other countries. You acknowledge and agree to comply strictly with all such regulations and acknowledge that you have the responsibility to obtain licenses to export, re-export, or import such data. Further, you agree not to use the FileAssist system for transmitting vulgar, obscene, harmful, libelous, abusive, or unlawful material. You agree not to attempt to gain access to other computer systems. You agree not to interfere with any other end user’s use and enjoyment of the Software and Services. You agree to not transmit anything over the FileAssist system which could cause civil liability against anyone or break applicable international regulations, international laws, national laws, national regulations, state laws, state regulations, or local laws, or local regulations.
10. Use of Service. In connection with any file uploads, shared folders, published MediaLinks™, emailed file attachments, or FileShare™ links, you further agree that you will not: (i) submit material to the service or distribute material from the service, whether it be via uploading, GroupShare™ folders, email file attachments, FileShare links, MediaLinks, or any other feature provided by the service, that is copyrighted, protected by trade secret or otherwise subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from their rightful owner to post the material and to grant to Konica Minolta all of the license rights granted herein; (ii) publish falsehoods or misrepresentations that could damage Konica Minolta, Officeware or any third party; (iii) submit material that is unlawful, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or encourages conduct that would be considered a criminal offense, give rise to civil liability, violate any law, or is otherwise inappropriate; (iv) post advertisements or solicitations of business; or (v) impersonate another person.
Konica Minolta does not endorse any user-supplied content or guest-supplied content or uploaded material or any opinion, recommendation, or advice expressed therein, and Konica Minolta and Officeware expressly disclaim any and all liability in connection with user-supplied content or guest-supplied content or uploaded material. Konica Minolta does not monitor your use of the Software and Services. However, Konica Minolta reserves the right to review data and use and to remove any materials in its sole discretion. Konica Minolta does not permit copyright infringing activities and infringement of intellectual property rights on its website, and Konica Minolta will remove all user-supplied content or guest-supplied content or uploaded material if properly notified that such content infringes on another's intellectual property rights. Konica Minolta reserves the right to remove such content without prior notice. Konica Minolta may also terminate this Agreement and the license conveyed hereby if you are determined to be a repeat infringer. You are a repeat infringer if you have been notified of infringing activity more than twice and/or have had such content removed from the service more than twice. Konica Minolta also reserves the right to decide whether user-supplied content or guest-supplied content or uploaded material is appropriate and complies with this Agreement for violations other than copyright infringement and violations of intellectual property law such as, but not limited to, pornography, obscene or defamatory material, material that may be offensive, content having excessive file size or excessive use which puts an excessive load on the servers to the detriment of other end users, or MediaLinks that have been unused for a period of one year or longer. Konica Minolta may remove such uploaded material or links and/or terminate a user's access for uploading such material in violation of this Agreement at any time, without prior notice and at its sole discretion.
[In particular, if you are a copyright owner or an agent thereof and believe that any material uploaded by an end user or guest of an end user or other content infringes upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act ("DMCA") to Konica Minolta’s Designated Copyright Agent (see 17 U.S.C 512(c)(3) for further detail).]
11. Indemnification. You agree to indemnify and hold Konica Minolta and Officeware and their respective affiliates, officers, stockholders, agents, representatives and employees harmless from any type of demand or any type of claim which is made by any third party and any loss resulting therefrom, including but not limited to reasonable attorneys’ fees and litigation expenses, which arise as a result of (i) your use of the Software and Services, (ii) your breach of any term or condition of this Agreement, (iii) your violation of applicable laws, rules or regulations in connection with the Software or Services, (iv) any representations and warranties made by you concerning any aspect of the Software or Services, (v) violations of your obligations of privacy to any third party, (vi) any claims with respect to acts or omissions in connection with the Software or Services, and/or (vii) your violation of any party’s intellectual property rights. Such indemnification shall also include other users of the Software or Services using your computer or your account.
12. Sole Responsibility for Data; Account Termination. You agree to be solely and completely responsible for all of your transmissions onto and off of your FileAssist account, and the contents of those transmissions. Konica Minolta may terminate your access to the FileAssist system at any time in the event that you commit a breach of this Agreement. In such event, you agree you may not have permission to access your files on the FileAssist system and your files may be permanently removed from Konica Minolta’s servers. In such event, Konica Minolta is not obligated to give you access to any data which you have uploaded or inserted into the FileAssist system in any way. You agree that Konica Minolta is not obligated in any way to refund any portion of monies paid for a subscription service period if the account is terminated due to your breach of this Agreement.
13. Advertisements. Konica Minolta and Officeware assume no liability for anything which is perceived by you in advertisements in FileAssist, or any actions which are taken or not taken as a result of those advertisements, and any contact which you have with the advertisers.
14. Intellectual Property. By registering with this service, you understand and agree that all content created by Konica Minolta or Officeware for the FileAssist system, as well as all software that supports such system, is protected by trademarks, copyright, service marks, or other property rights and laws, and title to such content and software, including all copies thereof, shall be in and remain with Konica Minolta or Officeware, as applicable. You agree that you will not “unlock,” decompile, reverse engineer, disassemble, or otherwise translate the binary or object code versions of the Software or Services to human-readable form nor permit any person or entity under your control to do so. Therefore, you must have appropriate legal and written authorization before reproducing, distributing, copying, or taking and changing any of these contents. Further, your use of the FileAssist system must be in accord with and governed by all appropriate state, federal, local, international, and national laws and regulations.
15. Applicable Laws. If any provision contained in this Agreement is found by the appropriate legal jurisdiction and authority to be in violation of the relevant law, such provisions shall be interpreted as close to their original meaning as possible and the provisions which are not in violation of such law shall remain in full force and effect. By using the Software or Services, you agree that the laws of the state of New Jersey, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and Konica Minolta or Officeware. You agree to waive the right to jury trial.
16. Enforcement. If any party fails to act on any of the terms of this Agreement, such failure shall not be construed as a waiver of any provision unless such party agrees to any such waiver in writing.
17. Third-Party Beneficiary. You acknowledge and agree that Officeware is an intended third-party beneficiary of this Agreement with full rights to enforce the provisions hereof, and your obligations and covenants under this Agreement are expressly intended to benefit Officeware.
You may, with prior written approval from Konica Minolta, assign this Agreement or any of your rights or interests hereunder, to (i) an affiliate, (ii) your successor pursuant to a merger, reorganization, consolidation or sale, or (iii) an entity that acquires all or substantially all of that portion of your assets or business for which the Software and Services hereunder were acquired or are then being used. Konica Minolta may assign this Agreement, or any of its rights or interests hereunder, at any time to (i) an affiliate, (ii) its successor pursuant to a merger, reorganization, consolidation or sale, (iii) an entity that acquires all or substantially all of its assets; or (iv) any other entity or individual Konica Minolta deems it necessary to assign this Agreement, or any of its rights or interests hereunder, to. This Agreement shall be binding upon, and shall inure to the benefit of, the legal successors and permitted assigns of the Parties.
(ii) Nothing in this Agreement shall be construed to create a partnership, joint venture, employment or agency relationship between the parties.
(iii) This Agreement contains the entire agreement between the parties with respect to its subject matter and may not be modified except by an instrument in writing signed by the duly authorized representatives of the parties.
(iv) The section headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.