1 ACCEPTANCE OF TERMS AND CONDITIONS AS PART OF THE PROPOSAL
2 OWNERSHIP RIGHTS
a) Customer Materials and Customer’s Rights. Customer hereby grants to CA a non-exclusive license to use, copy, modify and create derivative works of all materials, information, data and other content provided to or otherwise made available to CA by or on behalf of Customer in connection with the Services, including any materials, information, data and other content that is incorporated in or derived from the processing of such information, data or content in connection with the Services (the “Customer Materials”), along with the right to transfer or sublicense such rights to contractors and subcontractors of CA, in each case solely as necessary to perform CA’s obligations under the Proposal and solely for the benefit of Customer. Customer acknowledges and agrees that CA may access all forms of Customer Materials necessary to perform the Services. CA shall treat Customer Data as confidential in conformance with the Mutual Confidentiality provisions below.
b) CA Ownership Rights. All rights, title and interest in, to and under the Services (and all portions thereof), wherever resident and on whatever media, shall remain the sole and exclusive property of CA, including any and all intellectual property and other proprietary rights. All improvements, modifications, revisions or additions to or derivative works of the Services (or any portion thereof), whether developed singly or jointly by Customer, CA or their employees or hired third parties, will be and remain the sole and exclusive property of CA, including any and all intellectual property and other proprietary rights therein, regardless of whether Customer pays for such improvements, modifications, revisions, additions or derivative works.
3 LIMITATIONS AND RESTRICTIONS
(a) Customer Modifications. Customer shall not use, modify, revise, create derivative works of, translate or enhance the Services (or any portion thereof) except as expressly permitted in writing by CA at CA’s discretion. Customer shall not copy the Services (or any portion thereof). Customer shall not sublicense, rent, assign, transfer, disclose, publish, translate, release, transmit, re-transmit or otherwise make available the Services (or any portion thereof) in any form, to any person or entity, without the prior written consent of CA.
(b) Customer Users. Customer shall not disassemble, decompile or in any way reverse engineer the Services (or any portion thereof). Customer shall: (i) ensure that all of its users (“Customer Users”) comply with all of the terms of the Proposal and the Terms and Conditions hereof; (ii) not permit any person or entity, other than the Customer Users, to use or gain access to the Services (or any portion thereof) and shall provide reasonable security devices and procedures to protect against unauthorized usage of or access thereto; (iii) use the Services (and all portions thereof) solely for its internal business use and not in the operation of a service bureau or for the benefit of any other person or entity; (iv) not use the Services (or any portion thereof) in any manner, or in connection with any Customer Materials that (A) infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, (B) constitutes defamation, libel, invasion of privacy or violation of any right of publicity or other third party right or is threatening, harassing or malicious, or (C) violates any applicable international, federal, state or local law, rule, legislation, regulation or ordinance; (v) not use the Services (or any portion thereof) for distributing chain letters, junk mail, “spamming” solicitations (commercial or otherwise) or bulk communications of any kind; (vi) not use the Services (or any portion thereof) for any illegal, obscene, offensive, harassing or immoral purpose, or to transmit illegal, obscene, offensive, harassing or immoral communications; and (vii) ensure that all Customer Materials are free from corrupted files, viruses, worms, and any other malicious code. Customer shall be liable for damage of any kind to the Services to the extent such damage was the result of Customer’s violation of this Section 3. CA may immediately terminate the Services in the event Customer breaches any provision of this Section 3.
(c) Security. Customer agrees to secure and protect the Services (and all portions thereof) in a manner consistent with the maintenance of CA’s rights therein and to take appropriate action by instruction or agreement with Customer Users to satisfy its obligations hereunder. Customer shall assist CA in identifying and preventing any unauthorized access, use, copying or disclosure of the Services (or any portion thereof). Without limiting the foregoing, Customer shall advise CA immediately in the event Customer learns or has reason to believe that any person to whom Customer has given access to the Services (or any portion thereof) has violated or intends to violate the confidentiality of the Services or the proprietary rights of CA, and Customer will, at Customer’s expense, cooperate with CA in seeking injunctive or other equitable relief in the name of Customer or CA against any such person.
CA reserves the right, in its sole discretion, to make any changes to the Services from time to time that it deems necessary or useful to: (a) maintain or enhance (i) the quality or delivery of CA’s services to the Customer and/or any Customer Users, (ii) the competitive strength of or market for CA’s services, or (iii) the Services’ cost efficiency or performance; and/or (b) to comply with applicable law.
5 SUSPENSION OR TERMINATION OF SERVICES.
CA may, directly or indirectly, by any lawful means, suspend, terminate or otherwise deny Customer’s, any Customer User’s, or any other person’s access to or use of all or any part of the Services or CA Materials, without incurring any resulting obligation or liability, if: (a) CA receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires CA to do so; or (b) CA believes, in its sole discretion, that: (i) Customer or any Customer User has failed to comply with, any material term of these Terms and Conditions, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under these Terms and Conditions or in any manner that does not comply with any material instruction or requirement; (ii) Customer or any Customer User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; or (iii) these Terms and Conditions expire or are terminated. This Section 5 does not limit any of CA’s other rights or remedies, whether at law, in equity or under these Terms and Conditions.
6 CUSTOMER OBLIGATIONS
(a) Customer Systems and Cooperation. Customer shall, at all times during the Term: (i) set up, maintain and operate in good repair all Customer information technology infrastructure, including computers, software, hardware and networks (collectively, “Customer Systems”), on or through which any Services are accessed or used; (ii) provide CA personnel with such access to Customer’s premises and Customer Systems as is necessary for CA to perform the Services; and (iii) provide all cooperation and assistance as CA may reasonably request to enable CA to exercise its rights and perform its obligations under and in connection with the Proposal and these Terms and Conditions.
(b) Non-Solicitation. During the Term and for two (2) years after, Customer shall not, and shall not assist any other person to, directly or indirectly recruit or solicit for employment or engagement as an independent contractor any person then or within the prior six (6) months employed or engaged by CA or any of its affiliates. In the event of a violation of this Section 6(b), CA will be entitled to liquidated damages equal to the aggregate compensation paid by CA to the applicable employee or contractor during the prior six (6) months.
7 CUSTOMER CONTROL AND RESPONSIBILITY
Customer has and will retain sole responsibility for: (a) all Customer Materials, including the content and use of such Customer Materials; (b) all information, instructions and materials provided by or on behalf of Customer or any Customer User in connection with the Services; (c) all Customer Systems; (d) the security and use of Customer’s and each Customer User’s user name(s), identification number(s), password(s), license(s) and/or security key(s) and other access credentials (“Access Credentials”); and (e) all access to and use of the Services directly or indirectly by or through the Customer Systems or its or its Customer Users’ Access Credentials, with or without Customer’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
8 THIRD PARTY PROVIDERS
CA utilizes a number of third-party providers to provide the Services. Such third-party providers include, but are not limited to, email service providers, SMS service providers, hosting providers and content providers. Customer agrees to the use of third-party providers in connection with providing the Services.
9 EMAIL COMPLIANCE
Customer agrees to comply with all elements of CAN-SPAM and safe sender email practices in all material respects, which includes, but is not limited to, including unsubscribe links, Customer’s full contact information in all correspondence, and not releasing private and/or Confidential Information (defined below). Customer may only use email services for those Customer Users with whom Customer has an existing business relationship and which have indicated that they agree to accept correspondence from Customer. Customer may not attempt to spoof sender domains, send spam or other offending email practices. Because of carrier technologies, CA makes no expressed or implied warranty of individual message receipt. CA is not liable for any issues that arise associated with the content that Customer provides or unforeseen liabilities of it being delivered.
10 TEXT MESSAGE COMPLIANCE
CA automates text message communications, but Customer is responsible for ensuring that the recipients of those communications have provided prior express written consent to receive them. The prior express written consent must identify that Customer may be sending text messages related to the Services using automated technology and that the Customer User affirmatively agrees to receive such messages. The prior express consent must include the Customer User’s written or electronic acceptance. Specifically, by entering a cell phone number into the Customer’s Systems in connection with the Services and not opting such cell phone out of the CA text message feature, Customer is directing CA to automatically send text message reminders and other communications to such cell phone and certifying that the user of such cell phone consents to the receipt of those messages. Customer is responsible for all liability for any failure to receive consent or failure to opt users out of the text message feature. Additionally, Customer may not attempt to spoof sender domains, send spam or other offending text message practices. CA makes no expressed or implied warranty of individual message receipt. CA shall not be liable for any issues that arise associated with the content that Customer provides or unforeseen liabilities of it being delivered. Customer shall be solely liable to comply with applicable laws and regulations within Customer’s jurisdiction in connection with telecommunication (e.g., email and text) messages that you send to the Customer Users.
Unless otherwise stated, the CA fees set forth in the Proposal do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction, plus interest, penalty and additions thereon (collectively, “Taxes”). Customer is responsible for paying all Taxes applicable to Customer’s use of the Services. If CA has the legal obligation to pay or collect Taxes (or an amount in respect of Taxes) for which Customer is responsible under this Section 11, the appropriate amount shall be invoiced to and paid by Customer promptly by Customer (and in no event more than 30 days following receipt of an undisputed invoice), unless Customer provides CA with a valid tax exemption certificate authorized by the appropriate taxing authority. CA is responsible solely for taxes based on its income.
(c) If any third party claim is commenced against a Party entitled to indemnification hereunder (the “Indemnified Party”), notice thereof shall be given by the Indemnified Party to the other Party (the “Indemnifying Party”) as promptly as practicable. Any delay by the Indemnified Party in providing such notice shall not limit the Indemnifying Party’s obligations pursuant to these Terms and Conditions except to the extent of any liability caused by such delay. If, after such notice, the Indemnifying Party acknowledges that these Terms and Conditions applies with respect to such claim, then the Indemnifying Party shall be entitled, if it so elects, to immediately take control of the defense and investigation of such claim and to employ and engage attorneys acceptable to the Indemnified Party to handle and defend the same, at the Indemnifying Party’s cost. The Indemnified Party shall cooperate, at the cost of the Indemnifying Party, with the Indemnifying Party and its attorneys in the investigation, trial and defense of such claim; provided, however, that the Indemnified Party may, participate in any investigation, trial and defense at its own cost. No settlement of a claim that involves a remedy other than the payment of money solely by the Indemnifying Party shall be entered into without the consent of the Indemnified Party. After notice by the Indemnifying Party to the Indemnified Party of its election to assume full control of the defense of any such claim, the Indemnifying Party shall not be liable to the Indemnified Party for any legal fees and expenses incurred thereafter by such Indemnified Party.
13 MUTUAL CONFIDENTIALITY
(a) Confidential Information. The term “Confidential Information” means the Proposal and all proprietary information, documents, and electronic data that either Party obtains or has access to (in any manner) from the other Party. Confidential Information does not include any information, documents, or electronic data to the extent that such information, documents or electronic data: (a) have become public information without any breach of the Proposal or these terms and conditions or violation of law; (b) were already legally in a Party’s possession prior to the time that the other Party disclosed such information to such Party; (c) a Party obtained from a third party (other than one acting on behalf of the other Party in disclosing such information) and had no reason to believe that such third party was unlawfully in possession of the information or that such third party was in violation of any contractual, legal, or fiduciary obligation to the other Party by disclosing such information; (d) is or was independently developed by a Party without the benefit or use of any Confidential Information received hereunder; or (e) is required to be disclosed by any law, order of a governmental authority or court of applicable jurisdiction; provided that if a Party is required to disclose such information it shall, as soon as reasonably possible after discovering the information is required to be disclosed, notify the other Party and cooperate in any efforts the other Party may thereafter choose to pursue to obtain an appropriate protective order or otherwise obtain confidential treatment of such Confidential Information.
(b) Mutual Confidentiality Obligations. Each Party shall hold all of the other Party’s Confidential Information in strict confidence and use at least the same degree of care as it uses with respect to its own confidential information to prevent the disclosure of such Confidential Information. Neither Party shall disclose the other Party’s Confidential Information to any person or entity except to persons who have a need to know such Confidential Information in furtherance of such Party’s performance of its obligations pursuant to the Proposal or these Terms and Conditions, including the recipient Party’s directors, officers, employees, affiliates, representatives, financial advisors, attorneys, accountants, agents or contractors who have such a need to know such Confidential Information (collectively, “Representatives”). Further, neither Party shall provide Confidential Information to any of its Representatives until such Representative agrees to abide by the terms of this Section 13. Each Party shall, at its own expense, take all reasonably available steps necessary to prevent the unauthorized use or disclosure of any of the other Party’s Confidential Information by any of its Representatives or by any other person or entity who gains access to such Confidential Information from the recipient Party in violation of the terms of the Proposal or these Terms and Conditions. At the written request of a Party, the other Party shall promptly return all or any portions of the requesting Party’s Confidential Information to the requesting Party and destroy all copies of such Confidential Information in the other Party’s possession or control.
14 RIGHTS UPON TERMINATION
Upon the expiration or any termination of the Proposal and these Terms and Conditions, Customer shall promptly return to CA, or with CA’s prior written consent destroy, any information from the Services in Customer’s possession or control. If the Proposal is terminated prior to the expiration of the Initial Term or the applicable Renewal Term, Customer shall pay to CA within thirty (30) days after the effective date of such termination an amount equal to the total remaining annual license and maintenance fees owed in accordance with the Annual Subscription Fee, defined as the current monthly fee multiplied by the number of months in the Initial Term or the then current Renewal Term, as applicable, less the aggregate amount of the license and maintenance fees actually paid by Customer to CA during the Initial Term or the then current Renewal Term, as applicable. Upon termination of the Proposal, Club Automation will provide, upon request, a CSV export of the Customer’s membership and transaction data within 2 business days.
15 BREACH OR DEFAULT
NOTWITHSTANDING ANYTHING TO THE CONTRARY, CA AND ITS SUPPLIERS DO NOT REPRESENT OR WARRANT, AND SPECIFICALLY DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, WITH RESPECT TO ANY SUBJECT MATTER OF THE PROPOSAL OR THESE TERMS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE AND TITLE, WITHOUT LIMITING THE IMMEDIATELY PRECEDING SENTENCE, CA DOES NOT REPRESENT OR WARRANT THAT THE SERVICES OR ANY PORTION THEREOF WILL MEET CUSTOMER’S REQUIREMENTS OR THAT CUSTOMER’S USE THEREOF WILL BE UNINTERRUPTED OR ERROR-FREE.
17 LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, (A) CA’S TOTAL AGGREGATE LIABILITY ARISING UNDER OR RELATING TO THE PROPOSAL AND THE SERVICES DURING ANY CALENDAR YEAR SHALL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED AN AMOUNT EQUAL TO THE FEES PAID TO CA DURING SUCH CALENDAR YEAR, AND (B) CA SHALL NOT BE LIABLE FOR, NOR SHALL SUCH MEASURE OF DIRECT DAMAGES INCLUDE, ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING LOSS OF REVENUE, INCOME, PROFITS OR SAVINGS) ARISING UNDER OR RELATING TO THE PROPOSAL OR SERVICES. THE LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION ARE MADE REGARDLESS OF (A) THE FORM OF THE ACTION OR CLAIM OR THE THEORY OF RECOVERY, (B) WHETHER CA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) WHETHER SUCH DAMAGES MAY BE FORESEEABLE.
18 GENERAL PROVISIONS
(a) Equitable Remedies. Customer acknowledges that Customer’s breach or threatened breach of Section 2, Section 6(b) or Section 13 of these Terms and Conditions will immediately give rise to continuing irreparable injury to CA inadequately compensable in damages at law, and CA is entitled to seek and obtain immediate injunctive and other equitable relief against Customer’s breach or threatened breach of Section 2, Section 6(b) or Section 13 without the necessity of posting bond and in addition to any other rights and remedies available to CA.
(b) Rights and Remedies Cumulative. The rights and remedies provided by the Proposal and these Terms and Conditions are cumulative, and the use of any one right or remedy by either Party will not preclude or waive its right to use any or all other remedies. Such rights and remedies are given in addition to any other rights or remedies the Parties may have at law or in equity.
(d) No Third Party Beneficiaries. Except as expressly provided, the Proposal and these Terms and Conditions are for the sole benefit of the Parties and nothing herein expressed or implied will give or be construed to give to any person, other than the Parties, any legal or equitable rights hereunder.
(e) Setoff. All amounts payable to CA under the Proposal shall be paid by Customer to CA in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
(f) Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in these Terms and Conditions that, by its nature, should survive termination or expiration of these Terms and Conditions or the Proposal, will survive any expiration or termination of these Terms and Conditions or the Proposal, as applicable: Section 2, Section 3, Section 6(b), Section 13, and Section 18.
(g) Publicity. CA shall have the right to use the logos or trademarks of Customer or of Customer’s parent or affiliates in connection with any promotion of its business. CA may list Customer as a customer on CA’s website, in printed material, in oral presentations, and in other media.
© 2016 Club Automation, LLC. All rights reserved. October 1, 2016