The DocumenTree License and Services Agreement
All subscribers to the DocumenTree proprietary service (”The Service”) are required to agree to the following terms and conditions. This agreement (the “Agreement”) is between you (“Subscriber”) and DocumenTree, Inc. (“DocumenTree”) for use of The Service by you.
NOW THEREFORE, the parties agree as follows:
1. Definitions. Whenever used in this Agreement with initial letters capitalized, the following terms shall have the following defined meanings:
1.1. “Subscriber” means you, the individual, or other legal entity, that subscribes to The Service.
1.2. “DocumenTree Internet Application” means that certain combination of World Wide Web server application and a database that has been created by DocumenTree that has the capability of producing manifestations of its online document management service. This definition includes DocumenTree Internet Application as it now exists and as it may be modified and/or supplemented in the future.
1.3. “The Service” means the document management capabilities and manifestation provided by this website and the DocumenTree Internet Application that produces it, as they now exist, and as they may be modified and/or supplemented in the future.
1.4. “Intellectual Property Rights” means any patent, copyright, rights in Trademarks, trade secret rights, moral rights and other intellectual property or proprietary rights arising under the laws of any jurisdiction.
1.5. “Sponsor” means an entity that, by agreement with DocumenTree, presents The Service under its name and/or logo.
2.1. Access To The Software. Subject to the terms and conditions of this Agreement, DocumenTree hereby grants to Subscriber a limited, non-exclusive and non-transferable right to access and use The Service in accordance with the specific limitations set forth in this Agreement. The Service shall be hosted, served and executed solely by a server under the direct supervision and control of DocumenTree or its contractor. Subscriber shall not receive a copy of The Service, nor have any other rights to The Service other than those granted under this Agreement.
2.2. Restrictions. Subscriber agrees not: (a) to sublicense, transfer or otherwise convey The Service to any third party; (b) to modify or create derivative works of The Service; (c) to reverse engineer, disassemble or otherwise reduce The Service to human-readable form; (d) to use or copy The Service except as expressly authorized under this Agreement; and (e) to attempt to access any software hosted and served by DocumenTree or its contractor's computers except for The Service.
2.3. Promotional Rights. Subscriber hereby grants to DocumenTree a non-exclusive, worldwide, royalty-free license to use, reproduce, distribute, publicly perform, publicly display and digitally perform Subscriber’s trademarks and service marks on DocumenTree’s web site and customer newsletter stating that Subscriber is using DocumenTree products and/or services. Subject to approval from Subscriber, which shall not be unreasonably withheld or delayed, DocumenTree may issue a press release stating that Subscriber is a user of DocumenTree products.
2.4. Limited Licenses. DocumenTree grants Subscriber no other license or right, by estoppel, implication or otherwise, except for licenses and rights expressly granted in this Section 2.
3.1. Pricing. Prices for use of The Service shall be those prices posted from time to time on the DocumenTree website. The price posted for the DocumenTree Plan chosen by Subscriber at the time of Subscriber’s subscription “Sign Up”, shall be the price that Subscriber will be obligated to pay throughout the full term of Subscriber’s subscription, including its automatic renewals. After termination of a subscription for any reason, subsequent subscriptions of said Subscriber, if any, shall be governed by the terms and the prices prevailing at the time of such subsequent subscription.
4.1. Payment Terms. Subscriber shall comply with all of the terms of the subscription plan chosen by Subscriber, and shall be responsible for, and will promptly pay, all taxes of whatever nature (including but not limited to sales and use taxes) associated with Subscriber’s use of The Service, except for taxes based on DocumenTree’s net income.
4.2. Fee Increases. During the term of this Agreement, DocumenTree reserves the right to increase the fees for use of The Service for subsequent terms. Subscriber acknowledges its acceptance of a fee increase by use of The Service on the effective date of the renewed term.
5. SUPPORT SERVICES
5.1. Availability. Technical support is available through online help at DocumenTree’s web site, and via email to service@DocumenTree.com.
6. TERM AND TERMINATION
6.1. Term and Automatic Renewal. The term of the Subscriber’s subscription shall be that term described in the subscription plan chosen by Subscriber at the time of Subscriber’s “Sign Up”. The subscription shall commence on the date of the Sign-Up and terminate at the end of the chosen term. At the expiration of the term, or of any renewal thereof, the term shall be automatically renewed for an additional identical term, unless terminated by Subscriber’s notice of termination to DocumenTree, given on or before thirty (30) days prior to the end of the term, or unless terminated by DocumenTree pursuant to the provisions of paragraphs 6.2 or 6.3 herein.
6.2. Termination at Will. This subscription and all of Subscriber’s rights under this Agreement may be terminated at will by DocumenTree upon thirty (30) days notice to Subscriber.
6.3. Termination for Breach. DocumenTree may terminate the subscription and all of Subscriber’s rights under this Agreement upon written notice, or notice by electronic mail, if Subscriber breaches a material term of this Agreement and fails to correct the breach within five (5) days following notice from DocumenTree specifying the breach. Notwithstanding the foregoing, Subscriber’s breach of Section 2.1 or 2.2 shall constitute a non-curable breach of this Agreement, and DocumenTree may terminate this Agreement following five (5) days notice of such breach to Subscriber.
6.4. Rights and Obligations Upon Termination. The obligations of DocumenTree and Subscriber in Sections 4, 8,9,11,12, and 13 shall survive termination or expiration of the subscription. Upon termination of the subscription, all licenses granted thereunder shall immediately terminate and Subscriber shall make no further use of The Service.
7. SUBSCRIBER OBLIGATIONS AND ACKNOWLEDGEMENT
7.1. Usage Restrictions. Subscriber represents to DocumenTree that Subscriber’s Web sites shall not contain pornographic material, sites with links to pornographic sites, sites encouraging illegal activity or racism, sites providing instructions or discussions about performing illegal activities, or sites engaged in libelous or harassing activities. DocumenTree reserves the right, in its sole discretion, to determine whether sites may use The Service.
7.2. Data Transmission Security. Subscriber acknowledges that DocumenTree has neither responsibility for nor control of the communications lines used to access The Service because such lines are provided by a third party, and that the security of transmissions to and from The Service is not the responsibility of DocumenTree.
8. PROPRIETARY RIGHTS. Subscriber acknowledges that DocumenTree and/or its licensors own all intellectual property rights, including goodwill, in The Service, modifications thereto, and any associated documentation, as well as DocumenTree Marks.
9.1. Defined. By virtue of this Agreement, Subscriber may have access to information that is confidential to DocumenTree ("Confidential DocumenTree Information"). Confidential DocumenTree Information shall include but not be limited to The Service performance and operation, algorithms, formulas, methods, know-how, processes, designs, new products, developmental work, prospective Subscriber’s names, the terms and pricing under this Agreement, subscriber data, and all information clearly identified in writing at the time of disclosure as confidential. Likewise, by virtue of this Agreement DocumenTree will have access to information provided by Subscriber to DocumenTree at the time of registration that is confidential to Subscriber (collectively hereinafter referred to as “Confidential Subscriber Information”). Confidential DocumenTree Information and Confidential Subscriber Information shall hereinafter be referred to collectively as “Confidential Information”.
9.2. Use and Nondisclosure by Subscriber. Subscriber agrees to hold Confidential DocumenTree Information in confidence during the term of this Agreement and for a period of five years after termination of this Agreement. Subscriber agrees not to make Confidential DocumenTree Information available in any form to any third party or to use Confidential DocumenTree Information for any purpose other than the implementation of this Agreement. Subscriber agrees to take all reasonable steps to ensure that Confidential DocumenTree Information is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement. Subscriber may disclose the terms of this Agreement and/or the transactions contemplated hereby (i) in any filing made pursuant to the Securities Act of 1933 (the "Securities Act") or the Securities Exchange Act of 1934 (the "Exchange Act"), to the extent that Subscriber, after consultation with outside legal counsel, determines that such disclosure is required under the Securities Act or Exchange Act, as applicable or (ii) on a "need-to-know" basis to its legal counsel, accountants, banks and potential purchasers of its securities and their legal counsel.
9.3. Use and Disclosure by DocumenTree. DocumenTree agrees to hold Confidential Subscriber Information in confidence, and not use it, during the term of this Agreement, and for a period of five years after termination of this Agreement, excepting only as follows:
9.3.1. DocumenTree shall be entitled to use Confidential Subscriber Information as necessary and reasonable for the implementation and operation of the Service, including, but not limited to use for the purpose of resolving or assisting in the resolution of technical problems.
9.3.4. Within the Service, Subscribers can view the name and email address of other Subscribers only for the purpose of assisting them in identification for the purpose of sharing documents with them.
9.3.5. When registering, Subscriber may be asked if it wants to opt-in to receive updates, information and a newsletter. Subscriber can choose not to receive these emailings at the time of registration, or may, at a later date opt-out of receiving such information pursuant to the mechanism provided in the Service for that purpose. Unless Subscriber has opted-out, DocumenTree may send e-mails, information and/or a newsletter to Subscriber by email.
9.3.6. DocumenTree may aggregate data to compare/supplement its records.
10.1. Warranty for the Software. DocumenTree warrants to Subscriber that The Service will substantially perform the functions described in the DocumenTree Web Site. If The Service does not conform to the foregoing warranty, DocumenTree shall, as DocumenTree’s sole and exclusive obligation, and at its option, refund to Subscriber a prorated portion of the subscription fee paid by Subscriber for the 30 day period prior to notice by Subscriber to DocumenTree of the said breach of warranty. NOTWITHSTANDING THE FOREGOING, DOCUMENTREE DOES NOT WARRANT THAT SUBSCRIBER’S USE OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE.
10.2. Disclaimers. The above warranty of Section 10.1 does not cover the results of accident, abuse, neglect, improper testing, or vandalism caused by anyone other than DocumenTree or DocumenTree’s authorized agents, acts of God, use contrary to the applicable specifications or instructions, or repair or modification to The Service by anyone other than DocumenTree or DocumenTree’s authorized agents. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 10, DOCUMENTREE FURNISHES, AND SUBSCRIBER ACCEPTS, THE SERVICE AS-IS, WITH NO WARRANTY, EXPRESS OR IMPLIED, AND THERE ARE EXPRESSLY EXCLUDED THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY IMPLIED WARRANTIES ARISING FROM COURSE OF CONDUCT OR DEALING. THE STATED EXPRESS WARRANTIES ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF DOCUMENTREE ARISING OUT OF, OR IN CONNECTION WITH, ANY SERVICE SUPPLIED UNDER THIS AGREEMENT. TO THE EXTENT THAT DOCUMENTREE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY SHALL BE THE MINIMUM PERMITTED UNDER APPLICABLE LAW.
11. INDEMNIFICATION. Subscriber shall, at its own expense, defend, indemnify and hold DocumenTree and its affiliates, officers, directors, employees, agents and contractors harmless from (a) any breach of Subscriber’s obligations under Section 7 and/or (b) and from any claim or suit alleging that any part of Subscriber’s Web site infringes any patent, copyright or trademark, or that Subscriber misappropriated any trade secret of any other entity in connection therewith, including any losses, damages, or expenses (including, without limitation, reasonable attorneys' fees) arising from or incurred in connection with any such claim or suit.
12. LIMITATION OF LIABILITY. EXCEPT FOR BREACHES OF OBLIGATIONS SET FORTH IN SECTIONS 2 AND 9, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS OR REVENUE, LOST SAVINGS, LOSS OF USE OF THE SOFTWARE OR ANY COMPONENT OF SUBPART THEREOF, BUSINESS INTERRUPTION, OR COST OF SUBSTITUTED FACILITIES, EQUIPMENT OR SERVICES, OR OTHER ECONOMIC LOSS ARISING OUT OF BREACH BY THE OTHER PARTY OF ANY OF ITS REPRESENTATIONS, WARRANTIES OR AGREEMENTS CONTAINED IN THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER OR NOT ANY LIMITED REMEDY FAILED OF ITS ESSENTIAL PURPOSE, AND WHETHER ANY CLAIM FOR RECOVERY IS BASED ON THEORIES OF CONTRACT, NEGLIGENCE OR TORT (INCLUDING STRICT LIABILITY). NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT, IN NO EVENT SHALL DOCUMENTREE’S AGGREGATE LIABILITY TO SUBSCRIBER, AND ANY OTHER THIRD PARTY, EXCEED THE AMOUNT ACTUALLY PAID TO DOCUMENTREE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE CLAIM OR ACTION, REGARDLESS OF THE FORM OF CLAIM OR ACTION.
13.1. Force Majeure. Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, electrical or other shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, governmental action, labor conditions, earthquakes, material shortages, or any other cause beyond the reasonable control of such party.
13.2. Independent Contractors. Nothing in this Agreement shall be construed as creating an employer-employee relationship, a principal-agent relationship, a partnership, or a joint venture between the parties.
13.3. Governing Law. This Agreement shall be governed by the laws of the State of California, and without reference to its conflicts of law as though entered into between California residents and to be performed entirely within the State of California, and both Customer and DocumenTree consent to jurisdiction and venue in the state and federal courts sitting in the State of California and in particular, within San Diego, California.
13.4. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
13.5. Modification and Waiver. No modification to this Agreement, nor any waiver of any rights, will be effective unless assented to in writing by the party to be charged, and the waiver of any breach or default shall not constitute a waiver of any other right hereunder or any subsequent breach or default.
13.6. Notices. All notices required or permitted under this Agreement will be in writing and delivered by email, confirmed facsimile transmission, by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All communications to DocumenTree will be sent to the address set forth below; to Subscriber shall be to Subscriber’s address for billing; or to such other address as may be specified by either party to the other in accordance with this Section. Either party may change its address for notices under this Agreement by giving written notice to the other party.
2033B San Elijo Avenue
Cardiff By The Sea
E-Mail address: service@DocumenTree.com
14. Assignment. This Agreement may not be assigned or otherwise transferred by either party by operation of law or otherwise, in whole or in part, without the prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing, either party may, without prior written consent of the other party, assign and otherwise transfer this Agreement, and all of its rights and obligations hereunder, to a successor to all or substantially all of its assets whether by way of merger, consolidation, sale of stock or assets, operation of the law, or the like. Any attempt by either party to assign this Agreement in breach of this Section 14 shall be void and null. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties hereto, their successors and assigns.
15. Government Legend. If Subscriber is acquiring The Service on behalf of any unit or agency of the United States Government, the following provisions apply. The Service constitutes a "commercial item", as that term is defined at Federal Acquisition Regulation (FAR) 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation", as such terms are used in FAR 12.212 (Sept. 1995), and is provided to the U.S. Government only as commercial software (with "Restricted Rights", if applicable). Use, duplication, or disclosure by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable.
16. Entire Agreement. This Agreement and any mutually agreed-to terms governing the use of any upgrades to The Service constitutes the entire and exclusive agreement between the parties hereto with respect to the subject matter hereof and supersede any prior agreements between the parties with respect to such subject matter.
ADDITIONAL INFORMATION. Any questions relating to this website or regarding the DocumenTree License and Services Agreement may be directed to service@DocumenTree.com