KerberTech

Terms of Use for Maintenance Book

KERBERTECH MAINTENANCE BOOK SUBSCRIPTION ACCESS AGREEMENT

  1. DEFINITIONS:
    "Anniversary Date" shall mean the calendar date each month corresponding to the date of the month of the Effective Date.
    "Billing Period" shall mean the twenty-eight to thirty-one day period between two given Anniversary Dates.
    "Content" shall mean all information and content on the Website other than Customer Data.
    "Customer" shall mean the customer executing this Agreement by clicking "I Agree."
    "Customer Data" shall mean information and content Customer inputs or uploads to the Website
    "Effective Date" shall mean the date you enter into this Agreement by clicking "I Agree."
    "Equipment Unit" shall mean a piece of equipment entered into Maintenance Book. Each piece of equipment entered into Maintenance Book is a separate Equipment Unit. For example, if a multipart machine is entered into Maintenance book as a single entry, the multipart machine is one (1) Equipment Unit for billing purposes. If three parts of the multipart machine are entered into Maintenance book as three separate entries, the multipart machine is three (3) Equipment Units for billing purposes.
    "Maintenance Book" shall mean the hardware and software utilized by KerberTech to receive, store and manage Customer Data.
    "KerberTech" shall mean Kerber Technology Solutions, LLC.
    "License Fee" shall mean the license fee described in Section 6 below.
    "Services" shall mean those services described in Section 2 below.

  2. SERVICES:
    1. Usage. KerberTech shall provide Customer with the ability to upload Customer Data to Maintenance Book and to manage the Customer Data within Maintenance Book's then-current available functionality.
    2. Access. Except for routine and emergency downtime and maintenance (which KerberTech will notify Customer as practicable), Customer shall have access to Maintenance Book twenty-four (24) hours per day, three hundred sixty-five (365) days per year.
    3. Customer Compliance. Customer acknowledges Customer's access to all services under this Agreement is subject to Customer's compliance with the terms of this Agreement and Maintenance Book's all then-current system requirements.

  3. LICENSE. KerberTech hereby grants to Customer, during the term of this Agreement, a non-exclusive, world-wide, non-transferable, non-sublicenseable license to access Maintenance Book in association with uploading and managing Customer Data solely in accordance with this Agreement. Customer shall not allow any third party access to Maintenance Book.

  4. LICENSE RESTRICTIONS. Customer shall at all times remain in compliance with this Agreement and all then-current requirements of Maintenance Book. Customer shall not: (i) distribute, disseminate, sublicense, copy, modify, reverse engineer, decompile, translate, dissemble or create a source code equivalent of Maintenance Book or allow others to do so or (ii) use Maintenance Book to provide software application services, time-sharing or service bureau services to third Parties. Neither Party shall obtain any rights in the other Party's intellectual property except as expressly outlined herein. Neither Party shall use the name or trademark of the other Party in any advertising or promotional material without prior express written consent. All rights not expressly granted under this Agreement are reserved by KerberTech.

  5. CUSTOMER DATA. Customer grants to KerberTech and all KerberTech service providers a non-exclusive, world-wide license to use Customer's name, likeness, logos, images, trademarks, copyrightable material, proprietary information and all other applicable intellectual property exclusively in association with communication and information collection associated with Maintenance Book. This Customer license shall terminate fifteen (15) days following termination of this Agreement.

  6. FEES. In consideration of the Services provided under this Agreement, KerberTech shall invoice Customer and Customer shall pay to KerberTech the License Fee for the use of Maintenance book of ten dollars ($10.00) per month. This monthly license fee includes the tracking of one Equipment Unit. The additional monthly fee for tracking additional Equipment Units shall be as follows:

    2-10 additional Equipment Units - two dollars ($2.00) for each additional Equipment Unit;
    11-50 additional Equipment Units - one dollar and twenty-five cents ($1.25) for each additional Equipment Unit;
    51-100 additional Equipment Units - one dollar ($1.00) for each additional Equipment Unit;
    101-500 additional Equipment Units - seventy-five cents ($0.75) for each additional Equipment Unit;
    501-1000 additional Equipment Units - fifty cents ($0.50) for each additional Equipment Unit;
    1001 and greater additional Equipment Units - twenty-five cents ($0.25) for each additional Equipment Unit.

    Customer shall pay the foregoing monthly fees for all Equipment Units in Maintenance Book at any point during the associated Billing Period. For example, the monthly fee for having one hundred and ten (110) Equipment Units in Maintenance Book during a particular billing period would be ($10) + (9 x $2) + (40 x $1.25) + (50 x $1) + (10 x $.75) = $ 135.50/month.

    No License Fee is due for the period between the Effective Date and the first Anniversary Date. After the second Anniversary Date and after each following Anniversary Date, KerberTech shall invoice Customer the License Fees for the preceding Billing Period using the foregoing calculation. For example, if the Effective Date was June 15, 2010 and the Customer entered one hundred and ten (110) Equipment Units in Maintenance Book, KerberTech would initially bill Customer one hundred and thirty-five dollars and fifty cents ($135.50) after August 15, 2010 for the first Billing Period between July 15, 2010 and August 15, 2010.

    In the event Customer fails to pay any invoice within two (2) weeks of the date on the invoice, KerberTech may terminate this Agreement and/or deny Customer access to Maintenance Book. Any additional technical support, training fees and direct costs incurred by KerberTech and approved by Customer shall be billed by KerberTech to Customer as they accrue. KerberTech may adjust any or all of its fees at any time prior to the following billing cycle. Except for income taxes attributable to KerberTech, Customer shall be liable for all taxes associated with Services provided under this Agreement, including those taxes which KerberTech is required by law to withhold.

  7. DISCLAIMERS: KERBERTECH EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY AS TO ANY ASPECTS OF MAINTENANCE BOOK OR ANY SERVICES RENDERED INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. KERBERTECH DOES NOT WARRANT THE OPERATION OF MAINTENANCE BOOK WILL BE UNINTERRUPTED OR ERROR FREE. KERBERTECH SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR ANY OTHER DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES ASSOCIATED WITH: 1) INJURY TO PERSON OR PROPERTY; 2) NEGLIGENCE; 3) BUSINESS INTERRUPTION; 4) LOSS OF BUSINESS INFORMATION; 5) FAILURE TO MEET ANY DUTY, INCLUDING A DUTY OF GOOD FAITH OR REASONABLE CARE; 6) LOST PROFITS; 7) MAINTENANCE BOOK OR ANY INFORMATION DERIVED THEREFROM; AND 8) ANY PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF AND/OR INABILITY TO USE MAINTENANCE BOOK, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF KERBERTECH HAS BEEN SPECIFICALLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER ACKNOWLEDGES THAT KERBERTECH HAS NO CONTROL OVER THE INTERNET OR THE FLOW OF DATA THERETO OR THEREFROM AND THAT DATA FLOW MAY AT TIMES BE INTERRUPTED OR DELAYED. KERBERTECH SHALL MAKE REASONABLE ATTEMPTS TO AVOID SUCH INTERRUPTIONS AND DELAYS, BUT DOES NOT GUARANTEE UNINTERRUPTED OR ERROR-FREE DATA FLOW AND SPECIFICALLY DISCLAIMS ALL LIABILITY RESULTING THEREFROM. IN NO EVENT SHALL THE LIABILITY HEREUNDER OF KERBERTECH, IF ANY, EXCEED THE PRORATED FEES, IF ANY, PAID BY CUSTOMER FOR THE USE OF MAINTENANCE BOOK DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. CUSTOMER HEREBY RELEASES KERBERTECH FROM ANY AND ALL LIABILITY ARISING FROM OR RELATED TO ALL CLAIMS CONCERNING MAINTENANCE BOOK OR ITS USE.

  8. INDEMNIFICATION. KerberTech will defend Customer for all costs and damages finally awarded, including reasonable attorney's fees and expenses, arising from a claim by a third Party that Maintenance Book furnished and used within the scope of this Agreement infringes a U.S. copyright, trademark or patent, provided that: (i) Customer notifies KerberTech promptly in writing of the claim; (ii) KerberTech has sole control of the defense and all related settlement negotiations and (iii) Customer provides KerberTech with assistance, information and authority necessary to perform the above. KerberTech shall have no liability for any claim of infringement based on alterations or modifications of Maintenance Book, unless authorized and under the direction of KerberTech, or the combination, operation, or use of Maintenance Book with programs or data or hardware not furnished or authorized in writing by KerberTech, if such infringement would have been avoided by the use of Maintenance Book without such programs or data or hardware. In the event Maintenance Book is held to infringe or Customer's use of Maintenance Book are enjoined, KerberTech shall have at its option and expense the right to (a) modify Maintenance Book to be noninfringing; (b) obtain for Customer a license to continue using Maintenance Book; (c) substitute Maintenance Book with other substantially similar applications reasonably suitable to Customer or (d) if none of the foregoing remedies are commercially feasible, terminate the license for Maintenance Book, and refund the pro rata portion of the License Fees actually paid by Customer for the immediately preceding Billing Period. THE ABOVE STATES CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND KERBERTECH'S SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

  9. TITLE; OWNERSHIP. KerberTech retains title to all portions of Maintenance Book. Except as provided under this Agreement, no rights, title or interest to Maintenance Book is transferred to Customer. Customer retains ownership to all data submitted by Customer to Maintenance Book. All other data associated with Maintenance Book remains the property of its respective owner.

  10. CONFIDENTIALITY. Confidential Information means (i) Maintenance Book, (ii) terms of this Agreement and (iii) any non-public information, data or know-how that has been disclosed by a Party to this Agreement to the other Party in writing, orally or by access to the disclosing Party's premises and identified by the disclosing Party as confidential or proprietary. With respect to Confidential Information, the receiving Party shall (i) use it solely for the purposes specifically provided in this Agreement; and (ii) not disclose it to a third Party, other than employees, other Customers or Data Pools in furtherance of this Agreement or Customer's access to Maintenance Book. The receiving Party is liable for any misuse of Confidential Information by third Parties. The foregoing obligations do not apply to information that (i) was rightfully in the possession of, or was known by, the receiving Party prior to its receipt from the disclosing Party, free of any obligation of confidence; (ii) is or becomes generally known to the public without violation of this Agreement; (iii) is obtained by the receiving Party from a third party, without an obligation to keep such information confidential; or (iv) is independently developed by the receiving Party without use of the Confidential Information. This Section will not affect any other nondisclosure agreement between the Parties. In the event the receiving Party is required to disclose Confidential Information pursuant to a judicial or governmental order, or valid subpoena, such Party will promptly notify the other Party to allow intervention in response to such order.

  11. TERM; TERMINATION.
    1. Term: The initial term of this Agreement shall be from the Effective Date until the first Anniversary Date (Initial Term). Notwithstanding the length of the initial term of this Agreement, each subsequent term, if any, shall be for one (1) month from the last Anniversary Date until the next Anniversary Date (Renewal Term). Unless at least one of the parties provides the other with written notice of its intent to terminate this Agreement at least five (5) days prior to the end of a Billing Period, or unless this Agreement is otherwise terminated in accordance with the terms outlined herein, this Agreement shall automatically renew for successive one (1) month terms. In the event KerberTech terminates without cause, KerberTech will reimburse Customer a pro rata portion of the fees associated with the remainder of the paid term. KerberTech shall have the immediate right to terminate this Agreement if KerberTech provides Customer with written notice of one of the following situations which Customer does not cure within thirty (30) days:
      1. Customer attempts to use Maintenance Book accounts not specifically authorized by KerberTech;
      2. Any third party, other than Customer employees or agents accesses Maintenance Book using Customer's access privileges.
    2. Termination:
      1. Cause. KerberTech may immediately terminate this Agreement if the Customer fails to pay the License Fees when due. Either Party may terminate this Agreement if the other Party: (i) materially breaches this Agreement and fails to cure such breach within thirty (30) days written notice specifying the breach in detail; (ii) files for bankruptcy which filing is not cured within thirty (30) days; (iii) is sold or has more than fifty percent (50%) of its assets sold.
      2. Deletion. Upon termination of this Agreement, KerberTech may delete Customer Data from Maintenance Book.
      3. Survival. In addition to any other damages attributable to Customer, in the event KerberTech terminates this Agreement in accordance with this Termination Section, such termination shall not relieve Customer of its obligations to pay Fees owed for the remainder of the existing contract term. In the event Customer terminates this Agreement for cause, in accordance with this Termination Section, such termination shall not relieve Customer of its obligations to pay License Fees accrued prior to the date of termination. Sections that by their nature survive expiration or termination shall survive any expiration or termination of this Agreement.
  12. GOVERNING LAW. This Agreement shall be governed and construed by the laws of the State of Iowa, excluding its conflict of law rules with jurisdiction and venue being in Polk County, Iowa.

  13. ATTORNEY'S FEES. In the event legal action is required to enforce or interpret any terms and conditions of this Agreement, the prevailing Party in such legal action shall recover all reasonable costs and expenses, including attorney's fees, incurred in connection with such action.

  14. ENTIRE AGREEMENT. This Agreement, together with the KerberTech Privacy Policy and Terms of Use, constitutes the entire agreement between the Parties regarding Customer's use of Maintenance Book. No purchase orders, other ordering documentation, email or any hand written or typewritten text which purports to modify or supplement this Agreement shall add to or vary the terms and conditions of this Agreement. This Agreement replaces and supersedes any prior verbal understanding, written communications or representations made by the Parties regarding the subject matter contained in this Agreement.

  15. EXPORT COMPLIANCE. Customer will comply with all applicable laws and regulations in its use of Maintenance Book.

  16. GENERAL. The Parties shall not be liable for any failure to perform due to causes beyond such Parties' reasonable control. Customer shall not assign this Agreement without the express written consent of KerberTech, wherein such consent shall not be unreasonably withheld. KerberTech may assign this Agreement. This Agreement shall be binding on the Parties and their permitted assigns. The failure to enforce any right will not be deemed a waiver of such or any other right, including the right to enforce a subsequent breach of the same obligation. In the event that any part of this Agreement is found to be unenforceable, the remainder shall continue in effect and such part shall be changed and interpreted so as to best accomplish the objectives of such part to the extent permissible by law and consistent with the intent of the Parties as of the Effective Date. The Parties are independent contractors and this Agreement shall not be construed as a teaming agreement or joint venture. The Parties executing this Agreement represent and warrant they have the authority to enter into this Agreement on behalf of their respective Party.