IMPORTANT-READ THESE TERMS OF SERVICES(THESE "TERMS") CAREFULLY BEFORE CONTINUING REGISTRATION. BY USING OUR SOFTWARE AND/OR ENTERING A SIGNED AGREEMENT WITH SAMEDAY, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND, IN SUCH EVENT, "YOU" AND "YOUR" AS USED IN THESE TERMS SHALL REFER TO SUCH ENTITY, IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THESE TERMS, YOU MUST NOT SELECT THE "I ACCEPT" BUTTON AND MAY NOT USE THE SERVICES.
I. AGREEMENT DEFINITIONS
II. APPLICABILITY OF TERMS
These Terms are valid for the subscription document which these Terms accompany.
III. LICENSE AND RIGHTS GRANTED
Upon Sameday's acceptance of your order, and subject to and conditioned on your payment of any and all fees and compliance with all other terms and conditions of these Terms, and for the duration of the services term as defined in the subscription document, Sameday hereby grants you a nonexclusive, non-assignable, royalty-free, worldwide limited license to use the services, including the Sameday Programs and program documentation, solely for your internal business operations. You may allow your users to use the Sameday Programs and program documentation for this purpose and you are responsible for your users’ compliance with these Terms. The services are provided as described in, and subject to, the services policies referenced in the subscription document. You acknowledge that Sameday has no delivery obligation and will not ship copies of the Sameday programs to you as part of the services.You agree that you do not acquire under the agreement any license to use the Sameday programs specified in the subscription document in excess of the scope and/or duration of the services. Upon the end of the services thereunder, your right to access or use the Sameday programs specified in the subscription document and the services shall terminate.
IV. OWNERSHIP AND RESTRICTIONS
Sameday reserves the right to store your data as well as your customer's data indefinitely unless Sameday otherwise receives a request to delete such information as further described in the privacy policies. By using the services, you agree and acknowledge that (i) you agree to the terms and provisions of the privacy policies; (ii) you do not own your customers' data, whether or not all, or parts, of such data pertains to transactions with you; (iii) Sameday has no obligation to remove any data concerning any of your customers unless any such customer makes a written request to Sameday requesting the removal of any personally identifying information from Sameday's database; and (iv) your customers' data involving transactions with you shall be retained by Sameday indefinitely. Without limiting the generality of the foregoing, you hereby grant Sameday the perpetual, non-exclusive, royalty-free right and license to use your data in support of the Sameday services. In addition, you hereby grant to Sameday, and to Sameday's third-party providers and partners, the perpetual, irrevocable, worldwide, non-exclusive, royalty-free right and license to copy, distribute, add to, subtract from, and otherwise use and exploit non-personal data of yours and of your customers, including non-personal transaction data generated by your customers and your business locations, for any purpose whatsoever. Sameday or its licensors retain all ownership and intellectual property rights to the services and Sameday programs. Sameday retains all ownership and intellectual property rights to anything developed and delivered under the subscription document. Third-party technology that may be appropriate or necessary for use with some Sameday programs is specified in the program documentation or subscription document as applicable. Your right to use third-party technology is governed by the terms of the third-party technology license agreement specified by Sameday and not by these Terms. You may not:
● remove or modify any program markings or any notice of Sameday's or its licensors' proprietary rights;
● make the programs or materials resulting from the services available in any manner to any third party for use in the third party's business operations (unless such access is expressly permitted for the specific program license or materials from the services you have acquired); ● modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the services in order to build or support, and/or assist a third-party in building or supporting, products or services competitive to Sameday;
● disclose results of any services or program benchmark tests without Sameday's prior written consent; and
● license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the services, Sameday programs or materials available, to any third party other than, as expressly permitted under these Terms.
The rights granted to you under these Terms are also conditioned on the following:
● the rights of any user licensed to use the services cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized user, in which case the prior authorized user shall no longer have any right to access or use the license);
● except as expressly provided herein, no part of the services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and
● you agree to make every reasonable effort to prevent unauthorized third parties from accessing the services.
V. LIMITED WARRANTY
THE SERVICES, ANY HARDWARE, AND ALL SOFTWARE ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. WE FURTHER DISCLAIM ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
VI. REPRESENTATIONS AND WARRANTIES
BY SUBSCRIBING FOR THE PREPAID SERVICES OFFERED BY SAMEDAY, YOU REPRESENT AND WARRANT THAT YOU UNDERSTAND THAT SAMEDAY HAS NOT AND WILL NOT PROVIDE ANY LEGAL COUNSEL TO YOU AS TO THE PERMISSIBILITY AND LEGALITY OF THE SERVICES IN YOUR STATE OR ELSEWHERE AND FURTHER REPRESENT AND WARRANT THAT YOU UNDERSTAND THAT IT IS YOUR EXCLUSIVE RESPONSIBILITY TO INQUIRE AS TO THE PERMISSIBILITY AND LEGALITY OF THE SERVICES IN YOUR STATE OR ELSEWHERE.
If a third party makes a claim against either you or Sameday ("Recipient" which may refer to you or Sameday depending upon which party received the Material), that any information, design, specification, instruction, software, service, data, or material ("Material") furnished by either you or Sameday ("Provider" which may refer to you or Sameday depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:
● notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);
● gives the Provider sole control of the defense and any settlement negotiations; and
● gives the Provider the information, authority, and assistance the Provider needs to defend against or settle the claim.
If the Provider believes or it is determined that any of the Material may have violated a third party's intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material. If such return materially affects Sameday's ability to meet its obligations under the relevant order, then Sameday may, at its option and upon 30 days prior written notice, terminate the order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider's user documentation or services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to you within or from the service (e.g., a third party Web page accessed via a hyperlink). Sameday will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by Sameday. Sameday will not indemnify you for infringement caused by your actions against any third party if the services as delivered to you and used in accordance with these Terms would not otherwise infringe any third party intellectual property rights. Sameday will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of the agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of the agreement. This section provides the parties' exclusive remedy for any infringement claims or damages.
VIII. SUPPORT SERVICES
Support services provided under the agreement are specified in the services policies referenced in the subscription document.
IX. TERMINATION OF SERVICES
Services provided under the agreement shall be provided for the period defined in the subscription document unless earlier terminated in accordance with these Terms. The term of the services and any renewal years are collectively defined as the "services term". At the end of the services term, all rights to access or use the services, including the Sameday programs listed in the subscription document, shall end. If either party breaches a material term of the agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable subscription document under which the breach occurred. If Sameday ends the subscription document as specified in the preceding sentence, you must pay within 30 days all amounts which have accrued prior to such end, as well as all sums remaining unpaid for the services ordered under the subscription document plus related taxes and expenses. If Sameday ends the services under the Indemnification section, you must pay within 30 days all amounts remaining unpaid for services plus related taxes and expenses. The non-breaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under the agreement, you may not use the services ordered. In addition, Sameday may immediately suspend your password, account, and access to or use of the services (i) if you fail to pay Sameday as required under the agreement and do not cure within the first ten days of the 30 day cure period, or (ii) if you violate any provision within sections III, IV, XIV or XVIII of the agreement. Sameda may terminate the services hereunder if any of the foregoing is not cured within 30 days after Sameday's initial notice thereof. Any suspension by Sameday of the services under this paragraph shall not excuse you from your obligation to make payment(s) under the agreement. You agree and acknowledge that Sameday may store your data indefinitely, that data related to transaction and payment history is owned jointly by you and your respective customers, and that the personal identifying information of your customers is owned exclusively by your respective customers. Provisions that survive termination or expiration of the agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.
X. FEES AND TAXES
You agree to pay for all services ordered as set forth in the applicable subscription document. All fees due under the subscription document are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added or other similar taxes imposed by applicable law that Sameday must pay based on the services you ordered, except for taxes based on Sameday's income. You will reimburse Sameday for reasonable expenses related to providing any on-site portion of the services. Fees for services listed in a subscription document are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice. You agree that you have not relied on the future availability of any services, programs or updates in entering into the payment obligations in the subscription document; however, the preceding does not relieve Sameday of its obligation to deliver services that you have ordered per the agreement.
By virtue of the agreement, the parties may have access to information that is confidential to one another ("confidential information"). We each agree to disclose only information that is required for the performance of obligations under the agreement. Confidential information shall be limited to the terms and pricing under the agreement, your data residing in the services environment, and all information clearly identified as confidential at the time of disclosure. A party's confidential information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of the other party; (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; (c) is lawfully disclosed to the other party by a third party without restriction on the disclosure; or (d) is independently developed by the other party. We each agree to hold each other's confidential information in confidence for a period of three years from the date of disclosure. Also, we each agree to disclose confidential information only to those employees or agents who are required to protect it against unauthorized disclosure in a manner no less protective than under the agreement. Sameday will protect the confidentiality of your data residing in the services environment in accordance with the Sameday security practices specified in the services policies referenced in the subscription document. Nothing shall prevent either party from disclosing the terms or pricing under the agreement in any legal proceeding arising from or in connection with the agreement or from disclosing the confidential information to a governmental entity as required by law.XII. ENTIRE AGREEMENTYou agree that the agreement (including the information which is incorporated into the agreement by written reference (including reference to information contained in a URL or referenced policy)), is the complete agreement for the services ordered by you, and that the agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services. If any term of the agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of the agreement. It is expressly agreed that the terms of the agreement shall supersede the terms in any purchase order or other non-Sameday document and no terms included in any such purchase order or other non-Sameday document shall apply to the services ordered. The agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through Sameday's website by authorized representatives of you and of Sameday.
XIII. LIMITATION OF LIABILITY
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE. SAMEDAY'S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO SAMEDAY FOR THE SERVICES UNDER THE SUBSCRIPTION DOCUMENT THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST SAMEDAY SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.
Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the services. You agree that such export control laws govern your use of the services (including technical data) and any services deliverables provided under the agreement, and you agree to comply with all such export laws and regulations (including "deemed export" and "deemed re-export" regulations). You agree that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws.
1. Sameday is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment-related taxes and insurance.
2. You shall obtain at your sole expense any rights and consents from third parties necessary for Sameday and its subcontractors to perform the services under the agreement.
3. The agreement is governed by the substantive and procedural laws of Utah and you and Sameday agree to submit to the exclusive jurisdiction of, and venue in, the courts in Salt Lake County in Utah in any dispute arising out of or relating to the agreement.
4. If you have a dispute with Sameday or if you wish to provide a notice under the Indemnification section of these Terms, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to:
470 N. Tanner Building,
Provo, Utah 84602
Attention: Aaron Cooper
Sameday may give notice applicable to Sameday's customer base by means of a general notice on the Sameday portal for the services, and notices specific to you by electronic mail to your e-mail address on record in Sameday's account information or by written communication sent by first-class mail or pre-paid post to your address on record in Sameday's account information.
5. You may not assign the agreement or give or transfer the services or an interest in them to another individual or entity. If you grant a security interest in any portion of the services, the secured party has no right to use or transfer the services or any deliverables.
6. Except for actions for nonpayment or breach of Sameday's proprietary rights, no action, regardless of form, arising out of or relating to the agreement may be brought by either party more than two years after the cause of action has accrued.
7. Sameday may audit your use of the services. You agree to cooperate with Sameday's audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within 30 days of written notification any fees applicable to your use of the services in excess of your rights. If you do not pay, Sameday can end your services and/or the agreement. You agree that Sameday shall not be responsible for any of your costs incurred in cooperating with the audit.
8. The Uniform Computer Information Transactions Act does not apply to the agreement. You understand that Sameday's business partners, including any third party firms retained by you to provide computer consulting services, are independent of Sameday and are not Sameday's agents. Sameday is not liable for nor bound by any acts of any such business partner, unless the business partner is providing services as a Sameday subcontractor on an engagement ordered under the agreement.
XVI. Force Majeure
Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export or other license); other event outside the reasonable control of the obligated party. We both will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than 30 days, either of us may cancel unperformed services upon written notice. This section does not excuse either party's obligation to take reasonable steps to follow its normal disaster recovery procedures or your obligation to pay for the services.
XVII. YOUR DATA
XVIII. RESTRICTIONS ON USE OF THE SERVICES
You agree not to use or permit use of the services, including by uploading, emailing, posting, publishing or otherwise transmitting any material, for any purpose that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing or obscene, (c) violate privacy rights or promote bigotry, racism, hatred or harm, (d) constitute unsolicited bulk e-mail, "junk mail", "spam" or chain letters; (e) constitute an infringement of intellectual property or other proprietary rights, or (f) otherwise violate applicable laws, ordinances or regulations. In addition to any other rights afforded to Sameday under the agreement, Sameday reserves the right to remove or disable access to any material that violates the foregoing restrictions. Sameday shall have no liability to you in the event that Sameday takes such action. You agree to defend and indemnify Sameday against any claim arising out of a violation of your obligations under this section.
XIX. SERVICES TOOLS
Sameday may use tools, scripts, software, and utilities (collectively, the "tools") to monitor and administer the services and to help resolve your Sameday service requests. Data collected by the tools (excluding production data) may also be used to assist in managing Sameday's product and service portfolio and for license management. You agree that (a) except as set forth in the following paragraph, you may not access or use the tools, and (b) you will not use or restore the tools from any backup at any time following termination of the agreement. If Sameday provides you with access to or use of any tools in connection with the services, your right to use such tools is governed by the license terms that Sameday specifies for such tools; however, if Sameday does not specify license terms for such tools, you shall have a non-transferable, non-exclusive, limited right to use such tools solely to facilitate your administration and monitoring of your services environment, subject to the terms of the agreement. Any such tools are provided by Sameday on an "as is" basis and Sameday does not provide technical support or offer any warranties for such tools. Your right to use such tools will terminate upon the earlier of Sameday's notice, the end of the services term, or the date that the license to use such tools ends under the license terms specified for such tools.
XX. STATISTICAL INFORMATION
Sameday may compile statistical information related to the performance of the services, and may make such information publicly available, provided that such information does not incorporate your data and/or identify your confidential information or include your company's name. Sameday retains all intellectual property rights in such information.
XXI. THIRD-PARTY WEB SITES, CONTENT, PRODUCTS AND SERVICES
The services may enable you to add links to Web sites and access to content, products and services of third parties, including users, advertisers, affiliates and sponsors of such third parties. Sameday is not responsible for any third-party Web sites or third-party content provided on or through the services and you bear all risks associated with the access and use of such web sites and third party content, products and services.
XXII. CUSTOMER REFERENCE
You agree (i) that Sameday may identify you as a recipient of services and use your logo in sales presentations, marketing materials and press releases, and (ii) to develop a brief customer profile for use by Sameday on choosesameday.com for promotional purposes.