PROTECH TERMS OF SERVICE
Table of Contents
1. Service Description
2. Subscription and Subscription Date
3. Term
4. Pricing and Fees
5. Taxes
6. Service Use and Use Rights
7. Service Level Commitment
8. Support and Enhancement Requests
9. Agents; Third-Party Content .
10. Restrictions and Limitations
11. Rights Granted to Small Town Tech
12. Proprietary Rights
13. Confidentiality
14. Service Termination
15. Effect of Expiration or Early Service Termination
16. Representations and Indemnities
17. Limitations of Liability
18. Miscellaneous
This Managed Service Agreement, together with the Subscription (as defined in Section 2 below), are an agreement (collectively, this “Agreement”) between Small Town Tech Inc., a Minnesota corporation (“Small Town Tech”) with offices at 304 3rd St, International Falls, MN, 56649 and the individual or company identified in the Subscription (“Customer”).
Customer and Small Town Tech can also be referred to herein collectively as the “Parties” and individually as a “Party.” If Customer is an affiliate of a Small Town Tech customer that has a signed, effective Service Agreement with Small Town Tech, Customer hereby agrees to be bound to all terms and conditions of such Service Agreement as part of this Agreement.
BY SIGNING UP TO ACCESS THE PROTECH SERVICE YOU ARE REPRESENTING THAT YOU ARE OVER THE AGE OF 18, HAVE THE CAPACITY AND AUTHORITY TO ENTER INTO THIS AGREEMENT, AND ARE CONSENTING ON BEHALF OF YOURSELF AND/OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY, AS APPLICABLE, TO BE BOUND BY THIS AGREEMENT.
In consideration of the mutual promises contained in this Agreement, Small Town Tech and Customer agree as follows:
1. Service Description
Small Town Tech runs a managed service intended for users and IT operations which includes the features and functionality described at the Protech website (http://www.Smalltowntech/Protech) (the “Site”) on the Subscription Date, as such features and functionality may change from time to time as provided in Section 6 (the “Service”). The Service is operated on Small Town Tech’s hosting servers or those of its provider(s) to enable Customer and those of its employees who have been authorized by Customer (“Authorized Users” or “Users”) to access and use the Service via the communication mechanisms indicated in Section 6. (If Customer is an individual subscribing for personal use, the term Authorized User shall refer to him or her.)
2. Subscription and Subscription Date
As used in this Agreement, the term “Subscription” means (a) an online order for the Service completed and submitted by Customer through the Site and accepted by Small Town Tech, (b) a written Customer purchase order via order forms for the Service accepted by Small Town Tech, (c) another written agreement for the Service executed by both Small Town Tech and Customer, or (d) an order for the Service by Customer through an authorized Small Town Tech reseller/partner. “Subscription Date” refers to, as applicable, (i) the date Customer submits its online order through the Site, (ii) the date Customer issues its written order form, (iii) the date both Customer and Small Town Tech have executed a written agreement, or (iv) the date that an authorized Small Town Tech reseller/partner has commenced the Service on behalf of a Customer.
3. Term
This Agreement shall commence on the Subscription Date and, unless terminated early in accordance with Section 7 or 14 below, continue for (i) the number of months or year(s) specified in the Subscription as measured from the Subscription Date, or (ii) if no period is specified in the Subscription, the end of the calendar month in which Customer gives notice of termination pursuant to this Section 3 (the “Initial Period”). This Agreement shall automatically renew for successive renewal periods of the same duration of the Initial Period (each, a “Renewal Period”) unless one party gives notice of termination or non-renewal pursuant to this Section 3 (the Initial Period, and all such Renewal Periods, collectively, the “Service Period”).
If Customer is using the Service under any plan (each, a “Paying Plan”), this Agreement shall automatically renew for successive renewal periods of the same duration of the Initial Period unless one party gives notice to the other of its intent not to renew at least 30 days prior to the expiration of the then pending term. If Customer is using the Service under a Free or non- paying Trial plan (each, a “Free Plan”), this Agreement will be deemed month-to-month and either party shall be free to not renew, or to terminate, this Agreement immediately upon notice to the other.
4. Pricing and Fees
Unless the parties agree otherwise in a separately executed written agreement for a Paying Plan or other customized Paying Plan, fees for the Service (“Fees”) shall be based on the pricing published in the price list on the applicable order form - subject to change at the sole discretion of Small Town Tech, a copy of which may be displayed on the Site as of the Subscription Date for the Initial Period. All or certain of the Fees may be calculated on the basis of the number of endpoints. For purposes of that determination and this Agreement, the term “Endpoint” refers to a computer, server, or other device as determined by Small Town Tech on a calendar month basis.
Customer must be authorized to use the payment method Customer enters when creating a billing account. Customer authorizes Small Town Tech to charge Customer for the Service using that payment method and for any paid feature of the Service that Customer chooses to sign up for or use during the Service Period of this Agreement. As indicated in a Subscription, Small Town Tech may bill: (i) in advance; (ii) at the time of purchase; (iii) shortly after purchase; or
(iv) on a recurring time- or usage-based basis.
Customer must keep all information in Customer’s billing account current. Customer can access and modify Customer’s billing account information through the Site and may change its payment method at any time. If Customer notifies Small Town Tech to stop using Customer’s previously designated payment method and fails to designate an alternative, Small Town Tech may immediately suspend use and access to the Service. Any notice from Customer changing its billing account will not affect charges Small Town Tech submits to Customer’s billing account before Small Town Tech reasonably could act on Customer’s request.
Small Town Tech will notify Customer in advance, either through the Service or by email pursuant to Section 19(b), if Small Town Tech changes Fees that would apply to Customer in a Renewal Period. If Customer does not agree to these changes, Customer must give notice of its intent to not renew the Agreement for such Renewal Period and stop using the Service on or before the effective date of termination. If Customer fails to give notice of non-renewal, Customer’s payment information on file will be charged at the new Fees thereafter.
Payments for all accounts registered to pay via credit card are due the date the invoice is posted on Customer’s account. Payments for all accounts registered to pay via check, wire transfer or Automated Clearing House (ACH) are due within 30 days of the invoice date unless otherwise agreed-to by the Parties in writing. If any payment is not made when due, Small Town Tech may immediately suspend use and access to the Service. All Customer prepayments, if any, for the Service (monthly, yearly or otherwise) shall be deemed fully earned upon payment and are non-refundable; this includes accounts that are renewed.
If this Agreement is terminated early by Customer pursuant to Section 7 or 14(a), or by Small Town Tech pursuant to Section 14(b)(ii), Customer will not be obligated to pay the Fees following the effective date of termination, with the following exception: Customer will be obligated to pay any remaining unbilled Fees for a Complete or other customized Paying Plan that included any Supplementary Fees, based on the Supplementary Fees pricing published in the price list on the applicable order form. In all other cases, and regardless of whether Customer and its Authorized Users’ access or use the Service at the levels reflected in the Subscription or otherwise, Customer is responsible for paying all Fees through expiration of the Service Period.
Any amount not paid when due will bear interest at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is less, computed and compounded daily from the date due until the date paid. Further, in the event of any action by Small Town Tech to collect any amount not paid when due, Customer will pay or reimburse Small Town Tech’s costs of collection (including, without limitation, any attorneys’ fees and court costs).
5. Taxes
All Fees are inclusive of any applicable sales or other taxes or similar fees imposed by any government authority. Customer will (a) pay or reimburse all such taxes and fees (including any interest or penalties), if any, due, based on or measured by amounts payable by Customer under this Agreement (excluding taxes based on Small Town Tech’s net income) or (b) furnish Small Town Tech with evidence acceptable to the government authority to sustain an exemption therefrom.
6. Service Use and Use Rights
Subject to this Agreement, Small Town Tech will make the Service available to Customer and Authorized Users during the Service Period and Small Town Tech hereby grants to Customer, during the Service Period, a nonexclusive, non-transferable, limited right to enable Authorized Users to access and use the Service through the interface and the Site, and to access and use Small Town Tech’s technical and operations documentation and Agents (as defined in Section 9) in support thereof, solely for Customer’s internal, business use. Customer acknowledges that its and each Authorized User’s access and use of the Service are subject to Small Town Tech’s Privacy Policy, which is published at the Site and incorporated into this Agreement by reference. Small Town Tech may in its discretion modify, enhance or otherwise change the Service from time to time, provided that, if Customer is under a Paying Plan, such change does not materially adversely affect the Service as it existed at the Subscription Date.
7. Service Level Commitment
Small Town Tech Responsibilities. Small Town Tech shall provide the Services in accordance with applicable laws and government regulations. The Small Town Tech Designated Privacy Protection Officer shall act as the primary point of contact in contracts for cloud service customers regarding the processing of PII under the contract. In the case of a Personal Data Breach, the Processor will notify the customer without undue delay after becoming aware of a Personal Data Breach.
8. Support and Enhancement Requests
Subject to this Agreement, if Customer is under a Paying Plan, Small Town Tech will provide unlimited in-product and email support (“Support”). Although no response times are guaranteed, Small Town Tech will use commercially reasonable efforts to respond to such support requests within 24 hours. Small Town Tech may delegate the performance of certain portions of the Support to third parties but will remain responsible to Customer for delivery thereof. In the event any Support is not performed with reasonable skill, care and diligence, Small Town Tech will re-perform the Support to the extent necessary to correct the defective performance, and Customer acknowledges that re-performance shall be Customer’s sole and exclusive remedy for any defective performance. Notwithstanding the foregoing, if Customer has purchased the Service through an authorized Small Town Tech reseller/partner, such reseller/partner shall be responsible for Tier 1 support and any other support terms set forth in Customer’s subscription with such reseller/partner.
Small Town Tech may, but shall have no obligation to, consider Customer's suggestions or requests regarding new functionality or features of the Service ("Enhancement Requests"). All modifications proposed or requested in an Enhancement Request shall be the sole and exclusive property of Small Town Tech. Small Town Tech may, in its sole discretion include such modifications in a future version of the Service, but Small Town Tech's acceptance and consideration of an Enhancement Request shall not obligate Small Town Tech to include in any version of the Service any modifications proposed or requested in such Enhancement Request.
9. Agents; Third-Party Content
Small Town Tech will make various application program interfaces (APIs), agents, libraries and other materials available through the Service from time to time in its discretion to support Customer’s access and use of the Service (collectively, “Agents”). Customer acknowledges and agrees that: (a) the Agents may only be used on systems owned, leased or primarily operated by Customer, (b) the Agents are made available solely to support access and use of the Service, and Small Town Tech has no liability with respect to any other uses of the Agents.
10. Restrictions and Limitations
Small Town Tech has implemented commercially reasonable, industry-standard technical and organizational measures designed to secure Customer Data from accidental loss and from unauthorized access, use, alteration or disclosure, and each hosting provider for the Service has or will have similar contractual obligations to Small Town Tech. Small Town Tech does not represent, and, except as expressly set forth herein and the Privacy Policy, expressly disclaims, that it meets the standards for operational compliance or certification in any specific area, including any government or industry-association requirements.
Customer is solely responsible for providing, installing and maintaining at its own expense all equipment, facilities and Service necessary to enable Authorized Users’ access and use of the Service through the interface, including, without limitation all computer hardware and software and Internet access.
Customer will use commercially reasonable efforts to ensure, through proper instructions and enforcement actions, that all access to and use of the Service by Customer or Authorized Users’, or otherwise through Customer’s facilities, equipment, identifiers or passwords, will conform to this Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, the rights of any third party or this Agreement. Customer is solely responsible for tracking and for ensuring the security and confidentiality of all user identifiers and passwords. Small Town Tech has no liability with respect to any use or misuse of such identifiers or passwords, and any use thereof other than as provided in this Agreement will be considered a breach of this Agreement by Customer.
Without limiting the generality of Sections 10 and 12, no provision of this Agreement includes the right to, and Customer will not, directly or indirectly: (i) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (ii) take any action that imposes, or may impose at Small Town Tech’s discretion, an unreasonable or disproportionately large load on Small Town Tech’s infrastructure;(iii) knowingly upload invalid data, viruses, worms, or other software agents through the Service; (iv) enable any person or entity other than Authorized Users to access and use the Service or Technology (as defined in Section 12(b)); (v) modify or create any derivative work based upon the Service or Technology; (vi) engage in, permit or suffer to continue any copying or distribution of the Service or Technology; (vii) reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, any software that is part of the Service or Technology; (viii) access the Service in order to build a competitive solution or to assist any third party to build a competitive solution; (ix) remove, obscure or alter any proprietary notice related to the Service or Technology; or (x) engage in, permit or suffer to continue any use or other activity that is not expressly authorized under this Agreement by any person or entity within Customer’s control (“Unauthorized Use”). In the event Customer violates any of the terms set forth in this Section, in addition to any other remedies available at law or in equity, Small Town Tech will have the right, in its discretion, to immediately suspend Customer’s and Authorized Users’ use and access to the Service.
11. Rights Granted to Small Town Tech
During the Service Period, Small Town Tech may list Customer as a customer and use Customer’s name and logo on the Site, on publicly available customer lists and in media releases.
12. Proprietary Rights
As used in this Agreement, “Technology” means any and all know-how, processes, methodologies, specifications, designs, inventions, functionality, graphics, techniques, methods, applications, computer programs, libraries, user manuals, documentation, products or other technology and materials of any kind, or any enhancement thereto, used by Small Town Tech in connection with the performance of the Service or the Support, or made available by Small Town Tech to Customer, any Authorized User or any third party in connection with the Service or the Support. Without limiting the foregoing, Technology includes the products, Service and technology made available through the Site, the Agents, the Service interface and any Small Town Tech branded or co-branded websites (including sub-domains, widgets and mobile versions).
Subject only to the limited rights expressly granted in this Agreement, as between Customer and Small Town Tech, Customer shall retain all right, title and interest in and to the Customer Data and all intellectual property rights therein. Customer is solely responsible, and Small Town Tech assumes no liability, for the Customer Data that Authorized Users or other third parties post, send or otherwise make available over or through the Service.
The Service and Technology constitute or otherwise involve valuable intellectual property rights of Small Town Tech and all right, title and interest in and to the foregoing shall, as between the parties, be owned by Small Town Tech. No title to or ownership of the Service or Technology, or any intellectual property rights associated therewith, is transferred to Customer, any Authorized User or any third party under this Agreement. Sections 6 and 9 set forth the entirety of Customer’s limited rights to access and use the Service and Agents and to make the Service and Agents available to Authorized Users. Except with respect to certain of the Agents, in no event shall Customer be entitled to access or review any object code or source code. Small Town Tech reserves all rights to the Service and Technology not otherwise expressly granted herein.
13. Confidentiality
As used in this Agreement, “Confidential Information” means any information that is proprietary or confidential to the Discloser (as defined below) or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information shall include, but shall not be limited to, trade secrets, knowhow and other proprietary information relating to products, operations, customers, suppliers and other business information and the terms and existence of this Agreement. The foregoing use and confidentiality restrictions shall not apply to information that is (i) or becomes publicly available through no fault of the receiving Party; (ii) obtained lawfully from a third party not bound to obligations of secrecy to the disclosing Party; (iii) developed by or for a Party independent of and without reliance on Confidential Information, and (iv) within a Party’s possession prior to the Effective Date of this Agreement that was not received under an obligation to keep the same confidential.
Each party reserves any and all right, title and interest (including any intellectual property rights) that it may have in or to any Confidential Information that it may disclose to the other party under this Agreement. The party that receives any Confidential Information (the “Recipient”) of the other party (the “Discloser”) will protect Confidential Information of the Discloser against any Unauthorized Use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against Unauthorized Use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information; provided that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that the same is Confidential Information of the Discloser. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section will not be interpreted or construed to prohibit: (i) any use or disclosure which is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (ii) any use or disclosure required by applicable law, provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information; or (iii) any use or disclosure made with the consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this Section 13(b), the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations. The obligations of confidentiality shall survive expiration or termination of this Agreement.
14. Service Termination
This Agreement may be terminated by a non-breaching party: (a) if the other party materially breaches any material obligation of this Agreement, which breach is not cured within thirty (30) days after notice of breach is delivered in writing to the breaching party from the non- breaching party; (b) the other party materially breaches any material obligation of this Agreement, which breach is not capable of being cured within thirty (30) days; or (c) the other party (i) makes an assignment for the benefit of creditors, (ii) permits the appointment of a trustee or receiver of all or a substantial part of its assets, (iii) is generally unable to meet its obligations when due, or (iv) institutes voluntary proceedings in bankruptcy or insolvency, permits involuntary institution of such proceedings against it, or commits any other act of bankruptcy.
In addition to the rights under Section 14(a), Small Town Tech may terminate this Agreement immediately upon notice to Customer (i) if Customer breaches any provisions of Section 6, 9 or 10, (ii) in order to comply with applicable laws or regulations, (iii) if Customer defaults in the timely payment of any amounts due Small Town Tech under a Paying Plan, or (iv) if Customer has purchased the Service through a reseller/partner that is no longer an authorized reseller/partner of Small Town Tech
15. Effect of Expiration or Early Service Termination
Upon expiration or earlier termination of this Agreement: (i) any and all rights granted to Customer with respect to the Service and Technology, and except as set forth in Section 11 any and all rights granted to Small Town Tech with respect to the Customer Data, will terminate effective as of the effective date of termination; (ii) Customer will return to Small Town Tech any and all Confidential Information of Small Town Tech in the possession or control of Customer; (iii) subject to Section 15(b), Small Town Tech will return to Customer any and all Confidential Information of Customer in its possession or control; (iv) Small Town Tech will have no obligation to provide the Service to Customer or Authorized Users after the effective date of the termination; and (v) Customer will pay to Small Town Tech any amounts payable for Customer’s and Authorized User’s use of the Service through the effective date of the termination, together with all other amounts in accordance with Section 4. This Section 15 and Sections 4, 5, 10 through 13 and 16 through 18 shall survive the expiration or earlier termination of this Agreement.
Small Town Tech’s only obligation with respect to any electronic information transmitted or received by Customer or Authorized Users in relation to Customer’s and Authorized User’s use of the Service is, upon Customer’s request, to promptly delete or destroy the information that is stored, if any, in the Service database on the effective date of termination. Customer acknowledges the duration of the retention of such information is determined by the terms of the applicable Plan. In addition, Customer acknowledges that although information in the Service database will be deleted from its transaction servers, Small Town Tech may retain such information stored on automatic backup archiving systems during the period such backup or archived materials are retained under Small Town Tech’s customary procedures and policies. In addition, Small Town Tech may retain certain information as provided in Section 11(a)(iii).
16. Representations and Indemnities
Customer hereby represents and warrants to Small Town Tech that Customer has the authority to enter into and perform this Agreement and the Customer’s entering into this Agreement, and performance of its obligations and exercise of its rights under this Agreement, do not and will not violate any applicable laws, regulations or orders.
Customer hereby represents, warrants and covenants that, without limiting the foregoing: (i) Customer or its licensors owns all right, title and interest in and to Customer Data; (ii) Customer has all rights in Customer Data necessary to grant the rights contemplated by this Agreement; and (iii) Customer has obtained any necessary third-party approvals, including without limitations applicable vendors and licensors, in relation to third-party content to be used by Customer in connection with the Service or will obtain such approvals prior to such use.
Customer agrees to defend, indemnify and hold harmless Small Town Tech and its employees, contractors, agents, officers and directors, from and against any and all third party claims, damages, obligations, losses, liabilities, costs and expenses (including without limitation attorneys’ fees) arising out of or related to: (i) Customer’s and Authorized Users’ use of and access to the Service; (ii) Customer’s or an Authorized User’s violation of any term of this Agreement; (iii) Customer’s or an Authorized User’s violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) Customer’s or an Authorized User’s violation of any law, rule or regulation; (e) any claim or damages that arise as a result of any Customer Data; or (v) any other party’s access and use of the Service with provided identifier(s) and password(s).
Small Town Tech agrees to defend, indemnify and hold harmless Customer, if under a Paying Plan, from and against any and all damages, obligations, losses, liabilities, costs and expenses (including without limitation attorneys’ fees) paid or incurred in connection with any third party claims that the Services or Technology infringe on the U.S. copyright, U.S. patent, U.S. trade secret or other intellectual property right of any kind whatsoever of a third party; provided that Customer gives Small Town Tech prompt written notice of the claim, allows Small Town Tech to direct the defense and settlement of the claim, and cooperates with Small Town Tech as necessary, at Small Town Tech’s expense, for defense and settlement of the claim. If the Service or Technology becomes, or, in Small Town Tech’s opinion is likely to become, the subject of such a claim, Small Town Tech shall have the right to obtain for Customer the right to continue using the Service or Technology, replace or modify the Service or Technology so that it becomes non-infringing, or terminate the rights granted hereunder to such Service or Technology with refund to Customer of any fees paid for such Service and Technology (less a reasonable charge for the period during which Customer has had available to it the use of such Service and Technology).
Notwithstanding the foregoing, Small Town Tech will have no liability for any infringement claim to the extent it (1) is based on modification of the Service or Technology other than by Small Town Tech; (2) results from failure of Customer to use any updated version of Service or Technology provided by Small Town Tech to Customer; (3) is based on the combination or use of the Service or Technology with any other software, program or device not provided by Small Town Tech if such infringement would not have arisen but for such use or combination; (4) results from compliance by Small Town Tech with designs, plans or specifications furnished by Customer; or (5) results from Customer’s operation of the Service or Technology in a manner that is inconsistent with its intended use. THE FOREGOING STATES Small Town Tech’s ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT.
The parties agree that the indemnifying party under Section 16 as applicable, shall have the sole right and discretion to settle, negotiate, compromise or otherwise dispose of the claim, provided that the indemnified party, may, at its option participate in such defense at its sole option and expense, but not control the defense of the claim and all negotiations for settlement, compromise or other disposal of the claim. Each party agrees to promptly notify the other party of a claim or suit that is subject to the indemnification obligations under this Agreement and provide reasonable cooperation (at the indemnifying party’s expense) and full authority to defend or settle the claim or suit. The indemnifying party may not enter into (i) any non-monetary settlement, (ii) any settlement that requires the indemnifying party to admit fault, or (iii) any settlement that does not contain a release of the indemnified party, without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld or delayed.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE, TECHNOLOGY, SUPPORT AND ALL OTHER ITEMS PROVIDED IN CONNECTION THEREWITH ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. Small Town Tech DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY ERROR, DEFECT, DEFICIENCY, INFRINGEMENT OR NONCOMPLIANCE IN THE SERVICE, TECHNOLOGY, SUPPORT OR ANY OTHER ITEMS PROVIDED BY, THROUGH OR ON BEHALF OF Small Town Tech UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE).
17. Limitations of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY SEEKING DAMAGES UNDER THIS AGREEMENT FOR PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR EXPENSES ARISING OUT OF THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBLE EXISTENCE OF SUCH LIABILITY.
UNDER NO CIRCUMSTANCES WILL Small Town Tech BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S ACCOUNT(S) OR THE INFORMATION CONTAINED THEREIN. Small Town Tech ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM CUSTOMER’S OR AUTHORIZED USERS’ ACCESS TO AND USE OF THE SERVICE OR SUPPORT; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (IV) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (IV) CUSTOMER DATA OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. EXCEPT FOR EACH PARTY’S INDEMNITY OBLIGATIONS AND DIRECT DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY, THEIR AFFILIATES, DIRECTORS, EMPLOYEES, OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AUTHORIZED USER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS EXCEEDING THE LESSER OF (I) ONE HUNDRED THOUSAND U.S. DOLLARS ($100,000) OR (II) AN AMOUNT EQUAL TO AGGREGATE FEES PAID UNDER THIS AGREEMENT TO Small Town Tech DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY UNDER THE AGREEMENT.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF THE NON- BREACHING PART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
18. Miscellaneous
Without the prior written consent of the other Party, this Agreement shall not be assignable or transferable by either Party; provided, however, no consent of Customer shall be required in connection with a sale of assets of Small Town Tech, in connection with a change of control of Small Town Tech, or to the successor or assignee or transferor of all or substantially all of Small Town Tech’s business to which this Agreement relates. When duly assigned in accordance herewith, this Agreement shall be binding on and inure to the benefit of each party’s successors and assignees.
Small Town Tech may send Customer, in electronic form, information about the Service, additional information and any information the law requires Small Town Tech to provide. Customer acknowledges and agrees that Small Town Tech may provide notices to Customer by email at the address Customer specified in its Subscription or by access to a website that Small Town Tech identifies. Notices emailed to Customer will be deemed given and received when the email is sent. If Customer does not consent to receiving notices electronically, Customer and its Authorized Users must stop using the Service. (Please note that these provisions relate to the customer business relationship and are distinct from marketing and similar emails covered by the “Opt-Out” provisions of the Privacy Policy.) Customer may provide legal notices to Small Town Tech by email to manager@smalltowntech.shop, with a duplicate copy sent via registered mail, return receipt requested, to the following address: Small Town Tech, Inc., Attn: Legal Notice, 304 3rd St International Falls, MN 56649 or such other address as Small Town Tech may direct from time to time on the Site. Customer must specify in all such notices that the notice is being given under this Agreement.
The parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one party as an employee, agent, joint venture partner or servant of another.
No liability shall result to Customer or Small Town Tech from any delay in performance or from nonperformance caused by acts of God, fire, flood, explosion, war, action of governmental authority or any other circumstances of a similar nature beyond the reasonable control of the party affected; provided that such nonperformance could not have been prevented by reasonable precautions (“Force Majeure”). The party affected by the Force Majeure shall use its commercially reasonable efforts to remove such cause or causes and shall promptly notify the other party of the existence of such Force Majeure and its probable duration. In the event of a delay in Small Town Tech’s performance hereunder caused by Force Majeure which continues for thirty (30) days or more, either party may terminate this Agreement for no fault of the non- performing party immediately upon written notice of termination to the other party. In the event of termination under this Section 18(f), neither party will be permitted to seek damages related to the Force Majeure circumstance giving rise to the termination and Customer shall pay for all Small Town Tech Services rendered up through the termination date.
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Minnesota without regard to its provisions concerning conflicts or choice of law. English shall be the governing language of this Agreement. It is specifically agreed that this Agreement shall not be covered by nor construed in accordance with the terms of the United Nations Convention on Contracts for the International Sales of Goods. FOR ALL CLAIMS ARISING FROM THE AGREEMENT, THE PARTIES IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY. If any provision of this Agreement is held to be unenforceable, such term or provision shall not affect the other provisions of this Agreement, and such provision shall be deemed modified to the extent necessary to render it enforceable. The failure by a party to exercise any right under this Agreement shall not operate as a waiver of such party's right to exercise such right or any other right in the future. The section headings herein are provided for convenience only and shall have no substantive effect on the construction of this Agreement. No provision of this Agreement shall be construed in favor of or against a party solely for the reason that such party drafted the provision.
Customer acknowledges and agrees that this Agreement does not convey to Customer any right, title or interest in or to any trademarks or trade names of Small Town Tech or its affiliates. Customer shall not use or attempt to register any trademarks or trade names of Small Town Tech or its affiliates, or any trademarks or trade names confusingly similar thereto.
Customer Responsibilities. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Small Town Tech promptly of any such unauthorized access or use, and (iv) use the Service only in accordance with the User Guide and applicable laws and government regulations. Customer shall not (a) make the Service available to any third party other than Users, (b) sell, resell, rent or lease the Service, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, or (f) attempt to gain unauthorized access to the Service or their related systems or networks.
This Agreement, inclusive of the Subscription and Privacy Policy, is the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. In the event any information posted on the Site from time to time conflicts with any provision of this Agreement, the applicable provision of this Agreement shall control. Any terms and conditions of any other instrument issued by Customer in connection with this Agreement which are in addition to, inconsistent with or different from the terms and conditions of this Agreement shall be of no force or effect. Any affiliate of Customer shall be deemed a third party for purposes of this Agreement. This Agreement may be modified only by a written instrument duly executed by authorized representatives of the parties. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become a binding agreement when one or more counterparts have been signed by each party and delivered to the other party.
The parties to this Agreement are independent contractors and nothing contained in this Agreement shall be construed to place the parties in the relationship of employer and employee, partners, principal and agent, or joint ventures.
Nothing contained in this Agreement is intended or will be construed to confer upon any person or entity (other than the parties hereto and their respective indemnitees) any rights, benefits or remedies of any kind or character whatsoever, and no person or entity will be deemed a third-party beneficiary under or by reason of this Agreement.
All disputes or claims arising out of or relating to this Agreement shall be resolved in accordance with the provisions of this Section. First, the disputing party shall give the other party written notice of the controversy or claim in accordance with this Agreement (the “Notice”). The parties will attempt in good faith to resolve each controversy or claim within thirty (30) days following the delivery of the Notice by negotiations between senior executives of the parties who have settlement authority. If the controversy or claim has not been resolved within thirty (30) days following delivery of the disputing party’s Notice, then the parties may submit the dispute or controversy to a court of competent jurisdiction. Nothing in this Section shall be deemed to prohibit or restrict either party from (a) seeking injunctive relief or (b) seeking such other rights and remedies as it may have at law or equity for any actual or threatened breach of any provision of this Agreement relating to a party’s Confidential Information, data or intellectual property.
Table of Contents
1. Service Description
2. Subscription and Subscription Date
3. Term
4. Pricing and Fees
5. Taxes
6. Service Use and Use Rights
7. Service Level Commitment
8. Support and Enhancement Requests
9. Agents; Third-Party Content .
10. Restrictions and Limitations
11. Rights Granted to Small Town Tech
12. Proprietary Rights
13. Confidentiality
14. Service Termination
15. Effect of Expiration or Early Service Termination
16. Representations and Indemnities
17. Limitations of Liability
18. Miscellaneous
This Managed Service Agreement, together with the Subscription (as defined in Section 2 below), are an agreement (collectively, this “Agreement”) between Small Town Tech Inc., a Minnesota corporation (“Small Town Tech”) with offices at 304 3rd St, International Falls, MN, 56649 and the individual or company identified in the Subscription (“Customer”).
Customer and Small Town Tech can also be referred to herein collectively as the “Parties” and individually as a “Party.” If Customer is an affiliate of a Small Town Tech customer that has a signed, effective Service Agreement with Small Town Tech, Customer hereby agrees to be bound to all terms and conditions of such Service Agreement as part of this Agreement.
BY SIGNING UP TO ACCESS THE PROTECH SERVICE YOU ARE REPRESENTING THAT YOU ARE OVER THE AGE OF 18, HAVE THE CAPACITY AND AUTHORITY TO ENTER INTO THIS AGREEMENT, AND ARE CONSENTING ON BEHALF OF YOURSELF AND/OR AS AN AUTHORIZED REPRESENTATIVE OF YOUR COMPANY, AS APPLICABLE, TO BE BOUND BY THIS AGREEMENT.
In consideration of the mutual promises contained in this Agreement, Small Town Tech and Customer agree as follows:
1. Service Description
Small Town Tech runs a managed service intended for users and IT operations which includes the features and functionality described at the Protech website (http://www.Smalltowntech/Protech) (the “Site”) on the Subscription Date, as such features and functionality may change from time to time as provided in Section 6 (the “Service”). The Service is operated on Small Town Tech’s hosting servers or those of its provider(s) to enable Customer and those of its employees who have been authorized by Customer (“Authorized Users” or “Users”) to access and use the Service via the communication mechanisms indicated in Section 6. (If Customer is an individual subscribing for personal use, the term Authorized User shall refer to him or her.)
2. Subscription and Subscription Date
As used in this Agreement, the term “Subscription” means (a) an online order for the Service completed and submitted by Customer through the Site and accepted by Small Town Tech, (b) a written Customer purchase order via order forms for the Service accepted by Small Town Tech, (c) another written agreement for the Service executed by both Small Town Tech and Customer, or (d) an order for the Service by Customer through an authorized Small Town Tech reseller/partner. “Subscription Date” refers to, as applicable, (i) the date Customer submits its online order through the Site, (ii) the date Customer issues its written order form, (iii) the date both Customer and Small Town Tech have executed a written agreement, or (iv) the date that an authorized Small Town Tech reseller/partner has commenced the Service on behalf of a Customer.
3. Term
This Agreement shall commence on the Subscription Date and, unless terminated early in accordance with Section 7 or 14 below, continue for (i) the number of months or year(s) specified in the Subscription as measured from the Subscription Date, or (ii) if no period is specified in the Subscription, the end of the calendar month in which Customer gives notice of termination pursuant to this Section 3 (the “Initial Period”). This Agreement shall automatically renew for successive renewal periods of the same duration of the Initial Period (each, a “Renewal Period”) unless one party gives notice of termination or non-renewal pursuant to this Section 3 (the Initial Period, and all such Renewal Periods, collectively, the “Service Period”).
If Customer is using the Service under any plan (each, a “Paying Plan”), this Agreement shall automatically renew for successive renewal periods of the same duration of the Initial Period unless one party gives notice to the other of its intent not to renew at least 30 days prior to the expiration of the then pending term. If Customer is using the Service under a Free or non- paying Trial plan (each, a “Free Plan”), this Agreement will be deemed month-to-month and either party shall be free to not renew, or to terminate, this Agreement immediately upon notice to the other.
4. Pricing and Fees
Unless the parties agree otherwise in a separately executed written agreement for a Paying Plan or other customized Paying Plan, fees for the Service (“Fees”) shall be based on the pricing published in the price list on the applicable order form - subject to change at the sole discretion of Small Town Tech, a copy of which may be displayed on the Site as of the Subscription Date for the Initial Period. All or certain of the Fees may be calculated on the basis of the number of endpoints. For purposes of that determination and this Agreement, the term “Endpoint” refers to a computer, server, or other device as determined by Small Town Tech on a calendar month basis.
Customer must be authorized to use the payment method Customer enters when creating a billing account. Customer authorizes Small Town Tech to charge Customer for the Service using that payment method and for any paid feature of the Service that Customer chooses to sign up for or use during the Service Period of this Agreement. As indicated in a Subscription, Small Town Tech may bill: (i) in advance; (ii) at the time of purchase; (iii) shortly after purchase; or
(iv) on a recurring time- or usage-based basis.
Customer must keep all information in Customer’s billing account current. Customer can access and modify Customer’s billing account information through the Site and may change its payment method at any time. If Customer notifies Small Town Tech to stop using Customer’s previously designated payment method and fails to designate an alternative, Small Town Tech may immediately suspend use and access to the Service. Any notice from Customer changing its billing account will not affect charges Small Town Tech submits to Customer’s billing account before Small Town Tech reasonably could act on Customer’s request.
Small Town Tech will notify Customer in advance, either through the Service or by email pursuant to Section 19(b), if Small Town Tech changes Fees that would apply to Customer in a Renewal Period. If Customer does not agree to these changes, Customer must give notice of its intent to not renew the Agreement for such Renewal Period and stop using the Service on or before the effective date of termination. If Customer fails to give notice of non-renewal, Customer’s payment information on file will be charged at the new Fees thereafter.
Payments for all accounts registered to pay via credit card are due the date the invoice is posted on Customer’s account. Payments for all accounts registered to pay via check, wire transfer or Automated Clearing House (ACH) are due within 30 days of the invoice date unless otherwise agreed-to by the Parties in writing. If any payment is not made when due, Small Town Tech may immediately suspend use and access to the Service. All Customer prepayments, if any, for the Service (monthly, yearly or otherwise) shall be deemed fully earned upon payment and are non-refundable; this includes accounts that are renewed.
If this Agreement is terminated early by Customer pursuant to Section 7 or 14(a), or by Small Town Tech pursuant to Section 14(b)(ii), Customer will not be obligated to pay the Fees following the effective date of termination, with the following exception: Customer will be obligated to pay any remaining unbilled Fees for a Complete or other customized Paying Plan that included any Supplementary Fees, based on the Supplementary Fees pricing published in the price list on the applicable order form. In all other cases, and regardless of whether Customer and its Authorized Users’ access or use the Service at the levels reflected in the Subscription or otherwise, Customer is responsible for paying all Fees through expiration of the Service Period.
Any amount not paid when due will bear interest at the rate of 1.5% per month or the maximum rate permitted by applicable law, whichever is less, computed and compounded daily from the date due until the date paid. Further, in the event of any action by Small Town Tech to collect any amount not paid when due, Customer will pay or reimburse Small Town Tech’s costs of collection (including, without limitation, any attorneys’ fees and court costs).
5. Taxes
All Fees are inclusive of any applicable sales or other taxes or similar fees imposed by any government authority. Customer will (a) pay or reimburse all such taxes and fees (including any interest or penalties), if any, due, based on or measured by amounts payable by Customer under this Agreement (excluding taxes based on Small Town Tech’s net income) or (b) furnish Small Town Tech with evidence acceptable to the government authority to sustain an exemption therefrom.
6. Service Use and Use Rights
Subject to this Agreement, Small Town Tech will make the Service available to Customer and Authorized Users during the Service Period and Small Town Tech hereby grants to Customer, during the Service Period, a nonexclusive, non-transferable, limited right to enable Authorized Users to access and use the Service through the interface and the Site, and to access and use Small Town Tech’s technical and operations documentation and Agents (as defined in Section 9) in support thereof, solely for Customer’s internal, business use. Customer acknowledges that its and each Authorized User’s access and use of the Service are subject to Small Town Tech’s Privacy Policy, which is published at the Site and incorporated into this Agreement by reference. Small Town Tech may in its discretion modify, enhance or otherwise change the Service from time to time, provided that, if Customer is under a Paying Plan, such change does not materially adversely affect the Service as it existed at the Subscription Date.
7. Service Level Commitment
Small Town Tech Responsibilities. Small Town Tech shall provide the Services in accordance with applicable laws and government regulations. The Small Town Tech Designated Privacy Protection Officer shall act as the primary point of contact in contracts for cloud service customers regarding the processing of PII under the contract. In the case of a Personal Data Breach, the Processor will notify the customer without undue delay after becoming aware of a Personal Data Breach.
8. Support and Enhancement Requests
Subject to this Agreement, if Customer is under a Paying Plan, Small Town Tech will provide unlimited in-product and email support (“Support”). Although no response times are guaranteed, Small Town Tech will use commercially reasonable efforts to respond to such support requests within 24 hours. Small Town Tech may delegate the performance of certain portions of the Support to third parties but will remain responsible to Customer for delivery thereof. In the event any Support is not performed with reasonable skill, care and diligence, Small Town Tech will re-perform the Support to the extent necessary to correct the defective performance, and Customer acknowledges that re-performance shall be Customer’s sole and exclusive remedy for any defective performance. Notwithstanding the foregoing, if Customer has purchased the Service through an authorized Small Town Tech reseller/partner, such reseller/partner shall be responsible for Tier 1 support and any other support terms set forth in Customer’s subscription with such reseller/partner.
Small Town Tech may, but shall have no obligation to, consider Customer's suggestions or requests regarding new functionality or features of the Service ("Enhancement Requests"). All modifications proposed or requested in an Enhancement Request shall be the sole and exclusive property of Small Town Tech. Small Town Tech may, in its sole discretion include such modifications in a future version of the Service, but Small Town Tech's acceptance and consideration of an Enhancement Request shall not obligate Small Town Tech to include in any version of the Service any modifications proposed or requested in such Enhancement Request.
9. Agents; Third-Party Content
Small Town Tech will make various application program interfaces (APIs), agents, libraries and other materials available through the Service from time to time in its discretion to support Customer’s access and use of the Service (collectively, “Agents”). Customer acknowledges and agrees that: (a) the Agents may only be used on systems owned, leased or primarily operated by Customer, (b) the Agents are made available solely to support access and use of the Service, and Small Town Tech has no liability with respect to any other uses of the Agents.
10. Restrictions and Limitations
Small Town Tech has implemented commercially reasonable, industry-standard technical and organizational measures designed to secure Customer Data from accidental loss and from unauthorized access, use, alteration or disclosure, and each hosting provider for the Service has or will have similar contractual obligations to Small Town Tech. Small Town Tech does not represent, and, except as expressly set forth herein and the Privacy Policy, expressly disclaims, that it meets the standards for operational compliance or certification in any specific area, including any government or industry-association requirements.
Customer is solely responsible for providing, installing and maintaining at its own expense all equipment, facilities and Service necessary to enable Authorized Users’ access and use of the Service through the interface, including, without limitation all computer hardware and software and Internet access.
Customer will use commercially reasonable efforts to ensure, through proper instructions and enforcement actions, that all access to and use of the Service by Customer or Authorized Users’, or otherwise through Customer’s facilities, equipment, identifiers or passwords, will conform to this Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, the rights of any third party or this Agreement. Customer is solely responsible for tracking and for ensuring the security and confidentiality of all user identifiers and passwords. Small Town Tech has no liability with respect to any use or misuse of such identifiers or passwords, and any use thereof other than as provided in this Agreement will be considered a breach of this Agreement by Customer.
Without limiting the generality of Sections 10 and 12, no provision of this Agreement includes the right to, and Customer will not, directly or indirectly: (i) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (ii) take any action that imposes, or may impose at Small Town Tech’s discretion, an unreasonable or disproportionately large load on Small Town Tech’s infrastructure;(iii) knowingly upload invalid data, viruses, worms, or other software agents through the Service; (iv) enable any person or entity other than Authorized Users to access and use the Service or Technology (as defined in Section 12(b)); (v) modify or create any derivative work based upon the Service or Technology; (vi) engage in, permit or suffer to continue any copying or distribution of the Service or Technology; (vii) reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, any software that is part of the Service or Technology; (viii) access the Service in order to build a competitive solution or to assist any third party to build a competitive solution; (ix) remove, obscure or alter any proprietary notice related to the Service or Technology; or (x) engage in, permit or suffer to continue any use or other activity that is not expressly authorized under this Agreement by any person or entity within Customer’s control (“Unauthorized Use”). In the event Customer violates any of the terms set forth in this Section, in addition to any other remedies available at law or in equity, Small Town Tech will have the right, in its discretion, to immediately suspend Customer’s and Authorized Users’ use and access to the Service.
11. Rights Granted to Small Town Tech
During the Service Period, Small Town Tech may list Customer as a customer and use Customer’s name and logo on the Site, on publicly available customer lists and in media releases.
12. Proprietary Rights
As used in this Agreement, “Technology” means any and all know-how, processes, methodologies, specifications, designs, inventions, functionality, graphics, techniques, methods, applications, computer programs, libraries, user manuals, documentation, products or other technology and materials of any kind, or any enhancement thereto, used by Small Town Tech in connection with the performance of the Service or the Support, or made available by Small Town Tech to Customer, any Authorized User or any third party in connection with the Service or the Support. Without limiting the foregoing, Technology includes the products, Service and technology made available through the Site, the Agents, the Service interface and any Small Town Tech branded or co-branded websites (including sub-domains, widgets and mobile versions).
Subject only to the limited rights expressly granted in this Agreement, as between Customer and Small Town Tech, Customer shall retain all right, title and interest in and to the Customer Data and all intellectual property rights therein. Customer is solely responsible, and Small Town Tech assumes no liability, for the Customer Data that Authorized Users or other third parties post, send or otherwise make available over or through the Service.
The Service and Technology constitute or otherwise involve valuable intellectual property rights of Small Town Tech and all right, title and interest in and to the foregoing shall, as between the parties, be owned by Small Town Tech. No title to or ownership of the Service or Technology, or any intellectual property rights associated therewith, is transferred to Customer, any Authorized User or any third party under this Agreement. Sections 6 and 9 set forth the entirety of Customer’s limited rights to access and use the Service and Agents and to make the Service and Agents available to Authorized Users. Except with respect to certain of the Agents, in no event shall Customer be entitled to access or review any object code or source code. Small Town Tech reserves all rights to the Service and Technology not otherwise expressly granted herein.
13. Confidentiality
As used in this Agreement, “Confidential Information” means any information that is proprietary or confidential to the Discloser (as defined below) or that the Discloser is obligated to keep confidential (e.g., pursuant to a contractual or other obligation owing to a third party). Confidential Information shall include, but shall not be limited to, trade secrets, knowhow and other proprietary information relating to products, operations, customers, suppliers and other business information and the terms and existence of this Agreement. The foregoing use and confidentiality restrictions shall not apply to information that is (i) or becomes publicly available through no fault of the receiving Party; (ii) obtained lawfully from a third party not bound to obligations of secrecy to the disclosing Party; (iii) developed by or for a Party independent of and without reliance on Confidential Information, and (iv) within a Party’s possession prior to the Effective Date of this Agreement that was not received under an obligation to keep the same confidential.
Each party reserves any and all right, title and interest (including any intellectual property rights) that it may have in or to any Confidential Information that it may disclose to the other party under this Agreement. The party that receives any Confidential Information (the “Recipient”) of the other party (the “Discloser”) will protect Confidential Information of the Discloser against any Unauthorized Use or disclosure to the same extent that the Recipient protects its own Confidential Information of a similar nature against Unauthorized Use or disclosure, but in no event will use less than a reasonable standard of care to protect such Confidential Information; provided that the Confidential Information of the Discloser is conspicuously marked or otherwise identified as confidential or proprietary upon receipt by the Recipient or the Recipient otherwise knows or has reason to know that the same is Confidential Information of the Discloser. The Recipient will use any Confidential Information of the Discloser solely for the purposes for which it is provided by the Discloser. This Section will not be interpreted or construed to prohibit: (i) any use or disclosure which is necessary or appropriate in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement or any other agreement between the parties; (ii) any use or disclosure required by applicable law, provided that the Recipient uses reasonable efforts to give the Discloser reasonable advance notice thereof to afford the Discloser an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information; or (iii) any use or disclosure made with the consent of the Discloser. In the event of any breach or threatened breach by the Recipient of its obligations under this Section 13(b), the Discloser will be entitled to injunctive and other equitable relief to enforce such obligations. The obligations of confidentiality shall survive expiration or termination of this Agreement.
14. Service Termination
This Agreement may be terminated by a non-breaching party: (a) if the other party materially breaches any material obligation of this Agreement, which breach is not cured within thirty (30) days after notice of breach is delivered in writing to the breaching party from the non- breaching party; (b) the other party materially breaches any material obligation of this Agreement, which breach is not capable of being cured within thirty (30) days; or (c) the other party (i) makes an assignment for the benefit of creditors, (ii) permits the appointment of a trustee or receiver of all or a substantial part of its assets, (iii) is generally unable to meet its obligations when due, or (iv) institutes voluntary proceedings in bankruptcy or insolvency, permits involuntary institution of such proceedings against it, or commits any other act of bankruptcy.
In addition to the rights under Section 14(a), Small Town Tech may terminate this Agreement immediately upon notice to Customer (i) if Customer breaches any provisions of Section 6, 9 or 10, (ii) in order to comply with applicable laws or regulations, (iii) if Customer defaults in the timely payment of any amounts due Small Town Tech under a Paying Plan, or (iv) if Customer has purchased the Service through a reseller/partner that is no longer an authorized reseller/partner of Small Town Tech
15. Effect of Expiration or Early Service Termination
Upon expiration or earlier termination of this Agreement: (i) any and all rights granted to Customer with respect to the Service and Technology, and except as set forth in Section 11 any and all rights granted to Small Town Tech with respect to the Customer Data, will terminate effective as of the effective date of termination; (ii) Customer will return to Small Town Tech any and all Confidential Information of Small Town Tech in the possession or control of Customer; (iii) subject to Section 15(b), Small Town Tech will return to Customer any and all Confidential Information of Customer in its possession or control; (iv) Small Town Tech will have no obligation to provide the Service to Customer or Authorized Users after the effective date of the termination; and (v) Customer will pay to Small Town Tech any amounts payable for Customer’s and Authorized User’s use of the Service through the effective date of the termination, together with all other amounts in accordance with Section 4. This Section 15 and Sections 4, 5, 10 through 13 and 16 through 18 shall survive the expiration or earlier termination of this Agreement.
Small Town Tech’s only obligation with respect to any electronic information transmitted or received by Customer or Authorized Users in relation to Customer’s and Authorized User’s use of the Service is, upon Customer’s request, to promptly delete or destroy the information that is stored, if any, in the Service database on the effective date of termination. Customer acknowledges the duration of the retention of such information is determined by the terms of the applicable Plan. In addition, Customer acknowledges that although information in the Service database will be deleted from its transaction servers, Small Town Tech may retain such information stored on automatic backup archiving systems during the period such backup or archived materials are retained under Small Town Tech’s customary procedures and policies. In addition, Small Town Tech may retain certain information as provided in Section 11(a)(iii).
16. Representations and Indemnities
Customer hereby represents and warrants to Small Town Tech that Customer has the authority to enter into and perform this Agreement and the Customer’s entering into this Agreement, and performance of its obligations and exercise of its rights under this Agreement, do not and will not violate any applicable laws, regulations or orders.
Customer hereby represents, warrants and covenants that, without limiting the foregoing: (i) Customer or its licensors owns all right, title and interest in and to Customer Data; (ii) Customer has all rights in Customer Data necessary to grant the rights contemplated by this Agreement; and (iii) Customer has obtained any necessary third-party approvals, including without limitations applicable vendors and licensors, in relation to third-party content to be used by Customer in connection with the Service or will obtain such approvals prior to such use.
Customer agrees to defend, indemnify and hold harmless Small Town Tech and its employees, contractors, agents, officers and directors, from and against any and all third party claims, damages, obligations, losses, liabilities, costs and expenses (including without limitation attorneys’ fees) arising out of or related to: (i) Customer’s and Authorized Users’ use of and access to the Service; (ii) Customer’s or an Authorized User’s violation of any term of this Agreement; (iii) Customer’s or an Authorized User’s violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (iv) Customer’s or an Authorized User’s violation of any law, rule or regulation; (e) any claim or damages that arise as a result of any Customer Data; or (v) any other party’s access and use of the Service with provided identifier(s) and password(s).
Small Town Tech agrees to defend, indemnify and hold harmless Customer, if under a Paying Plan, from and against any and all damages, obligations, losses, liabilities, costs and expenses (including without limitation attorneys’ fees) paid or incurred in connection with any third party claims that the Services or Technology infringe on the U.S. copyright, U.S. patent, U.S. trade secret or other intellectual property right of any kind whatsoever of a third party; provided that Customer gives Small Town Tech prompt written notice of the claim, allows Small Town Tech to direct the defense and settlement of the claim, and cooperates with Small Town Tech as necessary, at Small Town Tech’s expense, for defense and settlement of the claim. If the Service or Technology becomes, or, in Small Town Tech’s opinion is likely to become, the subject of such a claim, Small Town Tech shall have the right to obtain for Customer the right to continue using the Service or Technology, replace or modify the Service or Technology so that it becomes non-infringing, or terminate the rights granted hereunder to such Service or Technology with refund to Customer of any fees paid for such Service and Technology (less a reasonable charge for the period during which Customer has had available to it the use of such Service and Technology).
Notwithstanding the foregoing, Small Town Tech will have no liability for any infringement claim to the extent it (1) is based on modification of the Service or Technology other than by Small Town Tech; (2) results from failure of Customer to use any updated version of Service or Technology provided by Small Town Tech to Customer; (3) is based on the combination or use of the Service or Technology with any other software, program or device not provided by Small Town Tech if such infringement would not have arisen but for such use or combination; (4) results from compliance by Small Town Tech with designs, plans or specifications furnished by Customer; or (5) results from Customer’s operation of the Service or Technology in a manner that is inconsistent with its intended use. THE FOREGOING STATES Small Town Tech’s ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT.
The parties agree that the indemnifying party under Section 16 as applicable, shall have the sole right and discretion to settle, negotiate, compromise or otherwise dispose of the claim, provided that the indemnified party, may, at its option participate in such defense at its sole option and expense, but not control the defense of the claim and all negotiations for settlement, compromise or other disposal of the claim. Each party agrees to promptly notify the other party of a claim or suit that is subject to the indemnification obligations under this Agreement and provide reasonable cooperation (at the indemnifying party’s expense) and full authority to defend or settle the claim or suit. The indemnifying party may not enter into (i) any non-monetary settlement, (ii) any settlement that requires the indemnifying party to admit fault, or (iii) any settlement that does not contain a release of the indemnified party, without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld or delayed.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICE, TECHNOLOGY, SUPPORT AND ALL OTHER ITEMS PROVIDED IN CONNECTION THEREWITH ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. Small Town Tech DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY ERROR, DEFECT, DEFICIENCY, INFRINGEMENT OR NONCOMPLIANCE IN THE SERVICE, TECHNOLOGY, SUPPORT OR ANY OTHER ITEMS PROVIDED BY, THROUGH OR ON BEHALF OF Small Town Tech UNDER THIS AGREEMENT (INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE).
17. Limitations of Liability
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY THIRD PARTY SEEKING DAMAGES UNDER THIS AGREEMENT FOR PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR EXPENSES ARISING OUT OF THIS AGREEMENT EVEN IF IT HAS BEEN ADVISED OF THE POSSIBLE EXISTENCE OF SUCH LIABILITY.
UNDER NO CIRCUMSTANCES WILL Small Town Tech BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR CUSTOMER’S ACCOUNT(S) OR THE INFORMATION CONTAINED THEREIN. Small Town Tech ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM CUSTOMER’S OR AUTHORIZED USERS’ ACCESS TO AND USE OF THE SERVICE OR SUPPORT; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (IV) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (IV) CUSTOMER DATA OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. EXCEPT FOR EACH PARTY’S INDEMNITY OBLIGATIONS AND DIRECT DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, IN NO EVENT SHALL EITHER PARTY, THEIR AFFILIATES, DIRECTORS, EMPLOYEES, OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AUTHORIZED USER FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS EXCEEDING THE LESSER OF (I) ONE HUNDRED THOUSAND U.S. DOLLARS ($100,000) OR (II) AN AMOUNT EQUAL TO AGGREGATE FEES PAID UNDER THIS AGREEMENT TO Small Town Tech DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY UNDER THE AGREEMENT.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF THE NON- BREACHING PART HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
18. Miscellaneous
Without the prior written consent of the other Party, this Agreement shall not be assignable or transferable by either Party; provided, however, no consent of Customer shall be required in connection with a sale of assets of Small Town Tech, in connection with a change of control of Small Town Tech, or to the successor or assignee or transferor of all or substantially all of Small Town Tech’s business to which this Agreement relates. When duly assigned in accordance herewith, this Agreement shall be binding on and inure to the benefit of each party’s successors and assignees.
Small Town Tech may send Customer, in electronic form, information about the Service, additional information and any information the law requires Small Town Tech to provide. Customer acknowledges and agrees that Small Town Tech may provide notices to Customer by email at the address Customer specified in its Subscription or by access to a website that Small Town Tech identifies. Notices emailed to Customer will be deemed given and received when the email is sent. If Customer does not consent to receiving notices electronically, Customer and its Authorized Users must stop using the Service. (Please note that these provisions relate to the customer business relationship and are distinct from marketing and similar emails covered by the “Opt-Out” provisions of the Privacy Policy.) Customer may provide legal notices to Small Town Tech by email to manager@smalltowntech.shop, with a duplicate copy sent via registered mail, return receipt requested, to the following address: Small Town Tech, Inc., Attn: Legal Notice, 304 3rd St International Falls, MN 56649 or such other address as Small Town Tech may direct from time to time on the Site. Customer must specify in all such notices that the notice is being given under this Agreement.
The parties expressly understand and agree that their relationship is that of independent contractors. Nothing in this Agreement shall constitute one party as an employee, agent, joint venture partner or servant of another.
No liability shall result to Customer or Small Town Tech from any delay in performance or from nonperformance caused by acts of God, fire, flood, explosion, war, action of governmental authority or any other circumstances of a similar nature beyond the reasonable control of the party affected; provided that such nonperformance could not have been prevented by reasonable precautions (“Force Majeure”). The party affected by the Force Majeure shall use its commercially reasonable efforts to remove such cause or causes and shall promptly notify the other party of the existence of such Force Majeure and its probable duration. In the event of a delay in Small Town Tech’s performance hereunder caused by Force Majeure which continues for thirty (30) days or more, either party may terminate this Agreement for no fault of the non- performing party immediately upon written notice of termination to the other party. In the event of termination under this Section 18(f), neither party will be permitted to seek damages related to the Force Majeure circumstance giving rise to the termination and Customer shall pay for all Small Town Tech Services rendered up through the termination date.
This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Minnesota without regard to its provisions concerning conflicts or choice of law. English shall be the governing language of this Agreement. It is specifically agreed that this Agreement shall not be covered by nor construed in accordance with the terms of the United Nations Convention on Contracts for the International Sales of Goods. FOR ALL CLAIMS ARISING FROM THE AGREEMENT, THE PARTIES IRREVOCABLY WAIVE ANY RIGHT TO TRIAL BY JURY. If any provision of this Agreement is held to be unenforceable, such term or provision shall not affect the other provisions of this Agreement, and such provision shall be deemed modified to the extent necessary to render it enforceable. The failure by a party to exercise any right under this Agreement shall not operate as a waiver of such party's right to exercise such right or any other right in the future. The section headings herein are provided for convenience only and shall have no substantive effect on the construction of this Agreement. No provision of this Agreement shall be construed in favor of or against a party solely for the reason that such party drafted the provision.
Customer acknowledges and agrees that this Agreement does not convey to Customer any right, title or interest in or to any trademarks or trade names of Small Town Tech or its affiliates. Customer shall not use or attempt to register any trademarks or trade names of Small Town Tech or its affiliates, or any trademarks or trade names confusingly similar thereto.
Customer Responsibilities. Customer shall (i) be responsible for Users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Customer Data and of the means by which it acquired Customer Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and notify Small Town Tech promptly of any such unauthorized access or use, and (iv) use the Service only in accordance with the User Guide and applicable laws and government regulations. Customer shall not (a) make the Service available to any third party other than Users, (b) sell, resell, rent or lease the Service, (c) use the Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Service to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Service or third-party data contained therein, or (f) attempt to gain unauthorized access to the Service or their related systems or networks.
This Agreement, inclusive of the Subscription and Privacy Policy, is the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this Agreement. In the event any information posted on the Site from time to time conflicts with any provision of this Agreement, the applicable provision of this Agreement shall control. Any terms and conditions of any other instrument issued by Customer in connection with this Agreement which are in addition to, inconsistent with or different from the terms and conditions of this Agreement shall be of no force or effect. Any affiliate of Customer shall be deemed a third party for purposes of this Agreement. This Agreement may be modified only by a written instrument duly executed by authorized representatives of the parties. This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become a binding agreement when one or more counterparts have been signed by each party and delivered to the other party.
The parties to this Agreement are independent contractors and nothing contained in this Agreement shall be construed to place the parties in the relationship of employer and employee, partners, principal and agent, or joint ventures.
Nothing contained in this Agreement is intended or will be construed to confer upon any person or entity (other than the parties hereto and their respective indemnitees) any rights, benefits or remedies of any kind or character whatsoever, and no person or entity will be deemed a third-party beneficiary under or by reason of this Agreement.
All disputes or claims arising out of or relating to this Agreement shall be resolved in accordance with the provisions of this Section. First, the disputing party shall give the other party written notice of the controversy or claim in accordance with this Agreement (the “Notice”). The parties will attempt in good faith to resolve each controversy or claim within thirty (30) days following the delivery of the Notice by negotiations between senior executives of the parties who have settlement authority. If the controversy or claim has not been resolved within thirty (30) days following delivery of the disputing party’s Notice, then the parties may submit the dispute or controversy to a court of competent jurisdiction. Nothing in this Section shall be deemed to prohibit or restrict either party from (a) seeking injunctive relief or (b) seeking such other rights and remedies as it may have at law or equity for any actual or threatened breach of any provision of this Agreement relating to a party’s Confidential Information, data or intellectual property.