This Application Service Provider Agreement (the "Agreement") contains the terms and conditions that apply to your use of certain software known as "Suntara" and services including data encryption, transmission, access and storage to third parties (the "Service") via the Suntara, LLC, suntara.io and related websites (collectively the "Site"). Please read these terms and conditions carefully.
By clicking on the "Agree" button you (the "User") acknowledge that you have read, accepted and agreed to the terms and conditions and to comply with all applicable laws and regulations. If you agree with the terms and conditions, click on the "Agree" button. If you do not agree with the terms and conditions, you will not be able to use the Service and the Site.
Subject to the terms and conditions of this Agreement, Suntara, LLC hereby grants to the User a non-exclusive, non-transferable, worldwide right for End Users (Limited by the license purchased) to use the Service, solely for the User's own internal business purposes. User licenses are concurrent user licenses and can be shared or used by more than one individual End User or may be reassigned from time to time to new End Users who are replacing former End Users who have terminated employment or otherwise changed job status or function and no longer use the Service. All rights not expressly granted to the User by Suntara, LLC and its licensors are reserved.
The User shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. In addition, the User shall not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
The User shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
The Term of this Agreement commences on the Effective Date and shall continue until terminated as set forth in this Section 3 (the "Term"). In the event that the Term is terminated for any reason, Suntara, LLC shall be entitled to receive any fees accrued prior to the effective date of the termination.
Termination by Suntara, LLC. The Term may be terminated by Suntara, LLC without cause effective immediately upon notice to the User at any time in Suntara, LLC's sole discretion. In the case of free trials, notifications provided through the Service or via phone or email indicating the remaining number of days in the free trial shall constitute notice of termination by Suntara, LLC. Suntara, LLC, in its sole discretion, may terminate the Term of this Agreement in the event that the User breaches or otherwise fails to comply with any term of this Agreement ("For Cause").
Termination by the User. The User may terminate this Agreement by notice to Suntara, LLC. Such termination shall be effective on the last day of the calendar month during which the notice is received by Suntara, LLC.
The User is responsible for all activity occurring under its End User account(s) and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. The User shall: (i) notify Suntara, LLC immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Suntara, LLC immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by the User or any of its End Users; and (iii) not impersonate another Suntara, LLC user or provide false identity information to gain access to or use the Service.
Suntara, LLC does not own any data, information or material that the User submits to the Service in the course of using the Service ("User Data"). The User is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all User Data, and Suntara, LLC shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Data. In the event that this Agreement is terminated for any reason other than For Cause or at the end of a free trial period Suntara, LLC will make available to the User a file of the User Data within 30 days of termination if the User so requests, in writing, at the time of termination. Suntara, LLC reserves the right to withhold, remove and/or discard User Data without notice for any breach, including, without limitation, non-payment. Upon termination For Cause or at the end of a free trial period, the User's right to access or use User Data immediately ceases, and Suntara, LLC shall have no obligation to maintain or forward any User Data.
Suntara, LLC alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Suntara, LLC's Suntara technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the User or any other party relating to the Service. This Agreement is not a sale and does not convey to the User any rights of ownership in or related to the Service, Suntara, LLC's Suntara and technology or the Intellectual Property Rights owned by Suntara, LLC. The Suntara name, the Suntara logo, and the product names associated with the Service are trademarks of Suntara, LLC or third parties, and no right or license is granted to use them.
The maximum disk storage space provided to the User at no additional charge is 1 GB for all End Users. If the amount of disk storage required by any End User exceeds these limits, the User will be charged the then-current storage fees. Suntara, LLC will use reasonable efforts to notify the User when the average storage is reaching its maximum capacity; however, any failure by Suntara, LLC to so notify the User shall not affect the User's responsibility for such additional storage charges. Suntara, LLC reserves the right to establish or modify its general practices and limits relating to storage of User Data.
Suntara, LLC charges and collects in advance for use of the Service. Suntara, LLC will automatically renew and bill your credit card or issue an invoice to you every month for the monthly licenses (standard license), (b) every quarter for quarterly licenses, (c) each year on the subsequent anniversary for annual licenses, or (d) as otherwise mutually agreed upon. The User shall pay all fees and charges to its account in accordance with the fees, charges, and billing terms negotiated by the parties. All payment obligations are non-cancelable and all amounts paid are nonrefundable. The User is responsible for paying for all additional licenses ordered for the entire Term, whether or not such licenses are actively used. Suntara, LLC reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to the User, which notice may be provided by e-mail. All pricing terms are confidential, and the User agrees not to disclose them to any third party. Suntara, LLC's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and the User shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Suntara, LLC's income.
The User agrees to provide Suntara, LLC with complete and accurate billing and contact information. This information includes the User's legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. The User agrees to update this information within 30 days of any change to it. If the contact information the User has provided is false or fraudulent, Suntara, LLC reserves the right to terminate the User's access to the Services in addition to any other legal remedies.
If the User believes its bill is incorrect, the User must contact Suntara, LLC in writing within 30 days of the date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
In addition to any other rights granted to Suntara, LLC herein, Suntara, LLC reserves the right to suspend or terminate the Term of this Agreement and the User's access to the Service if the User's account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 2.0% per month on any outstanding balance commencing on the date due, or the maximum permitted by law, whichever is less, plus all expenses of collection. The User will continue to be charged for the license during any period of suspension. The User hereby authorizes Suntara, LLC to charge such unpaid fees to its credit card or otherwise bill the User for such unpaid fees.
Suntara, LLC reserves the right to impose a reactivation fee in the event the User's access to the Services are suspended and thereafter requests access to the Service. The User agrees and acknowledges that Suntara, LLC has no obligation to retain User Data and that such User Data may be irretrievably deleted if the User's account is 30 days or more delinquent.
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. The undersigned individual warrants that he/she has all authority necessary to bind the User to this Agreement. Suntara, LLC represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the documentation provided by Suntara, LLC to the User under normal use and circumstances. The User represents and warrants that the User has not falsely identified itself nor provided any false information to gain access to the Service and that its billing information is correct.
The User shall indemnify and hold Suntara, LLC, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the User Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by the User of its representations and warranties; or (iii) a claim arising from the breach by the User or the User's End Users of any of the terms of this Agreement, provided in any such case that Suntara, LLC (a) gives written notice of the claim promptly to the User; (b) gives the User sole control of the defense and settlement of the claim (provided that the User may not settle or defend any claim unless it unconditionally releases Suntara, LLC of all liability and such settlement does not affect Suntara, LLC's business or Service); (c) provides to the User all available information and assistance; and (d) has not compromised or settled such claim.
Suntara, LLC shall indemnify and hold the User and its parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Suntara, LLC of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Suntara, LLC; provided that the User (a) promptly gives written notice of the claim to Suntara, LLC; (b) gives Suntara, LLC sole control of the defense and settlement of the claim (provided that Suntara, LLC may not settle or defend any claim unless it unconditionally releases the User of all liability); (c) provide to Suntara, LLC all available information and assistance; and (d) have not compromised or settled such claim. Suntara, LLC shall have no indemnification obligation, and the User shall indemnify Suntara, LLC pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of the User's products, service, hardware, other agreements or business process(s). Should any of Suntara, LLC's Intellectual Property Rights become, or in Suntara, LLC's opinion be likely to become the subject of any third party claim or the User is enjoined or otherwise restricted, disrupted or prohibited from using the Service, Suntara, LLC shall promptly, at Suntara, LLC's sole option and expense, either (i) procure for User the right to continue using the Service, or (ii) replace or modify it so that it becomes noninfringing, or (iii) terminate this Agreement.
Suntara, LLC AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. Suntara, LLC AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET THE User'S REQUIREMENTS OR EXPECTATIONS, (C) ANY User DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY THE User THROUGH THE SERVICE WILL MEET THE User'S REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO THE User STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY Suntara, LLC AND ITS LICENSORS.
Suntara, LLC'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. Suntara, LLC IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
IN NO EVENT SHALL Suntara, LLC'S AGGREGATE LIABILITY TO THE User EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM THE User IN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL Suntara, LLC AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF Suntara, LLC OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL OR CERTAIN OTHER TYPES OF DAMAGES, SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
The Site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. The User acknowledges and agrees that the Site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, the User represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The User agrees to comply strictly with all U.S export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
The Site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000.
Suntara, LLC and its licensors make no representation that the Service is appropriate or available for use in other locations. If the User uses the Service from outside the United States of America the User is solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons or missile projects, unless specifically authorized by the United States government for such purposes.
Suntara, LLC may give notice by means of a general notice on the Service, electronic mail to the User's e-mail address on record in Suntara, LLC's account information, or by written communication sent to the User by first class mail or pre-paid post to the User's address on record in Suntara, LLC's account information, or by fax to the User's fax number on record in Suntara, LLC's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing, faxing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or fax). The User may give notice to Suntara, LLC (such notice shall be deemed given when received by Suntara, LLC) at any time by any of the following: letter sent by confirmed facsimile to Suntara, LLC at the following fax numbers: (585) 288-4578, letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Suntara, LLC at the following address:
Suntara, LLC
P.O. Box 10088
Rochester, NY 14610
Fax: 585-288-4578
ATTN: Chief Operations Manager (IT Department)
Suntara, LLC reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. The User is responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute the User's consent to such changes.
Except as set forth in this Section 17, this Agreement may not be changed, terminated, nor any of its provisions modified or waived, except in writing signed by all of the parties to this Agreement.
This Agreement may not be assigned by the User without the prior written approval of Suntara, LLC but may be assigned without the User's consent by Suntara, LLC to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of the User that results or would result in a direct competitor of Suntara, LLC directly or indirectly owning or controlling 50% or more of the User shall entitle Suntara, LLC to terminate this Agreement For Cause immediately upon written notice.
Every provision of this Agreement is intended to be severable. If any provision is held to be invalid or unenforceable by law or by a court of competent jurisdiction, all other provisions shall nevertheless continue in full force and effect. In lieu of such invalid or unenforceable provision, there shall be added to this Agreement a legal, valid and enforceable provision as similar in terms to such invalid or unenforceable provision as may be possible.
The following provisions shall apply to this Agreement:
Except as set forth in Section 14 of this Agreement (Limitation of Liability), if either party to this Agreement fails in the due performance of any of its obligations under the terms of this Agreement, the other party will have the right, at its election, to seek such legal and equitable remedies as may be available to it, including the right to recover all reasonable expenses, which shall include reasonable legal fees and court costs, incurred.
All understandings and agreements previously made by and between the parties are merged in this Agreement, which alone fully and completely expresses their agreement.
This Agreement will be governed by and construed in accordance with the laws of the State of New York without regard to its principles of conflicts of law. The County of Monroe in the State of New York is hereby designated as the exclusive forum for any action or proceeding arising from or in any way connected to this Agreement, and the parties hereby expressly consent to the personal jurisdiction of the state or federal courts in this forum.
This agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this letter agreement, and all of which, when taken together, shall be deemed to constitute one and the same agreement. Facsimile signatures shall be deemed original signatures.
This Agreement shall be binding upon and will inure to the benefit of the parties, their heirs, distributees, legal representatives, transferees, successors and assigns.