Terms and Conditions for Subscribers

The ScheduleSource TeamWork Workforce Management System

Terms and Conditions for Subscribers

ScheduleSource TeamWork is a "Software as a Service" suite of applications and tools that provide a configurable Workforce Management platform to ScheduleSource Customers under a subscription pricing model (Subscription).  The Customer (Subscriber) and ScheduleSource (SSI) agree that these terms and conditions shall apply to: 1. Their Subscription to the commercially available versions of the TeamWork Application delivered from the SSI hosting environment (the Services); 2. Any Work Order authorized in or as an amendment to the Subscription; 3. Professional Services related thereto; and 4. Equipment, if any, provided by SSI to Subscriber.

By manually or electronically executing an Agreement and any related Work Order (the "Agreement") referencing these terms and conditions, or to which these terms and conditions are attached, Subscriber accepts these terms and conditions.  The individual executing the Agreement represents that he/she has the authority to contractually bind Subscriber.

1. USE OF THE SERVICES

1.1 Right to Access and Use: Subject to the terms and conditions in the Agreement, SSI hereby grants Subscriber a limited, revocable, non-exclusive, non-transferable, non-assignable right for it and its End Users to access and use the Services, including documentation and training materials.

1.2. Connectivity: Subscriber acknowledges that this is an internet-based Service.  Subscriber and its Users are responsible for securing, maintaining and paying for connectivity to the Services.

1.3 SSI Access: Subscriber authorizes SSI to access their Services at will as reasonably necessary to perform its obligations under the agreement including ensuring its fitness for use, training and supporting the Subscriber and its End Users, evaluating technical and operational issues and to review system configuration, usage, performance logs or activity logs.

1.4 The Services are SSI Proprietary Intellectual Property: The Services contain proprietary trade secret technology of SSI and its Suppliers. Unauthorized use and/or copying of such technology is prohibited by law, including United States and foreign copyright law. Subscriber shall not reverse compile, disassemble or otherwise convert the Applications or other software comprising the Services into uncompiled or unassembled code. Subscriber acknowledges and agrees that the right to use the Services is limited based upon authorized Usage and the amount of the Subscription Fees to be paid by Subscriber. Subscriber may not relicense or sublicense the Services, or otherwise permit use of the Services (including timesharing or networking use) by any third party except as stated in Paragraph 1.7 below. Subscriber may not provide service bureau or other data processing services that make use of the Services without the express prior written consent of SSI. When using and applying the information generated by the Services, Subscriber is responsible for ensuring that Subscriber's users comply with applicable laws and regulations.

1.5 The Services are Wholly Owned by SSI: Subscriber acknowledges and agrees that SSI retains ownership of all right, title and interest to its Software and the Services, all of which are protected by copyright and other intellectual property rights, and that other than the express rights of access granted herein, Subscriber shall not obtain nor claim any rights in or ownership interest to the Services, nor any integration, customization, modification or enhancement thereto, nor any associated intellectual property rights.  Subscriber agrees to comply with all copyright and other intellectual property rights notices contained on or in any information obtained or accessed by Subscriber through the Services.

1.6 Trademarks: No license, right, or interest in any SSI trademark, trade name, or service mark, or those of SSI's licensors or Suppliers, is granted hereunder.

1.7 Other Users: With SSI's written consent, Subscriber may authorize its third-party contractors and consultants to access the Services through Subscriber's administrative access privileges on an as needed basis, provided Subscriber: a) abides by its obligations to protect Confidential Information as set forth in this Agreement; b) remains responsible for all such third-party usage and compliance with the Agreement; and c) does not provide such access to a competitor of SSI who provides workforce management services.

1.8 Upgrades: SSI will make updates and upgrades to the Services available to Subscriber at no charge as they are released generally to its Subscribers as part of the Services. Subscriber agrees to receive those updates automatically as part of the Services. SSI also may offer new products and/or services to Subscriber, including custom development items, at an additional charge.

1.9 Changes to the Services: SSI reserves the right to change the Services in whole or in part, including the Services themselves, the technical training and support materials and support processes or other Services-related policies, procedures or products. Subscriber's continued use of the Services after SSI notifies Subscriber of any changes indicates Subscriber's agreement to those changes.

2. Term and Termination:  

2.1 Term: The Subscription shall commence on the Billing Start Date stated in the Agreement, or, if not specifically stated, shall be deemed to be the date of execution of the Agreement, and shall continue for the Initial Term, if one is stipulated in the Agreement, or until the Agreement is terminated in accordance with the provisions herein. At the expiration of the Initial Term and each Renewal Term as applicable, the Services shall automatically renew for additional Renewal Terms until terminated with sixty (60) days written notice prior to the end of each initial term and each renewal term, in accordance with the provisions herein.

2.2 Suspension of Service and Termination for Cause: Either party may terminate the Services and the Agreement upon a material breach of the Agreement by the other party if such breach is not cured within fifteen (15) days after receipt of written notice. Notwithstanding the foregoing, SSI may suspend the Services immediately upon notice in the event of any Subscriber breach of Sections 3 (Rights to Use), 4 (Acceptable Use), or 13 (Confidential Information).

2.3 Termination for Insolvency: In the event that either party becomes insolvent, makes a general assignment for the benefit of creditors, is adjudicated a bankrupt or insolvent, commences a case under applicable bankruptcy laws, or files a petition seeking reorganization, the other party may request adequate assurances of future performance. Failure to provide adequate assurances, in the requesting party's reasonable discretion, within ten (10) days of delivery of the request shall entitle the requesting party to terminate the Agreement immediately upon written notice to the other party.

2.4 Upon Termination: If the Agreement is terminated:

            A. Subscriber shall pay SSI within thirty (30) days of such termination, all fees accrued under this Agreement prior to the effective date of such termination, provided however, if Subscriber terminates for material breach of the Agreement by SSI, SSI shall refund Subscriber any pre-paid fees for services not delivered by SSI;

            B. Subscriber's right to access and use the Applications shall be revoked.

            C. Upon Subscriber's written request at any time during the Term, and for a period of up to 60 days after termination, SSI will provide to Subscriber, in electronic format, and at no charge to Subscriber, the Subscriber Content. After such time period, SSI shall have no further obligation to store or make available the Subscriber Content and will securely delete any or all Subscriber Content without liability.

            D. Subscriber agrees to return all SSI-provided materials or equipment related to the Services to SSI at Subscriber's expense.

            E. All provisions in the Agreement, which by their nature are intended to survive termination, shall so survive.

3. FEES AND PAYMENT

3.1 Fees: Subscriber shall pay SSI the implementation fees, the subscription fees and any additional professional services, hardware lease or other fees, all as described in the Agreement.  If not otherwise described in the Agreement, billing for recurring Subscription fees will commence on the Billing Start Date.  The Subscription will be billed monthly in arrears, professional services will be billed monthly in arrears and any purchased equipment will be billed upon Subscriber receipt of such equipment.

3.2 Payment:  If provided by Subscriber, Subscriber authorizes SSI to charge its debit card or credit card on file with SSI for the Subscription Fees as all such fees become due under this Agreement. For all other fees due under this Agreement, payment shall be due 30 days following date of invoice unless otherwise indicated on the Agreement. Except as expressly set forth herein, all amounts paid to SSI are non-refundable. Subscriber is responsible for all applicable taxes relating to the goods and services provided by SSI hereunder (including without limitation GST and/or VAT if applicable).

3.3 Services: Professional Services may be required for project management, configuration, implementation, training, custom development, integrations and intensive support pre and post "go-live". These services, including any product and project management deliverables such as software enhancements and related design criteria, acceptance testing criteria, delivery schedule and fees will be defined in the Agreement and any amendments thereto.   

3.4 Form of Pricing: Subscriber's specific use of the Services, including modules, integrations or other components, shall be priced in the Agreement as either a fixed price (capacity) or variable price (active employees) subscription, unless otherwise agreed.  Subscriber has complete control over the activation or in-activation of employees and accepts responsibility for managing its active employee pool.  "Active Employee" is defined as any employee who is marked as "active" in the TeamWork system. Subscriber authorizes SSI to monitor Subscriber's use of the Services to calculate the Subscription Fees to be charged.

3.5 Minimum Pricing: Where a minimum active employee basis for calculating fees or a minimum monthly fee is stipulated in an Agreement, Subscriber agrees to pay SSI each month during the Term in which charges accrue no less than those minimum monthly fees. If an Agreement is suspended by SSI for non-payment or otherwise terminated by SSI for cause, Subscriber shall remain liable to pay the applicable minimum monthly fees up to and including the last day of the month in which the effective date of termination occurs.

3.6 Suspension of Service: If any amount owing under an Agreement between the parties is seventy five (75) or more days overdue, SSI may, without limiting SSI's rights or remedies, suspend Services until such amounts are paid in full. SSI will provide at least seven (7) days' prior written notice that Subscriber's account is overdue before suspending Services.

3.7 Price Adjustments: SSI will notify of any change in subscription fees:  1. Within 60 days prior to the expiration of the Initial Term; 2. Within 60 days prior to the expiration of any alternative fixed price guarantee period authorized in the Agreement; and 3. Within 60 days of each annual anniversary of the initial subscription start date where no term or fixed price guarantee period has been authorized or where the initial term or fixed price guarantee period has been completed.  The increase will be reflected in the monthly invoice following the effective date of such increase without additional notice.

4. IMPLEMENTATION, TRAINING AND SUPPORT

4.1 Implementation: Subscriber and SSI agree to work together to craft a mutually acceptable implementation, integrations, customizations, training and deployment plan of action upon execution of the Agreement.  System configuration will be based on information and work flows obtained from Subscriber during the discovery portion of the implementation.

4.2 SSI Support: Support to your managed employees (general questions, password issues or policy/procedure questions from employees) is provided by you.  Support to your schedulers, administrators and other system level users will be available from us via our online/in-app help desk ticket system, by e-mail or by phone. 

Live telephone support is provided during normal business hours generally from 0800 to 2000 EST Monday through Friday and call back telephone support from 2000 to 0800 Monday through Friday and all-day Saturday and Sunday and nationally recognized holidays. For e-mail support, Licensee may contact SSI at: [email protected]. For telephone support, Licensee may contact ScheduleSource at: 303-991-3079 ext. 2 and for emergency support, Licensee may contact ScheduleSource at: 303.991.3079 ext. 99.

4.3 Training Materials: Subscriber will have access to SSI's copyrighted training materials in the Services. Subscriber may not edit, modify, revise, amend, change, alter, customize or vary the training materials without the written consent of SSI.  Customization of training materials is available under a separate Work Order.

5. SERVICE LEVELS

SSI shall provide the on-line training materials, on-line help ticket system and email and live phone support at no additional charge.  SSI shall use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except for planned downtime.  For planned downtime SSI will provide at least 8 hours notice via the Services portals.  SSI reserves the right to waive notice when an immediate action requires taking the system offline.  SSI is not liable for any unavailability caused by circumstances beyond SSI's reasonable control, including acts of nature, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, internet service provider failures or delays, or denial of service attacks.

6. SUBSCRIBER DATA

6.1 Responsibility for Your Accounts:  You own and are solely responsible for authorizing access to, controlling access to and maintaining the confidentiality of your users and their accounts in the system, including content, passwords and other authentication credentials including biometric information.  You are responsible for their use of the Services.  You agree to notify SSI of any possible misuse of your accounts, data or authentication credentials. 

6.2 Responsibility for Your Data:  You own and are solely responsible for all data entered into the TeamWork Online Services by you, by us for you at your request, or by your users.  You will secure and maintain all rights in your data necessary for us to provide the Services to you without violating the rights of or otherwise obligating us to any third party.  In addition, you acknowledge and agree that it is your obligation to inform and obtain the consent of your End Users of the processing of personal information pursuant to this Agreement, and to ensure that End Users have given any necessary consent to such processing as required by all applicable data protection legislation.  You have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data regarding your Accounts and End User information.   

6.3 Data Retention Policy: We will retain your data in the operational system for not less than three years unless otherwise agreed or unless your account is terminated for cause or insolvancy in accordance with Paragraph 2.2 or 2.3.   Data is also backed up hourly and daily to an off-site repository for backup and recovery purposes.  Your operational files in the TeamWork Online Services can be deleted but the backup media cannot and they will be retained in batch file storage until destroyed.  You also have the ability to download your data at any time as a report.  This backup option is recommended.  

6.4 SSI Access to Subscriber Data: Subscriber grants SSI permission to combine Subscriber's business data with that of other Subscribers in a manner that does not identify the Subscriber or any individual in order to provide and optimize the delivery of the Services SSI offers to Subscribers. In addition, Subscriber agrees that SSI may monitor Subscriber Content from time to time to ensure compliance with the Agreement and applicable law.

7. ACCEPTABLE USE

7.1 Authorized Users: Subscriber shall take all reasonable steps to ensure that no unauthorized persons have access to the Services, and to ensure that no persons authorized to have access shall take any action that would be in violation of this Agreement.  You are responsible for all activity occurring within your accounts and shall abide by all applicable local, state, national and foreign laws (if used internationally), including those related to data privacy. 

7.2 Subscriber Data: Subscriber represents and warrants to SSI that Subscriber has the right to enter, publish and disclose the data it enters into the Services, and has obtained the consent of its End Users and any third parties for the processing of such data. Subscriber represents and warrants to SSI that the Subscriber's and its End User's data does not infringe or violate any third-party right, including but not limited to intellectual property, privacy, or publicity rights; is not abusive, profane, or offensive to a reasonable person; and is not hateful or threatening.

7.3 Restrictions on Use: Subscriber will not use the Services in contravention of any federal, state, local, foreign or other applicable law, rules or regulations of regulatory or administrative organizations; will not introduce into the Services any virus or other code or routine intended to disrupt or damage the Services; will not alter, damage, delete, retrieve or record information about the Services or its users; will not excessively overload the SSI systems used to provide the Services; will not perform any security integrity review, penetration test, load test, denial of service simulation or vulnerability scan without SSI prior consent; will not use any tool designed to automatically emulate the actions of a human user (e.g., robots); and will not otherwise act in a fraudulent, malicious or negligent manner when using the Services.

8. LIMITED WARRANTY; DISCLAIMERS OF WARRANTY

8.1 Warranty: SSI represents and warrants to Subscriber that the Services, under normal operation as specified in the Training Materials and other Documentation and when used as authorized will perform substantially in accordance with such Documentation during the Term.

8.2 Warranty Obligation: SSI's sole obligation and Subscriber's sole and exclusive remedy for any breach of the foregoing warranty is limited to SSI's reasonable commercial efforts to correct the non-conforming Services at no additional charge to Subscriber. In the event that SSI is unable to correct material deficiencies in the Services arising during the Warranty Period, after using SSI's commercially reasonable efforts to do so, Subscriber shall be entitled to terminate the then remaining Term of the Agreement as Subscriber's sole and exclusive remedy. SSI's obligations hereunder for breach of warranty are conditioned upon Subscriber notifying SSI of the material breach in writing, and providing SSI with sufficient evidence of such non-conformity to enable SSI to reproduce or verify the same.

8.3 Warranty Disclaimer: EXCEPT AS PROVIDED FOR IN THIS SECTION 8, SSI HEREBY DISCLAIMS ALL WARRANTIES, CONDITIONS, GUARANTIES AND REPRESENTATIONS RELATING TO THE SERVICES, EXPRESS OR IMPLIED, ORAL OR IN WRITING, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

THE SERVICES ARE NOT GUARANTEED TO BE ERROR-FREE OR UNINTERRUPTED.

EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, SSI MAKES NO WARRANTIES OR REPRESENTATIONS THAT THE SERVICES WILL FULFILL YOUR REQUIREMENTS IN ALL RESPECTS FOR ALL USERS.  YOU ARE RESPONSIBLE FOR EVALUATING THE SYSTEM RELATIVE TO YOUR INTENDED USE.

9. DATA SECURITY

9.1 Safeguards: As part of the Services, SSI shall provide commercially reasonable administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of Subscriber data. Subscriber acknowledges that such safeguards endeavor to mitigate security incidents, but such incidents may not be mitigated entirely or rendered harmless. Subscriber should consider any particular SSI supplied security-related safeguard as just one tool to be used as part of Subscriber's overall security strategy and not a guarantee of security. Both parties agree to comply with all applicable privacy or data protection statutes, rules, or regulations governing the respective activities of the parties under the Agreement.

9.2 Personally Identifiable Data: All Personally Identifiable Data entered into the Services is the Subscriber's Confidential Information and will remain the property of Subscriber. Subscriber represents that to the best of Subscriber's knowledge such Personally Identifiable Data supplied to SSI is accurate. Subscriber hereby consents to the use, processing or disclosure of Personally Identifiable Data by SSI only for the purposes described herein and only to the extent such use or processing is necessary for SSI to carry out SSI's duties and responsibilities under the Agreement or as required by law.

9.3 Changes to Policy: Subscriber agrees to provide notice to SSI of any extraordinary privacy or data protection statutes, rules, or regulations which are or become applicable to Subscriber and which could be imposed on SSI as a result of provision of the Services. Subscriber will ensure that the transfer to SSI and storage of any Personally Identifiable Data by SSI or SSI's Supplier's data center is permitted under applicable data protection laws and regulations; and Subscriber will obtain consent from individuals for such transfer and storage to the extent required under applicable laws and regulations.

10. INDEMNIFICATION

10.1 By SSI: SSI shall defend Subscriber and its respective directors, officers, and employees (collectively, the "Subscriber Indemnified Parties"), from and against any and all notices, charges, claims, proceedings, actions, causes of action and suits brought by a third party (each a "Claim") alleging that the permitted uses of the Services infringe or misappropriate any United States or Canadian copyright or patent and will indemnify and hold harmless the Subscriber Indemnified Parties against any liabilities, obligations, costs or expenses actually awarded to a third party as a result of such Claim by a court of applicable jurisdiction or as a result of SSI's settlement of such a Claim.

10.2 Exception: SSI shall have no liability to indemnify or defend Subscriber to the extent the alleged infringement is based on: (a) a modification of the Services by anyone other than SSI; (b) use of the Services other than in accordance with the documentation for such Service or as authorized by the Agreement; (c) use of the Services in conjunction with any data, equipment, service or software not provided by SSI, where the Services would not otherwise itself be infringing or the subject of the claim; or (d) use of the Services by Subscriber other than in accordance with the terms of the Agreement. Notwithstanding the foregoing, with regard to infringement claims based upon software created or provided by a licensor to SSI or Suppliers, SSI's maximum liability will be to assign to Subscriber SSI or Supplier's recovery rights with respect to such infringement claims, provided that SSI or SSI's Supplier shall use commercially reasonable efforts at Subscriber's cost to assist Subscriber in seeking such recovery from such licensor.

10.3 By Subscriber: Subscriber shall defend SSI, its Suppliers and their respective directors, officers, employees, agents and independent contractors (collectively, the "SSI Indemnified Parties") harmless, from and against any and all Claims alleging that: (a) employment-related claims arising out of Subscriber's configuration of the Services; (b) Subscriber's modification or combination of the Services with other services, software or equipment not furnished by SSI, provided that such Subscriber modification or combination is the cause of such infringement and was not authorized by SSI; (c) a claim that the Subscriber Content infringes in any manner any intellectual property right of any third party, or any of the Subscriber Content contains any material or information that is obscene, defamatory, libelous, or slanderous violates any person's right of publicity, privacy or personality, or has otherwise caused or resulted in any tort, injury, damage or harm to any other person; (d) any unaffiliated third party Claim arising from Subscriber's content or Subscriber's or any End Users use of the services; or (e) any Claim by any End User relating to the End User's use of the services, unless such Claim arises out of SSI's negligence.  Subscriber will have sole control of the defense of any such action and all negotiations for its settlement or compromise. SSI will cooperate fully at Subscriber's expense with Subscriber in the defense, settlement or compromise of any such action. Subscriber will indemnify and hold harmless the SSI Indemnified Parties against any liabilities, obligations, costs or expenses (including without limitation reasonable attorneys' fees) actually awarded to a third party and/or End Users as a result of such Claims by a court of applicable jurisdiction or as a result of Subscriber's settlement of such a Claim.

10.4 Notice: The Indemnified Party shall provide written notice to the indemnifying party promptly after receiving notice of such Claim. If the defense of such Claim is materially prejudiced by a delay in providing such notice, the purported indemnifying party shall be relieved from providing such indemnity to the extent of the delay's impact on the defense. The indemnifying party shall have sole control of the defense of any indemnified Claim and all negotiations for its settlement or compromise, provided that such indemnifying party shall not enter into any settlement which imposes any obligations or restrictions on the applicable Indemnified Parties without the prior written consent of the other party. The Indemnified Parties shall cooperate fully, at the indemnifying party's request and expense, with the indemnifying party in the defense, settlement or compromise of any such action. The indemnified party may retain its own counsel at its own expense, subject to the indemnifying party's rights above.

11. LIMITATION OF LIABILITY

11.1 EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, SSI AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY DAMAGES OR INJURIES CAUSED BY THE USE OF THE SERVICES OR BY ANY ERRORS, DELAYS, INTERRUPTIONS IN TRANSMISSION, OR FAILURES OF THE SERVICES.

11.2 EXCEPT FOR SSI's INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11 ABOVE, THE TOTAL AGGREGATE LIABILITY OF SSI OR SSI's SUPPLIERS TO SUBSCRIBER AND/OR ANY THIRD PARTY IN CONNECTION WITH THE AGREEMENT SHALL BE LIMITED TO AN AMOUNT NOT TO EXCEED THE TOTAL NET PAYMENTS RECEIVED BY SSI FOR THE SERVICES IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE IN WHICH SUCH CLAIM ARISES.

11.3 EXCEPT FOR SSI's INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11 ABOVE, IN NO EVENT SHALL SSI OR SSI's SUPPLIERS, THEIR RESPECTIVE AFFILIATES, SERVICE PROVIDERS, OR AGENTS BE LIABLE TO SUBSCRIBER OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES OR FOR ANY LOST OR IMPUTED PROFITS OR REVENUES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM DELAYS, NONDELIVERIES, MISDELIVERIES OR SERVICES INTERRUPTION, HOWEVER CAUSED, ARISING FROM OR RELATED TO THE SERVICES OR THE AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH LIABILITY IS ASSERTED, WHETHER BREACH OF WARRANTY, INDEMNIFICATION, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, AND WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF WHETHER SSI OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY, LOSS OR DAMAGE.

11.4 EXCEPT WITH RESPECT TO LIABILITY ARISING FROM SSI's GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, SSI DISCLAIMS ANY AND ALL LIABILITY, INCLUDING WITHOUT LIMITATION LIABILITY RELATED TO A BREACH OF DATA SECURITY AND CONFIDENTIALITY OBLIGATIONS, RESULTING FROM ANY EXTERNALLY INTRODUCED HARMFUL PROGRAM (INCLUDING WITHOUT LIMITATION VIRUSES, TROJAN HORSES, AND WORMS), SUBSCRIBER'S CONTENT OR APPLICATIONS, THIRD PARTY UNAUTHORIZED ACCESS OF EQUIPMENT, SAAS APPLICATIONS OR SYSTEMS, OR MACHINE ERROR.

12. CONFIDENTIAL INFORMATION

Each Party may elect to disclose Confidential Information to the other, with notice prior to disclosure that such information is Confidential Information.  Each Party shall protect the Confidential Information of the other Party with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which such Party utilizes for its own information of similar character that it does not wish disclosed to the public. Neither Party shall disclose to third parties the other Party's Confidential Information, or use it for any purpose not explicitly authorized herein, without the prior written consent of the other Party. Notwithstanding the foregoing, a party may disclose Confidential Information to the extent required: (a) to any subsidiary or affiliate of such Party, or (b) to any consultants, contractors, and counsel who have a need to know in connection with the Agreement and have executed a non-disclosure agreement, or (c) by law, or by a court or governmental agency, or if necessary in any proceeding to establish rights or obligations under the Agreement; provided, the receiving party shall, unless legally prohibited, provide the disclosing party with reasonable prior written notice sufficient to permit the disclosing party an opportunity to contest such disclosure. This Agreement imposes no obligation upon either Party with respect to the other Party's Confidential Information which the receiving Party can establish: (a) is or becomes generally known through no breach of the Agreement by the receiving party, or (b) is already known or is independently developed by the receiving party without use of or reference to the Confidential Information.

13. GENERAL

13.1 Governing Law: This Agreement shall be governed by and construed in accordance with the laws of Colorado, in which SSI is incorporated, without regard to any conflict of law provisions.

13.2 Separation: The invalidity or illegality of any provision of the Agreement shall not affect the validity of any other provision. The parties intend for the remaining unaffected provisions to remain in full force and effect.

13.3 No Waiver: A failure to enforce any provision herein does not constitute a waiver of that provision.

13.4 Assignment: Subscriber shall not assign the Agreement or the rights to use the Services without the prior written consent of SSI.

13.5 Notices: All notices given under the Agreement shall be in writing and sent postage pre-paid, if to SSI, to the SSI address on the Agreement, or if to Subscriber, to the billing address on the Agreement.

13.6 Time Limit: No action, regardless of form, may be brought by either party more than two (2) years after the cause of action has arisen.

13.7 Section Headings: The section headings herein are provided for convenience only and have no substantive effect on the construction of the Agreement.

13.8: Validity: The parties agree that if the Agreement is accepted by the parties and that acceptance is delivered via fax or electronically delivered via email or the internet it shall constitute a valid and enforceable agreement.

13.9 Electronic Acceptance: Use of the Service includes the ability to enter into agreements and/or to make transactions electronically. SUBSCRIBER ACKNOWLEDGES THAT WHEN IT INDICATES ACCEPTANCE OF AN AGREEMENT AND/OR TRANSACTION ELECTRONICALLY, THAT ACCEPTANCE WILL CONSTITUTE ITS LEGAL AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. THIS ACKNOWLEDGEMENT THAT SUBSCRIBER INTENDS TO BE BOUND BY SUCH ELECTRONIC ACCEPTANCE APPLIES TO ALL AGREEMENTS AND TRANSACTIONS SUBSCRIBER ENTERS INTO THROUGH THE SERVICE, SUCH AS ORDERS, CONTRACTS, STATEMENTS OF WORK, AMENDMENTS AND NOTICES OF CANCELLATION.

13.10 Agreement: The Agreement, these terms and conditions and any information expressly incorporated by reference herein, constitute the entire agreement between the parties for the Services described herein and supersede all prior or contemporaneous representations, negotiations, or other communications between the parties relating to the subject matter of the Agreement. The Agreement may be amended only in writing signed by authorized representatives of both parties.

13.11 Roadmap Items: Subscriber acknowledges that while SSI may disclose information regarding product development direction or potential future Services, Subscriber is not entitled to any Services, products or product enhancements other than those contained in the Agreement. Subscriber has not relied on information regarding the availability of any future version of the Services in executing the Agreement.

13.12 Force Majeure: Neither Party shall be responsible for any failure to perform or delay in performing any of its obligations under this Agreement (other than a failure to comply with payment obligations) where and to the extent that such failure or delay results from an unforeseeable event beyond a party's reasonable control, including but not limited to, acts of war; acts of nature; earthquake; flood; embargo; riot; sabotage; labor shortage or dispute; changes in government codes, ordinances, laws, rules, regulations or restrictions; failure of the Internet; terrorist acts; failure of data, products or services controlled by any third party, including the providers of communications or network services; utility power failure; material shortages or unavailability or other delay in delivery not resulting from the responsible party's failure to timely place orders therefor, or lack of or delay in transportation (each a "Force Majeure Event").