End User License Agreement
The following End User License Agreement (the “EULA” or the “Agreement”) is an agreement between 1EZ Connect, LLC (“1EZ Connect”) and you (the “Account Holder”) and governs the Account Holder’s use of the 1EZ Connect Platform (as defined below) and related services. To the extent that 1EZ Connect is a Processor of Personal Data that is subject to certain Data Protection Laws. By using the 1EZ Connect Platform and/or Services (as defined below), you hereby agree to the terms of this EULA. There will be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.
1EZ Connect will provide Account Holder with access to a subscription services designed to connect and sync contacts between Quickbooks and Redtail Technology’s CRM, and will be billed monthly or annually depending upon the account holder’s selection at time of signing up.
1EZ Connect will maintain data security protections in accordance with 1EZ Connect Security and will undertake commercially reasonable efforts to make the 1EZ Connect Platform available to Account Holder during business hours. Notwithstanding the foregoing, 1EZ Connect reserves the right to suspend Account Holder’s access to the 1EZ Connect Platform: (i) for scheduled maintenance typically performed during the hours of 10pm to 6am PDT, beginning Friday evening, and typically lasting no more than two hours; (ii) emergency or unscheduled maintenance of up to 120 minutes per calendar month, or (iii) in the event Account Holder is in breach of this Agreement. Account Holder acknowledges and agrees that Account Holder and its authorized users’ use of the Services are dependent upon access to telecommunications and Internet services. Account Holder shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing. 1EZ Connect shall not be responsible for any loss or corruption of content, lost communications, or any other loss or damage of any kind arising from any such telecommunications and Internet services. 1EZ Connect shall have no liability for any claims, losses or damages arising out of or in connection with Account Holder’s use of any third-party products, services, software or web sites. Account Holder acknowledges that it receives access to the 1EZ Connect Platform and the Services through an authorized reseller (the “Reseller”) and that if such Reseller is in breach of its obligations to 1EZ Connect (including a failure to pay 1EZ Connect the fees owed), then 1EZ Connect may at its discretion terminate this EULA and cease providing the Services and/or 1EZ Connect to Account Holder without incurring any liability to either the Account Holder or the Reseller.
3. Compliance with Laws; Restrictions
Account Holder will not, will not agree to, and will not authorize or encourage any third party to, directly or indirectly: (a) interfere or attempt to interfere with the proper working of the Service or any other Account Holder’s use of the Service, including through abuse of server capacity; (b) use the Service for any fraudulent or unlawful purpose; (c) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Service or any software, documentation or data related to the Service (“Software”), provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable statute); (d) sell, copy, alter, modify, or create derivative works of the 1EZ Connect Platform or otherwise use the Service in any way that violates the use restrictions contained in this Agreement; (e) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (f) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (g) bypass any measures 1EZ Connect may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service); or (h) use the Service in violation of any applicable local, state, national and foreign laws, treaty or regulation or a third party’s proprietary or contractual rights. Account Holder shall ensure that all its authorized users comply with the terms and conditions of this Agreement and will be responsible for all of such authorized users’ activity in connection with the Service.
4. Mutual Representations and Warranties
Without limiting any other representation, warranty or covenant herein, each party hereby represents and warrants to the other party that: (a) it has the full corporate power and authority to enter into this Agreement; (b) this Agreement is a valid and binding obligation of such party; and (c) it has obtained and shall maintain throughout the Term of this Agreement all necessary licenses, authorizations, approvals and consents to enter into and perform its obligations hereunder in compliance with all applicable laws, rules and regulations.
(a) Account Holder shall defend, indemnify and hold harmless 1EZ Connect, its affiliates and each of its and its affiliates’ officers, directors, agents and employees from all liabilities, claims, and expenses (including reasonable attorneys’ fees) paid or payable to an unaffiliated third party, that arise from or relate to any third party claim (i) alleging that any Account Holder Data (as defined) infringes or misappropriates such third party’s intellectual property rights or proprietary rights, or (ii) arising from Account Holder’s use of the Service in violation of this Agreement, the Documentation, Statement of Work, or applicable law (each a “Claim against 1EZ Connect”), provided 1EZ Connect (a) promptly gives Account Holder written notice of the Claim against 1EZ Connect, (b) 1EZ Connect gives Account Holder sole control of the defense and settlement of the Claim against 1EZ Connect (except that Account Holder may not settle any Claim against 1EZ Connect unless Account Holder unconditionally releases 1EZ Connect of all liability), and (c) 1EZ Connect gives Account Holder all reasonable assistance in the defense and settlement of the Claim against 1EZ Connect (at Account Holder’s sole expense).
(b) 1EZ Connect shall defend (or settle) any suit or action brought against Account Holder by an unaffiliated third party to the extent that it is based upon a third party claim that the Services infringe or misappropriate the intellectual property rights of such third party, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are finally awarded by a court against Account Holder. 1EZ Connect’s obligations under this Section 5(b) are contingent upon: (a) Account Holder providing 1EZ Connect with prompt written notice of such claim; (b) Account Holder providing reasonable cooperation to 1EZ Connect, at 1EZ Connect’s expense, in the defense and settlement of such claim; and (c) 1EZ Connect having sole authority to defend or settle such claim. In the event that 1EZ Connect’s right to provide the Service is enjoined or in 1EZ Connect’s reasonable opinion is likely to be enjoined, 1EZ Connect may obtain the right to continue providing the Service, replace or modify the Service so that they become non-infringing (in which case, 1EZ Connect shall be relieved of all liability pursuant to this clause if Account Holder fails to promptly implement such replacement or modification), or, if such remedies are not reasonably available, terminate this Agreement without liability to Account Holder other than payment of the pro rata portion of fees for the remaining term of this Agreement subsequent to 1EZ Connect’s notice of such claim. THE FOREGOING STATES THE ENTIRE OBLIGATION OF 1EZ Connect AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICE. 1EZ Connect shall have no liability under this Section 5(b) to the extent that any third-party claims described herein are based on (i) use of the Service in a manner that violates this Agreement or the instructions given to Account Holder by 1EZ Connect or that is not strictly in accordance with this Agreement or the Documentation; (ii) any information, technology, materials or data (or any portions or components of the foregoing) not created or provided by 1EZ Connect, (iii) any portion of the Services that were modified after delivery by 1EZ Connect; (iv) combination of the Service with other products, processes or materials not provided by 1EZ Connect (where the claim arises from or relates to such combination); or (v) where Account Holder continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement.
6. 1EZ Connect Warranties
1EZ Connect hereby represents and warrants that: (i) to 1EZ Connect’s knowledge, neither the Service nor use of the 1EZ Connect’s Platform as contemplated herein will infringe on the rights of any third parties or violate any applicable laws or regulations, including, without limitation copyright, trademark and patent laws (provided that 1EZ Connect’s sole liability and Account Holder’s sole and exclusive remedy for 1EZ Connect’s breach of this sub-section (ii) is 1EZ Connect’s indemnity obligations set forth in Section 5(b) herein), and (iii) that 1EZ Connect will not include in the Services any Illicit Code , and (iv) that use of the Service will not require Account Holder to distribute any proprietary software as a result of 1EZ Connect’s inclusion of open source software, nor will said use of open source software contaminate any Account Holder systems. “Illicit Code” means: (a) viruses, Trojan horses, worms, authorization strings and other similar malicious code; (b) any self-destruction mechanism; (c) any copyright protection or license manager mechanism; (d) any software code and related files provided hereunder which are intended by 1EZ Connect to limit Account Holder’s use of any Service; or any other software, hardware, systems or websites or other material or technology (e) mechanisms implementing an operational time-out or time-bomb or drop dead capability; (f) any back door or other component that permits communication from any of the items provided hereunder to 1EZ Connect or access by 1EZ Connect to Account Holder’s computer systems or networks; and (g) any other computer software code or instructions or hardware components designed to erase, destroy, corrupt, disable, damage, or impair the materials delivered hereunder, the underlying systems, or any information or data contained therein.
7. Warranty Disclaimer
OTHER THAN WITH RESPECT TO PERFORMANCE IN SECTION 2 (PERFORMANCE) AND SECTION 6 (1EZ Connect WARRANTIES) ABOVE, 1EZ Connect MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, INCLUDING WITHOUT LIMITATION ADVERTISING AND OTHER SERVICES, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. 1EZ Connect MAKES NO WARRANTIES WITH RESPECT TO THE RESULTS OF OR USE OF THE SERVICE, AND ACCOUNT HOLDER ASSUMES ALL RISK AND RESPONSIBILITY WITH RESPECT THERETO.
8. Limitation of Liability and Damages
UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SYSTEM FAILURE OR NETWORK OUTAGE, WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES THAT RESULT FROM THIS AGREEMENT, EVEN IF SUCH PARTY OR ITS AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR EACH PARTY’S OBLIGATIONS SET FORTH IN SECTION 5 (INDEMNIFICATION) HEREIN, IN NO EVENT WILL EITHER PARTY’S OR ITS AFFILIATES’ TOTAL LIABILITY TO THE OTHER PARTY FOR ANY DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED IN THE AGGREGATE THE AMOUNTS PAID AND/OR PAYABLE BY THE RESELLER TO 1EZ Connect HEREUNDER FOR ACCOUNT HOLDER’S SUBSCRIPTION TO THE 1EZ Connect PLATFORM IN THE TWELVE MONTH PERIOD ENDING ON THE DATE SUCH DAMAGES, LOSSES OR CAUSES OF ACTION AROSE.
9. Ownership; Licenses
(a) Account Holder
Data As between the parties, Account Holder shall retain all right, title and interest in and to all documents, messages, graphics, logos, images, files, data and other information transmitted through the Service by Account Holder (collectively, the “Account Holder Data”), provided, however, that Account Holder hereby grants to 1EZ Connect a worldwide, royalty-free, fully sublicenseable, non-exclusive license to use the Account Holder Data solely for the purposes of implementing, maintaining and improving the Service and fulfilling its obligations hereunder. Notwithstanding the foregoing, “Account Holder Data” does not include non-identifiable aggregate data and usage statistics compiled by 1EZ Connect in connection with Account Holder’s use of the Service, which data and statistics each party may use in its discretion (but which 1EZ Connect may not disclose to any third party in a manner that identifies Account Holder in connection therewith), and which 1EZ Connect shall make available to Account Holder on an ongoing basis during the term hereof.
(b) Account Holder Logos and Designs
As between the parties, Account Holder shall retain all right, title and interest in and to all of Account Holder’s logos, promotional graphics and related marketing designs (collectively, the “Account Holder Art”).
(c) 1EZ Connect Platform and Service
1EZ Connect shall own and retain all right, title, and interest in and to the 1EZ Connect Platform and Service, as well as any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Account Holder or any other party relating to the 1EZ Connect Platform and/or Service, which are hereby assigned to 1EZ Connect. Subject to the terms of this Agreement and during the Term of this Agreement only, 1EZ Connect hereby grants to Account Holder a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable, limited term license (for internal use only), to use the 1EZ Connect Platform and API as contemplated herein. During the Term of this Agreement, 1EZ Connect grants to Account Holder a non-exclusive license to make, use, and share Recipes with other 1EZ Connect users. Recipes are private by default, meaning that Account Holder can decide whether to share such private Recipes with certain users with the 1EZ Connect Platform; however, Account Holder can make Recipes created by it public, meaning that any 1EZ Connect user can view, copy and modify such Recipes with the 1EZ Connect Platform. Any Connectors created in the 1EZ Connect Platform by Account Holder will by default be marked private, sharable only at Account Holder’s determination. 1EZ Connect has no right to resell or reuse any private Recipe or any private Connector. Account Holder’s Rights to use Recipes and Connectors will continue as long as Account Holder has an active subscription to the 1EZ Connect Platform. Except as otherwise expressly set forth herein, 1EZ Connect does not grant to Account Holder any license, express or implied, to the intellectual property of 1EZ Connect or its licensors.
“Confidential Information” shall mean (a) information relating to a party’s (the “Disclosing Party) technology or business that is disclosed hereunder to the other party (the “Receiving Party”) which; or (b) any information designated in writing, or identified orally at time of disclosure, by the disclosing party as “confidential” or “proprietary.” Any statistics or other user data relating to the Service which specifically identify Account Holder shall be deemed Account Holder’s Confidential Information. During the Term of this Agreement, and for a period of two (2) years following termination, neither party will use or disclose any Confidential Information of the other party except as specifically contemplated herein. The foregoing restriction does not apply to information that: (a) has been independently developed by the Receiving Party without use of or access to the Disclosing Party’s Confidential Information; (b) has become publicly known through no breach of this Section 10 by the Receiving Party; (c) has been rightfully received by the Receiving Party without obligation of confidentiality from a third party authorized to make such disclosure; (d) has been approved for release in writing by the Disclosing Party; (e) was known by the Receiving Party without obligation of confidentiality prior to receipt from the Disclosing Party; or (f) is required to be disclosed by a competent legal or governmental authority,provided that the Receiving Party gives the Disclosing Party prompt written notice of such requirement prior to disclosure and assists in obtaining an order to protect the information from public disclosure (if legally permissible).
11. Term; Termination
The term of this Agreement will be as set forth in the agreement between 1EZ Connect and the Reseller governing Account Holder’s subscription, unless terminated earlier in accordance with this Agreement (the “Term”). In the event of a material breach of this Agreement by either party, the other party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period (“Material Breach Termination”). Account Holder has the ability and responsibility to remove or destroy Account Holder Data from the 1EZ Connect Service upon termination or expiration of this Agreement. At its option, 1EZ Connect may destroy Account Holder Data left in 1EZ Connect’s system after termination or expiration of this Agreement.
Should a dispute arise out of or relating to this Agreement, the parties shall engage in good faith, informal dispute resolution for a minimum period of thirty (30) days to resolve the dispute. Should the parties fail to resolve such dispute informally, they shall engage in mediation with JAMS (as defined below), at their joint and equal expense. Should the mediation fail to resolve such dispute, the parties thereafter shall engage in binding arbitration conducted in accordance with the then-current Commercial Dispute Rules of JAMS/Endispute (“JAMS”) strictly in accordance with the terms of this Agreement and the substantive law of the State of California, without regard to its conflict of laws principles. The arbitration shall be held at the office of JAMS located in Minneapolis, Minnesota and it shall be conducted by one arbitrator, pursuant to JAMS arbitration rules, and shall be conducted in accordance with JAMS’ Optional Expedited Arbitration Procedures. The binding arbitration shall be at the parties’ joint and equal expense, with attorneys’ fees and costs to the prevailing party upon conclusion.
This Agreement, and any rights and obligations hereunder, may not be transferred or assigned by either party without the other party’s prior written consent, except that no such consent shall be required for assignment to a successor or an acquirer of all or substantially all of the assigning party’s business or assets to which this Agreement relates. Any purported assignment in violation of the foregoing shall be void and without effect. 1EZ Connect and Account Holder are independent contractors, and neither 1EZ Connect nor Account Holder is an agent, representative or partner of the other. 1EZ Connect and Account Holder shall each have sole responsibility for all acts and omissions of their respective personnel. Neither party shall have any obligation for any employee-related benefits or withholding taxes applicable to the other party’s personnel performing services pursuant to this Agreement. This Agreement sets forth the entire agreement between 1EZ Connect and Account Holder, and supersedes any and all prior agreements (whether written or oral) with respect to the subject matter set forth herein. Notwithstanding Section 13, each party shall have the right to pursue injunctive or other equitable relief at any time from a court of competent jurisdiction, in which case this Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. Each party agrees that any action at law or in equity arising out of or relating to this Agreement will be filed only in the state or federal courts in and for San Francisco, California, and each party hereby consents and submits to the personal and exclusive jurisdiction of such courts for the purposes of litigating any such action (subject to the provision of Section 13 hereof). This Agreement may be amended only by a writing executed by a duly authorized representative of each party. Any notices under this Agreement shall be in writing and shall be sent to the email address associated with the account (in the case of Account Holder) or to info@1EZ Connect.com (in the case of 1EZ Connect) by electronic mail or nationally recognized express delivery service and deemed given upon receipt. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party. If any provision contained in this Agreement is determined to be invalid, illegal, or unenforceable in any respect under any applicable law, then such provision will be severed and replaced with a new provision that most closely reflects the original intention of the parties, and the remaining provisions of this Agreement will remain in full force and effect.