As part of the Service, NET-ESTATE will provide the use of the Service, including a browser interface and data encryption, transmission, access, and storage. Your registration for or use of the Service shall be deemed to be your agreement to abide by this Agreement and any materials available on the NET-ESTATE website incorporated by reference herein.
- PERMITTED USE
1. Under the terms and conditions of this Agreement, NET-ESTATE agrees to provide to Customer and permitted users access to the Service hosted by NET-ESTATE and set up a private dedicated database for the exclusive use by Customer.
2. The Service is to be used only by Customer and users authorized by Customer who are members of Customer (“Users”). Customer will have the ability to assign usernames and passwords (“logins”) to selected individuals maintained in their dedicated plant database. Customer will have full control over who is authorized to access/use this Service, provided (i) Customer shall not authorize persons who are not members of Customer; and (ii) any login issued to a User will be disabled when such person is no longer a member of Customer. Customer will inform NET-ESTATE immediately of any actual or potential unauthorized use of a login.
3. Customer will be able to assign administrative privileges on a User-by-User basis. All use of the Service is provided via the Internet through a standard internet browser and/or email client. In order to use the Service, Customer and Users are responsible, at their own expense, to acquire access to the Internet and to provide all equipment and software needed.
- CHOICE / OPT-OUT
1. Customer acknowledges NET-ESTATE shall not be required to forward any information to Customer from a recipient who has opted-out of receiving emails from NET-ESTATE or Customer.
- PASSWORDS AND ACCOUNT SECURITY
1. Customer agrees and understands it is responsible for maintaining confidentiality of passwords associated with any account it uses to access the Service.
2. Accordingly, Customer agrees it shall be solely responsible to NET-ESTATE for all activities occurring under its account.
3. If Customer become aware of any unauthorized use of its password or of its account, Customer agrees to notify NET-ESTATE immediately.
- CUSTOMER PROPRIETARY DATA RIGHTS
1. The data, information, or material (“Data”) submitted to the Service is for the exclusive use of Customer. NET-ESTATE agrees not to use, distribute, or disclose any Data except for disclosures required by law as set forth in Section V below. NET-ESTATE shall have the right to remove any Data that violates this Agreement (i) immediately, if required by law; (ii) immediately, if NET-ESTATE believes the failure to do so could cause irreparable harm; or (iii) otherwise upon five (5) business day written notice to Customer. Customer agrees to evaluate and bear all risks associated with the use of any Data, including any reliance on the accuracy and usefulness of such Data. The obligations under this Section IV shall survive the termination of this Agreement.
2. Customer agrees to not upload or transmit any Data that infringes, misappropriates, or violates any rights of any party.
3. NET-ESTATE has the right to remove any or all email addresses which are deemed by intermediaries, including Internet Service Providers, to be ‘spamming’ addresses or addresses that otherwise degrade the performance of the application, create significant rejections, or are otherwise not being used for bona fide plant management purposes.
4. Customer shall not allow anyone working on its behalf to (i) perform any technical security integrity review, penetration test, load test, denial-of-service simulation, or vulnerability scan without NET-ESTATE’s prior written consent, or (ii) attempt to access the Data of another Customer. Such prohibition includes a prohibition on employment of automatic emulation devices in connection with the Service.
5. Downgrading your Service may cause the loss of Data, features, or capacity of your Account. NET-ESTATE does not accept any liability for such loss.
- NET-ESTATE ACCOUNT INFORMATION AND DATA
NET-ESTATE does not own or have any rights to any Data Customer submits as a result of using this Service except NET-ESTATE may use aggregate general statistical data as set forth below. NET-ESTATE will not monitor, edit, or disclose any information regarding Customer or Customer’s database without Customer’s express written permission except in accordance with this Agreement or as may be required by law. For example, NET-ESTATE may be required to disclose Data to cooperate with regulators or law enforcement authorities to comply with a legal process such as a court order, subpoena, search warrant, or law enforcement request. In addition, NET-ESTATE may review certain User registration and statistical information such as usage or User traffic patterns in summative form for internal planning purposes in operating the Service. NET-ESTATE may access and modify Customer database in order to perform Service updates or respond to service or technical problems when requested to do so by Customer, law enforcement officials, or any third party claiming misappropriation or breach of privacy or data rights.
- NET-ESTATE PROPRIETARY RIGHTS
Customer acknowledges and agrees the Service contains proprietary and confidential methods and information protected by applicable intellectual property and other laws. Customer agrees to not, directly or indirectly, (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of, or found at or through, the Service or any software, documentation, or Data related to the Service; (ii) remove any proprietary notices or labels from the Service; (iii) modify, translate, or create derivative works based on the Service; or (iv) copy, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service.
- AVAILABILITY OF SERVICE
NET-ESTATE will provide at least two (2) business days advanced notice via email or system announcement within the Service of any scheduled downtime for backup, maintenance, or updates. Additionally, NET-ESTATE will make commercially reasonable efforts to ensure the quality of the service it provides is of at least prevailing industry standards and access to the Service is available on a 24/7 basis. However, although NET-ESTATE will use all reasonable efforts in good faith to avoid interruption of the Service, Customer acknowledges and agrees access to the Service may be unavailable from time to time for any reason, including, without limitation, interruption of major network connectivity, network and server outages, and backup and regular maintenance by NET-ESTATE and any operators of its servers. In the event a 99.9% uptime is not maintained as an average in any calendar month (excluding planned downtime for backups, regular maintenance, and updates to the Service) (the “Uptime Milestone”), Customer may request a pro rata refund of downtime exceeding forty (40) minutes for that calendar month, or Customer may terminate the Service and will receive a pro rata refund for the unused term of the Agreement for use of the Service (excluding any setup fees, data migration fees, coaching, training, or Tribes service fees, or premier or Multi-Site support fees). Other exclusions to the “Uptime Milestone” include interruptions of major network connectivity outside of NET-ESTATE’s facilities, problems with Customer network or connectivity, and DNS or browser caching.
- CUSTOMER-ASSIGNED ADMINISTRATORS
Customer will select a primary contact (“Master Administrator”) and one other designated contact (“Support Contact”) to manage Customer’s use of the Service, to authorize Users to access the Service, and to serve as the primary technical interface with NET-ESTATE Customer Service Representatives.
- USER CONDUCT
Customer agrees to abide by all applicable local, state, national, and foreign laws, treaties, and regulations in connection with using this Service.
- REPRESENTATIONS AND WARRANTIES
1. NET-ESTATE represents and warrants it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and the Service will perform substantially in accordance with NET-ESTATE’s online Help Desk documentation under normal use and circumstances.
2. NET-ESTATE also warrants and represents it will not share, rent, sell, or trade personal information (including email addresses) identifying Customer or its Users to third parties. NET-ESTATE will only provide information such as Customer’s name, address, and credit card number to businesses for credit verification and billing services to ensure NET-ESTATE receives proper payment for the Services and to NET-ESTATE service providers for the purpose of providing the Service.
3. NET-ESTATE represents it has implemented reasonable security measures to prevent the loss, misuse, and alteration of the confidential information in its possession. NET-ESTATE uses various security measures to protect the information it collects, as appropriate to the type of information, including encryption, firewalls, and access controls. NET-ESTATE has agreements in place with each of its service providers, vendors, and business partners requiring such third party to protect any Confidential Information transferred to them by implementing industry-standard security measures at least as restrictive as NET-ESTATE’s security measures.
- SERVICE FEES
1. Customer agrees to pay all applicable fees as specified in Customer’s Agreement. Fees are payable in advance and are due before the first business day of the month. Prepaid training and/or data migration fees are nontransferable and are forfeited if Customer fails to submit data or complete training within one (1) year of Agreement.
2. NET-ESTATE reserves the right to disable Customer’s Account immediately if Customer fails to make payments for the Service by the day said payments are due.
3. All fees paid are not refundable. However, if NET-ESTATE terminates or cancels the Service or Agreement, with or without cause, NET-ESTATE shall refund Customer the unused portion of the fees remaining for the Agreement’s term (excluding any setup fees or data migration fees).
- RENEWAL / NOTICE OF TERMINATION
This Agreement will be valid for a period of one (1) year commencing on the start date. Customer shall have the right to renew this Agreement for additional one (1) year periods commencing on the annual anniversary of the start date. Pricing for any renewal will be based upon normal weekly attendance and billed at current pricing as specified on the NET-ESTATE website or in a NET-ESTATE Proposal. NET-ESTATE shall provide Customer written notice of the current pricing sixty (30) days before the expiration of this Agreement. Should Customer elect to renew this Agreement, pricing may change based on updated normal weekly attendance. Unless terminated for cause by NET-ESTATE as set forth herein, this Agreement will continue for the duration of the annual term. Upon the expiration of this Agreement without a renewal by Customer, the Service shall be terminated and Customer’s account shall be deleted ninety (60) days after terminated service.
- NONPAYMENT / SUSPENSION OF SERVICE
In addition to any other rights granted to NET-ESTATE herein, NET-ESTATE reserves the right to suspend or terminate this Agreement and Customer’s access to the Service if the account becomes delinquent (falls into arrears). If Customer or NET-ESTATE initiates termination of this Agreement, Customer will be obligated to pay any balance due on the account computed in accordance with Section XIV above. Customer agrees NET-ESTATE may charge such unpaid fees to a credit card or otherwise bill Customer for such unpaid fees. NET-ESTATE reserves the right to impose a temporary access fee in the event Customer is suspended and thereafter requests access to the Service.
- TERMINATION FOR CAUSE
Any unauthorized access, use, copying, disclosure, distribution, or sub-licensing by Customer or with Customer’s aid or consent of the Service or any related methods, techniques, or processes, except as permitted under this Agreement, will be deemed a material breach of this Agreement. Additionally, any actions taken by Customer or its Users in conflict with Section IX above will also be deemed a material breach of this Agreement. NET-ESTATE, in its sole discretion, within reason, may terminate or suspend the login, account, or use of the Service if Customer or its Users materially breach this Agreement, provided NET-ESTATE provides Customer a ten (10) business day written notice and a fifteen (15) day period to cure any and all material breaches thereafter.
- TERMINATION OF SERVICE
Customer agrees that upon termination pursuant to Sections XIII or XIV above, NET-ESTATE will bar Customer from any further access to the Service. It is the sole responsibility of Customer to retrieve their Data and files from the Service prior to the date of termination. Customer’s account and all Data and files related to the Service shall be deleted ninety (90) days after terminated service. NET-ESTATE will provide written notice (10) business days before such deletion to allow Customer final opportunity to export or download any Data or files related to the Service. Customers choosing to access the Service at that time will incur a temporary access fee, as described in Section XIII above. Customer may terminate the Service on five (5) business days advanced notice for failure by NET-ESTATE to achieve the Uptime Milestone or due to a security breach. In such event, Customer, as its sole and exclusive monetary remedy in connection with such termination, may elect to have refunded the price paid in advance (if any) for the remaining portion of the Agreement’s term for use of the Service (excluding any setup fees or data migration fees). NET-ESTATE may terminate use on notice of the Service if Customer is a competitor of NET-ESTATE and upon such termination shall refund a pro rata portion of the fees paid for the unused term of the Agreement.
- DISCLAIMER OF WARRANTIES
Use of the Service and any reliance by Customer upon the Service, including any action taken by Customer because of such use or reliance, is at Customer’s sole risk. NET-ESTATE does not warrant the Service will be uninterrupted or error-free, nor does it make any warranty as to the results that may be obtained from use of the Service. The Service is provided “as-is”, and NET-ESTATE disclaims all warranties, express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and noninfringement.
By virtue of this Agreement, the parties may have access to information confidential to one another (“Confidential Information”). The parties agree not to make each other’s Confidential Information available in any form to any third party or to use each other’s Confidential Information for any purpose other than the implementation of the Agreement. Each party agrees to take all reasonable steps to ensure Confidential Information is not disclosed or distributed by its employees or agents in violation of the provision of this Agreement.
This Agreement becomes effective upon:
1. Acceptance of these terms by Customer as evidence by assent of the person accepting this Agreement, or
2. Valid payment by Customer which constitutes an electronic signature, or
3. Acceptance by NET-ESTATE as shown by an acceptance response or commencement of use of the Service.