The PCG website is not intended for use by anyone not able to legally form binding contracts or under the age of 18. If you are not able to legally form binding contracts or at least age 18, you may not use the PCG website or submit information about yourself to the PCG website. We reserve the right to discontinue, suspend, cancel, deactivate or delete your account and all related information and files in your account. We further reserve the right (but do not have the obligation) to restrict, refuse, terminate, or suspend your access to or use of all or any part of the services, at any time and for any reason without giving any prior notice, in our sole discretion, including without limitation, in such instances wherein we believe that you are or might be engaged in any form of fraudulent, illegal, or otherwise improper activity regarding the services. You agree that we will not be liable to you or any third party for taking any of these actions.
Some of the services offered on the PCG website require registration. Without completing such registration you will not be able to use such services. You agree to provide true, accurate, current and complete information about yourself as prompted during the registration process. You further agree to maintain and promptly update such information to keep it true, accurate, current and complete. Upon completion of the registration, you will receive a password and account designation. You are responsible for maintaining the confidentiality of the password and account, and are fully responsible for all activities that occur under your password and/or account. You agree to (a) immediately notify us of any unauthorized use of your account or password or any other breach of security, and (b) exit from your account at the end of each session. We cannot and will not be liable for any loss or damage arising from your failure to comply with the foregoing requirements. You understand and agree that our services may include communications such as service announcements and administrative messages from us or from our partners and that these communications are considered part of the services. You will not be able to opt out of receiving these messages. You also understand that our services may include advertisements.
PROHIBITED ACTS, MONITORING OF CONTENT AND TERMINATION
The PCG website may contain e-mail services, blogs, bulletin board services, chat areas, news groups, forums, text alerts, communities, calendars, file cabinets and/or other message or communication facilities designed to enable you to communicate with others (collectively, “Communication Services”). You agree to use the PCG website and Communication Services only to post, send and receive messages and material that are proper and, when applicable, related to the PCG website or particular Communication Service.
By way of example, and not as a limitation, you agree that when using the PCG website or Communication Services you will not:
1. upload, post, email, transmit or otherwise make available any content that is unlawful, abusive, harmful, threatening, harassing, tortious, defamatory, libelous, or invasive of another’s privacy;
2. harm minors in any way;
3. impersonate any person or entity, including but not limited to a PCG official or otherwise misrepresent your affiliation with a person or entity;
4. forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the PCG website or Communication Services;
5. upload, post, email, transmit or otherwise make available any content that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
6. upload, post, email, transmit or otherwise make available any content that infringes any patent, trademark, trade secret, image or program, copyright or other proprietary rights of any party;
7. upload, post, email, transmit or otherwise make available any unsolicited or unauthorized advertising, charity requests, petitions for signatures, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation, except in those areas that are designated for such purpose;
8. upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
9. interfere with or disrupt the PCG website or Communication Services or servers or networks connected to the Site or Communication Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Communication Services;
10. intentionally or unintentionally violate any applicable local, state, national or international law;
11. interfere in any way with other users of the PCG website or Communication Services; and
12. post, list or transmit articles which are off topic according to the description of the group affected (collectively, the “Prohibited Acts”).
You understand that all communications and all information, data, text, images, software, icons, music, sound, photographs, graphics, video, messages or other materials, whether publicly posted or privately transmitted by users of the PCG website, (collectively, “User Content”) are the sole responsibility of the person from which such content or communications originated. This means that you, and not PCG, are entirely responsible for all User Content or communications that you upload, forward, post, email, transmit or otherwise make available via the PCG website or Communication Services.
PCG does not control the User Content or communications posted via the PCG website or Communication Services and, as such, does not guarantee the accuracy, integrity or quality of such Content or communications. You understand that by using the PCG website or Communication Services, you may be exposed to Content or communications that are offensive, indecent or objectionable. PCG will not be liable in any way for any Content or communications, including, but not limited to, any errors or omissions in any Content or communications, or for any loss or damage of any kind incurred as a result of the use of any Content or communications posted, emailed, transmitted or otherwise made available via the PCG website or Communication Services.
PCG further reserves the right to terminate your access to the PCG website, the Communication Services and any accounts you may have in connection with the site or Communication Services at any time and, without notice, for any reason whatsoever. You agree that PCG shall not be liable to you or any third party for any termination of your access to the PCG website, the Communication Services or any accounts you may have in connection with the site or Communication Services.
You understand that the technical processing and transmission of the Content may involve
1. transmission over various networks; and
2. changes to conform and adapt to technical requirements of connecting networks or devices.
By using the PCG website, you consent to receiving electronic, phone, and mail communications from PCG. These communications will include notices about your account and information concerning or related to our service. These communications are part of your relationship with PCG and you are entitled to receive them as part of the PCG subscription. You agree that any notice, agreements, disclosure or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
From time to time, we test various aspects of our service, and we reserve the right to include you in these tests without notice.
PCG hereby grants you a limited, non-exclusive, non-transferable license to download, view, copy and print content, images, photographs and graphics incorporated in or found on the PCG website, which are not considered User Content as defined above (the “PCG Materials”), subject to the following conditions: (1) the PCG Materials may be used solely for personal, informational, and non-commercial purposes; and (2) the PCG Materials may not be modified or altered in any way. Except to the extent permitted under copyright law, you may not otherwise use, download, upload, copy, print, display, perform, post, reproduce, publish, license, transmit or distribute any information from the PCG website in whole or in part without the prior written consent of PCG or any third party that provides information to PCG.
User Content Public
User Content Private
If you do post or transmit company data, budgets, financial information, user accounts, passwords, vendor data, or any data in your private user accounts, PCG and its affiliates will not sell, share, or permit outside parties have access to your detailed data records.
However, PCG may, at times may compile, analyze, and publish reports containing a summary of aggregated demographic information based on community data. Such analysis and reporting will neither identify community members nor be presented in a way that would allow third parties to reverse engineer the specific ownership of the data. PCG respects the privacy of all user data entered into the VistaDash.com website and will take all reasonable precautions to safeguard the security and stability of stored data.
All content included on the PCG website and delivered to subscribers as part of the service, including text, graphics, logos, designs, photographs, button icons, images, audio/video clips, digital downloads, data compilations, and software, is the property of PCG, Inc., or its suppliers and is protected by United States and international copyright laws. The compilation of all content on this site is the exclusive property of Riverside Recreations LLC, and protected by U.S. and international copyright laws. Content should not be reproduced or used without express written permission from PCG, or its suppliers. PCG reserves the right to terminate your membership hereunder if PCG, in its sole and absolute discretion, believes that you are in violation of this paragraph, such violations including the copying or other unauthorized use of our proprietary content.
If you believe that your work has been copied in a way that constitutes copyright infringement, please provide PCG’s Copyright Agent the following information:
(1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
(2) a description of the copyrighted work that you claim has been infringed;
(3) a description of where the material that you claim is infringing is located on the PCG website;
(4) your address, telephone number, and email address;
(5) a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and
(6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf (a “Copyright Infringement Notification”).
PCG’s Copyright Agent for Copyright Infringement Notifications can be reached as follows:
PCG DIGITAL MARKETING/DIGITAL COMPASS MARKETING
446 ROUTE 35 SOUTH
EATONTOWN, NJ 07724
Failure to include all of the above information may result in a delay of the processing or the Copyright Infringement Notification. It is expected that all users of any part of the PCG website will comply with applicable copyright laws. However, if PCG receives a proper Copyright Infringement Notification we will respond expeditiously by removing, or disabling access to, the material that is claimed to be infringing or to be the subject of infringing activity. PCG will comply with the appropriate provisions of the Digital Millennium Copyright Act in the event a counter notification is received.
Under appropriate circumstances, PCG may, in its discretion, terminate access of users of the PCG website and Communication Services who are repeat infringers.
It is our policy to accommodate and not interfere with standard technical measures it determines are reasonable under the circumstances, i.e., technical measures that are used by copyright owners to identify or protect copyrighted works.
“PCG,” the PCG logo and other marks indicated on the PCG website are registered trademarks or trademarks of PCG in the United States and worldwide. Other PCG graphics, logos, page headers and service names are trademarks or trade dress of PCG. PCG’s trademarks and trade dress may not be used in connection with any product or service that is not PCG’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits PCG. Unless otherwise noted on the Site, all other trademarks, service marks and logos used on the PCG website are the trademarks, service marks or logos of their respective owners.
Account access & identity protection.
In order to provide you with ease of access to your account, PCG will place a cookie (a small text file) on any computer from which you access the PCG website. When you revisit the PCG website, this cookie will enable us to recognize you as a previous user or as the account holder and provide you with direct access to your account without requiring you to retype any password or other user identification. You are responsible for updating and maintaining the truth and accuracy of the information you provide to us relating to your account.
You are also responsible for maintaining the confidentiality of your account and password and for restricting access to your computer. You may not share your account with other people by providing them your password. However, if you decide to share your account with other people, you take full responsibility for their actions and liabilities. Users of public or shared computers should log out at the completion of each visit to the PCG website.
If you find that you’re a victim of identity theft and it involves an PCG account, you should notify PCG. Then, you should report this instance to all your credit card issuers, as well as your local law enforcement agency. PCG reserves the right to place any account on hold anytime with or without notification to the subscriber in order to protect itself and its partners from what it believes to be fraudulent activity. PCG is not obligated to credit or discount a membership for holds placed on the account by either a representative of PCG or by the automated processes of PCG.
DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE PCG WEBSITE OR COMMUNICATION SERVICES IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PCG EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
PCG MAKES NO WARRANTY THAT (1) THE PCG WEBSITE OR THE COMMUNICATION SERVICES WILL MEET YOUR REQUIREMENTS; (2) THE PCG SITE OR THE COMMUNICATION SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR FREE OF VIRUSES, ERRORS OR OTHER HARMFUL COMPONENTS, (3) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE PCG SITE OR COMMUNICATION SERVICES WILL BE ACCURATE OR RELIABLE, (4) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PCG SITE OR COMMUNICATION SERVICES WILL MEET YOUR EXPECTATIONS, AND (5) ANY ERRORS ON THE PCG SITE OR COMMUNICATION SERVICES WILL BE CORRECTED.
ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PCG WEBSITE OR THE COMMUNICATION SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH CONTENT.
PCG WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PCG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (1) THE USE OR THE INABILITY TO USE THE SITE OR COMMUNICATION SERVICES, (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SITE OR COMMUNICATION SERVICES, (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA, (4) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PCG SITE OR COMMUNICATION SERVICES, OR (5) ANY OTHER MATTER RELATING TO THE PCG SITE OR COMMUNICATION SERVICES. NOTWITHSTANDING THE FOREGOING, IF PCG IS FOUND TO BE LIABLE, OUR LIABILITY TO YOU OR ANY THIRD PARTY SHALL BE LIMITED TO ONE HUNDRED DOLLARS (U.S. $100).
To the maximum extent permitted by applicable law, you hereby release, and waive all claims against PCG, its members, managers, principals, owners, parents, subsidiaries, officers, directors, employees, representatives, agents, co-branders, partners, contractors, consultants, suppliers, licensors, customers, and other affiliates from claims, demands and damages (actual and consequential), costs and expenses (including litigation costs and attorneys’ fees) of every kind or nature, known or unknown, arising out of or in any way connected with use of the PCG website or Communication Services. If you are a California resident, you knowingly and voluntarily waive the provisions of California Civil Code Section 1542, which provides as follows: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” Residents of other states and nations similarly waive their rights under applicable and/or analogous laws, statutes, or regulations.
You agree to defend, indemnify and hold harmless PCG, its officers, directors, employees and agents from and against any and all claims, liabilities, damages, losses or expenses, including attorney’s fees and costs, arising out of or in any way connected with your access to or use of the PCG website or Communication Services. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate with our defense of these claims.
Notice for California Users
Under California Civil Code Section 1789.3, PCG Site users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
446 Route 35 South
Eatontown, NJ 07724
VistaDash service agreement information
USER TERMS OF SERVICE & DATA SHARING AGREEMENT
These Terms of Service (this “Agreement”) are entered into by Roibot Software Inc. (“The Company”) and the entity executing this Agreement (“You”). This Agreement governs Your use of the VistaDashservice (“The Service”) located at www.VistaDash.com and accessible by Your user login and password. BY CLICKING THE “I AGREE” BUTTON, COMPLETING THE REGISTRATION PROCESS, PURCHASING OR USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT AND ARE AUTHORIZED TO ACT ON BEHALF OF, AND BIND TO THIS AGREEMENT, THE OWNER OF THE ACCOUNT. In consideration of the foregoing, the parties agree as follows:
“Account” refers to the billing account for the Service. All Profiles or “Stores” linked to a single Property will have their Data-Partner information aggregated for the Service for that Property.
“Confidential Information” includes any proprietary data and any other information disclosed by one party to the other in writing and marked “confidential” or disclosed orally and, within five business days, reduced to writing and marked “confidential”. However, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party’s possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information.
“Customer Data” means the data concerning the characteristics and activities provided by information thru a 3rd party source, API, email, or by the You, that is collected through use of The Service, or thru communications with a representative of The Service, and then forwarded to the Servers and analyzed by the Processing Software.
“Documentation” means any accompanying documentation made available to You by The Service for use with the Processing Software, including any documentation available online.
“Processing Software” means the server-side software and any upgrades, which analyzes the Customer Data and generates the Reports.
“Profile” means the collection of logins, settings and data that together determine the information to be included in, or excluded from, a particular Report. For example, a Profile could be established to view a single store’s data of a web site as a unique Report. There can be multiple Profiles established under a single Account.
“Property” means a group of web pages, API data or apps that are linked to an Account. Each Property includes a default Profile that measures all metrics within the Property.
“Report” means the resulting analysis shown at http://www.roi-bot for a Profile.
“Servers” means the computers controlled by The Company (or its wholly owned subsidiaries) on which the Processing Software and Customer Data are stored.
“Software” means The Service (“VistaDash”), the programming language and the Processing Software.
“Third Party” means any third party (i) to which You provide access to Your Account or (i) for which You use the Service to collect information on the third party’s behalf.
“Visitors” means visitors to Your Properties.
The words “include” and “including” mean “including but not limited to.”
2. Fees and Service.
Subject to Section 15, the Service is provided at a charge to You for up to the limited amount of the level of Service you purchase on a monthly subscription. The Company may change its fees and payment policies for the Service from time to time including the importing of cost data from third party vendors, or other fees charged to The Company or its wholly-owned subsidiaries by third party vendors for the inclusion of data in the Service reports. The changes to the fees or payment policies are effective upon Your acceptance of those changes which will be posted at http://www.VistaDash.com. Unless otherwise stated, all fees are quoted in U.S. Dollars. Any outstanding balance becomes immediately due and payable upon termination of this Agreement and any collection expenses (including attorneys’ fees) incurred by The Company will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with Your account.
3. Member Account, Password, and Security.
To register for the Service, You must complete the registration process by providing The Company with current, complete and accurate information as prompted by the registration form, including Your e-mail address (username) and password. You will protect Your passwords and take full responsibility for Your own, and third party, use of Your accounts. You are solely responsible for any and all activities that occur under Your Account. You will notify The Company immediately upon learning of any unauthorized use of Your Account or any other breach of security. The Company’s (or its wholly-owned subsidiaries’) support staff may, from time to time, log in to the Service under Your customer password in order to maintain or improve service, including to provide You assistance with technical or billing issues.
Neither party will use or disclose the other party’s Confidential Information without the other’s prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order; in which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing the Confidential Information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such.
5. Information Rights and Publicity.
The Company reserves the rights to use all data processed and stored by The Service in order to make generalized analysis and trend-based reports on such data at its will. These Reports may consist to the point of generalizations about Your account. IE: “Data from All Jeep Store Websites Show…”. The Company will not use the account information with use of the specific name on the account without the expressed written consent of the Account owner.
The Service’s intent is to give insights to You for the purpose of doing better business, spending better and measuring vendor metrics. In the same way that You wish to protect your business, the Service protects both Your data and Data Partners working with the Service.
Upon the entry or storage of a User Name and Password, Customer ID or other type of identifier You share with the Service, you agree the Service has the right to access all information provided by the Data Partner for the purposes of this Service for Your accounts. Interface data or metrics from a Data Partner or other type of service will enable the Service to retrieve and store the data provided by the Data Partner. This data is considered shared between the Data Partner, You and the Service.
The data stored in the Service may be used in shared reports and/or case studies between the Service and the Data Partner on that partner’s data.
At no time will the Service directly identify You or use Your Company Name or Your Personal Information without your expressed written consent.
Accounts are transferable to new users on your account after confirming the Company Name and information match our records, in the event You cannot be contacted or are terminated by Your Company.
The Service reserves the right to run diagnostics, analysis reports and/or studies based on the data in your account. Identifying characteristics of Your account may be used in such reporting including but not limited to the OEM Franchises of Your Dealership(s), store location, monthly subscription level and pricing of Vendor services, Data Partner metrics and user entered data.
As described above, unique identifying characteristics of Your Account, such as Dealership Name, User Name and Contact information, will not be used in the Service’s reporting and studies.
Your information may be accessed by the Data Partner which is providing data for your account, at any time, to verify the validity of data stored in the Service about that Data Partner. At no time will the Data Partner have access to other Data Partner metrics about your account. Access for the Data Partner to your account will be limited only to the data which that partner provided.
You may, once a year, request full disclosure and report on all actions, data, metrics, logins, access-points and modifications made to Your account.
At the termination of Your account, all data associated with your account will be stored and archived for possible future use by the dealership or reporting by the Company. Essential book keeping materials such as payment history, subscription history, payment processing data, user account contact information, and other such necessary data in order to preserve a sound financial record of the Service’s history, will be maintained and stored by the Company until such a time exists it is no longer valid or necessary to keep.
If it is requested, all Data Partner metrics, information, logins, passwords, user entered data and other such information, will be removed from the system at Your request, however, this information excludes the data as described in the paragraph above pertaining to payment and financial recordkeeping for the Service.
To the extent permitted by applicable law, You will indemnify, hold harmless and defend the Service, the Company and its wholly owned subsidiaries, at Your expense, from any and all third-party claims, actions, proceedings, and suits brought against the Company or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, reasonable attorneys’ fees and other litigation expenses) incurred by the Company or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the Service, (iii) Your violations of applicable laws, rules or regulations in connection with the Service, (iv) any representations and warranties made by You concerning any aspect of the Service, the Software or Reports to any Third Party; (v) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Service, the Software or Reports; (vi) violations of Your obligations of privacy to any Third Party; and (vii) any claims with respect to acts or omissions of any Third Party in connection with the Service, the Software or Reports. The Company will provide You with written notice of any claim, suit or action from which You must indemnify the Company. You will cooperate as fully as reasonably required in the defense of any claim. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.
8. Third Parties.
If You use the Service on behalf of the Third Party or a Third Party otherwise uses the Service through Your Account, whether or not You are authorized by the Company to do so, then You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, the Third Party to all obligations that You have under this Agreement, (b) the Company may share with the Third Party any Customer Data that is specific to the Third Party’s Properties, and (c) You will not disclose Third Party’s Customer Data to any other party without the Third Party’s consent.
9. DISCLAIMER OF WARRANTIES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT, THE COMPANY MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE AND NONINFRINGEMENT.
10. LIMITATION OF LIABILITY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY WILL NOT BE LIABLE FOR YOUR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE COMPANY OR ITS SUBSIDIARIES AND AFFILIATES HAVE BEEN ADVISED OF, KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. THE COMPANY’S (AND ITS WHOLLY OWNED SUBSIDIARIES’ TOTAL CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED $400 (USD).
11. Proprietary Rights Notice.
The Service, which includes the Software and all Intellectual Property Rights therein are, and will remain, the property of the Company (and its wholly owned subsidiaries). All rights in and to the Software not expressly granted to You in this Agreement are reserved and retained by the Company and its licensors without restriction, including, the Company’s (and its wholly owned subsidiaries’) right to sole ownership of the Software and Documentation. Without limiting the generality of the foregoing, You agree not to (and not to allow any third party to): (a) sublicense, distribute, or use the Service or Software outside of the scope of the license granted in this Agreement; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) rent, lease, sell, assign or otherwise transfer rights in or to the Software or the Service; (d) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software; (e) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of the Company; (f) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with the Company (or its wholly owned subsidiaries) other than in the name of the Company (or its wholly owned subsidiaries, as the case may be); or (g) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.
12. U.S. Government Rights.
If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government’s rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.
13. Term and Termination.
You may terminate this Agreement with 3 business day notice before the renewal of Your account by email, phone or written cancellation. The Company may terminate this Agreement at any time. If the Company terminates this Agreement, and there are more than 30 days remaining on Your subscription to the Service, the Company will refund a pro-rated amount back to You based on the daily rate calculation of your subscription to the Service.
Upon any termination of this Agreement, the Company will stop providing access to the Service, and You will stop accessing the Service. In the event of any termination (a) You will not be entitled to any refunds of any usage fees or any other fees greater than those mentioned in the paragraph above; and (b) any (i) outstanding balance for Service rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the Initial Term will be immediately due and payable in full and (c) all of Your historical Report data will no longer be available to You.
At the time of this contract, no export ability is provided by the Service for You to extract data stored by the Service at your termination.
14. Modifications to Terms of Service and Other Policies.
The Company may modify these terms or any additional terms that apply to the Service to, for example, reflect changes to the law or changes to the Service. You should look at the terms regularly. The Company will post notice of modifications to these terms at
http://www.VistaDash.com/privacy or policies referenced in these terms at the applicable URL for such policies. Changes will not apply retroactively and will become effective no sooner than 14 days after they are posted. If You do not agree to the modified terms for the Service, You should discontinue Your use of the Service. No amendment to or modification of this Agreement will be binding unless (i) in writing and signed by a duly authorized representative of the Company, (ii) You accept updated terms online, or (iii) You continue to use the Service after the Company has posted updates to the Agreement or to any policy governing the Service.
15. Miscellaneous, Applicable Law and Venue.
The Company will be excused from performance in this Agreement to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between You and the Company concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision will be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to effect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. This Agreement will be governed by and construed under the laws of the state of New Jersey without reference to its conflict of law principles. In the event of any conflicts between foreign law, rules, and regulations, and New Jersey law, rules, and regulations, New Jersey law, rules and regulations will prevail and govern. Each party agrees to submit to the exclusive and personal jurisdiction of the courts located in Monmouth County, New Jersey. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement. The Software is controlled by U.S. Export Regulations, and it may be not be exported to or used by embargoed countries or individuals. Any notices to the Company must be sent to: Pasch Consulting Group, 446 Route 35 South, Eatontown, New Jersey, USA, with a copy to Legal Department, via first class or air mail or overnight courier, and are deemed given upon receipt. A waiver of any default is not a waiver of any subsequent default. You may not assign or otherwise transfer any of Your rights in this Agreement without the Company’s prior written consent, and any such attempt is void. The relationship between the Company and You is not one of a legal partnership relationship, but is one of independent contractors. This Agreement will be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.