General Terms and Conditions of Service
BY SIGNING UP FOR AND/OR OTHERWISE ACCESSING ANY OF THE SERVICES OR PRODUCTS OFFERED BY THE HMSPANEL Software Corporation YOU AGREE TO BE BOUND BY THESE GENERAL TERMS AND CONDITIONS OF SERVICE (this “Agreement”). THIS AGREEMENT SUPERSEDES ALL EARLIER VERSIONS AND REQUIRES MANDATORY ARBITRATION OF DISPUTES. Please read these terms and conditions carefully, as they describe your legal rights and obligations. This Agreement shall become effective as of the date of (1) the activation of your HMSPANEL account or (2) your receipt of an e-mail from HMSPANEL confirming your order, whichever happens first.
1. DEFINITIONS.
For the purposes of this Agreement:
1.1.
“Content” shall mean the downloadable files which are interpreted by a client web browser for display with or without plug-ins.
1.2.
“Customer Service” shall refer to communication from us to you dealing with problems or questions relating to services provided by us to you.
1.3.
“HMSPANEL”, “us,” “we,” “our” and grammatical variants thereof shall collectively refer to the HMSPANEL Software Corporation, a corporation organized and existing under the laws of the State of Texas, United States of America, located at P.O. BOX 592014, San Antonio, TX 78259, U.S.A. and its assigns and successors in interest.
1.4.
“HMSPANEL Services” shall mean the products and services provided by HMSPANEL and/or HMSPANEL’s affiliates, agents, or assigns at any given time, including but not limited to software, software licensing, and any associated support services, which services may be changed, amended, and/or otherwise altered at any time in HMSPANEL’s sole discretion.
1.5.
“HMSPANEL Software” shall mean any software provided by HMSPANEL at any given time, whether downloaded to your computer, provided to you on CD or another form of removable media, or utilized online as part of the HMSPANEL Services. The HMSPANEL Software includes the program and any and all copies or portions thereof, whether standing alone or in combination with other programs, as well as the documentation and other materials delivered in connection with the software, if any.
1.6.
“International Customers” shall mean customers residing in or accessing the HMSPANEL Services from outside of the United States.
1.7.
“Laws” shall mean the laws, statutes, and regulations then in effect of the United States of America and its various states and dependencies as well as the laws of Your country of residence or the country in which you use or access the HMSPANEL Services and the laws of any provinces, states or dependencies thereof.
1.8.
“Parties” shall collectively refer to HMSPANEL and you.
1.9.
“Technical Support” shall refer to communications from us to you dealing with problems or questions relating to technical matters involving software or services provided by us to you.
1.10.
“You”, “your” and grammatical variants thereof shall mean you, any other entity which has an ownership or other beneficial interest in you, or any other entity in which you have an ownership or other beneficial interest.
1.11.
“HMSPANEL Online Software”, “Online Software” and grammatical variants also known as Software-as-a-Service (SaaS) or Software On-demand, is data and functionality that are accessed via the Internet from HMSPANEL.
1.12.
“Third Party Software”, is referred to is a reusable software component developed to be either freely distributed or sold by an entity other than the original vendor of the development platform.
2. DESCRIPTION.
Subject to and conditioned upon HMSPANEL’s retained rights and all other terms and conditions set forth in this Agreement, HMSPANEL offers the HMSPANEL Services as soon as practicable after registration for and payment of any and all fees due. You will receive a password, account and instructions upon completion of the registration process. You are responsible for maintaining the confidentiality of both your password and your account and are fully responsible for all activities that occur under your password and your account. You agree to immediately notify HMSPANEL of any unauthorized uses of the account or any other breaches of security. HMSPANEL cannot and will not be liable for any loss or damage from your failure to comply with this security obligation. You acknowledge and agree that under no circumstances will HMSPANEL be liable, in any way, for any acts or omissions by you, including any damages of any kind incurred as a result of such acts or omissions. The HMSPANEL Services are subject to the following conditions and restrictions:
2.1. Software
2.1.1.
HMSPANEL may, in its sole discretion, provide you with HMSPANEL Software in combination with Your Services. Upon payment of all fees due and owing to HMSPANEL under this Agreement, HMSPANEL hereby grants, and you hereby accept, a nontransferable, revocable, non-sublicensable, and non-exclusive license to use the HMSPANEL Software and all related documentation for your own personal or business use during the term of this Agreement. Any rights not expressly granted herein shall be reserved for HMSPANEL.
2.1.2.
Although certain HMSPANEL Software may be provided free of charge, HMSPANEL reserves the right to charge for the HMSPANEL Software or any updates thereto or upgrades therefore at any time.
2.1.3.
You recognize that the HMSPANEL Software and all related information, including but not limited to any and all updates, improvements, modifications, enhancements, and information related to installation of the HMSPANEL Software at your home or office, are proprietary, and that all rights thereto, including copyright, are owned by HMSPANEL. You further acknowledge that you have been advised that the HMSPANEL Software, including updates, improvements, modifications, enhancements, and information related to installation, constitutes a trade secret of HMSPANEL, is protected by civil and criminal law, and by the law of copyright, is valuable and confidential to HMSPANEL, and that its use and disclosure must be carefully and continuously controlled.
2.1.4.
HMSPANEL shall at all times retain title to all the HMSPANEL Software and all related information, including all updates, improvements, modifications and enhancements, furnished to you hereunder.
2.1.5.
Unless provided otherwise in the specifications for Your Services, the HMSPANEL Software supplied hereunder is for the your personal or business use. You shall not permit any third party to use the HMSPANEL Software or allow access to the HMSPANEL Software from sites outside of your home or business premises except as specifically authorized in writing by HMSPANEL. The HMSPANEL Software is to be used only for the purposes specified in this Agreement and specifically as restricted in the following three subparagraphs of this Section 2.
2.1.6.
While this Agreement is in effect, or while you have custody or possession of any of the HMSPANEL Software, you will not: (i) reproduce, copy or publicly display, or permit anyone else to reproduce, copy or publicly display, any of the HMSPANEL Software, whether such HMSPANEL Software is in written, magnetic or any other form, except pursuant to reasonable backup procedures, or for use in Your Web Site pursuant to this Agreement, nor; (ii) provide or make the HMSPANEL Software available to any person or entity other than your employees or agents who have a need to know consistent with your use thereof under this Agreement, nor; (iii) create or attempt to create, or permit others to create or attempt to create, by disassembling, reverse engineering or otherwise, the source programs or any part thereof from the object program or from other information (whether oral, written, tangible or intangible) made available to you under this Agreement, nor; (iv) copy for your own use or the use of others operator manuals, system reference guides, training materials and other user-oriented materials without the prior written consent of HMSPANEL. In order to protect HMSPANEL’s trade secrets and copyrights in the HMSPANEL Software, you agree to reproduce and incorporate HMSPANEL’s trade secrets or copyright notice in any copies, modifications or partial copies.
2.1.7.
You agree to notify HMSPANEL forthwith if you obtain information as to any unauthorized possession, use or disclosure of any HMSPANEL Software by any person or entity, and further agree to cooperate with HMSPANEL at HMSPANEL’s expense, in protecting HMSPANEL’s proprietary rights.
2.1.8.
Unless agreed otherwise in writing by HMSPANEL, the HMSPANEL Software may be used only on a single computer, server or workstation. You may not install the HMSPANEL Software on a network except to facilitate permissible installation of the HMSPANEL Software on computers, servers or workstations attached to the network. You warrant and guarantee that all users of the HMSPANEL Software shall be aware of and comply with the terms of this license.
2.1.9.
Certain HMSPANEL Software is provided for online use as part of the HMSPANEL Services (the “HMSPANEL Online Software”), and the use of such software may be subject to fees as outlined in the current Fee Schedule in accordance with this Agreement. The HMSPANEL Online Software is hosted software which runs directly on HMSPANEL’s servers, and you may not download, install, store or make any copies of the HMSPANEL Online Software, nor may you sublicense the HMSPANEL Online Software. You agree not in any way to translate, decompile, reverse engineer, disassemble, modify, reproduce, rent, lease, lend, license, distribute, market or otherwise dispose of any portion of the HMSPANEL Online Software or any copies thereof and not to assist any third party in doing so. The HMSPANEL Online Software is designed to be used through the HMSPANEL user interface and, as such, may be utilized by any authorized user from any computer or workstation. This license is automatically revoked upon termination of this Agreement. HMSPANEL reserves the right to suspend the use of, modify or discontinue the HMSPANEL Online Software for any or all customers at any time without notice. Certain HMSPANEL Online Software is also Third Party Software, and is subject to the applicable provisions of 2.1.10. HMSPANEL may limit the functionality of any such third party online software, in its sole discretion.
2.1.10.
HMSPANEL may provide its customers with the ability to use certain third party software (the “Third Party Software”). The license conditions governing the use of the Third Party Software may differ from HMSPANEL’s own software licenses. Customers of HMSPANEL are bound by the conditions of all licenses pertaining to such Third Party Software and should make themselves familiar with their terms and conditions. HMSPANEL does not provide Technical Support for the Third Party Software. THE THIRD PARTY SOFTWARE IS OFFERED “AS-IS.” THE PROVISION AND OFFERING OF THIRD PARTY SOFTWARE BY HMSPANEL DOES NOT CONSTITUTE AN ENDORSEMENT OF THE THIRD PARTY SOFTWARE, NOR CAN HMSPANEL MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING THE USE AND FUNCTIONALITY OF SUCH THIRD PARTY SOFTWARE.
2.1.11.
In the event of termination of this Agreement, or upon any act which shall give rise to HMSPANEL’s right to terminate, or upon the expiration of the license for HMSPANEL Software which is subject to a limited-duration license, any and all licenses granted under this Section 2.1 shall terminate automatically, and you will remove, erase or destroy the HMSPANEL Software and documentation and all copies thereof, wherever located, without demand or notice.
2.1.12.
HMSPANEL may stop providing the HMSPANEL Software or any updates thereto, including but not limited to the HMSPANEL Online Software or the Third Party Software, at any time without notice or any further liability to You.
3. FEES.
3.1.
Certain HMSPANEL Services are subject to set-up and service fees, pursuant to the Fee Schedule, and by registering for such HMSPANEL Services you authorize HMSPANEL to debit your Payment Account for any and all such fees.
3.2.
The Fee is due monthly, in advance of the provision of services and accordance with billing policy, not later than the first of that month. In the event that HMSPANEL determines that the services of a collection agency are necessary or appropriate to collect amounts due under this paragraph, which determination shall be made in HMSPANEL’s sole and unfettered discretion, any and all collection agency fees and other costs of collection shall be added to any amounts due under this provision.
3.3.
All Fees must be paid in United States Dollars in advance of the provision of services. HMSPANEL will charge the monthly fee and any additional fees to the Payment Account unless specifically provided otherwise. You also agree that HMSPANEL may automatically debit your Payment Account, without further authorization from you, for any renewal term, additional services, and any fees or expenses applicable to Your Services or Your Web Site, including but not limited to fees for added HMSPANEL software licenses or other surcharges for services in excess of those included within Your Services or Your Web Site. If payment in full is not received by HMSPANEL from the provider of your Payment Account or its agents, you agree to pay all amounts due from you for Your Services upon demand by HMSPANEL.
3.4.
HMSPANEL may offer subsequent promotional rates or special offers, the terms of which may or may not be more favorable than the terms and conditions for Your Services. Any such promotions or modifications shall not effect your obligations under this Agreement. Promotional fees may be subject to additional terms and conditions which, to the extent they conflict with the terms of this Agreement, shall govern. Promotional fees and special offers may not be combined.
3.5.
To the extent Your Services are subject to the terms and conditions of HMSPANEL’s Money Back Guarantee, they are incorporated herein by reference.
3.6.
HMSPANEL will honor a 30 day money back guarantee for all Monthly and Yearly
licenses.
Only one refund per customer will be allowed. If a customer chooses to
purchase a license after a refund is issued this policy will no longer be
valid.
Q. Can You Provide Me With Some Examples Of How This Policy Applies?
Applicable
John Doe purchases a Yearly 5 server license and after 20 days of use he decides that he wants to switch to a different product. He then requests a refund of his purchase.
Not Applicable
A month later John Doe returns to purchase a Monthly single server license and he decides that this product is not the right fit for him and his business.
HMSPANEL OWNED LICENSES
HMSPANEL Owned licenses are perpetual/lifetime licenses and do not apply to this money back guarantee policy.
3.7.
You shall pay all costs of collection, including reasonable attorney’s fees and costs, in the event any invoice requires collection efforts. All accounts referred to a collection agency shall be subject to an additional fee of $18.95, which must be paid in full before the account is reactivated.
3.8.
International Customers bear the risk of currency fluctuations and any fees or taxes associated with the conversation of foreign currencies into United States Dollars. Certain HMSPANEL Services will not be available to International Customers until HMSPANEL is able to receive satisfactory confirmation from such customer’s Payment Account provider, in HMSPANEL’s sole discretion, that the funds will be available for debit from the International Customer’s account. Orders from International Customers will not be accepted unless the country provided in the contact information matches that on file for the Payment Account.
3.9.
Upon cancellation of this Agreement you will receive a prorated refund of any pre-paid, refundable fees for the remainder of any term. Fees for certain services, including but not limited to set up fees, paid phone services, hi-priority support incident requests are not refundable unless provided otherwise by applicable local law. HMSPANEL may, in its sole discretion, refund other amounts as it deems necessary or advisable.
4. NO WARRANTIES BY HMSPANEL.
THE HMSPANEL SERVICES AND HMSPANEL SOFTWARE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. YOU EXPRESSLY AGREE THAT THE USE OF THE HMSPANEL SERVICES IS AT YOUR SOLE RISK. HMSPANEL DOES NOT WARRANT THAT THE HMSPANEL SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES HMSPANEL MAKE ANY WARRANTY AS TO ANY RESULTS THAT MAY BE OBTAINED BY USE OF THE HMSPANEL SERVICES. NO WARRANTY IS MADE BY HMSPANEL REGARDING ANY INFORMATION, SERVICES OR PRODUCTS PROVIDED THROUGH OR IN CONNECTION WITH THIS AGREEMENT, AND HMSPANEL HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: (1) ANY WARRANTIES AS TO THE AVAILABILITY, QUALITY, QUANTITY, OR CONTENT OF SERVICES OR GOODS PROVIDED TO YOU HEREUNDER, INCLUDING BUT NOT LIMITED TO YOUR SERVICES AND YOUR WEB SITE; AND (2) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. HMSPANEL’S LIMITED LIABILITY.
YOUR SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE FOR YOU TO DISCONTINUE YOUR USE OF THE HMSPANEL SERVICES AND TERMINATE THIS AGREEMENT. IN NO CASE SHALL HMSPANEL, ITS MANAGERS, MEMBERS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS OR CONTRACTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING FROM YOUR USE OF OR OTHERWISE RELATING TO THE HMSPANEL SERVICES. SOME COUNTRIES, STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH COUNTRIES, STATES OR JURISDICTIONS, HMSPANEL’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT AS EXPRESSLY SET FORTH IN ANY SEPARATE SOFTWARE LICENSE OR IN THIS AGREEMENT, HMSPANEL DOES NOT ENDORSE, WARRANT OR GUARANTEE ANY THIRD-PARTY PRODUCT OR SERVICE OFFERED OR OTHERWISE ACCESSED USING THE HMSPANEL SERVICES, AND HMSPANEL WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND ANY THIRD PARTIES. YOU HEREBY RELEASE HMSPANEL FROM ANY AND ALL OBLIGATIONS, LIABILITY AND CLAIMS IN EXCESS OF THESE LIABILITY LIMITATIONS. THE TOTAL LIABILITY OF HMSPANEL FOR BREACH OF WARRANTY ARISING OUT OF CONTRACT, NEGLIGENCE OR STRICT LIABILITY IN TORT, OR ANY OTHER CLAIM RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE TOTAL FEES PAID BY YOU TO HMSPANEL IN THE SIX MONTHS PRECEDING SUCH ALLEGED BREACH, BUT IN NO EVENT TO EXCEED $20,000.
6. YOUR ADDITIONAL OBLIGATIONS AND WARRANTIES.
6.1.
You agree and warrant that the contact information you have provided to HMSPANEL is complete and accurate, and you further agree to notify HMSPANEL within fifteen days of a change to any such contact information. Contact information includes your full legal name, e-mail address, and mailing address and the name, mailing address, telephone number, facsimile number, and e-mail address of the technical and administrative contacts for your domain, if any.
6.2.
You agree and warrant that you shall not engage in any false, deceptive or fraudulent activities in association with your use of the HMSPANEL Services.
6.3.
You agree and warrant that all applicable taxes have been paid or will be paid in full by you when due regarding all businesses and employees associated with your use of the HMSPANEL Services and that no taxing authorities shall have any claim against HMSPANEL or any persons affiliated therewith for the payment of such taxes.
6.4.
You represent and warrant that you are over eighteen years of age (twenty one in places where eighteen years is not the age of majority) and are fully competent to enter into this Agreement.
6.5.
You agree to comply with all Laws rules regarding online conduct and acceptable Content.
6.6.
You represent and warrant that you are not a national or resident of Burma/Myanmar, Cuba, Iran, Iraq, Libya, North Korea, Serbia, Sudan, and Syria or any other country subject to U.S. Treasury Department embargo restrictions, and that you are not listed in the “Entity List” or “Denied Persons List” maintained by the US Department of Commerce or the list of “Specially Designated Nationals and Blocked Persons” maintained by the US Department of Treasury. You further acknowledge that you are not a national or resident of a country whose name is otherwise omitted from the registration form for HMSPANEL Services. Residents of countries which are serviced by a HMSPANEL affiliate are required to contract with those HMSPANEL affiliates, and you represent and warrant that you are not a resident of one of those countries.
6.7.
You agree to abide by United States and other applicable export control laws and not to transfer or permit the transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. You further agree not to upload to your HMSPANEL account any data or software that cannot be exported without prior written government authorization, including, but not limited to, certain types of encryption software.
7. CONFIDENTIALITY, TRADEMARK, AND COPYRIGHT.
7.1
During the course of this Agreement you may gain access to certain confidential, proprietary and trade secret business or technical information belonging to HMSPANEL in connection with HMSPANEL’s performance of the HMSPANEL Services (“Confidential Information”). You agree to preserve the confidentiality of all Confidential Information that is provided in connection with the Agreement, and shall not, without the prior written consent of HMSPANEL, disclose or make available to any person, or use for your own or any other person’s benefit, other than as necessary in performance of your obligations under this Agreement, any Confidential Information of HMSPANEL. HMSPANEL retains all right and title to such Confidential Information.
7.2
The HMSPANEL Software Corporation is a service mark of VPRO SYSTEMS LLC. All rights reserved. The trademarks, logos, and service marks displayed on this Web Site (collectively, the “Marks”) belong to HMSPANEL and/or its affiliates or third parties which have licensed those rights to HMSPANEL (“Partners”); HMSPANEL and Partners retain all rights to the Marks and nothing in this Agreement grants you or anyone else any right whatsoever to the use of the Marks. You may not use, reproduce, or display any Marks without their owner’s prior written consent. All other trademarks, product names, and company names and logos appearing on HMSPANEL’s Web Site are the property of their respective owners.
7.3
Unless expressly stated otherwise on the HMSPANEL web site, you should assume that all content, images, and materials appearing on this Web Site (collectively the “HMSPANEL Content”) are the sole property of HMSPANEL. Both U.S. and international copyright laws and treaties protect such HMSPANEL Content. You may not use, reproduce, display, or sell any HMSPANEL Content without HMSPANEL’s prior written consent. You may not link to any page within HMSPANEL’s Web Site or frame any portion of the site without HMSPANEL’s prior written consent.
8. YOUR INDEMNIFICATION OF HMSPANEL.
You agree that you shall fully defend and indemnify HMSPANEL, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from any and all claims, demands, actions, suits, losses, liabilities, damages, injuries, fines penalties, costs and expenses, attorneys’ fees, arbitration fees, mediation fees, expert expenses, and all other consequences of every kind, directly or indirectly resulting from any and all failure(s) of you or your agent(s) to fully comply with all duties, obligations and other provisions set forth in this Agreement, including, but not limited to, your warranties set forth in Section 6 or your violation of a third party’s intellectual property rights. You further agree to defend, indemnify and hold harmless HMSPANEL, including its officers, directors, owners, managing agents, attorneys, shareholders, related entities, heirs, and assigns, from and against any and all claims, demands, actions, suits, loses, liabilities, damages, injuries, fines, penalties, costs and expenses, including, without limitation, reasonable attorneys’ fees, arising out of any property damage or recoverable economic loss incurred by a third party, to the extent such damage or loss is caused by any act or omission of you or your agents in connection with the performance of this Agreement. You agree that HMSPANEL shall have the right to participate in the defense of any such claim through counsel of its own choosing at your expense.
9. NO JOINT VENTURE OR PARTNERSHIP.
Nothing in this Agreement is intended by the Parties to create or constitute an agency, joint or collaborative venture, or partnership of any kind between HMSPANEL and you, nor shall anything in this Agreement be construed as constituting or creating any such agency, joint or collaborative venture, or partnership between HMSPANEL and you. HMSPANEL shall have no control or ownership interests of any kind in your business. HMSPANEL shall have no direct financial or other interest in, nor in any way “own” any online “store” or other online venture pertaining to your use of the HMSPANEL Services. HMSPANEL’s relationship to you shall be restricted to matters pertaining to the provision of the HMSPANEL Services as set forth in this agreement.
10. HMSPANEL HAS MADE NO REPRESENTATIONS REGARDING SUCCESS, MARKETS OR PROFITABILITY.
10.1.
You confirm that you have unilaterally decided to enter the online and/or Web Site service business and that these are high risk businesses. You further confirm, understand, acknowledge and expressly agree that neither HMSPANEL, any agent or representative of HMSPANEL, nor any other person is currently representing or otherwise directly or indirectly communicating in any manner herein or otherwise, nor has at any time in the past, represented to you or has otherwise directly or indirectly communicated in any manner to you any guarantee, reassurance or any other communication of any kind regarding:
10.1.1.
the potential profitability, marketability, or likelihood of success of your endeavors through the use of the HMSPANEL Services or HMSPANEL’s Equipment as set forth herein or otherwise;
10.1.2.
the possibility or likelihood that use of any products and/or services provided by HMSPANEL pursuant to this Agreement can or will result in the recoupment of any funds expended by you for any purpose; or
10.1.3.
the existence, nonexistence, size or any other characteristics of any market for any products or services which involve your use, in any manner, of the HMSPANEL Services or HMSPANEL’s Equipment pursuant to this Agreement.
10.2.
You expressly acknowledge and agree that the success of any business endeavors which involve your use, in any manner, of the HMSPANEL Services and/or HMSPANEL’s Equipment pursuant to this Agreement, like any other business endeavor, is subject to numerous factors, such as the effectiveness of its advertising and promotion, your administrative capabilities, etc., and that the ultimate success or failure of your business rests with you and not HMSPANEL. You further expressly agree not to raise any claim of any kind against HMSPANEL and to hold HMSPANEL harmless from any claim of financial investment or other loss to you directly or indirectly resulting from your decision to use the HMSPANEL Services and/or HMSPANEL’s Equipment pursuant to this Agreement.
11. SERVICES RENDERED ON A NON-EXCLUSIVE BASIS.
Any and all services which are or may be provided to you by HMSPANEL pursuant to this Agreement, including the licensure of rights herein, are non-exclusive and nothing in this Agreement shall limit or restrict HMSPANEL from providing similar services and granting similar licenses to third parties regardless of whether such third parties are competitors of you. Nothing in this Agreement shall limit or restrict HMSPANEL from engaging in any activities similar to yours or in competition with you.
12. NO EDITORIAL CONTROL BY HMSPANEL.
In reliance on your express warranties regarding Your Data, HMSPANEL shall neither have nor exert any editorial or other subjective control over the substantive content of Your Data . HMSPANEL does not engage in any monitoring of Your Data, and exercises no control over information which is found on the internet, except for its own Web Site. HMSPANEL cannot be held responsible for the accuracy, correctness, or legality of such information. You are solely responsible for the content of Your Web Site and for verifying the accuracy and suitability of information and services you obtain from third parties via the internet.
13. TERM AND TERMINATION.
13.1.
Unless sooner terminated pursuant to other terms of this Agreement, and except as otherwise provided in this Agreement, this Agreement shall be for an initial term of one month and shall be automatically renewed each month for additional one month periods unless and until sooner terminated pursuant to the provisions of this Section 13. HMSPANEL may accept prepayment for services to be provided under this Agreement, but such acceptance shall not modify or extend the term of this Agreement.
13.2.
Notwithstanding the provisions of Paragraph 13.1. to the contrary, HMSPANEL offers certain software packages for which the initial term of this Agreement shall be in excess of one month (the “Extended Term Packages”), at the end of which this Agreement shall renew automatically for the original term. Any and all service fees for the Extended Term Packages are due and payable for the entire initial term thereof, and should you terminate, attempt to terminate, or otherwise default on this Agreement prior to the end of the initial term you authorize HMSPANEL to charge the Payment Account for all such fees and charges for the remainder of such initial term. For the purposes of this Section, any modification of the server package shall be deemed a termination and shall entitle HMSPANEL to the fees owing on the Extended Term Package. Fees paid for the Extended Term Packages are not refundable unless this Agreement is terminated by HMSPANEL without cause pursuant to Section 13.3. or as otherwise agreed to in writing by HMSPANEL in its sole discretion.
13.3.
You or HMSPANEL may terminate this Agreement at any time for any reason, with or without cause, upon thirty days’ written notice or via cancellation within the support/billing system. HMSPANEL may suspend performance under or terminate this Agreement and cease your license to use our software and associated with Your Web Site or business immediately and without notice:
13.3.1.
If HMSPANEL, in its sole discretion, deems that you have breached any part of this Agreement, including, without limitation, any warranty or obligation set forth in Section 6,
13.3.2.
if your Payment Account provider refuses payment of fees or charges or you refuse authorization for same, or
13.3.3.
if payment for the HMSPANEL Services is more than fifteen days overdue.
13.4.
You further agree that in the event that HMSPANEL believes, in its sole discretion, that you have breached any provision(s) of Section 6 of this Agreement, or any of its subparts, by storing or allowing material such as that described in the aforementioned Section 6, or any of its subparagraphs, to be transmitted by HMSPANEL’s services, that HMSPANEL may without any liability to you, and in addition to any other remedies, erase or purge such materials from HMSPANEL’s services or equipment without prior notice to you.
13.5.
After termination, you will no longer have access to your account and Your Data, including but not limited to software license keys or other data files associated with your account may be deleted. HMSPANEL accepts no liability for such deleted information or content.
14. PRIVACY.
14.1.
It is HMSPANEL’s policy to respect your privacy. HMSPANEL will not monitor, edit, or disclose any personal information about you or your account, including its contents, without your prior consent unless HMSPANEL deems it necessary, in its sole discretion, to:
14.1.1.
comply with legal process or other legal requirements, including but not limited to responding to civil or criminal subpoenas, search warrants, national security letters, or other requests for information from law enforcement officials;
14.1.2.
protect and defend the rights or property of HMSPANEL or its officers, agents, affiliates, and licensees;
14.1.3.
enforce this Agreement; or
14.1.4.
protect the interests of other HMSPANEL customers.
14.2.
NOTWITHSTANDING THE PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, HMSPANEL RESERVES THE RIGHT (SUBJECT TO APPLICABLE LOCAL LAW), IN ITS SOLE DISCRETION, TO MONITOR YOUR ACCOUNT, INCLUDING BUT NOT LIMITED TO THE USE OF A USER’S MAIN ACCOUNT AND ANY SUB-ACCOUNTS, FOR THE PURPOSE OF INVESTIGATING VIOLATIONS OF THIS AGREEMENT OR TO ASSIST WITH CRIMINAL OR CIVIL INVESTIGATIONS.
14.3.
Your IP address is transmitted and recorded with each message you send using the HMSPANEL Services. HMSPANEL does not provide information collected on you to third persons such as advertisers without your consent. For a more detailed description of the types and uses of personal information collected from you, please read the HMSPANEL Privacy Policy.
14.4.
INTERNATIONAL CUSTOMERS UNDERSTAND AND AGREE THAT THE HMSPANEL SERVICES ARE PROVIDED BY THE HMSPANEL SOFTWARE CORPORATION ("HMSPANEL") WHICH IS A SERVICE MARK OF VPRO SYSTEMS LLC. IN THE UNITED STATES OF AMERICA. THE PERSONAL INFORMATION WHICH YOU GIVE HMSPANEL WILL BE TRANSFERRED TO AND MAINTAINED IN THE UNITED STATES AND ELSEWHERE. IF YOU DO NOT CONSENT TO THIS TRANSFER, DO NOT ACCEPT THE TERMS AND CONDITIONS FOR THE HMSPANEL SERVICE. INTERNATIONAL CUSTOMERS FURTHER UNDERSTAND AND AGREE THAT HMSPANEL MAY DISCLOSE PERSONAL INFORMATION ABOUT THEM AND THEIR WEBSITE OR DOMAIN NAMES PURSUANT TO THIS SECTION, AND WAIVE ANY RIGHTS TO PRIVACY OR PROTECTION OF PERSONAL DATA RELATING TO SUCH INFORMATION TO THE FULLEST EXTENT PERMITTED UNDER NATIONAL AND INTERNATIONAL LAW.
15. SEVERABILITY.
In case any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been included. The invalidity or unenforceability of any provision(s) of this Agreement shall not affect the validity or enforceability of any other provision.
16. NON-ENFORCEMENT DOES NOT CONSTITUTE WAIVER.
Failure of HMSPANEL at any time to enforce any of the specific provisions of this Agreement shall not preclude any other or further enforcement of such provision(s) or the exercise of any other right hereunder. No waiver of a breach of this Agreement shall be valid unless made in writing and signed by duly authorized representative of HMSPANEL.
17. NOTICES.
17.1.
HMSPANEL may provide notice to you via e-mail sent to the e-mail address provided by you upon registration or as subsequently provided by you to HMSPANEL. Such notice is deemed effective whether you receive it or not and shall be deemed written notice for the purposes of this Agreement.
17.2.
You may provide notice to HMSPANEL in one of the following ways:
- by personal delivery;
- by addressing the notice as indicated below and depositing the same by
registered or certified mail, postage prepaid, in the United States mail,
HMSPANEL Software Corporation, P.O. BOX 592014, San Antonio, TX 78259;
- by Federal Express;
- by facsimile transmission; or
- by e-mail and registered or certified mail.
17.3.
Such notice, statement or other document so delivered to HMSPANEL, except as this Agreement expressly provides otherwise, shall be conclusively deemed to have been given when first personally delivered, on the date of delivery or on the first date of receipt. Notice by e-mail to HMSPANEL shall be deemed ineffective, null and void unless a copy of such notice is also sent by registered or certified mail, and postmarked not more than five days subsequent to the giving of e-mail notice. Any such e-mail notice to HMSPANEL shall be deemed effective as of the date on which HMSPANEL receives the certified or registered mail notice.
18. FORCE MAJEURE.
18.1.
In the event of “force majeure” (as defined below), HMSPANEL may terminate this Agreement without liability to you. For purposes of the Agreement, “force majeure” shall mean circumstances or occurrences beyond HMSPANEL’s reasonable control, whether or not foreseeable at the time of entering into the Agreement, in consequence of which HMSPANEL cannot reasonably be required to perform its obligations hereunder or otherwise perform its obligations under the Agreement. Such circumstances or occurrences include, but are not limited to: acts of God, war, civil war, insurrection, fires, floods, labor disputes, epidemics, governmental regulations and/or similar acts, embargoes, termination or temporary unavailability of any computer hardware or software, server, or network on which the HMSPANEL Services are located or maintained or through which the HMSPANEL Services are provided, and nonavailability of any permits, licenses and/or authorizations required by governmental authority.
18.2.
HMSPANEL reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the HMSPANEL Services (or any part thereof) with or without notice. You agree that HMSPANEL shall not be liable to you or to any third party for any modification, suspension or discontinuance of the HMSPANEL Services.
19. NO ASSIGNMENT BY YOU; ASSIGNMENT BY HMSPANEL.
This Agreement and the rights pertaining hereto may not be assigned, resold, or otherwise transferred in whole or in part by you without HMSPANEL’s prior written consent. In particular, you may not sell accounts or subaccounts to third parties. Notwithstanding the above, this Agreement shall be binding upon your successors and assigns, if any. HMSPANEL may assign or license any or all of its rights and/or obligations hereunder in its free, sole, and unfettered discretion.
20. ARBITRATION AND WAIVER OF JURY TRIAL.
20.1.
ANY AND ALL DISPUTES AS TO THE INTERPRETATION OF OR ANY PERFORMANCE UNDER THIS AGREEMENT WHICH ARE NOT FIRST RESOLVED INFORMALLY, SHALL BE DETERMINED BY BINDING ARBITRATION IN SAN ANTONIO, TEXAS IN ACCORDANCE WITH THE RULES OF JUDICIAL ARBITRATION AND MEDIATION SERVICES, INC (“JAMS”) AND IN ACCORDANCE WITH THE RULES OF JAMS. Any award arising out of such arbitration shall be subject to entry as a judgment by any court of competent jurisdiction in the United States. Any action to confirm or vacate such an award must be brought in either a Bexar County, Texas District Court or the United States District Court for the Western District of Texas (San Antonio Division). You consent to personal jurisdiction and venue in such courts and you waive any challenge to personal jurisdiction or venue in such courts. You further agree that HMSPANEL shall be entitled to collect its attorneys’ fees, costs and other expenses in the event that HMSPANEL acts to enforce this arbitration and forum selection clause, regardless of whether HMSPANEL prevails in the underlying action. The final award in any such arbitration proceeding shall be subject to entry as a judgment by any court of competent jurisdiction, provided that such judgment does not conflict with the terms and provisions hereof. The jurisdiction of the arbiter (or arbiters) with respect to legal matters shall be limited only by the statutory and common law of the State of Texas and the federal law of the United States of America. There are no exceptions to these mandatory arbitration provisions except as set forth in Sections 20.2 and 20.3.
20.2.
Notwithstanding the provisions of Section 20.1, if you fail to timely pay amounts due HMSPANEL may assign your account for collection and the collections agency and/or HMSPANEL may pursue such claims in court limited strictly to the collection of the past due debt and any interest or cost of collection permitted by Law or this Agreement.
20.3.
Nothing in Section 20.1 shall preclude HMSPANEL from: (i) seeking and obtaining any injunctive relief or attachment and expedited discovery or other equitable relief to enforce the terms of this Agreement or to remedy a breach thereof, or (ii) bringing an action to enforce this Agreement or the provisions hereof in the event JAMS will not or cannot arbitrate a particular dispute. Any action under this section 20.3 may be brought in either the United States District Court for the Western District of Texas (San Antonio Division) or a Bexar County, Texas District Court, and each party consents to the in personam jurisdiction of such Courts for the purpose of any such action or proceeding. Each party hereby waives all rights it has or which may hereafter arise to contest such exclusive jurisdiction of the United States District Court for the Western District of Texas (San Antonio Division) or a Bexar County, Texas District Court.
20.4
In addition to the foregoing, YOU HEREBY AGREE THAT AS A PART OF THE CONSIDERATION FOR THIS AGREEMENT, YOU WAIVE THE RIGHT TO A TRIAL BY JURY FOR ANY DISPUTE ARISING BETWEEN YOU AND HMSPANEL THAT IS IN ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, and that such waiver shall be enforceable up to and including the day that trial is to start, and even if the arbitration provisions of this paragraph are waived.
20.5
Neither you nor HMSPANEL may be a representative of other potential claimants or a class of potential claimants in any dispute concerning or relating to this Agreement, nor may two or more individuals’ disputes be consolidated or otherwise determined in one proceeding. YOU AND HMSPANEL ACKNOWLEDGE THAT THIS SECTION 20.5 WAIVES ANY RIGHT TO PARTICIPATION AS A PLAINTIFF OR AS A CLASS MEMBER IN ANY CLASS ACTION.
20.6
This Agreement shall be interpreted according to the laws of the State of Texas, United States of America, and, where applicable, the federal law of the United States of America, without regard to conflicts of law principles.
21. ENTIRE AGREEMENT.
This Agreement constitutes the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and cancels all other prior agreements, discussion, or representations, whether written or oral. No officer, employee or representative of HMSPANEL or you has any authority to make any representation or promise in connection with this Agreement or the subject matter thereof which is not contained expressly in this Agreement, and HMSPANEL and you hereby acknowledge and agree that neither HMSPANEL nor you have executed this Agreement in reliance upon any such representation or promise.
22. MODIFICATION.
22.1.
This Agreement may be materially altered by HMSPANEL by posting the new version of the Agreement at www.HMSPANEL.com and if posted in this manner, shall be effective immediately upon posting such notice. In the event that HMSPANEL does materially change the terms of this Agreement, you accept and shall be bound by such changed terms unless you opt to terminate the Agreement within thirty days of the posting of notice of such change.
22.2.
You may not modify this Agreement, in whole or in part, and any such modification or attempt to modify shall not be enforceable unless reduced to writing and signed by a duly authorized representative of HMSPANEL. No additional or conflicting term in any other document used by you will have any legal effect.
23. STATUTE OF LIMITATIONS.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or this Agreement must be filed within one year after such claim or cause of action arose or be forever barred.