Terms and Conditions

Effective Date: April 30, 2012
Last updated: June 14, 2012

BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE ORDERING PROCESS, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT GOVERNING YOUR USE OF THE CLOUD EXTEND SERVICE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.

Your registration for and/or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the Cloud Extend website incorporated by reference herein, including but not limited to Active Endpoints' Cloud Extend Service Privacy and Security policies.

For reference, the Definitions section at the end of this Agreement includes definitions of capitalized terms.

Terms of Use & Restrictions

Active Endpoints hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Active Endpoints and its licensors. You may not access the Service if you are a direct competitor of Active Endpoints, except with Active Endpoints' prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Licenses cannot be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who no longer use the Service. You shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.

Your Responsibilities

You are responsible for all activity occurring under your accounts. You shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including, without limitation, those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify Active Endpoints immediately of any unauthorized use and (ii) not impersonate another Service user or provide false identity information to gain access to or use the Service.

Privacy & Security; Disclosure

Active Endpoints' Cloud Extend Service privacy and security policies may be viewed at http://www.cloudextend.com/service-privacy-policy. Active Endpoints reserves the right to modify its Service privacy and security policies at its discretion from time to time.

Account Information and Data

Active Endpoints does not own and shall not be responsible for Customer Data. Active Endpoints shall have the right to access and use your account information and Customer Data for the limited purpose of delivery of the Service, respond to service or technical problems, on your request, or to provide Ancillary Services as defined below. You, not Active Endpoints, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Active Endpoints shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. Active Endpoints reserves the right to establish or modify its general practices and limits relating to storage of Customer Data.

Intellectual Property Ownership

Active Endpoints alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Active Endpoints Technology, and Deliverables and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Active Endpoints Technology or the Intellectual Property Rights owned by Active Endpoints. The Active Endpoints name, the Active Endpoints logo, and the product names associated with the Service and Active Endpoints products are trademarks of Active Endpoints or third parties, and no right or license is granted to use them.

Term and Termination

At Active Endpoints' sole discretion, you may be granted an initial free trial period or a free subscription offer. If you do not purchase a paid subscription for the Service from Active Endpoints prior to the conclusion of a free trial period, access to the Service will be suspended. At Active Endpoint's sole discretion the Service associated with the free subscription offer may be terminated. To continue using the Service after a free trial period you must purchase a subscription for the number of Users specified in the Order. Users of the free subscription offer may purchase a paid subscription for the Service from Active Endpoints at any time and without a Service interruption to obtain access to the full set of features available with a paid subscription to the Service. The term of the Service set forth in the Order hereunder shall commence upon the date of enablement of the Service, or as otherwise set forth in such Order, and shall continue for the period of time set forth in such Order (the "Subscription Term"). Except as otherwise provided in the Order, all User subscriptions shall automatically renew for additional periods equal to the expiring Subscription Term or one year, whichever is shorter, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant Subscription Term.

Fees and Payment

The fee for the Services will be as specified in your Order. Except as otherwise provided in the Order, you agree to pay all fees associated with the Service and any applicable value-added taxes or other applicable taxes (including those required in the country where you use the Service) within thirty (30) days of the date of invoice even if you stop using the Service prior to the end of the Subscription Term. Any amounts not paid when due will accrue interest at a rate of 1.5% per month until paid. All sums are to be paid in United States Dollars. In the event of any material breach of the Agreement by either party, the non-breaching party shall have the right to terminate the applicable Order for cause if such breach has not been cured within 30 days of written notice from the non-breaching party specifying the breach in detail. Active Endpoints may immediately suspend Customer's access to the Service during such cure period if (i) Customer fails to make payment due to Active Endpoints under the Agreement and does not cure such non-payment within ten business days after Active Endpoints has provided Customer with notice of such failure, or (ii) Customer violates any provision of this Agreement. Any suspension by Active Endpoints of the Service under the preceding sentence shall not excuse you from making all payments associated with your subscription as specified in the Order. Upon any termination of the Order, Customer's right to access and use the Service specified in the Order shall terminate. You agree and acknowledge that Active Endpoints has no obligation to retain Customer Data, and may delete such Customer Data after termination. You agree that Active Endpoints shall not be liable to you and/or any third party for any modification, suspension, or termination of the Service. The following Sections shall survive the termination and/or expiration of this Agreement: Sections 5 (Intellectual Property Ownership); 10 (Representations and Warranties); 11 (Indemnification); 12 (Disclaimer of Warranties); 13 (Limitation of Liability); and 18 (General).

Ancilliary Services

Any Ancillary Services shall be performed in accordance with the applicable Order.

Deliverables

As between Active Endpoints and You, Active Endpoints owns all rights, title and interest in and to any Deliverables. Subject to these Terms and Conditions, and during the Term for which You have a right to use the Service, Active Endpoints hereby grants You a limited, non-exclusive, non-transferable and terminable license to use the Deliverables.

Representations & Warranties

Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Active Endpoints represents and warrants that it will use commercially reasonable efforts to (a) provide the Service substantially in accordance with its online documentation under normal use, and (b) provide the Service and Ancillary Services in a manner consistent with general industry standards reasonably applicable to the provision thereof. Notwithstanding the foregoing, the Services provided in connection with a free subscription offering are provided "AS IS". Customer must notify Active Endpoints of any warranty claim for the Service immediately upon discovery of such claim. Active Endpoints shall promptly use commercially reasonable efforts to make the Service warranty-compliant. If, in its sole discretion, Active Endpoints does not promptly make the Service warranty-compliant, Customer shall be entitled to recover a pro-rata portion of the fees paid to Active Endpoints for such deficient Services (depreciated on a straight line basis over the applicable term), and such refund shall be Active Endpoints' entire liability. For any warranty claim for the Ancillary Services, Customer must immediately notify Active Endpoints upon discovery of the claim, and Active Endpoints shall re-perform the Ancillary Services at no additional charge, and such re-performance of the Ancillary Services shall be Active Endpoint's entire liability.

The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, or because of other causes beyond Active Endpoints' reasonable control, but Active Endpoints shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled disruption to the Service. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service.

Indemnification

You shall indemnify and hold Active Endpoints, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Active Endpoints (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Active Endpoints of all liability and such settlement does not affect Active Endpoints' business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.

Disclaimer of Warranties

EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 10 ABOVE, ACTIVE ENDPOINTS AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY FOR THE SERVICE OR ANY CONTENT. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY ACTIVE ENDPOINTS AND ITS LICENSORS.THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ACTIVE ENDPOINTS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

Limitation of Liability

IN NO EVENT SHALL ACTIVE ENDPOINTS' LIABILITY FOR ANY CLAIM ARISING OUT OF OR RELATING TO THE SERVICE AND/OR THIS AGREEMENT EXCEED THE AMOUNT PAID BY YOU HERUNDER IN THE TWELVE (12) MONTHS PRECEDING THE DATE A CLAIM ARISES OUT OF OR RELATING TO THE SERVICE AND/OR THIS AGREEMENT. IN NO EVENT SHALL ACTIVE ENDPOINTS AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE AND/OR THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF ACTIVE ENDPOINTS AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE REASONABLY FORESEEN THEM. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.

Local Laws and Export Control

The Service utilizes software and technology that may be subject to United States and foreign export controls. You acknowledge and agree that the Service shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Service may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. You agree to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Active Endpoints and its licensors make no representation that the Service is appropriate or available for use in other locations. You are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.

Notice

Active Endpoints may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in Active Endpoints' account information, or by written communication sent by first class mail or pre-paid post to your address on record in Active Endpoints' account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to Active Endpoints (such notice shall be deemed given when received by Active Endpoints) at any time by any of the following: letter sent by confirmed facsimile to Active Endpoints at the following fax number: +1 781 622 3946; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to Active Endpoints at the following address: Active Endpoints Inc., 230 Third Ave, Waltham, MA 02451 in either case, addressed to the attention of: Chief Executive Officer or Chief Financial Officer.

Modification of Terms

Active Endpoints reserves the right to modify its Security and Privacy policies relating to the Service at any time, effective upon posting of an updated version of the policies on the Service. You are responsible for regularly reviewing the policies. Continued use of the Service after any such changes shall constitute your consent to such changes.

Assignment; Change in Control

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including the Order), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

General

The validity, construction and performance of this Agreement shall be governed by and interpreted in accordance with the domestic laws of the Commonwealth of Massachusetts, without giving effect to the principles of conflict of laws thereof. Accordingly, the provisions of the United Nations Convention on Contracts for the International Sale of Goods, if applicable, shall not apply to this Agreement. The Parties agree to the exclusive jurisdiction and venue of the State and Federal courts in Massachusetts. The Parties agree that service of process may be made by mail in accordance with the provisions set forth in Section 15 above in addition to any other methods permitted by law. Any dispute that cannot be settled amicably by conciliation (other than disputes relating to our intellectual property or confidential information) shall be submitted to final binding arbitration in accordance with the then-existing Commercial Rules of the American Arbitration Association, before a single arbitrator selected by the parties. All arbitration proceedings shall be held in the Commonwealth of Massachusetts and shall apply the laws of the Commonwealth of Massachusetts. No text or information set forth on any other purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Active Endpoints as a result of this agreement or use of the Service. The failure of Active Endpoints to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Active Endpoints in writing. This Agreement, together with any applicable Order, comprises the entire agreement between you and Active Endpoints and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

Definitions

As used in this Agreement now or hereafter associated herewith:

"Active Endpoints" means Active Endpoints Inc., a Delaware corporation, having its principal place of business at 230 Third Ave, Waltham, MA 02451;

"Active Endpoints Technology" means all of Active Endpoints' proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information), Content, and Services made available to you by Active Endpoints in providing the Service or delivering Ancillary Services;

"Agreement" means these Terms and Conditions and any materials available on the Active Endpoints' website incorporated by reference herein as such materials may be updated by Active Endpoints from time to time in its sole discretion;

"Ancillary Services" means fee based implementation, consulting, training , integration or other professional services provided by Active Endpoints as specified in an Order.

"Author" means to create and edit Sales Guides;

"Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service;

"Customer Data" means any data, Sales Guides, information or material provided or submitted by you to the Service in the course of using the Service and any derivatives thereof;

"Deliverable(s)" means the deliverables set forth in the Order for Ancillary Services.

"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;

"Order " means the invoice or order confirmation you receive from Active Endpoints for the Service or Ancillary Services that identifies the expiration, the Ancillary Services to be performed, payment terms, and the applicable fees.

"Run" means the use of the Sales Guides and their execution using the Service; and

"Sales Guides" means a question-oriented set of screens and automated steps Authored and executable using the Service;

"Service" means the proprietary Active Endpoints Cloud Extend Service. If you subscribe for a free subscription offer, the Services may not include all of the features contained in the fee based subscription.

"User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service by you, and that can either author Sales Guides or run Sales Guides;

Questions or Additional Information

If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to legal@cloudextend.com.