Additional
Software Terms of Service
Copyright 2023
by TechRadium, Inc. All Rights Reserved.
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This Additional Software Terms of Service Agreement("Agreement") is entered into between
TechRadium and You and contains additional terms regarding Your use of the
Software under the Software Terms of Service. By installing, copying, accessing through the
internet, or otherwise using the Software, You agree to be bound by the terms
of this Agreement. If You do not agree to the terms of this Agreement, do
not install, copy, access through the internet, or otherwise use the Software.
1.0 Party(ies) / Definitions.
“Licensor,” “TechRadium,” “We,”
“Us,” and “Our(s)” refers to TechRadium, Inc.
“Licensee,” “You” and “Your”
refers to the entity currently accessing the Software and accepting the terms
of this Agreement and who executed the original Software Terms of Service Agreement
that authorized access to this Software.
2.0 Limited Nonexclusive License. TechRadium hereby grants to You,
and You acknowledge that You are acquiring, only a limited, non-exclusive
license (the “License”) to use the Software for use only in the course of Your
business. TechRadium remains the owner of all right, title, and interest
in the Software and in any copies of or modifications to the Software. The
License authorizes one internet access per Authorized Seat to the then current
version of the Software and access to the associated support. You agree not to knowingly make or permit the
making of copies of the Software except as authorized in writing by
TechRadium. You agree not to knowingly engage in, participate in, or
permit any other reproduction, distribution, access to, or use of any of the
Software, nor in the creation of derivative works based on any of the Software,
except as may be specifically pre-authorized in writing from
TechRadium. You agree not to knowingly engage in, participate in, or
permit any disassembly, decompilation, or other reverse engineering of any part
of the Software or the functions or operation thereof.
3.0 Start-Up, Data Upload Format, And Availability. All
data and data updates uploaded by You to TechRadium in proper format will be
available for Your use
through the Software within three (3) business days. Data uploaded by You
to TechRadium in any format
or method that is unusable by the Software may be returned to You for proper
formatting and may cause
delay in the availability of that data. Data that requires translation by
TechRadium into a format usable by the Software may be subject to an additional
charge for such translation. TechRadium shall not be responsible for
retrieving data from You.
4.0 Limited Warranty. TechRadium warrants to You that
the Software will perform as described in the on-line Software
documentation. TechRadium does not guarantee that each intended Recipient
will actually receive notifications. No employee, agent, dealer, or
distributor of Ours is authorized to modify this limited warranty, nor to make
any additional warranties. No action for breach of any limited warranty
may be commenced more than one (1) year following the termination of this
Agreement. If implied warranties may not be disclaimed under applicable
law, then ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO ONE (1)
YEAR AFTER THE EFFECTIVE DATE OF THIS AGREEMENT. Some states do not
allow limitations on how long an implied warranty lasts, so the above
limitation may not apply to You. This warranty gives You specific legal
rights, and You may also have other rights which vary from state to state.
Map data, 411 database data, and other
third-party provided database or data source information (collectively
“Third-party Data”), if used by the Software, is not created or controlled by
TechRadium and TechRadium expressly disclaims any warranty or representation
relating to any Third-party Data information. Third-party Data may not be free
of nonconformities, defects, errors, or omissions; may not be available without
interruption; may not be corrected if errors are discovered; or may not meet
Your specific needs or expectations. You should not rely on any
Third-party Data unless You have verified the Third-party Data against actual
data from documents of record, field measurement, or observation.
You acknowledge and agree, and You
agree to notify Your intended Recipients that, while the Software may be used
in high risk situations and in events of actual or potential threat to person
or property that could lead to property damage, personal injury, death, or
other damages, Your primary source of assistance in response to these high risk
situations or events is to contact local law enforcement and other first
responders; the Software is intended to supplement, and not replace, local law
enforcement and other first responders; the Software is not intended to be Your
primary method of communication with, replace notification to, or coordinate
with local law enforcement and other first responders who should have already
been notified by You prior to using the Software; there are a number of
third-party participants and systems over which TechRadium and its suppliers
have no control such as power grids, internet functioning, telephone, cellular
networks, and other utility or necessary infrastructure (collectively “Utility
Infrastructure”) involved in the delivery of Software notifications, which may
not be available without interruption, and as a result there is an inherent
risk of delay or non-delivery that is beyond the control of TechRadium and its
suppliers. It is therefore not reasonable to, and You should not rely on
the Software and messaging services in the event of failure of the Utility
Infrastructure, and to the extent You do, You do so at Your own risk. You
further acknowledge and agree that in the event of any of these high risk
situations or events or the potential failure of the Utility Infrastructure, to
the extent not prohibited by applicable law, neither TechRadium nor its
suppliers shall be liable for any property damage, personal injury, death, or
other damages resulting from failure of the Software.
You also agree to:
1. Notify Your intended Recipients that
You are the source and supplier of the content of all messages sent by the
Software;
2. Notify Your intended Recipients that
they may incur additional charges from their service provider for messages,
including, but not limited to telephone service fees, text message fees, data
fees, and other fees and that they will be responsible for all charges that
appear on their service provider bill. TechRadium shall not be responsible
for such third-party charges;
3. Provide Your intended Recipients with
information on how to opt-out of receiving text messages or other notifications
from You; and
4. Provide Your intended Recipients with
information on how to receive help in regards to receiving text messages.
5.0 Indemnity. TechRadium's obligation to
indemnify You in relation to a claim that the Software infringes, violates or
misappropriates a patent, copyright or other intellectual property or
proprietary right of any third-party will not apply to the extent any
infringement, violation, or misappropriation was directly caused by Your
modification or combination of the Software with any other product, system or
method not specifically authorized by TechRadium. You shall notify
TechRadium in writing after You receive notice of any such claim against
you. Your failure to provide TechRadium with written notification within a
reasonable period of time to allow TechRadium to respond appropriately will
void TechRadium’s indemnity obligations if such failure to notify materially
prejudices TechRadium’s ability to present a defense. TechRadium shall
have control over the defense and/or settlement thereof. You shall furnish
to TechRadium all information and assistance necessary
for such defense.
6.0 Non-Transferability. This Agreement, and any rights
or obligations hereunder, shall not be assigned, sublicensed, or otherwise
transferred by You without the prior written approval of
TechRadium. However, without further approval from TechRadium, You have
the right to transfer Your interest and responsibilities under this Agreement
to a person or entity who acquires all or substantially all of Your assets and
who assumes all of Your obligations hereunder. Any prohibited assignment
is null and void and a breach of this Agreement.
7.0 Term Of License. Additional Provisions: This License will be
for the Term described above beginning on the Effective Date. If at any time
after termination of this Agreement, You upload data to the Software or log
into your account, then You agree to the terms, conditions, and pricing then in
effect for a period of one year from the date of upload. After the initial
Term, the License will be automatically renewed (absent notice of non-renewal)
for successive one-year Terms under TechRadium’s then current pricing as
provided to you in writing. After the initial Term, either Party may decline to
renew this Software License for any reason by providing the other Party with
written notice no less than thirty (30) days before the end of the then current
Term.
8.0 Resell / Distribution. You agree not to resell,
license, distribute, or in any way transfer any interest in the Software without prior written consent from TechRadium. You may not rent, lease, or lend the Software or
Software access to others.
9.0 Export Restrictions. You hereby warrant to TechRadium that You will not export or
re-export directly or indirectly (including via remote access) any part of the
Software (including any confidential / proprietary information) to any country,
person, entity or end user without the written authorization from
TechRadium.
10.0 No Waiver. The failure of either Party at
any time to require performance by the other Party of any provision of this
Agreement shall in no way affect the right of such Party to require performance
of that provision. Any waiver by either Party of any breach of any
provision of this Agreement shall not be construed as a waiver of any
continuing or succeeding breach of such provision, a waiver of the provision
itself, or a waiver of any right under this Agreement.
11.0 Limited Remedy.
Breach/Notice/Cure/Termination: In the event of a breach of any warranty,
covenant, or other provision of this Agreement, the following notice and cure
procedures shall apply:
a) The Party not
in breach shall give the Party in breach written notice describing the breach;
b) The Party in
breach shall then have forty-five (45) calendar days after the date the notice
is received in which to cure the breach.
If the Software does not perform as described in the online Software
documentation and We are unable to resolve any issue that You have brought to
Our attention in writing and had a reasonable opportunity to correct, then Your
sole remedy shall be to terminate this Agreement by providing written notice to
TechRadium. If TechRadium does not receive your Software License Fee within
sixty (60) days of the invoice date, TechRadium has the right to terminate Your
access to the Software upon written notice to You. Termination of Your access
to the Software shall not terminate Your obligation of payment of past due
invoices.
12.0 Dispute Resolution. In the event of any dispute
between the Parties relating to this Agreement, the Party believing itself
aggrieved shall send to the other Party written notice of such dispute
describing the dispute and requesting a negotiation to settle the
dispute. The Parties agree to negotiate in
good faith in an effort to resolve any dispute related to this Agreement that
may arise. If the dispute cannot be
resolved by negotiation within forty-five (45) calendar days of receipt of such
notice, the Parties agree to submit the dispute to
mediation. Each Party shall be responsible for their own costs and
expenses of attending mediation including, but not limited to mediator
fees. In the event of litigation
between the Parties concerning this Agreement, the prevailing Party will be
entitled to recover its reasonable attorneys’ fees and expenses from the other
Party. The covenants in this section shall survive the termination
of this Agreement.
13.0 Intellectual Property. All title and intellectual property
rights in and to the third-party content which may be accessed through use of
the Software is the property of the respective third-party content owner and
may be protected by applicable copyright or other intellectual property laws
and treaties. This Agreement grants You no rights to use such third-party
content. All rights not expressly granted are reserved by
TechRadium. To preserve the
value of TechRadium’s name and/or any copyright, trademarks, service marks,
trade names, or trade dress adopted and/or used by TechRadium from time to
time, You shall not make any use of any of the same for any reason without the
written, pre-approval of TechRadium. Such approval shall be in the sole
discretion of TechRadium. You shall not remove, alter, or obscure any
TechRadium copyright, trademark, or patent notices or markings on any copy of
the Software or on any TechRadium promotional materials.
14.0 No Partnership. The Parties are
independent. No partnership, agency relationship or joint venture is
intended to be created by this Agreement, nor any principal-agent or
employer-employee relationship. Neither Party has, and neither Party shall
attempt to assert, the authority to make commitments for or to bind the other
Party to any obligation and any attempt to do so will be void. The Parties
disclaim any intent to create a fiduciary relationship between them.
15.0 Governing Law. The Parties agree that this
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Texas without regard to the rules or principles of conflicts of
law or choice of law that might cause the laws of any other jurisdiction to
apply.
16.0 Modification. This Agreement may be modified
or amended from time to time by TechRadium. Any modifications will be presented
to You for Your approval through Your Software administrative access. The
terms of this Agreement may also be modified by specific reference in the Software Terms of Service.
17.0 Effect Of Partial Invalidity. If any one or more of the
provisions of this Agreement should be ruled wholly or partly invalid or
unenforceable by a court or other government body of competent jurisdiction,
then: a) the validity and enforceability of all provisions of this Agreement
not ruled to be invalid or unenforceable will be unaffected; b) the effect of
the ruling will be limited to the jurisdiction of the court or other government
body making the ruling; c) the provision(s) held wholly or partly invalid or
unenforceable will be deemed amended, and the court or other government body is
authorized to reform the provision(s), to the minimum extent necessary to
render them valid and enforceable in conformity with the Parties’ intent as
manifested herein; and d) if the ruling, and / or the controlling principle of
law or equity leading to the ruling, is subsequently overruled, modified, or
amended by legislative, judicial, or administrative action, then the
provision(s) in question as originally set forth in this Agreement will be
deemed revived and valid and enforceable to the maximum extent permitted by the
now controlling principle of law or equity.
18.0 Representations And Authority. You represent that You have read this Agreement in its entirety
and understand its terms and that
You have the full right, capacity and authority to enter into this
Agreement and agree that You will be
bound by these terms.
19.0 Version 37-01.