IMPORTANT: Please carefully read the following subscription agreement.
This Dotcom-Monitor subscription service agreement (“Agreement”) is hereby entered into by and between Dotcom-Monitor, Inc, having offices at 5125 County Road 101, Suite 100, Minnetonka, MN USA (“Seller”) and you (whether as an individual, a corporate entity of any kind, also referred to as “Subscriber”). This Agreement covers Seller’s Dotcom-Monitor fee-based monitoring service, Seller’s free trial service and free service (the latter also referred to as the “Lite I” package), (collectively all such services referred to as the “Service”) and by entering such Agreement you are hereby agreeing to buy and/or use the Services under the terms and conditions of this Agreement. Seller and Subscriber are also referred to herein as “party” or jointly as “parties”.
- This Agreement shall immediately become effective upon Subscriber indicating its assent by clicking “I AGREE” to the terms and conditions herein. This Agreement shall continue to be effective for such time (“Subscription Period”) as Subscriber complies with the terms and conditions herein, or is terminated by either party upon provision of prior written notice to the other party.
Subscriber Representation and Warranty:
Without limiting the application of any other provision herein, Subscriber represents and warrants that during the Subscription Period:
- It is not directly or indirectly a competitor to Seller;
- In the event Subscriber is requesting a trial subscription, it has not within the past 60 days benefited from a promotional trial of the Service; and
- Subscriber shall use the data generated by its use of the Service (“Data”) solely for lawful purposes and shall not infringe, disrupt, compromise, trespass or otherwise violate the rights of third parties.
Conditions of Use:
Without limiting the application of any other provision herein, Subscriber’s use of the Service is subject to these additional conditions:
- Except as necessary for Subscriber’s use of the Service, Subscriber shall not, directly or indirectly, cause or allow robots or other automated processes to act upon or interact with Seller’s computer systems or user interface without prior written permission from Seller, which may be revoked at any time at Seller’s discretion;
- Subscriber shall not use the Service in a way that causes an unreasonable burden, as determined by Seller, in its sole discretion, on Seller’s computer systems.
- Subscriber shall not use the Service to access a computer system it does not have prior written permission from the owner of such system to access.
Use of Data:
In the event Subscriber uses the Service to monitor computer systems that it does not own or have explicit written permission from the owner of such computer system to access, Subscriber shall not copy, disseminate, publish, make commercial use of, or otherwise use the Data in any manner that interferes with such owner’s rights.
“Confidential Information” means all of Seller’s non-public information that is identified as “Confidential,” or if such identification is not reasonably practical, is reasonably understood from the surrounding circumstances as being non-public and proprietary to Seller.
- Confidential Information does not include any information, which is already known to Subscriber prior to or on the date of entering into this Agreement, is disclosed to Subscriber by a third party, or becomes part of the public domain through no fault of Subscriber.
- Subscriber shall maintain Confidential Information in a secure manner and use it only in furtherance of the purpose of this Agreement.
- Any Confidential Information provided to Subscriber during the Subscription Period shall be promptly returned to Seller upon termination or expiration of this Agreement.
- Seller’s Confidential Information shall be kept in confidence for a period of 7 years following the termination or expiration of the Subscription Period.
- Seller makes no warranty as to the accuracy or sufficiency of the Confidential Information.
Payment and Costs:
Buyer will be in default under this Agreement if there is
- For Services provided for a fee, Subscriber’s payments are due in full 30 days from date of invoice. If any amount due to Seller under this Agreement is not fully paid when due, Subscriber agrees to pay Seller interest on the past due amount at a rate of 1 Â½% per month, or the maximum rate allowed by law, whichever is greater. Interest payment shall not be in lieu of any other rights or remedies that may be available to Seller.
- Sales and Use Taxes. Subscriber shall pay all sales or use taxes as billed by Seller. Subscriber shall be solely responsible for paying all other local, state or federal taxes arising out of its use of the Services (excluding income taxes imposed on Seller). In the event Subscriber fails to pay any required taxes, charges or fees, Seller may at its option, pay such applicable taxes, charges and fees directly to the taxing authority, and Subscriber shall reimburse Seller for those payments within 3 business days. In the event Subscriber fails to reimburse Seller, Seller shall be entitled to impose and receive interest on said amount at a rate of 1 1/2% interest rate per month, or the maximum rate allowed by law, whichever is greater. Interest payment shall not be in lieu of any other rights or remedies that may be available to Seller.
- Subscriber is solely responsible for any costs, fees, charges, fines or liabilities it incurs in accessing the Service.
- Seller warrants that the Service shall materially comply with the documentation and relevant written representations made by Seller with regard to the Service.
- Subscriber understands and agrees that Seller is not responsible for the manner in which the Service is used, Subscriber’s analysis or any use of the Data.
- Subscriber understands that access to the Service is provided using public internet and other infrastructure that is outside of Seller’s control. Therefore, Subscriber understands and agrees that Seller does not guarantee the availability of the Service and that Seller is not liable for any Service disruption arising from such infrastructure failure.
- EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED HEREIN, THERE ARE NO OTHER EXPRESS WARRANTIES AND SELLER HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
- THIS PROVISION IS A MATERIAL PROVISION IN THE ABSENCE OF WHICH THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
Limitation of Liability:
SELLER SHALL INCUR NO LIABILITY FOR CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES FOR ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF A BREACH OF THIS AGREEMENT. CONSEQUENTIAL DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOST PROFITS, LOST REVENUES AND LOST BUSINESS OPPORTUNITIES, WHETHER SELLER WAS OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF THESE DAMAGES. UNDER NO CIRCUMSTANCES SHALL SELLER’S AGGREGATE LIABILITY HEREUNDER EXCEED THE AGGREGATE SUBSCRIPTION FEE PAID TO SELLER UP TO THE TIME THE CAUSE OF ACTION AROSE. THIS PROVISION IS A MATERIAL PROVISION IN THE ABSENCE OF WHICH THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
Subscriber shall indemnify and defend Seller from any and all claims, including threatened claims, liabilities, penalties, fines, or costs (including reasonable attorney and court costs, collectively referred to as a “Claim”) arising from Subscriber’s use of the Service. In the event Seller receives notice of a Claim, Seller shall provide Subscriber with prompt and sufficient notice so as to allow Subscriber to proceed with its obligation hereunder. This provision is a material provision in the absence of which the parties would not have entered into this Agreement.
Notice of Breach:
Any claim a party has for breach of this Agreement shall be filed within 1 year of disclosing party’s first knowledge of the breach. Failure to file a claim within the prescribed time shall be deemed waiver of the alleged breach.
Use of Name:
Unless otherwise restricted in writing by Subscriber, Seller has the right to use Subscriber’s name in its sales and marketing activities, which said activities include, but are not limited to, press releases, sales and marketing materials, web pages and presentations. Seller also agrees not to disclose personnel names, titles, project names, and project details without written permission of client.
- Entire Agreement. This Agreement constitutes the entire agreement of the parties as to the provision of Services and supersedes all prior, contemporaneous, or subsequent (except if in a writing signed by both parties) agreements, proposals, inquiries, commitments, discussions and correspondence, whether written or oral.
- Amendment. This Agreement may not be amended or modified except in writing signed by a duly authorized representative of each party. Nothing in this Agreement gives any third party any rights or remedies under this Agreement.
- No Waiver. Except as explicitly provided herein, no failure or delay by either party in exercising any of its rights under this Agreement shall be deemed to be a waiver of that right, and no waiver by either party of a breach of any provision of this Agreement shall be deemed to be a waiver of any subsequent breach of the same or any other provision.
- Unenforceable Provision. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable under applicable law, then such provision shall either be amended in such a manner to as closely reflect the intention of the parties or, in the event such amendment is not permissible, the offending provision shall be excluded from this Agreement. The remainder of this Agreement shall not be affected.
- No Assignment. Subscriber may not assign this Agreement without Seller’s prior written consent, which shall not be unreasonably withheld. Seller may assign or subcontract all or part of Seller’s rights and obligations under this Agreement.
- Survival. All obligations and duties hereunder, which by their nature extend beyond the expiration or termination of this Agreement, shall survive and remain in effect beyond any expiration or termination hereof.
- Paragraph Headings. Headings used in this Agreement are inserted solely for convenience of reference and are not a part of and are not intended to limit the construction of any term or provision hereof.
- Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.
- Notice. Any notice to Seller in connection with this Agreement shall be sent by registered mail or will be delivered by hand to the address on Seller’s invoice. Any notice to Subscriber in connection with this Agreement shall be sent to Subscriber’s address as contained in Subscriber’s purchase order or as otherwise instructed in writing by Subscriber. Every notice will be considered as if it were delivered to the addressee upon the passage of 4 business days from the date on which it was delivered for by registered mail, or on the day it was delivered if delivered by hand-as long as there is an independent confirmation of delivery.
- Force Majeure. No claim for damage or any other remedy shall arise out of any breach of, or failure to perform any of the obligations arising out of this Agreement if such breach or failure to perform is caused by: War, revolution, act(s) of terrorism, telephony carrier outage, blizzard, tornado, riot, strike, flood, fire, intervening government regulation or any other occurrence reasonably interpreted as an act of God.
- This Agreement shall be interpreted under the laws of the State of Minnesota. The parties hereto shall submit to the exclusive personal jurisdiction of the courts sitting in Hennepin County, Minnesota.