Terms & conditions

Terms and Conditions

This Agreement shall apply to all hosting services and Programs provided by ValueSoft hereunder, and to all associated Support Services. User may order hosting services and Programs, Support Services and Professional Services during the Term in accordance with the terms of this Agreement.

Section 1. Definitions.

“Authorized User” means a ValueSoft User (specified by name, password or other user identification) who is authorized by ValueSoft to use a Hosted Program by virtue of a password or equivalent thereof, regardless of whether the User is actively using the Hosted Program at any given time. “Confidential Information” has the meaning set forth in Section 11 (“Confidential Information”). “Commencement Date” , with respect to each Program License, means the date on which the Program is first made available to User. “Documentation” means ValueSoft’s then-current manuals, guides, and on-line help pages, if any, applicable to the Standard Programs and made generally available by ValueSoft to its Users. “Hosted Programs” means the Programs made available to User via the Hosting Services. “Hosting Services” means the Web Hosting services offered by ValueSoft pursuant to the applicable Schedule and its Hosting Services terms. “User Content” means the content developed by or on behalf of User and used with the Programs. “User” means a user of you, or a prospective user, of User services that utilize the Hosted Programs. “Services” means the Hosting Services if purchased by User pursuant to this Agreement. “Subscription” means any annual User fee paid for use of ValueSoft Hosted Programs. “Standard Program” means the ValueSoft solution modules specified on a Schedule for which User has paid the applicable subscription fee and any Updates to such Standard Program. “Supported Environment” means the minimum hardware, software, and connectivity configuration specified from time to time by ValueSoft as required for use of the Hosting “Term” has the meaning set forth in Section 9 (“Term and Termination”). “Third Party Program” means a third party software program specified in a Schedule. “Training Services” means any User training by ValueSoft personnel, as described in a Schedule. “Update” means a release of the Hosted Programs that ValueSoft makes generally available at no additional charge to Users that pay Subscription fees, including, if and when available, bug fixes, patches, maintenance releases, new point releases, and new major version releases. Updates include only the Hosted Program specified by the Program License, and do not include any new options, new or future product, or any upgrade in features, functionality or performance of the Hosted Programs that ValueSoft licenses separately from the Hosted Program, or offers only for an additional fee.

Section 2. Program Access.

ValueSoft will make each Hosted Program covered in this Agreement available to User at the web site address listed on the applicable schedule (“User Web Site”).

Section 3. License and Restrictions.

License Grant. Subject to the terms and conditions of this Agreement, ValueSoft grants User during the term set forth on the applicable Schedule, the following non-exclusive, non-transferable rights, solely for User’s own personal benefit: (i) perform, display and transmit the Hosted Program(s) exclusively for User use; (ii) to permit User to access, perform, display, and use the Hosted Programs solely for User’s use; (iii) to provide User with access to information generated by the Hosted Programs. Minimum Age Limit. You must be eighteen (18) years of age or older to use the Site and the Services, and you must have all necessary right, power and authority to enter into these Site Terms and to perform the acts required hereunder. Any use of or access to the Site or Services by anyone under 18 is unauthorized and in violation of these Terms of Use. By using the Services or the Site, you represent and warrant that you are eighteen or older. Usernames and Passwords. Each User will have a unique username and password to enable such Authorized User to access the Hosted Programs pursuant to this Agreement. ValueSoft reserves the right to change or update these usernames and passwords in ValueSoft’s sole discretion from time to time. User acknowledges and agrees that only Authorized Users are entitled to receive a username and password and to access the Hosted Programs. User will provide ValueSoft information and other assistance as necessary to enable ValueSoft to establish usernames for Authorized Users, and User will verify all Authorized User requests for account passwords. User will ensure that each username and password issued to an Authorized User will be used only by that Authorized User. User is responsible for maintaining the confidentiality of all Authorized Users’ usernames and passwords, and is solely responsible for all activities that occur under these usernames. User agrees (a) not to allow a third party to use its account, usernames or passwords at any time and (b) to notify promptly ValueSoft User support of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of this Agreement. ValueSoft reserves the right to terminate any username and password which ValueSoft reasonably determines may have been used by an unauthorized third party and by any Authorized User or individual other than the Authorized User to who such username and password was originally assigned. E-mail Address. We will contact you at the e-mail address you have provided. You agree to provide a valid email address for such purposes. By providing your e-mail address, you agree that you will accept all electronic communications from us at your e-mail address and will not make any claims against us if you do not receive any communications we send to your e-mail address. You agree to notify us promptly if your e-mail address changes. Restrictions. User acknowledges that, except as expressly authorized herein, the scope of the licenses granted do not permit User (and User shall not allow any third party) to: (i) copy or use the Hosted Programs, the Hosting Services; (ii) reverse engineer, disassemble, decompile, or otherwise attempt to reconstruct, identify, discover or derive the source code, underlying ideas, underlying user interface techniques or algorithms of the Hosted Programs by any means whatever or disclose any of the foregoing; (iii) sublicense or use Hosted Programs or Hosting Services for time-sharing, rental, outsourcing, service bureau or application service provider purposes; (iv) modify, incorporate into or with other software, or create a derivative work of any part of the Hosted Programs; or (v) use the Programs to develop or enhance any product that competes with a Hosted Program. Third Party Programs. The license terms for any Third Party Program shall be set forth in the applicable Schedule. Open Source Software. Certain items of software provided to User with the Hosted Programs are subject “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 3.1 (“License Grant”), 3.3 (“Restrictions), 7.1 (“Hosted Program Warranty”), 7.2 (“Remedy”) or 9 (“Indemnity”). Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software. Nothing in this Agreement limits User’s rights under, or grants User rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, ValueSoft makes such Open Source Software, and ValueSoft’s modifications to that Open Source Software, available by written request at the notice address specified below. Ownership. ValueSoft reserves all rights not expressly granted to User in this Agreement. Without limiting the generality of the foregoing, User acknowledges and agrees that: (i) except as expressly set forth in this Agreement, ValueSoft and its suppliers retain all rights, title and interest in and to the Programs, Third Party Programs and Documentation; and (ii) if User suggests any new features, functionality, or performance for the Programs that ValueSoft incorporates into the Programs, such new features, functionality, or performance shall be the exclusive property of ValueSoft and shall be free from any confidentiality restrictions that might otherwise be imposed upon ValueSoft pursuant to Section 11 (“Confidential Information”).

Section 4. Services.

Section 5. Support Services.

Subject to User’s timely payment of the fees, ValueSoft will provide technical support services as it deems necessary to successfully fulfill the necessary Subscription Scope of Work set forth in the Financial Planning Agreement.

Section 6. Delivery and Acceptance.

ValueSoft will make the Hosted Programs available to User at the User Web Site as indicated on the applicable Schedule. The Hosted Programs will be deemed accepted upon the delivery of usernames and passwords to User as set forth in Section 3.2. If usernames and passwords have been issued to User prior to the Effective Date, the Hosted Programs will be deemed accepted on the Effective Date.

Fees and Payment.

Fees for Hosting Services. ValueSoft’s then-current fees for Hosting Services will be set forth in the applicable Schedule to this Agreement. Payment. Except as otherwise set forth herein or in a Schedule hereto, User shall pay all annual fees within thirty (30) days of the date of ValueSoft’s invoice. Annual fees and payment schedule are defined in the Financial Planning Agreement. Failure to pay any fees with such thirty (30) day period will constitute a material breach of this Agreement for purposes of Section 9.3. In the event of a failure to pay amounts due within sixty (60) days of the due date, ValueSoft may elect to discontinue providing the Hosting Services until all payments then due are received. ValueSoft’s right to discontinue the Hosting Service is in addition to, and not in lieu of, ValueSoft’s termination rights under Section 8.3, and ValueSoft’s election to discontinue the Hosting Service will not operate as a waiver of those rights.

Section 7. Warranty.

Hosted Programs Warranty. ValueSoft warrants that the Hosted Programs, when used as permitted under this Agreement, shall operate substantially as described in the Documentation. Remedy. If User notifies ValueSoft in writing of a nonconformity which prevents a Standard Program from performing substantially to fulfill the scope of work set forth in the Financial Planning Agreement (a “Nonconformity”), ValueSoft will, at its expense and as its sole obligation and User’s exclusive remedy for any breach of the foregoing warranty, use commercially reasonable efforts to cure such breach as soon as reasonably possible. Uptime Warranty. ValueSoft warrants that it will provide the Hosting Services according to the Hosting Services Specifications in the applicable Exhibit B (“Hosting Services Description”). In the event of a service failure affecting the Hosting Services, User’s exclusive remedies shall be set forth in the applicable Exhibit B (“Hosting Services Description”). Disclaimer. ValueSoft does not warrant (i) results that may be obtained from the use of the Programs (ii) that the Programs will meet User’s requirements, (iii) that the Programs will operate in combination with other hardware, software, systems or data not provided by ValueSoft (iv) that the operation of the Programs will be uninterrupted or error-free, or (v) that all Program errors will be corrected. THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT. Third Party Program Warranties. ValueSoft provides no warranties with respect to Third Party Programs. User shall have the benefit of any third party warranties, service agreements and infringement indemnities contained in the licenses applicable to the Third Party Programs. User’s remedy for breach of any such warranty, indemnification, service agreement, or other rights shall be against the third party offering such rights and not against ValueSoft.

Section 8. Term and Termination

Term of Agreement. The term of this Agreement (the “Term”) shall commence on the Effective Date and remain in effect unless terminated by either party as provided in this Section. Term of Hosted Programs and Support Services. The term of each Hosted Program shall be as specified in the applicable Schedule. The term of any Support Services shall be as specified in the applicable Schedule. Termination For Material Breach. Either party may terminate this Agreement or any Schedule upon written notice if the other party materially breaches this Agreement or such Schedule and fails to cure such breach within thirty (30) days following receipt of written notice from the other party specifying the breach in detail. Effect of Termination. Upon termination of this Agreement for any reason, any amounts owed to ValueSoft under this Agreement as specified on the applicable Schedule will be immediately due and payable; ValueSoft shall cease performing all Services; User must promptly discontinue all use of the Programs.

Section 9. Indemnity.

ValueSoft shall have no liability for any claim of infringement based on (a) the use of a superseded or altered release of the Program, (b) the modification of a Program by a party other than ValueSoft, or (c) the combination of the Programs with other software or systems. If due to an IP Claim a Program is held to infringe, or in ValueSoft’s reasonable judgment may be held to infringe, ValueSoft may, at its expense, (a) replace or modify the such Program to be non-infringing; (b) obtain for User a license to continue using such Program; or (c) if ValueSoft cannot reasonably obtain the remedies in (a) or (b) above, terminate the Program License for such Program and refund a pro-rata portion of the license fees paid for those Programs corresponding to the unexpired term. This Section states ValueSoft’s entire liability and User’s exclusive remedy for any claim of infringement arising from or related to this Agreement.

Section 10. Limitation of Liability.

Consequential Damages. EXCEPT FOR INDEMNITY OBLIGATIONS UNDER SECTION 9 (“INDEMNITY”), IN NO EVENT SHALL VALUESOFT OR ITS SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, DATA OR USE, INCURRED BY User OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF VALUESOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Direct Damages. EXCEPT FOR INDEMNITY OBLIGATIONS UNDER SECTION 9 (“INDEMNITY”), THE AGGREGATE CUMULATIVE LIABILITY OF VALUESOFT AND ITS SUPPLIERS ARISING FROM OR RELATED TO THIS AGREEMENT SHALL IN NO EVENT EXCEED THE AMOUNT OF FEES PAID BY User UNDER THIS AGREEMENT. Not a Certified Financial Planner, Broker, Registered Investment Advisor or Tax Advisor. NEITHER VALUESOFT INC NOR THE SERVICE IS INTENDED TO PROVIDE LEGAL, TAX OR FINANCIAL ADVICE. VALUESOFT INC IS NOT A CERTIFIED FINANCIAL PLANNER, BROKER, REGISTERED INVESTMENT ADVISOR OR TAX ADVISOR. The Service is intended only to assist you in your financial organization and decision-making and is broad in scope. Your personal financial situation is unique, and any information and advice obtained through the Service may not be appropriate for your situation. Accordingly, before making any final decisions or implementing any financial strategy, you should consider obtaining additional information and advice from your accountant or other financial advisers who are fully aware of your individual circumstances. No Liability For Investment Decisions. VALUESOFT SHALL HAVE NO LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY DECISIONS MADE, OR ACTIONS TAKEN, IN RELIANCE UPON THE PROGRAMS. You alone are solely responsible for determining whether any investment, strategy or any other product or service is appropriate or suitable for you based on your investment objectives and personal and financial situation. You should consult an independent financial advisor, attorney or tax professional regarding your specific investment, legal or tax situation.

Section 11. Confidential Information.

Each party may have access to information that is confidential to the other party (“Confidential Information”). ValueSoft’s Confidential Information shall include without limitation the Programs, the Documentation, the terms and pricing under this Agreement, and all information identified by ValueSoft at the time of disclosure as confidential. User’s Confidential Information shall include User Content and all information identified by User at the time of disclosure as confidential. Each party shall treat the other party’s Confidential Information in manner similar to the manner it treat its own similar information, and in no event with less than reasonable care. Neither party shall disclose the other party’s Confidential Information to any third party, including but not limited to User ‘s Users, or use the other’s Confidential Information for any purpose other than in the performance of this Agreement. A party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (iv) is independently developed by the other party without use of or reference to the other party’s Confidential Information. In addition, this Section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required to by law or valid order of a court or other governmental authority; provided, however, that the responding party shall first have given notice to the other party and shall have made a reasonable effort to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued.

Section 12. General

Assignment. Neither this Agreement nor any rights granted to User hereunder may be assumed by any party, or sold, leased, assigned, or otherwise transferred, directly or indirectly, in whole or in part, whether by operation of law or otherwise, without the prior written consent of ValueSoft, and any assignment or transfer in derogation of the foregoing shall be void and of no effect. Governing Law. This Agreement and all matters arising out of or relating to this Agreement, shall be governed by the laws of the State of California without reference to any conflict of laws, principles that would require the application of the laws of any other jurisdiction, and both parties consent to the jurisdiction of the courts of the State of California with respect to any legal proceeding arising out of or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Injunctive Relief. Nothing in this Agreement shall limit either party from pursuing at any time any preliminary or equitable remedy, including injunctive relief, in connection with violation of either party’s intellectual property rights including equitable remedies for breach of Section 11 (“Confidential Information”) and the party seeking such relief shall not be required to post a bond. Notices. All notices required to be sent hereunder shall be in writing and shall be deemed to have been given upon (i) the date sent by confirmed facsimile, (ii) on the date it was delivered by courier, or (iii) if by certified mail return receipt requested, on the date received, to the addresses set forth above and to the attention of the signatory of this Agreement or to such other address or individual as the parties may specify from time to time by written notice to the other party. Severability. If any provision of this Agreement is unenforceable or illegal, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Waiver. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Except for actions for nonpayment or breach of ValueSoft’s proprietary rights in the Programs or Documentation, no action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has accrued. Export Controls. User agrees to comply fully with all relevant export laws and regulations of the United States, including but not limited to the U.S. Export Administration Regulations (collectively, “U.S. Export Controls”). Without limiting the generality of the foregoing, User expressly agrees that it shall not, and shall cause its representatives to agree not to, export, directly or indirectly, re-export, divert, or transfer or allow access to the Hosted Programs, the Documentation or any direct product thereof to or by any destination, company or person restricted or prohibited by U.S. Export Controls. Force Majeure. Except for payment obligations, neither party shall be responsible for its failure to perform under this Agreement if such failure is caused by events beyond such party’s reasonable control, including fire, flood, strikes, acts of God and similar events. Relationship of the Parties. ValueSoft is an independent contractor; nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Survival. In addition to any Programs Licenses that survive termination or expiration of this Agreement in accordance with the provisions of Section 8 (“Term and Termination”), the parties’ rights and obligations under Sections 3.6 (“Ownership”), 6 (“Fees and Payment”), 7 (“Warranty”), 8 (“Term and Termination”), 9 (“Indemnity”), 10 (“Limitation of Liability”), 11 (“Confidential Information”) and 12 (“General”) shall survive termination or expiration of this Agreement. Counterparts. This Agreement may be executed simultaneously in two (2) or more counterparts, each of which will be considered an original, but all of which together will constitute one and the same instrument. The exchange of a fully executed Agreement (in counterparts or otherwise) by fax shall be sufficient to bind the parties to the terms and conditions of this Agreement. Sole Copies of User Materials. ValueSoft shall not be responsible for the safekeeping of any “sole” copy of materials, content, data or information. Entire Agreement. This Agreement, together with the attached exhibits and any Schedules that are incorporated by reference, constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement and such exhibits. Any Schedules issued pursuant to this Agreement are for the purpose of specifying the Hosted Programs and Services to be purchased in accordance with the terms of this Agreement and any other terms stated in such Schedule, or any other document delivered to ValueSoft by User shall have no effect. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. No other act, document, usage or custom shall be deemed to amend or modify this Agreement.

Section 13. Copyright.

ValueSoft, Inc. claims a copyright in its works presented at this Web site. ValueSoft, Inc. authorizes you to view, copy, download, and print ValueSoft, Inc. documents on this Web site, subject to the following conditions: • The documents may be used solely for personal, noncommercial or informational purposes. • The documents may not be modified, excluding your data gathering form. • The following copyright notice and permission notice must appear in each document: “© Copyright 2009 ValueSoft, Inc.. All rights reserved. ValueSoft, Inc. documents available from this Web site are protected by the copyright laws of the United States and international treaties. All use subject to Conditions of Use set forth at http:/www.valuesoftinc.com”

Section 14. Commercial Use of ValueSoft, Inc. Web Site Materials and Screen Shots

Reproduction, copying, or redistribution of materials on the ValueSoft, Inc. Web site for commercial purposes is prohibited without the express written permission of ValueSoft, Inc.. To obtain permission to copy portions of this Web site, please contact ValueSoft, Inc. by email at inquiries@valuesoftinc.com and provide the following information in the body of the email: • identify the content from our Web site which you wish to use; • where and how it will be used (for example, a book cover, magazine article, a brochure); • where and how copies will be distributed and to what audience; • how many copies will be produced and distributed; • when you intend to publish; • what other non-ValueSoft, Inc. materials will be associated with the ValueSoft, Inc. content; and • your name, title, company, address, email address and phone number. We will evaluate your request and advise you as soon as possible. ValueSoft, Inc. reserves the right to refuse permission to copy, distribute, broadcast or publish any of its copyrighted material, including text and images on our Web site.

Section 15. No Warranties and Limitation of Liability

Information provided on this Web site are provided “as is” without warranty of any kind, either express or implied, including without limitation warranties of merchantability, fitness for a particular purpose or non-infringement. ValueSoft, Inc. periodically adds, changes, improves or updates the information and documents on this web site without notice. ValueSoft, Inc. assumes no liability or responsibility for any errors or omissions in the content of this web site. Your use of this web site is at your own risk. Under no circumstances and under no legal theory shall ValueSoft, Inc., its suppliers or any other party involved in creating, producing or delivering this Web site’s contents be liable to you or any other person for any indirect, special, incidental or consequential damages of any character arising from your access to, or use of, this Web site.

Section 16. Links to Third Party Sites

If you use any links in this Web site to Web sites not maintained by ValueSoft, Inc., you will leave the ValueSoft, Inc. Web site. The linked sites are not under the control of ValueSoft, Inc. and ValueSoft, Inc. is not responsible for the contents of any linked site or any link contained in a linked site. ValueSoft, Inc. provides these links to you only as a convenience and the inclusion of any link does not imply recommendation, approval or endorsement by ValueSoft, Inc. of the site.

Section 17. Service Marks

Permitted Use of ValueSoft, Inc. Service Marks ValueSoft, Inc. service marks identify ValueSoft, Inc. products and services and let the public know the source of those products and services. You may make fair use of our service marks in advertising and promotional materials, and in referencing our products and services (for example, in a magazine article) without our permission, provided you follow standard trademark usage practices and provide proper attribution. Other uses require our written permission. If you are in doubt as to whether you need our permission for a specific type of use, please ask us. You may not use ValueSoft, Inc. logos or “design” service marks (as opposed to our service marks consisting solely of words) under any circumstances without our prior written authorization. In addition, you may not use ValueSoft, Inc. service marks, whether design or word marks, in the following ways: • in a non-ValueSoft, Inc. service name or publication title; • in, as, or as part of, your own service or trademarks; • to identify products or services that are not those of ValueSoft, Inc.; • in a manner likely to cause confusion; • in a manner that implies inaccurately that we sponsor or endorse, or are otherwise connected with, your own activities, products, and services; and • as hidden or embedded text in web pages in an effort to cause a search of ValueSoft, Inc. marks to result in a hit on a page not maintained by ValueSoft, Inc. in a manner disparaging of ValueSoft, Inc..