Fence.Cloud Customer Terms and Conditions
THIS PARAGRAPH CONTAINS AN IMPORTANT NOTICE. PLEASE READ IT CAREFULLY. SECTION 15 OF THIS DOCUMENT CONTAINS A BINDING ARBITRATION PROVISION THAT REQUIRES ARBITRATION ON AN INDIVIDUAL BASIS (RATHER THAN JURY TRIALS OR CLASS ACTIONS) AND LIMITS THE TIME PERIOD WITHIN WHICH YOU MAY BRING A CLAIM AGAINST SDA.
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT. BY CLICKING THE “I AGREE” BUTTON BELOW, YOU AGREE THAT YOU HAVE THE AUTHORITY TO LEGALLY BIND THE ORGANIZATION YOU REPRESENT TO THIS AGREEMENT AND THAT YOU HAVE READ, UNDERSTAND AND AGREE TO ALL THE TERMS & CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BOTH OF THESE, CLICK THE “CANCEL” BUTTON.
Terms & Conditions
1. Introduction. These Fence.Cloud Customer Terms & Conditions (the “Terms & Conditions”) are composed of the information you previously entered during the registration process (including your contact information, information about your business) (“Customer Inputs”) and these Terms & Conditions (together, with the Selected Plan, the “Agreement”). This Agreement is a binding contract between CJR Ventures, Inc. d/b/a Software Design Associates, a Delaware corporation (“SDA”), and the person or entity that entered the Customer Inputs and accepted these Terms & Conditions (the “Customer” or “you”). This Agreement becomes effective as soon as you click the “I Agree” button or take some other action to accept these Terms & Conditions (2/14/2023). SDA may update these Terms & Conditions at any time by providing notice to you by posting the updated Terms & Conditions on the Service or by any other reasonable means. You can review the most current version of these Terms & Conditions at any time at https://fence.cloud/terms-service. If you do not agree to the updated Terms & Conditions, you must stop using the Service. Your continued use of the Service after the date of the updated Terms & Conditions will constitute your acceptance of the updated Terms & Conditions.
2. Service Plans. SDA makes the Fence.Cloud web application and related services available through the SDA Fence.Cloud SaaS application (the “Service(s)”) subject to the terms and conditions of this Agreement. When you made your Customer Inputs, you selected a specific subscription (e.g., monthly, annual) (the “Selected Plan”). You can use the Selected Plan until the Services are terminated. You can also upgrade or downgrade the Selected Plan at the start of a Renewal Term (as defined in Section 8 below). If you do upgrade or downgrade the Selected Plan, you will be charged the new fees on the new payment schedule based on the new Selected Plan you chose. “Users” means Customer’s employees, consultants, contractors or agents who are authorized to use the Services and have been supplied User Credentials (defined below) by SDA. Customer shall have the right to designate a fixed number of Users (as set forth in the Selected Plan).
4. Service Description. The Services allow you to enter materials costs and create a digital plan of your fencing project (the “Plan”). The Services will provide an estimate of your materials costs for the Plan (the “Service Output”) based on materials costs entered by you or otherwise obtained by SDA from third parties. You acknowledge and agree that (i) materials cost data does not originate with SDA and SDA has no control over such material costs data and shall have no liability for the accuracy or inaccuracy of such materials cost data and (ii) the Services are for informational purposes only and that any Service Output is an estimate only and none of SDA, its suppliers or its licensors will have any liability whatsoever for the accuracy, completeness or timeliness of the Service Output or for any decision made or action taken by you or your customers in reliance upon any Service Output or other information obtained by Customer through the Service. SDA reserves the right to withdraw or modify the Services, and any service or material SDA provides as part of the Services, in SDA’s sole discretion without notice. SDA will not be liable if for any reason all or any part of the Service is unavailable at any time or for any period. From time to time, SDA may restrict access to some parts of the Services, or the entirety of the Services, to some or all of its users, including you.
5. Ownership and License. As between you and SDA, you own all data you provide or make available to SDA using the Services (“Customer Data”). As between you and SDA, SDA is the owner of all intellectual property rights in and related to the Services, which are protected under United States and international intellectual property laws. The SDA trademarks, service marks and logo are trademarks of SDA. You agree not to receive, derive, use or examine any source code or design documentation of the Services. You agree that you will not resell, assign, or transfer the Services to any other person or entity and that your right to use the Services is personal to you. Customer is solely responsible for providing all Customer Data. Customer hereby grants to SDA and its affiliates, a perpetual, royalty-free, fully paid-up, irrevocable, transferable, sublicenseable, worldwide license to use, copy, reproduce, display, alter, create derivative works of and otherwise modify Customer Data for SDA’s and its affiliates’ business purposes. Customer shall not provide Customer Data that: (i) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation, or is defamatory, harmful to minors or obscene; (ii) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information; or (iii) is materially false or misleading.
6. Data Retention. Customer agrees that SDA’s obligation to maintain any Customer Data obtained in the course of providing the Service shall not extend beyond 60-days after the later of any termination or expiration of this Agreement (the “Data Retention Cutoff”). Customer may reasonably request a copy of Customer Data prior to the Data Retention Cutoff, delivered in a format determined by SDA.
7. Suggestions. Customer hereby grants, and shall execute any appropriate documentation evidencing said grant, to SDA a royalty-free, worldwide, perpetual license to use or incorporate into the Service any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any Users relating to the Service including its operation, features and interfaces.
8. Term. The initial term of this Agreement is specified in the Selected Plan (“Initial Term”). Unless you notify SDA either online or in writing that you wish to cancel this Agreement before the end of the Initial Term or a Renewal Term, then this Agreement will keep automatically renewing under the same Selected Plan for the same period of time as the Initial Term (“Renewal Term”). Together the Initial Term and any Renewal Terms are the “Term.” If you do properly cancel this Agreement, then this Agreement will terminate on the last day of the Initial Term or the applicable Renewal Term. Either party may terminate this Agreement if the other party has materially breached any part of this Agreement and has failed to cure that breach within 30 days of its receipt of written notice from the non-breaching party describing the breach. If you violate any part of this Agreement, including by not making timely payments, SDA may immediately suspend the Services without limiting SDA’s other rights and remedies.
9. Termination. If Customer (i) fails to perform any obligation under this Agreement and such default is not, or cannot be, remedied within ten (10) days after notice thereof by SDA, or (ii) uses the Service in a manner not permitted by this Agreement, then SDA shall have the right to immediately terminate this Agreement by written notice to Customer, and to pursue any other rights and remedies allowed at law or in equity. SDA may also terminate this Agreement at any time by providing Customer with at least 30 days’ prior written notice. You may terminate this Agreement at any time by providing SDA with at least 30 days’ prior written notice, and any such termination shall not be effective until the end of the then-current Renewal Term after such 30 day period. For purposes of example only, if Selected Plan is a monthly plan beginning on January 1, and Customer provides notice of termination under this Section 9 on February 15, then the effective date of termination will be March 31. As a further example, if Selected Plan is an annual plan beginning on January 1, and Customer provides notice of termination on August 15, then the effective date of termination will be December 31 of that year. As a final example, As a further example, if Selected Plan is an annual plan beginning on January 1, and Customer provides notice of termination on December 15, then the effective date of termination will be December 31 of the following year.
10. Effects of Termination. Termination of this Agreement shall not relieve Customer of the obligation to pay any fees accrued or payable to SDA prior to the effective date of termination. Upon termination of this Agreement, all access rights granted by SDA in this Agreement will immediately terminate, and SDA will promptly cease providing the Service and any related services and all Customer and User access to the Service shall immediately terminate. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 5, 7, 10, 11, 13, 14, 15, 16, 17, 18 20, 21 and any other provisions which, by the content of the provision, operate after termination or are necessary to enforce a party’s rights.
11. Fees. The applicable fees and payment schedule for the Service, if any, are specified in the Selected Plan (the “Fees“). All Fees plus applicable federal and state taxes shall be automatically billed by SDA to you, will be due on the 1st day of the Initial Term or Renewal Term, as applicable, and will be payable by credit card or other payment method (as selected by you in the Client Inputs). If you are paying by credit, debit or other payment card, the Fees will be automatically charged to your payment card when they become due and you hereby consent to such automatic charges. SDA may charge late payment fees for unpaid Fees due hereunder at an interest rate equal to the lesser of 1.5% per month from the due date or the highest rate of interest permitted by law. SDA may use a third party to do its billing and collection. You will remain liable for all Fees to be paid to SDA until the last date of Term even if you terminate this Agreement early. You agree to pay any reasonable attorneys’ fees and costs that SDA incurs in collecting any unpaid Fees in connection with this Agreement. You acknowledge that the Fees you owe might be charged by SDA directly or by another party working with SDA. If you are charged Fees by a party other than SDA, you will pay that party and continue to be bound by this Agreement just as if SDA had billed you directly.
12. Uses of the Services. You agree not to (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement; (ii) send to SDA or cause to be sent to SDA or store on any computer that is used to access the Service any infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material or material violative of third party privacy rights; (iii) send to SDA or cause to be sent to SDA or store on any computer that is used to access the Service material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) conceal or remove any title, trademark, copyright, proprietary or restricted rights notice contained on the Service; (vi) to use the Services in any way that violates any applicable federal, state, local, or international law or regulation, including export control laws; (vii) use the Service for any unauthorized, fraudulent, or malicious purpose; (viii) to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Service, or which, as determined by us, may harm SDA or users of the Service or expose them to liability; (ix) use the Service in any manner that could disable, overburden, damage, or impair the site; (x) use any robot, spider, or other automatic device, process, or means to access the Service for any purpose, including monitoring or copying any of the material on the Service; or (xi) use the Service for any use other than the purpose for which it was intended.
You represent and warrant that (a) the individual accepting this Agreement on behalf of the Customer is at least 18 years of age; (b) the individual accepting this Agreement on behalf of the Customer has full power and authority to agree to this Agreement and bind the Customer; (c) you are not located in, under the control of, or a national or resident of any country subject to sanctions by the United States; (d) you have not been placed on the U.S. Department of Commerce’s Denied Persons List; (e) you are not identified as a “Specially Designated National” by the United States government; (f) you will not access the Services if you have previously been prohibited from doing so or if any laws prohibit you from doing so; and (g) you have obtained all necessary rights and consents to submit or upload any Customer Information, including materials pricing information, to SDA for use in the Services. You may use the Services only for lawful purposes and in accordance with this Agreement.
13. Indemnification. You will indemnify, defend and hold harmless SDA, its affiliates and each of their directors, employees, officers, stockholders, resellers, partners and agents from and against all claims, actions, liabilities, losses, expenses, damages and costs (including reasonable attorneys’ fees) that may at any time be incurred by any of them arising out of or in any way caused by or connected with the Services and your use of the Services, including any claims, suits or proceedings (a) arising from your violation of any applicable law; (b) arising from your providing estimates to your customers or perspective customers utilizing the Service and any subsequent related dealings with your customers or perspective customers; (c) alleging infringement of copyright, trademark or other intellectual property right; (d) relating to any virus or other contaminating or destructive features contained in the Services or (e) arising from your violation of this Agreement.
14. DISCLAIMER. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, SDA AND ITS SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, WITH RESPECT TO THE SERVICES, OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTIES ARISING BY USAGE OF TRADE, OR COURSE OF DEALING/PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SDA AND ITS EMPLOYEES, OFFICERS, SUPPLIERS, PARTNERS AND AGENTS DO NOT WARRANT OR GUARANTEE THAT THE SERVICES WILL BE ERROR-FREE, SECURE, OR UNINTERRUPTED OR WILL MEET YOUR REQUIREMENTS OTHER THAN AS INCLUDED IN THIS AGREEMENT. NO INFORMATION (WRITTEN OR ORAL) GIVEN BY SDA OR ANY SDA EMPLOYEE WILL CREATE A WARRANTY, AND YOU ACKNOWLEDGE AND AGREE THAT YOU WILL NOT RELY ON ANY OTHER INFORMATION OR ADVICE PROVIDED BY SDA OR ANYBODY ELSE. THE TERMS OF THIS SECTION WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.
16. Entire Agreement. This Agreement constitutes the entire agreement between you and SDA with respect to the subject matter of this Agreement and supersedes all prior representations and understandings, whether written or oral, with respect to that subject matter.
17. Relationship of the Parties; Beneficiaries. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Nothing herein shall cause SDA to be deemed an advisor or fiduciary of Customer. Neither party shall take any action or permit any action to be taken on its behalf which purports to be done in the name of or on behalf of the other party and shall have no power or authority to bind the other party or to assume or create any obligation or responsibility, express or implied, on the other party’s behalf or in its name, nor shall such party represent to any one that it has such power or authority. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons. SDA reserves the right to perform all or any of its obligations under this Agreement through subcontractors.
18. Non-Exclusive. Nothing expressed or implied in this Agreement shall be deemed to restrict SDA’s right or ability, whether during the Term or at any time thereafter, to: (i) directly or indirectly sell, license, use, promote, market, exploit, develop or otherwise deal in any product or service of any kind in any location; or (ii) enter into any business arrangement of whatever nature or description with any entity in any location.
19. Force Majeure. Except for obligations to make payment, neither party shall be liable for any failure to perform or delay in performing any obligation under this Agreement if such failure or delay is due to fire, flood, earthquake, strike, war (declared or undeclared), embargo, blockade, legal prohibition, governmental action or order, riot, insurrection, pandemic, damage, destruction, component or materials shortage or any other cause beyond the reasonable control of such party.
20. Arbitration and Governing Law. YOU WILL SUBMIT ANY DISPUTES ARISING FROM THIS AGREEMENT OR THE SERVICES, INCLUDING DISPUTES ARISING FROM OR CONCERNING THE INTERPRETATION, VIOLATION, INVALIDITY, NON-PERFORMANCE, OR TERMINATION OF THIS AGREEMENT, TO FINAL AND BINDING ARBITRATION UNDER THE RULES OF ARBITRATION OF THE AMERICAN ARBITRATION ASSOCIATION APPLYING MONTANA LAW. THE SEAT OR LEGAL PLACE OF ARBITRATION WILL BE BILLINGS, MONTANA, USA. YOU AGREE NOT TO ARBITRATE AS A REPRESENTATIVE OR MEMBER OF A CLASS – AND YOU EXPRESSLY WAIVE ANY RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS ACTION BASIS. FURTHERMORE, UNLESS YOU AND COMPANY AGREE IN WRITING, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OF CLASS PROCEEDING. ALL ARBITRATION PROCEEDINGS ARE CONFIDENTIAL, UNLESS BOTH YOU AND SDA AGREE OTHERWISE. ARBITRATION ORDERS AND AWARDS REQUIRED TO BE FILED WITH APPLICABLE COURTS OF COMPETENT JURISDICTION ARE NOT CONFIDENTIAL AND MAY BE DISCLOSED BY THE PARTIES TO SUCH COURTS. A PARTY WHO IMPROPERLY DISCLOSES CONFIDENTIAL INFORMATION WILL BE SUBJECT TO SANCTIONS. THE ARBITRATOR AND FORUM MAY DISCLOSE CASE FILINGS, CASE DISPOSITIONS, AND OTHER CASE INFORMATION AS REQUIRED BY A COURT ORDER OF PROPER JURISDICTION. The laws of the State of Montana shall govern all issues arising under or relating to this Agreement, without giving effect to the conflict of laws principles thereof.
21. General Provisions. You may not assign this Agreement or any of its rights or delegate any of your duties without SDA’s prior written consent. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that provision of the Agreement will be enforced to the maximum extent permissible so that the original intent of the Agreement applies, and the remainder of this Agreement shall remain in effect. Unless this Agreement states otherwise, all notices, demands and other communication under this Agreement must be in writing and will be considered to have been properly given: (a) if mailed by certified mail, postage prepaid, on the date three (3) days from the date of mailing, (b) if delivered by overnight courier, when received by the addressee, or (c) if sent by confirmed facsimile or email, one business day following receipt by the addressee at the addresses you provided or another address as either party may specify in writing. SDA may sell, assign or transfer this Agreement to any person or entity at any time, and any such assignee shall acquire all of the rights and assume all of the obligations of SDA under this Agreement. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity. References to and mentions of the word “include(ing)” or the phrase “e.g.” means “including, without limitation.”