MDM SERVICE TERMS & CONDITIONS
The following terms and conditions apply to every Customer/user (“Customer”) of the Franklin MDM service and their respective organizations. When logging into the MDM service Customer will acknowledge and affirm that they have read and understand these Terms and Conditions and agree to comply with them.
1. SAAS SERVICES
1.1 During the Subscription Term, Customer will receive a nonexclusive, non-assignable, royalty free, worldwide right to access and use the SaaS Services subject to the terms of this Agreement.
Customer shall not, and shall not permit anyone to: (i) copy or republish the SaaS Services or Software, (ii) make the SaaS Services available to any person other than authorized users, (iii) modify or create derivative works based upon the SaaS Services or Documentation, (iv) remove, modify or obscure any copyright, trademark or other proprietary notices contained in the software used to provide the SaaS Services or in the Documentation, (v) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of the Software used to provide the SaaS Services, except and only to the extent such activity is expressly permitted by applicable law, or (vi) access the SaaS Services or use the Documentation in order to build a similar product or competitive product. Subject to the limited licenses granted herein, Franklin shall own all right, title and interest in and to the Software, services, Documentation, and other deliverables provided under this SaaS Agreement, including all modifications, improvements, upgrades, derivative works and feedback related thereto and intellectual property rights therein. Customer agrees to assign all right, title and interest it may have in the foregoing to Franklin.
3. CUSTOMER RESPONSIBILITIES
3.1 Assistance. Customer shall provide commercially reasonable information and assistance to Franklin to enable Franklin to deliver the SaaS Services. Upon request from Franklin, Customer shall promptly deliver Customer Content to Franklin in an electronic file format specified and accessible by Franklin. Customer acknowledges that Franklin’s ability to deliver the SaaS Services in the manner provided in this SaaS Agreement may depend upon the accuracy and timeliness of such information and assistance.
3.2 Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. Customer acknowledges that Franklin exercises no control over the content of the information transmitted by Customer through the SaaS Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.
3.3 Unauthorized Use; False Information. Customer shall: (a) notify Franklin immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to Franklin immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer or any user, and (c) not provide false identity information to gain access to or use the SaaS Services.
3.4 Administrator Access. Customer shall be solely responsible for the acts and omissions of its Users. Franklin shall not be liable for any loss of data or functionality caused directly or indirectly by Users.
3.5 Customer Input. Customer is solely responsible for collecting, in putting and updating all Customer Content stored on the Host, and for ensuring that the Customer Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious. Customer shall: (i) notify Franklin immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (ii) report to Franklin immediately and use reasonable efforts to stop any unauthorized use of the Service that is known or suspected by Customer, and (iii) not provide false identity information to gain access to or use the Service.
3.6 License from Customer. Subject to the terms and conditions of this SaaS Agreement, Customer shall grant to Franklin a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the SaaS Services to Customer.
3.7 Ownership and Restrictions. Customer retains ownership and intellectual property rights in and to its Customer Content. Franklin or its licensors retain all ownership and intellectual property rights to the services, Software programs, and anything developed and delivered under the Agreement. Third party technology that may be appropriate or necessary for use with some Franklin programs is specified in the program Documentation or ordering document as applicable. Customer’s right to use such third-party technology is governed by the terms of the third-party technology license agreement specified by Franklin and not under the Agreement.
3.8 Suggestions. Franklin shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the SaaS Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, including Users, relating to the operation of the SaaS Services.
4.1 Suspension for Ongoing Harm. Franklin reserves the right to suspend delivery of the SaaS Services if Franklin reasonably concludes that Customer or a user’s use of the SaaS Services is causing immediate and ongoing harm to Franklin or others. In the extraordinary case that Franklin must suspend delivery of the SaaS Services, Franklin shall immediately notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. Franklin shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Services in accordance with this agreement.
5. LIMITATIONS OF LIABILITY
FRANKLIN SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST BUSINESS, PROFITS, DATA OR USE OF ANY SERVICE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THE USE OF THE MDM SERVICE, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), EVEN IF FORESEEABLE OR THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS SAAS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (INCLUDING NEGLIGENCE), SHALL EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER UNDER THIS SAAS AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE THE CLAIM AROSE. The foregoing limitations shall not apply to the parties’ obligations (or any breach thereof) under Sections entitled “Restriction”, “Indemnification”, or “Confidentiality”.
6. PERSONAL DATA
7. DATA COLLECTION
7.1 Statistical Information. Franklin may anonymously compile statistical information related to the performance of the Services for purposes of improving the SaaS service, provided that such information does not identify Customer’s data or include Customer’s name.
8. GOVERNING LAW & VENUE
8.1 Governing Law & Venue. This SaaS Agreement shall be governed by the laws of the State of California, excluding its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Proper Venue for any disputes arising out of or involving this agreement shall be in San Diego County, California.
9.1 Franklin will periodically send information of our services, products, features, and other marketing information in the form of an email to registered users who have access to Pintrac portal and agree to receive these communications via email. To opt out of receiving these email communications please email email@example.com.
TERMS AND CONDITION FOR THOSE WHO USE FRANKLIN PROVIDED CONTENT FILTERING
The following terms and conditions apply to every Customer/user (“Customer”) of the Franklin Content Filtering service (as provided by Titan HQ) and their respective organizations. When logging into the Titan HQ through MDM service, Customer will acknowledge and affirm that they have read and understand these Terms and Conditions and agree to comply with them.
1. The Service will be used for legitimate business use only and be used in a manner which is consistent with the way in which it is intended to be used and in a way that is compliant with any and all applicable laws. TitanHQ reserves the right to suspend or terminate service for the Clients Client’s (and / or its Users) failure to comply with these requirements.
2. The intellectual property rights in the Service, together with any underlying software, are and shall remain the exclusive property of TitanHQ or that of its licensors. The Client agrees not to take any action inconsistent with TitanHQ’s intellectual property rights. This Agreement is not an agreement of sale, and this Agreement does not transfer any title, intellectual property rights or ownership rights to the TitanHQ products or services.
3. TitanHQ will provide the Service to Client in exchange for payment of fees and compliance with the terms and conditions of this document. Service payments will be submitted in accordance with the billing procedures and the rates agreed between TitanHQ and Client as described in either Exhibit A or Exhibit B or Exhibit C herein (as applicable). Client certifies that Client has read, is aware of, and understands the rates and fees for usage of the Service as agreed between TitanHQ and Client.
4. TitanHQ guarantees to deliver the Service at the agreed price contained in the Statement of Work, given that payment from the Client has been made in full and according to the agreed payment terms. TitanHQ also reserves the right, in its sole discretion, to deactivate the Service to Client’s if the agreed payment terms are not being met.
6. TitanHQ uses a third party to host application servers and to provide communication services. TitanHQ will use all reasonable endeavors to ensure the third party undertakes to provide its services at or above industry standards. Accordingly, TitanHQ does not warrant that the Service will be uninterrupted or error-free. TitanHQ also does not warrant or guarantee that any particular computer or other device will be compatible with or function with the Service, nor do we warrant or accept any liability for the operation of the Client’s equipment that is used to access the Service. Any reliance by Client upon the Service including any action taken by Client because of such use or reliance is at the sole risk of the Client. As a result, the Client agrees that TitanHQ shall not be liable to the Client for any claims, damages or loss of profit which may be suffered by the Client or any other entity in any respect for direct, indirect, consequential, actual, or punitive damages arising out of or in relation to the Service provided herein, including, but not limited to, losses or damages resulting from the loss of data as the result of delays, non-deliveries, or service interruptions. The Client acknowledges that in order to protect against loss of data, through a security breach or otherwise, best practice is to run frequent back-ups of its data; to ensure that in the event of a data attack, it may be possible to restore the amended or deleted data. Depending on the Services acquired, TitanHQ will use commercially reasonable efforts to protect Client data; but subject always to the Client’s agreement that it is their responsibility to regularly back-up their data. Clients’ sole and exclusive remedy for any failure or non-performance of the Service shall be for TitanHQ to use commercially reasonable efforts to adjust or repair the Service. In the event that TitanHQ cannot repair or replace the Service, TitanHQ may either provide a credit note for the non-performing period or refund the list price of the Service. In no event shall TitanHQ’s liability for actual damages from any cause whatsoever, and regardless of the form of action, exceed the amount of the purchase price paid for the Service; other than for limitations of liability (such as for death or personal injury) which may not be excluded by applicable law.
TitanHQ and its suppliers specifically disclaim the implied warranties of title, non-infringement, merchantability, fitness for a particular purpose (including providing any kind of complete protection against security threats), performance, system integration and data accuracy. This disclaimer of warranty constitutes an essential part of this Agreement and no use of the Service is allowed except under this disclaimer.
7. Provision of the Service does not require access to or use of information being transmitted by Client or Client Customers other than machine-read, electronic methods. Information obtained is done so solely for the purpose of monitoring and ensuring the availability and optimization of the Service.
8. TitanHQ will maintain security safeguards designed to protect the integrity of the Service and to protect the Service and its Users from unauthorized or unlawful access, use, alteration, or disclosure. These security safeguards will be substantially equivalent to the generally accepted security standards in the IT industry for similar hosted services.
9. TitanHQ operates the Service subject to and in accordance with all applicable local, national, and international laws. Client agrees to indemnify and hold harmless TitanHQ from any civil claims or criminal charges resulting from use of the Service that causes direct or indirect damage to another party or violates any law. Client also agrees to indemnify and hold TitanHQ harmless from any and all lawsuits, judgments, decrees, costs and expenses, and attorney fees arising from Client’s misuse of the Service.
10. Use of the Service constitutes acceptance of these terms and conditions, and with that use, client agrees to all the terms and conditions of this Agreement.