Terms of Service
DistinctCRM™ and/or DistinctEM™ Subscription Agreement
BY PLACING YOUR ORDER, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNING YOUR USE OF THE DISTINCTCRM™ ONLINE SERVICE AND/OR DISTINCTEM™ (THE “SERVICE”) AS PROVIDED BY LUPINE COMPUTER, L.L.C (“LUPINE”). THE SERVICE INCLUDES A WEB BROWSER INTERFACE, DATA TRANSMISSION, STORAGE AND MAY INCLUDE CLIENT SOFTWARE AS DEFINED BELOW. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MAY NOT ACCESS OR USE THE SERVICE. IF YOU REGISTER FOR A FREE TRIAL FOR OUR SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL. YOU MAY NOT ACCESS THE SERVICES IF YOU ARE OUR DIRECT COMPETITOR, EXCEPT WITH OUR PRIOR WRITTEN CONSENT.
- “Client Software” means Lupine software that allows a Device to access or utilize the Service or functionality provided by the Service.
- “Purchase Services” means services that You purchase under an order, as distinguished from those provided pursuant to a free trial.
- “Device” means a computer, workstation terminal or other electronic device which can be used to access the Internet.
- “Effective Date” means the date which You complete the ordering process and are granted access to the Service.
- “Named User” means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user IDs and passwords by you or by Lupine at your request.
- “Service(s)” means the specific edition of DistinctCRM™ online customer relationship (and/or DistinctEM™ online marketing automation software) and related services and Software embodied therein and Client Software identified during the ordering process, developed and operated by Lupine Computer, L.L.C..
- “Software” means collectively the DistinctCRM™ software (and/or DistinctEM™) and Client Software.
- “Subscription Term” and “Renewal Term” have the meanings set forth in Section 3 of this Agreement.
- “Your Content” means the data and other materials You input for processing onto the Service.
2. FREE TRIAL
If You register on our website for a free trial (or request via phone), we will make one or more Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Purchased Services ordered by You. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA YOU ENTER INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASE UPGRADED SERVICES, OR EXPORT SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. YOU CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO PROFESSIONAL EDITION OR FROM PROFESSIONAL EDITION TO GROUP EDITION); THEREFORE, IF YOU PURCHASE A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, YOU MUST EXPORT YOUR DATA BEFORE THE END OF THE TRIAL PERIOD OR YOUR DATA WILL BE PERMANENTLY LOST.
NOTWITHSTANDING SECTION 10 (WARRANTIES), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
3. USER SUBSCRIPTIONS
Unless otherwise specified, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term and if those user subscriptions allow You to be at another volume level, all User subscriptions will be future billed based on that volume level, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions. User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.
4. USE OF THE SERVICES
4.1. Our Responsibilities. We shall: (i) provide Our basic support for the Purchased Services to You at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours’ notice via the Purchased Services and which We shall schedule to the extent practicable during the weekend hours from 6:00 p.m. Friday to 3:00 a.m. Monday Pacific Time), or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), Internet service provider failures or delays, or denial of service attacks, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
4.2. Our Protection of Your Data. We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data. We shall not (a) modify Your Data, (b) disclose Your Data except as compelled by law or as expressly permitted in writing by You, or (c) access Your Data except to provide the Services and prevent or address service or technical problems, or at Your request in connection with customer support matters.
4.3. Your Responsibilities. You shall (i) be responsible for Users’ compliance with this Agreement, (ii) be responsible for the accuracy, quality and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations. You shall not (a) make the Services available to anyone other than Users, (b) sell, resell, rent or lease the Services, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (f) attempt to gain unauthorized access to the Services or their related systems or networks.
4.4. Usage Limitations. Services may be subject to other limitations, including but not limited to, limits on disk storage space. Any such limitations are specified in the User Guide. The Services provide real-time information to enable You to monitor Your compliance with such limitations.
4.5. Accepting updates/new versions
Lupine from time to time will provide updates, bug fixes, upgrades etc…You agree to accept these updates, big fixes and upgrades as they become available since it is not practical for You to have a different version on a single platform at centrally located servers.
5. LICENSE GRANT
Subject to the terms and conditions of this Agreement, Lupine hereby grants to You a limited, non-exclusive, non-transferable, non-sublicensable, license to access and use the Service solely for Your internal use. The following additional terms apply for Your use of, or access to, DistinctCRM™ (and/or DistinctEM™): (a) You will receive a user ID and password for each Named User, and each Named User may access the Service only using his or her issued user ID and password; (b) the licenses granted herein are personal and specific to Named Users, and no person or entity other than a Named User will access or use the Service without the prior written consent of Lupine; (c) You may change Named Users only to replace Named Users who are no longer employed by your company or whose job function has changed and no longer use the Service; (d) if You ordered Client Software, each licensed Named User may install the Client Software on a Device used by such Named User. You may use the Service or modify Your information, data and content only through your user ID and password. You are entirely responsible for maintaining the confidentiality of Your user IDs and password. You are entirely responsible for any and all activities which occur under Your user ID and password, unless the password’s confidentiality is breached by Lupine’s own negligence. You agree to immediately notify Lupine of any unauthorized use of Your account or any other breach of security known to You.
6. SUBSCRIPTION TERM
This Agreement shall be effective as of the Effective Date. If You are using the Service under a free trial, You have access to the Service as the sole discretion of Lupine. Upon expiration of the Subscription Term or any Renewal Term, unless You notify Lupine in writing not less than sixty (60) days prior to the expiration of the Subscription Term or Renewal Term of your intention to either cancel this Agreement or to enter into a new agreement for the Service, this Agreement shall thereafter automatically continue on a month-to-month basis (such month-to-month or other renewal term is referred to herein as a “Renewal Term”). You are responsible for strict compliance with any and all of the terms and conditions of this Agreement.
By providing a credit card account number or other account number permitting electronic charge, debit or transfer of funds (collectively “Electronic Payment Method”), You authorize Lupine to charge the account number You specified. Lupine charges and collects in advance for use of the Service. Lupine will automatically bill you by Electronic Payment Method (i) every month for monthly licenses or (ii) as otherwise mutually agreed upon in the ordering process. The subscription fee will be charged to the credit card last used by You (if credit card is used). If you would like the payment for the renewal to be made through a different card or if you do not wish to renew the subscription, You agree to inform Lupine at least ten days prior to the renewal date.
Late payments will accrue interest at the higher of one percent (1%) per month of the outstanding balance or at the highest rate permitted by law plus all expenses of collection. You are responsible for paying for all Named User licenses ordered for the entire Subscription Term or applicable Renewal Term whether or not such Named User licenses are actively used.
In addition, You agree to paying sales and other taxes related to the Service if required by law.
8. RULES AND REGULATIONS REGARDING YOUR CONDUCT
You agree to use the Service only for lawful purposes in compliance with all applicable laws. You may not use the Service to (i) fraudulently represent products or services (ii) send spam or other unsolicited or duplicative messages in violation of applicable laws or (iii) facilitate or aide any of the above activities. You may not store, distribute or transmit (i) obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or in violation of third party privacy or intellectual property rights or (ii) materials containing viruses or Trojan horses or tools to compromise the security of other Web sites, tools used to collect email addresses for use in sending unsolicited bulk email, or tools used to send unsolicited bulk mail. You may not post, upload or otherwise distribute copyrighted material without the consent of the copyright holder. You agree that you will comply with all policies and other instructions that we inform you about in relation to Your Content or your use of DistinctCRM™ and/or DistinctEM™ including our third party hosting provider’s acceptable use policy which we can notify you of such hosting provider to obtain such use policy.
9. OWNERSHIP RIGHTS
The Service is protected by United States copyright laws and international treaty provisions. As between You and Lupine, Lupine acknowledges that it claims no proprietary rights in Your Content. Neither Lupine nor its third party hosting provider shall access Your Content, other than to the extent necessary to comply with Lupine’s obligations in this Agreement or as otherwise required by applicable law. As between You and Lupine, You acknowledge and agree that Lupine, its affiliates and/or its licensors owns all right, title, and interest in and to the Service, the technology and software available on the Service, and all content (including without limitation, any images, text, software, music, sound, photographs, video, graphics, and “applets” incorporated into the Service) except Your Content maintained on the Service, and all copyright, trade secret, patent, trademark and other intellectual property rights therein (collectively, the “Lupine Technology”). You acknowledge that Your possession, installation, or use of the Service does not transfer to You any ownership, title, or registrable interest of any kind to the Lupine Technology and that You will not acquire any rights to the Lupine Technology except as expressly set forth in this Agreement.
You may not rent, lease, sublicense, loan, resell or directly or indirectly transfer the Service. You may not permit any parent, affiliate, subsidiary or any other third parties to benefit from the use or functionality of the Service, either directly or via a facility management, timesharing, service bureau or any other arrangement. You may not provide any access to the Service with the intention to process the data of another entity, unless You own more than fifty percent (50%) of that entity and provided that you have ordered a sufficient number of Named User licenses. You may not transfer any or all of the rights granted to You under this Agreement. You may not reverse engineer, decompile, or disassemble the Service, except to the extent the foregoing restriction is expressly prohibited by applicable law. You may not modify, or create derivative works based upon the Service in whole or in part. You may not duplicate or copy any portion of the Service unless otherwise set forth herein. You may not remove any proprietary notices or labels on the Service. You may not develop a competitive product to the Service that incorporates any features, functions or graphics from the Service. All rights not expressly set forth hereunder are reserved by Lupine. Lupine reserves the right to conduct audits from time to time upon not less than thirty (30) days’ advance written notice to verify compliance with the terms of this Agreement. Information disclosed in the course of an audit shall be treated as your confidential information.
Lupine represent and warrants that the Service will be provided in a professional manner. Each party represents that it has the legal authority to enter into this Agreement.
THERE ARE NO OTHER WARRANTIES, LIABILITIES OR REMEDIES PROVIDED BY LUPINE, LUPINE’S SUPPLIERS OR ANY OTHER THIRD PARTY REGARDING THE SERVICE. OTHER THAN THE FOREGOING EXPRESS WARRANTIES, THE SERVICE AND THE CONTENT THEREIN ARE PROVIDED TO YOU STRICTLY ON AN “AS IS” BASIS. LUPINE MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, VIRUS FREE, OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL SATISFY YOUR SPECIFIC REQUIREMENTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LUPINE DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
ANY AUTHORIZED RESELLER OF LUPINE PRODUCTS OR AUTHORIZED CONSULTANT IS NOT AFFILIATED WITH LUPINE IN ANY CAPACITY OTHER THAN AS A RESELLER OF OR CONSULTANT FOR LUPINE’S PRODUCTS AND HAS NO AUTHORITY TO BIND LUPINE OR MODIFY ANY LICENSE OR WARRANTY. LUPINE MAKES NO REPRESENTATIONS, WARRANTY, ENDORSEMENT OR GUARANTEE WITH RESPECT TO THE SKILLS OR QUALIFICATIONS OF ANY AUTHORIZED LUPINE RESELLER OR CONSULTANT AND YOU ARE ENCOURAGED TO INDEPENDENTLY INVESTIGATE THE SKILLS AND QUALIFICATIONS OF ANY SUCH RESELLER OR CONSULTANT WITH WHOM YOU ASSOCIATE.
12. LIMITATION ON LIABILITY
IN NO EVENT SHALL LUPINE’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE EVEN IF LUPINE HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
13. MUTUAL INDEMNIFICATION
You agree to indemnify and hold Lupine harmless from and against any and all claims and liabilities, including reasonable attorneys’, related to or arising from (i) any breach of Your covenants under this Agreement; (ii) Your use of the Service (iii) any item or service sold or advertised in connection with Your use of the Services; (iv) any defamatory, libelous or illegal material contained within Your Content; or (v) any claim or contention that Your Content infringes any third party’s patent, copyright or other intellectual property rights or violates any third party’s rights of privacy or publicity.
Lupine will defend, indemnify and hold You harmless from and against any and all claims and liabilities related to or arising from any action by a third party against You involving an allegation that the Service directly infringes any copyright, U.S. patent issued as of the Effective Date or trademark right of any third party, provided that (i) you give Lupine prompt notice of any such claim, (ii) you provide reasonable assistance and information to Lupine in the defense of such claim, (iii) you give Lupine sole control of the defense of any such claim and (iv) you have not compromised or settled such claim.
14. DATA STORAGE AND OWNERSHIP
Your Data is stored on Lupine’s servers that are managed by our third party hosting provider. The maximum disk storage space provided to you at no additional charge is 5 GB. If the amount of disk storage required exceeds these limits, you will be charged the then-current storage fees. Lupine reserves the right to establish or modify its general practices and limits relating to storage costs and limits. We respect your right of ownership of content created or stored by you. You own the content created or stored by you.
Lupine will use reasonable commercial efforts to ensure that the Service will be accessible to connection from the Internet. THE SERVICE IS ACCESSIBLE VIA THE INTERNET AND THUS IS SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT TO THE OPERATION OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LUPINE IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE SERVICE MAY BE INTERRUPTED BY ROUTINE MAINTENANCE; LUPINE WILL USE COMMERCIALLY REASONABLE EFFORTS TO MINIMIZE SUCH INTERRUPTION AND SCHEDULE MAINTENANCE AT NON-PEAK HOURS.
Lupine may terminate this Agreement either on thirty (30) days’ written notice to You prior to the expiration of the Subscription Term or any Renewal Term, in which case this Agreement will be deemed terminated as of the end of such term. If you breach Section 5 or Section 6 of this Agreement, Lupine may in its sole discretion terminate this Agreement and/or Your access to the Service immediately without notice to You and without any opportunity for You to cure such breach. If you breach this Agreement in any other manner, Lupine may in its sole discretion terminate this Agreement and/or Your access to the Service following delivery to You of thirty (30) days written notice of such breach and opportunity to cure provided, however, that upon Your third breach of this Agreement for any reason, if You received notice and an opportunity to cure regarding the previous two breaches, Lupine may terminate this Agreement and/or your access to the Service immediately, without notice or opportunity to cure. The termination of this Agreement will terminate Your access to the Service. Lupine shall not be liable to You or to any third party for termination of the Service for any reason. The termination of this Agreement does not relieve You of Your obligation to pay (i) any Fees accrued or payable to Lupine prior to the effective date of termination of this Agreement and (ii) any Fees owing under Section 6 for the remainder of the term hereof. Upon termination of this Agreement other than for your breach Lupine will, at Your request, provide You with access to Your data files although Lupine may, thirty (30) days or more after termination of this Agreement, delete your data files from our system. Sections 1, 8, 9, 11, 12, 16 and 17 shall survive expiration or termination of this Agreement.
18. Refund and Cancellation Policy
(a) Export Control Compliance. You agree to abide by U.S. and other applicable export control laws and not to transfer, by electronic transmission or otherwise, any content or software subject to restrictions under such laws to a destination prohibited under such laws, without first obtaining, and then complying with, any requisite government authorization. (b) Independent Contractors. This Agreement does not create any agency, employment, partnership, joint venture, franchise or other similar or special relationship between You and Lupine. Neither party will have the right or authority to assume or create any obligations or to make any representations, warranties or commitments on behalf of the other party or its affiliates, whether express or implied, or to bind the other party or its affiliates in any respect whatsoever. (c) No Assignment. Your rights and obligations under this Agreement shall not be transferred or assigned directly or indirectly without the prior written consent of Lupine. (d) Severability. If any provision of this Agreement is found to be illegal or unenforceable, such provision will be deemed modified to conform to applicable laws or regulations, or if it cannot be so modified without materially altering the intent of the parties, it shall be stricken and the remainder of the Agreement shall continue in full force and effect. (e) Applicable Law, Jurisdictional Matters. This Agreement and all matters related thereto shall be construed in accordance with the laws of the State of Arizona, except those rules relating to conflicts of laws. Any action or proceeding arising out of or related to this Agreement shall be brought only in a court located in Maricopa County, Arizona. Each party expressly consents to the jurisdiction of such courts. (f) Force Majeure. The delay or inability of a party to perform its obligations hereunder when required (other than financial obligations including payment of amounts due), if caused by events of Force Majeure, as defined herein, shall not constitute a breach or default and shall not subject such party to liability to the other so long as such Force Majeure event exists. Force Majeure events shall include, without limitation, civil disturbances, epidemics, natural disasters, wars, acts of terrorism, acts of God and all other such events outside the control of the parties that make it impossible for one party to comply with its obligations hereunder. (g) Waiver. No delay or failure by either party to exercise any right, power or remedy accruing upon any breach, default or noncompliance under this Agreement shall impair any such right, power or remedy, nor shall it be construed to be a waiver of such or any subsequent breach, default or noncompliance. (h) Entire Agreement; Amendment. This Agreement is the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous agreements, communications, representations and understandings (both written and oral) regarding such subject matter. Except as expressly provided herein, this Agreement may only be modified by a written document executed by both parties. (j) Notices and Electronic Communications. All notices permitted or required under this Agreement may be sent by e-mail, fax, express mail, mail, or registered mail to the e-mail address, fax number, or address most recently provided and will be effective upon transmission.
LUPINE CUSTOMER CONTACT
If You have any questions concerning these terms and conditions, please call (866) 546-3270, or write to us at: Lupine Computer, L.L.C., 6943 East Sheena Drive, Scottsdale, Arizona, 85254 USA.
© Copyright 2015 Lupine Computer, L.L.C. All rights reserved. Lupine, Lupine logo, Lupine DistinctEM™ and Lupine DistinctCRM™ are trademarks of Lupine Computer, L.L.C. (US). You agree not to display or use, in any manner, the Lupine trademarks, without Lupine’s prior permissions.