Social Solutions End User License Agreement

 IMPORTANT - - READ CAREFULLY:  Your access to and use of Social Solutions Global, Inc.’s ETO Software (the “Software”) provided or made available to you (“you”) by Social Solutions Global, Inc. (“SSG”) or its Licensee (as defined herein) shall be subject to your compliance in all respects with all terms and conditions of this End User License Agreement (“EULA”).  The limited license to access and use the Software granted to you by this EULA is granted pursuant to the [Software License and Services Agreement] between SSG and Licensee (the “Agreement”), and the license granted to by this EULA shall be limited and controlled in all respects by the Agreement.  In the event of any conflict between the Agreement and this EULA, this EULA shall control. This EULA constitutes and expresses the entire agreement and understanding between you, SSG and Licensee with respect to your access to and use of the Software and supersedes all previous communications, representative presentations, or agreements, whether written or oral, with respect to the subject matter hereof. Specifically, this EULA shall prevail over any license terms for the Software contained in any agreement between you and Licensee.

 

BY CLICKING ON THE "I AGREE" BOX, YOU ARE AGREEING THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY THIS EULA.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS EULA, CLICK THE "I DO NOT AGREE" BUTTON AND YOU WILL NOT BE GRANTED ACCESS TO USE THE SOFTWARE.

 

1.      DEFINITIONS.

            The capitalized terms below will have the following meanings when used in this EULA.  All other capitalized terms shall have the meaning ascribed to them throughout this document.

 

1.1              “Licensee” means the authorized licensee of SSG who provides the Software to you pursuant to the Agreement.

1.2              “User Data” means any data or information supplied by you to SSG or to or through the Software, and any reports, data queries, responses to data queries, or other output generated by the Software using or based on such data or information.

1.3              “Documentation” means all printed or electronic material relating to the Software provided by SSG.

1.4              “Designated Online Site” means a website, intranet or extranet site, WAN or LAN network site, other online facility, or pages or portions thereof, through which Licensee provides you authenticated, secure, remote access to the functionality of the Software.

2.      LICENSE.

2.1              Subject to the conditions herein, SSG hereby grants you, and you hereby accept, a nontransferable, nonsublicenseable, nonexclusive, limited license to access and use the Software in object code form only though the Designated Online Site, solely for your internal business operations, and you shall not permit the Software to be used by or for the benefit of third parties, including without limitation, use as part of a service bureau.

2.2              The Software and this EULA may not be sold, assigned, leased, sublicensed, or otherwise transferred or made available for use by third parties, in whole or in part, by you without SSG’s prior written consent.

2.3              You shall not disclose, manipulate, adjust, modify, reconfigure, enhance, analyze, decompile, disassemble, engineer or reverse engineer the Software or its source code, seek to discover or decipher the source code or the architecture, libraries, utilities, code, or other internal aspects of the Software, or attempt to do any of the foregoing, and shall not permit any of your employees, agents, consultants, contractors, or other third parties to do so or attempt to do so.

2.4              You hereby acknowledge and agree that SSG is the sole owner of all copyright, patent, trademark, trade secret and other proprietary or intellectual property rights in and to the Software, including but not limited to the structure, organization, design, algorithms, methods, templates, data models, data structures, flow charts, logic flow, screen displays, and report formats associated therewith.  SSG reserves all rights in and to the Software and the Designated Online Site not expressly granted to you hereunder.

3.      LOGIN.

            You will be issued a username and password (collectively, “Login”) that will allow you to access the Software through the Designated Online Site.  You shall not assign or transfer your Login to any other person or entity without SSG’s permission.  You shall maintain and be responsible for the security of you Login and shall be liable for any access or use occurring through your Login.  You must promptly inform SSG of any apparent breach of security, such as loss, theft or unauthorized disclosure or use of your Login of which you are aware. 

4.      USER OBLIGATIONS.

4.1              Except as otherwise provided herein, you shall have sole responsibility for acquiring and maintaining your own technology environment, including but not limited to PC’s, laptops, operating systems, servers, Internet access, local area networks and wide area networks.  You shall also be responsible for making any necessary modifications to firewalls, proxy servers and other hardware and software necessary to use or access the Software and/or the Designated Online Site.

4.2              You agree that you are solely responsible for any and all User Data you send or display through the Designated Online Site, and SSG does not accept, and hereby expressly disclaims, any and all liability with respect to same.

4.3              You hereby agree to comply with all applicable federal, state and local laws, rules, regulations and orders (collectively, “Laws”) including, without limitation, all present and future laws and regulations relating to the privacy of individually identifiable medical, financial or other information including, without limitation, the Health Insurance Portability and Accountability Act of 1996, Subtitle D (Privacy) of the HITECH Act of 2009, and the rules and regulations promulgated thereunder (collectively “HIPAA”).  You shall take all reasonable measures to safeguard, and take all precautions reasonably necessary, including but not limited to sufficient testing and investigation of the Designated Online Site, to ensure the security and privacy of all Protected Health Information (as defined by HIPAA) received, stored or used by you pursuant to this EULA; and will in all matters and transactions fully comply with the Privacy Standards and Security Provisions of HIPAA.

4.4              To the extent that access to and use of the Software through the Designated Online Site outside the United States is permitted by SSG, you shall be solely responsible for complying with all export or re-export restrictions and regulations imposed by the government of the United States.  You may access and use the Software and Designated Online Site for its intended purpose as identified by SSG.

4.5              You shall not delete, remove, modify, obscure, fail to reproduce or in any way interfere with any proprietary, trade secret, or copyright notice appearing on or incorporated in the Software or the Designated Online Site.

4.6              Before recycling, discarding, or disposing of any media or equipment that contain the Software, you shall permanently erase or otherwise destroy the Software contained therein.

5.      TERMINATION.

5.1              This EULA shall terminate immediately upon:

5.1.1        a breach of this EULA by you;5.1.2        expiration or termination of any agreement between you and Licensee; or5.1.3        expiration or termination of the Agreement.

5.2              SSG may terminate this EULA if you become insolvent or bankrupt or cease to do business; become unable or admit in writing your inability to pay all debts as they mature; make a general assignment for the benefit of or enter into any composition or arrangement with creditors; authorize, apply for, or consent to the appointment of a receiver, trustee, or liquidator of all or a substantial part of your assets or has proceedings seeking such appointment commenced against you which are not terminated within thirty (30) days of such commencement; file a voluntary petition under any bankruptcy or insolvency law, or has proceedings under such laws instituted against it which are not terminated within thirty (30) days of such commencement.

5.3              SSG shall have no liability to you, its Licensee or any third party for any termination of this EULA or suspension of your access or use of the Software.  Upon termination or expiration of this EULA, you shall immediately (a) discontinue all use of the Software and the Designated Online Site, and (b) at your expense, return to SSG all Documentation and Software (if any). 

5.4              Notwithstanding anything to the contrary herein, the provisions of Sections 2.2, 2.3, 2.4, 4, 5, 6, 7, 8, 9, and 10 hereof, as well as any other provisions of this EULA necessary to interpret the respective rights and obligations of the parties hereunder, shall survive the expiration or termination of this EULA.

6.      Confidential and Proprietary Information.

6.1              You agree to hold the Software in confidence, and to protect the confidential nature thereof, and shall not disclose any trade secrets contained, embodied or utilized therein, to anyone other than your authorized users having a need for such disclosure, and then only to allow use of the Software as authorized herein.  You shall take all necessary steps to ensure that the provisions of this Section are not violated by any of your employees, agents, consultants, contractors, or any other person under your control or in your service.  Under no circumstances shall you permit any competitors of SSG in the payment processing market to access or use the Software or the Designated Online Site.

6.2              The obligations set forth in this Section 6.0 shall survive expiration or termination of this Agreement.

7.      DISCLAIMER OF WARRANTY.

7.1              THE SOFTWARE IS PROVIDED BY SSG “AS IS” WITHOUT WARRANTY OF ANY KIND, AND SSG HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  SSG DOES NOT WARRANT THAT: (A) OPERATION OF THE SOFTWARE SHALL BE UNINTERRUPTED OR ERROR FREE, (B) FUNCTIONS CONTAINED IN THE SOFTWARE SHALL OPERATE IN COMBINATIONS WHICH MAY BE SELECTED FOR USE BY YOU, OR (C) THE SOFTWARE WILL MEET YOUR REQUIREMENTS.

7.2              You are solely responsible for the accuracy and adequacy of the User Data and all other information and data furnished for processing with the Software.  To the extent that data is being transmitted over the Internet hereunder, you acknowledge that SSG has no control over the functioning of the Internet and SSG makes no representations or warranties of any kind regarding the performance or security of the Internet.  The successful operation of the Software is dependent on your use of proper procedures and systems and input of correct data. 

8.      LIMITATION OF LIABILITY; DISCLAIMER OF DAMAGES.

8.1              IN NO EVENT WILL SSG BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST BUSINESS, REVENUES, OR PROFITS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, WHETHER BASED ON CLAIMS FOR BREACH OF CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF SSG HAS BEEN ADVISED OF THE POSSGBILITY OF SUCH DAMAGES.

8.2              IN NO EVENT SHALL SSG BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES RESULTING FROM OR RELATED TO ANY FAILURE OF THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, OR DELAY BY SSG IN THE DELIVERY OF THE SOFTWARE (OR ANY REVISIONS OR UPDATES THERETO) UNDER THIS EULA.

8.3              SSG’S MAXIMUM LIABILITY UNDER THIS EULA SHALL BE LIMITED TO THE LESSER OF (i) THE LICENSE FEES PAID BY YOU TO LICENSEE DURING THE 6-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE, AND (ii) $10.00.

9.      INDEMNITY.

            You hereby agree to defend, indemnify and hold SSG harmless from and against any losses, liabilities, damages, demands, penalties and expenses (including, without limitation, court costs and attorneys’ fees) arising out of or in connection with (a) access to and use of the Designated Online Site by you and/or any third party, whether or not authorized by you, who accesses the Designated Online Site by means of the Login provided to you, (b) any breach or alleged breach of this EULA or any Law by you, (c) any failure of the User Data to be accurate, complete or error-free, or (d) any claim, demand or action alleging medical malpractice, wrongful death, personal injury, damage to property, errors or misrepresentations in billing or coding, or any other professional, general, statutory or regulatory claim whatsoever, without regard to whether such claim, demand or action is alleged to arise or arising by negligent, intentional or reckless conduct or by action or omission.

10.  MISCELLANEOUS.

10.1          Assignment; Binding Effect.  This EULA and your right to access and use the Software and Designated Online Site may not be assigned or transferred by you, whether by operation of law or otherwise, without the prior written consent of SSG.  Any attempted assignment in violation of this Section 10.1 shall be null and void and of no force or effect.

10.2          Force Majeure. Neither SSG nor its Licensee shall be liable for non-performance or delays caused by acts of God, wars, terrorist acts, riots, strikes, fires, shortage of labor or materials, labor disputes, governmental restrictions, failures of the Internet or communication services, or other causes beyond their reasonable control.

10.3          Governing Law; Jurisdiction.  This Agreement shall be deemed to be made under and shall be governed by and construed in accordance with the laws of the State of Maryland, without regard to its conflicts of law rules.  All actions brought with respect to this Agreement shall be brought in the U.S. District Court for the District of Maryland or the state courts located in Baltimore County, Maryland.  You hereby irrevocably waive all claims you may now or hereafter have that any such court lacks jurisdiction over you and agree not to plead or argue otherwise.  In addition, you hereby irrevocably waive all claims you may now or hereafter have that any such court is an inconvenient forum for an action or proceeding arising out of or in connection with this EULA and you agree not to plead or argue otherwise.

10.4          Equitable Relief.  You agree that any violation by you of the provisions or covenants of this EULA contained in Sections 2 (License) and 6 (Confidential and Proprietary Information) will cause immediate and irreparable harm to SSG for which money damages will not constitute an adequate remedy at law.  Therefore, you agree that, in the event you breach or threaten to breach said provisions or covenants, SSG shall be entitled to injunctive and/or other preliminary or equitable relief, in addition to any other remedies available at law, without having to prove actual damages or to post a bond.

10.5          Severability.  Any provisions of this EULA that are determined to be invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability in such jurisdiction, without rendering invalid or unenforceable the remaining provisions of this EULA or affecting the validity or enforceability of such provisions in any other jurisdiction.  If a court of competent jurisdiction declares any provision of this EULA to be invalid or unenforceable, the parties hereto agree that the court making such determination shall have the power to reduce the scope, duration, or area of the provision, to delete specific words or phrases, or to replace the provision with a provision that is valid and enforceable and that comes closest to expressing the original intention of the parties hereto, and this EULA shall be enforceable as so modified.

10.6          Entire Agreement; Amendment.  This EULA sets forth the entire agreement between you and SSG with respect to your access to and use of the Software and the Designated Online Site.  SSG reserves the right to amend, modify or supplement this EULA at any time, which amendments, modifications or supplements shall be effective when posted on the Designated Online Site.  You shall be solely responsible for monitoring the Designated Online Site for such amendments, modifications and/or supplements.

10.7          Waiver.  No term or provision of this EULA will be considered waived and no breach will be considered consented to by SSG, unless such waiver or consent is in a writing signed by SSG.  No consent to or waiver of a breach of this EULA by SSG, whether express or implied, will constitute a consent to, waiver of, or excuse for any other, different, or subsequent breach of this EULA by you.

10.8          Headings.  Headings used in this EULA are for convenience of reference only and shall in no way be used to construe or limit the provisions herein.

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