End Users License Agreement
The services (“Services”) covered by this Agreement include all Web Portals, Web-based applications and any related support services that Persimmony and its affiliates (referred to together herein as “we” or “us”) make available to you.
By using this service you agree to be bound by the terms and conditions contained in this agreement.
2. Modifications to this Agreement
You agree that we may modify this Agreement or any policy or other terms referenced in this Agreement (collectively, “Additional Policies”) at any time by posting a revised version of the Agreement or such Additional Policies on Persimmony.com. The revised terms shall be effective as follows:
- if the revised terms are (a) for any Services which we are adding at the time of the revision, (b) for the Privacy Notice, (c) for any AUP, or (d) for any other general terms and conditions, then the revised terms shall be effective upon posting unless we expressly state otherwise at the time of posting; and
- if the revised terms are otherwise for any then-existing Services, then the revised terms shall be effective upon the earlier to occur of (a) fifteen (15) days after posting and (b) if we provide a mechanism for your immediate acceptance of the revised terms, such as a click-through confirmation or acceptance button, your acceptance.
We may terminate this Agreement for any reason, at our discretion at any time by providing you sixty (30) days’ advance notice.
We may terminate this Agreement for cause effective as set forth below:
Immediately upon our notice to you if: (i) you materially violate any other provisions of the Agreement, including any Additional Policies; (ii) if we are threatened with a legal claim for copyright or patent infringement related to provision of the Services and are unable to modify the Services in a way that avoids an ongoing risk of liability; (iii) you fail to cooperate with any reasonable Persimmony investigation of any suspected violation of the AUP or Additional Policies (even if such failure is based on your belief that to do so would incriminate yourself), and such violation or failure places us at significant legal or operational risk.
Five (5) days following notice to you if you breach any other provision of this Agreement and fail, as determined by us, in our sole discretion, to cure such breach within such 5 day period.
4. Authorization and License to Use the Services
Subject to your acceptance of and compliance with this Agreement we grant you a limited, non-exclusive, non-transferable, non-sublicenseable right and license, in and under our intellectual property rights, to access and use the Services, solely in accordance with the terms and conditions of this Agreement.
4.1. Restricted Uses
- You may not interfere or attempt to interfere in any manner with the functionality or proper working of the Services.
- You will not make illegal use of the Service or use it for purposes which are illegal.
- You will not interfere with anyone else who is a user of the Service in their use of any Persimmony product or service.
- You will follow U.S. laws regarding transmitting data and you will not attempt to gain access to other computer systems.
- You may not remove, obscure, or alter any notice of any Mark, or other intellectual property or proprietary right designation appearing on or contained within the Services.
4.2. Terms for Use of Persimmony Services (“Persimmony Services”)
- You represent that it will not redistribute Persimmony Services in any form or manner to any third party. Use of the Persimmony Services shall only be by you and solely for internal business purposes and non-commercial use.
- You represent that you will not use or permit anyone else to use the Persimmony Services to create any products or services based on the Persimmony Services or any portion thereof.
- You represent that it will treat the Persimmony Services as proprietary to Persimmony. Further, you acknowledge that Persimmony is the sole and exclusive owners of the Persimmony Services (including all trade secrets, copyrights, trademarks and other intellectual property rights in or to the Services).
- You represent that it will not, other than as expressly permitted in Persimmony’s agreement with your organization: (i) alter, modify or adapt any component of the Persimmony Services, including, but not limited to, translating, decompiling, disassembling, reverse engineering or creating derivative works; or (ii) use the Persimmony Services to verify the accuracy of other data or to correct such other data; or (iii) resell or otherwise transfer or make the Persimmony Services, or any part or component thereof, available to any other person or organization (including, without limitation, your present and future parents, subsidiaries or affiliates) directly or indirectly, for any of the foregoing or for any other use, including, without limitation, by loan, rental, service bureau, external time sharing or similar arrangement.
- You acknowledge that (i) Persimmony, in its sole and absolute discretion and at any time, terminate the your right to receive and/or use the Persimmony Services; and (ii) provision of the Persimmony Services is subject to termination in the event that the relevant agreement between Persimmony and your organization is terminated in accordance with its terms.
- You acknowledge your organization as a third party beneficiary of the Customer Agreement, entitled to enforce all provisions of such agreement relating to the Services.
We reserve the right to log, review, and otherwise examine any information stored on or passing through our networks or systems.
5. Downtime and Service Suspensions
Your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions.
We shall also be entitled, without any liability to you, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons.
You shall not disclose Persimmony Confidential Information during the Term or at any time during the three (3) year period following the end of the Term.
As used in this Agreement, “Persimmony Confidential Information” means all nonpublic information disclosed by us, our business partners or our or their respective agents or contractors that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential.
Persimmony Confidential Information includes, without limitation, (i) nonpublic information relating to our or our business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs (including, but not limited to, any information about or involving one of our so-called beta tests or a beta test product that you obtain as a result of your participation in such beta test), (ii) third-party information that we are obligated to keep confidential, and (iii) the nature, content and existence of any discussions or negotiations between you and us.
Notwithstanding any other provision in this Agreement, you shall not have any confidentiality obligation to us with respect to any information provided or made available by us hereunder, and we shall not have any confidentiality or non-use obligation to you hereunder with respect to any information, software application, data or content provided or made available by you hereunder that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to the receiving party at the time of its receipt from the disclosing party; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortuous act; or (iv) can be shown by documentation to have been independently developed by the receiving party.
7. Intellectual Property
You acknowledge and agree that Persimmony retains all copyrights and other proprietary rights in and to the Services.
8. Disclaimer of Warranty
Except as specifically set forth in this Agreement, Persimmony makes no other representations or warranties, express or implied, including without limitation any warranty of merchantability or fitness for a particular purpose, with respect to the Services.
THE SERVICES ARE PROVIDED TO CUSTOMER ON AN "AS IS" BASIS. [LICENSEE], ITS INFORMATION PROVIDERS, AND ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF ANY OF THE SERVICES MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES (OR THE RESULTS TO BE OBTAINED BY THE USE THEREOF). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LICENSEE, ITS INFORMATION PROVIDERS AND ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING ANY OF THE SERVICES EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ORIGINALITY, ACCURACY, TIMELINESS, COMPLETENESS, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
CUSTOMER ASSUMES THE ENTIRE RISK OF ANY USE CUSTOMER MAY MAKE OF THE SERVICES. IN NO EVENT SHALL LICENSEE, ITS INFORMATION PROVIDERS OR ANY THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF ANY OF THE SERVICES BE LIABLE TO THE CUSTOMER, OR ANY OTHER PERSON, FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR THE INABILITY OF THE CUSTOMER TO USE THE SERVICES, REGARDLESS OF THE FORM OF ACTION, EVEN IF LICENSEE, ANY OF ITS INFORMATION PROVIDERS, OR ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF ANY OF THE SERVICES HAS BEEN ADVISED OF OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF SUCH DAMAGES.
9. Limitations of Liability
Neither we nor any of our licensors shall be liable to you for any direct, indirect, incidental, special, consequential, or exemplary damages, including, but not limited to, damages for loss of profits, goodwill, use, data or other losses (even if we have been advised of the possibility of such damages) in conjunction with this agreement. Such limitation of liability shall apply whether the damages arise from use or misuse of and reliance on the Services, from inability to use the Services, or from the interruption, suspension, or termination of the Services (including such damages incurred by third parties). Such limitation shall apply notwithstanding a failure of essential purpose of any limited remedy and to the fullest extent permitted by law.
Some states or other jurisdictions do not allow the exclusion or limitation of liability for incidental or consequential damages, so the above limitations and exclusions may not apply to you.
You agree to indemnify, defend and hold us, our affiliates and licensors, each of our and their business partners (including third party sellers on websites operated by or on behalf of us) and each of our and their respective employees, officers, directors and representatives, harmless from and against any and all claims, losses, damages, liabilities, judgments, penalties, fines, costs and expenses (including reasonable attorneys fees), arising out of or in connection with any claim arising out of (i) your use of the Services in a manner not authorized by this Agreement, and/or in violation of the applicable restrictions, AUPs, and/or applicable law, (ii) your violation of any term or condition of this Agreement or any applicable Additional Policies, including without limitation, your representations and warranties, or (iv) you or your employees’ or personnel’s negligence or willful misconduct.
11.1. To You
Except as otherwise set forth herein, notices made by us to you under this Agreement that affect our customers generally (e.g., notices of amended Agreements, AUPs, updated fees, etc.) will be posted on Persimmony.com. Notices made by us under this Agreement for you or your account specifically (e.g., notices of breach and/or suspension) will be provided to you via the email address provided to us when your organization provided you with logon and password rights for the Services or in any updated email address you provide to your organization in accordance with standard account information update procedures we may provide from time to time. It is your responsibility to keep your email address current and you will be deemed to have received any email sent to any such email address, upon our sending of the email, whether or not you actually receive the email.
11.2. To Us
For notices made by you to us under this Agreement and for questions regarding this Agreement or the Services, you may contact as follows:
Pesrimmony International, Inc.
33 Endless Vista
Aliso Viejo, California, 92656
12. Miscellaneous Provisions
12.1. Third Party Activities
If you authorize, assist, encourage or facilitate another person or entity to take any action related to the subject matter of this Agreement, you shall be deemed to have taken the action yourself.
If any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect, and any invalid or unenforceable portions shall be construed in a manner that most closely reflects the effect and intent of the original language. If such construction is not possible, the provision will be severed from this Agreement, and the rest of the Agreement shall remain in full force and effect.
The failure by us to enforce any provision of this Agreement shall in no way be construed to be a present or future waiver of such provision nor in any way affect our right to enforce such provision thereafter. All waivers by us must be in writing to be effective.
12.4. Successors and Assigns
This Agreement will be binding upon, and inure to the benefit of the parties and their respective successors and assigns.
12.5. Entire Agreement
This Agreement incorporates by reference all policies and guidelines posted on Persimmony.com and constitutes the entire agreement between you and us regarding the subject matter hereof and supersedes any and all prior or contemporaneous representation, understanding, agreement, or communication between you and us, whether written or oral, regarding such subject matter.
12.6. No Endorsement
You understand and acknowledge that we are not certifying nor endorsing, and have no obligation to certify or endorse, any of your Applications.
Nothing in this Agreement is intended to or does create any type of joint venture, creditor-debtor, escrow, partnership or any employer/employee or fiduciary or franchise relationship between you and us (or any of our affiliates).
12.8. Governing Law
This Agreement shall be construed and enforced according to the laws of the State of California applicable to agreements made and to be performed in any of the 50 United States.
All communications and notices to be made or given pursuant to this Agreement shall be in the English language.
Acceptable Use Policy
This Acceptable Usage Policy (“AUP”) is applicable to all Persimmony International, Inc. (“Persimmony”) clients, employees and consultants (“Users”) in all locations. It applies to all Persimmony Services/Systems and computing facilities; including any computer, server or network connected to Persimmony. It must be read and accepted by all Users before using any Persimmony Service or System.
Persimmony reserves the right to modify the AUP policy at any time.
- This AUP sets forth the specific actions that are prohibited by Persimmony. Use of the Persimmony constitutes acceptance of and agreement to abide by all of the policies set forth in this AUP. For the purposes of this Policy, a User of a Persimmony Service/System includes the person, application process or device requesting access to a Persimmony Service/System in order to perform a function.
- The purpose of this Policy is to ensure that all Users use Persimmony in an effective, efficient, ethical and lawful manner. Indirect or attempted violations of this Policy, and actual or attempted violations by a third party on behalf of a Persimmony client, employee or consultant, shall be considered violations of the Policy by such employee, consultant or client.
- Violations of this Policy may result in immediate suspension and/or termination to access Services/Systems in addition to other penalties that may be imposed on Persimmony by its network service providers. Persimmony assumes no liability to its Users or to any third parties for the content of information entered by Users.
2. As a User you hereby agree that you will not use Persimmony Services/Systems for illegal purposes or to further illegal activities that:
- Constitutes unauthorized use or reproduction of material protected by copyright, trademark, trade secret or other intellectual property right;
- Is, or may be perceived as, obscene, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy; or
- Violates import/export control laws; or
- To publish, submit/receive, upload/download, post, use, copy or otherwise produce, transmit, distribute or store child pornography.
3. As a User you hereby agree that you will not use Persimmony Services/Systems for any unauthorized access to or use of data, systems and networks to interfere with the service of any user, host or network, including deliberate attempts to overload a server, network connected device, or network component.
4. As a User, you hereby agree to the following acceptable conduct:
- Where discretionary controls exist governing access to a User’s data or application files that are within the control of that User, the User will be solely responsible for such access controls.
- Users should report any weaknesses in computer security and/or any incidents of possible misuse or violations of this Policy to the Persimmony.
- Users shall not attempt to access any data/programs contained on Persimmony for which they do not have authorization or explicit consent.
- Users shall not divulge connectivity details, passwords or other access control information that could be used by a third party to gain unauthorized access to Persimmony.
- Users shall take reasonable precautions to secure their physical working environment to guard against unauthorized access including, but not limited to, the use of password screen locks, session timeouts, logging out of workstations at the end of the working day and strong passwords.
- Users shall not make copies of copyrighted or other proprietary material except as permitted by law or by the owner.
- Users shall not make copies of Persimmony software and data for their own unauthorized personal use or provide to other people/users for unauthorized uses.
In the event of any material change to this AUP, Persimmony will post a new copy of the AUP and post it on Persimmony.com.