- License Grant and Access
Subject to the terms and conditions of this Agreement, Accucode grants to Subscriber a limited, non-exclusive, non-transferable, and non-sublicensable right to: (a) access and use the Software Application on Subscriber’s devices; and (b) access and use the Software as a Service over Accucode’s website. The Software and Services are licensed and not sold to you.
- Restrictions of Use
Subscriber may only use the Service for Subscriber’s internal business purposes and in accordance with this Agreement. Subscriber shall not permit any parent, subsidiary, affiliated entities or third parties to use the Software or Services, and shall not use the Software or Services to process or permit to be processed the data of any third party. Subscriber acknowledges that the Service and its underlying Software, structure, organization, and source code constitute valuable intellectual property of Accucode. Subscriber shall not, nor shall it permit, assist or encourage any third party to: (a) copy, modify, adapt, alter, translate, or create derivative works from the Service; (b) sublicense, distribute, sell, use for service bureau use, lease, rent, loan, or otherwise transfer the Service or the Software to any third party; (c) merge the Services or the Software with other software or use the Services or the Software to develop any application or program having the same primary function as the Services or Software; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Services or the Software; (e) directly or indirectly encumber the Services or the Software; (f) use the Software or Services in any manner that violates any applicable law or regulation; or (g) otherwise exercise any rights in or to the Services or the Software, except as expressly permitted under Section 1.
- No Title
This Agreement confers no title, ownership, or interest in the Software, Services or other intellectual property of Accucode and is not a sale of any rights in the Software, Services or other intellectual property of Accucode. The Software and Services are owned by Accucode and are protected by copyright law and international copyright treaty. Except for the right to use the Software and Services as expressly provided herein, this Agreement does not grant to Subscriber any rights, to or in, patents, copyrights, trade secrets, trade names, trademarks (whether registered or unregistered), database rights or any other rights or licenses with respect to the Software, Services, or other intellectual property of Accucode.
Subscriber hereby assigns to Accucode, for no additional consideration, all right, title and interest to any enhancements and deliverables, including but not limited to the Software, Services, and associated documentation and procedures, and all property rights therein including without limitation all patent, copyright, trade secret, mask work, trademark, moral right or other intellectual property rights, that Accucode makes to the Software or Services derived from suggestions, feedback, and ideas generated by Subscriber. Subscriber shall, and shall cause its employees and agents to promptly sign and deliver any documents and take any actions that Accucode reasonably requests to establish and perfect the rights assigned to Accucode under this section.
- Initial Term
This Agreement will take effect on the date on which Accucode provides login credentials or the date Subscriber downloads the mobile application that enables Subscriber to use the Software and Services, and shall be for an initial term of one (1) month.
- Automatic Renewal and Renewal Pricing
After expiration of the Initial Term, this Agreement will automatically renew for additional consecutive one (1) month periods unless and until either party gives notice of its intent to terminate the Service at last thirty (30) days prior to the end of the then-current term. Accucode may increase any fees upon written notice to Subscriber and with no less than thirty (30) days’ notice.
- Termination for Convenience
Either party may terminate this Agreement for convenience by providing the other party thirty (30) days written notice. Upon Termination, Subscriber shall be liable to Accucode for fees, if any, due for the remaining term and for any other outstanding fees owed to Accucode, including transaction-based fees incurred prior to termination.
- Effect of Termination
Upon the termination of this Agreement, Subscriber shall cease all use of the Software and Services.
- Transfer of Subscriber Data upon Termination
Upon termination of this Agreement, Subscriber shall be responsible for transitioning Subscriber Data from the Software and Services. Accucode will allow Subscriber thirty (30) days from termination of this Agreement to remove Subscriber Data. Accucode shall have no responsibility for transferring Subscriber Data and shall not be liable in the event Subscriber Data is lost following termination of the Services. In the event that Subscriber requires Accucode’s assistance in removing Subscriber’s Data, Accucode reserves the right to bill Subscriber on a time and materials basis for such assistance. Thereafter, the parties shall have no further obligations to each other under this Agreement, except the payment of any amounts then due or outstanding or any breaches thereof.
- Password Security
You are the only person authorized to use your ID and password. You are responsible for maintaining the confidentiality of your login credentials and for any activity in connection with your use of the Software and Services. Any account administrators are responsible for actions taken by their employees, agents, and contractors within our Services. Account administrators are also responsible for deactivating accounts of those employees, agents, and contractors who no longer need access to the Services or Software.
During the term of this Agreement, if Accucode upgrades the version of the Software that Subscriber is using under this Agreement, Accucode will provide Subscriber with access to such upgrades at no additional fee. Should Accucode offer enhancements or additional optional software modules in the future, Subscriber may elect to purchase access to the enhancements or optional software modules for an additional fee; however, Subscriber has no obligation to do so.
Subscriber will be responsible for purchasing all hardware necessary to access and use the Software and Services, including mobile devices and Bluetooth barcode scanners. Not all hardware will work with the Software and Services. Accucode’s help desk will only be able to support hardware that is rented or purchased from Accucode or one of its affiliates.
Subscriber shall not assign or otherwise transfer the Software, Services, or this Agreement to any non-affiliated third party without Accucode’s written consent. Accucode may transfer this Agreement, the Software, or the Services to an affiliate, a successor (whether by merger or operation of law), or purchaser of all or substantially all of its business without the consent of Subscriber.
- Legal Conformance
Accucode makes no warranty as to the compliance of the Software or Services to any standard or legal definition. Subscriber takes sole responsibility to ensure that any particular use of the Software or Services are in compliance with all contracts and legal requirements.
- License to Host Your Data
Subscriber grants Accucode a non-exclusive, royalty-free, worldwide, sub-licensable, right and license to host, copy, display and use Subscriber Data as reasonably necessary for Accucode to provide and ensure operation of Accucode’s Software and Services in accordance with this Agreement, as well as to send Subscriber personalized suggestions based on your Subscriber Data.
- Aggregated Data
- Government End Users
Accucode’s Software and documentation are “Commercial Items” as defined in 48 C.F.R. Section 2.101 (“Commercial Computer Software” and “Commercial Computer Software Documentation” as defined in 48 CFR Section 12.212 and 48 CFR Section 227.7202. In accordance with these regulations, the Software and Documentation are being licensed to U.S. Government end users only as Commercial Items and with only the rights that are granted to non-U.S. Government end users as outlined in this Agreement. Accucode reserves all unpublished rights.
- Contact Us and Support
During the term of this Agreement, Accucode agrees to provide Subscriber with telephone access to the standard Accucode Help Desk during the hours of 0800 – 1800 Mountain Time, Monday – Friday. Should you need to reach out to us for support, questions, or comments, we may be reached at:
6886 S. Yosemite St.
Centennial, CO 80112
- Compliance with Laws
Subscriber hereby acknowledges that the Services and Software include United States technical information and therefore are subject to United States export laws and regulations. Subscriber agrees not to export or re-export the Services or Software or adaptation to prohibited countries, entities, or persons, or in violation of any applicable laws or regulations. Subscriber agrees to fully comply with all government regulations of the United States and any foreign laws to the extent they apply to the Services and Software made available to Subscriber.
Subscriber acknowledges that Accucode exercises no control whatsoever over the content of the information transmitted by Subscriber and that it is the sole responsibility of Subscriber to ensure that the information it transmits and receives complies with all applicable laws and regulations, including privacy regulations. Subscriber further acknowledges that Accucode exercises no control whatsoever over Subscriber’s compliance with third party contracts it may have in connection with Subscriber’s use of the Software or Services. Subscriber will: (a) comply with all applicable laws in utilizing the Services and (b) hold and comply with all required licenses, permits and approvals. Subscriber will defend, indemnify, and hold harmless Accucode from and against any violation of any applicable laws by Subscriber or any of its agents, officers, directors, employees or affiliates.
All applicable fees payable by Subscriber to Accucode for the implementation of the Software and Services, use of the Software and Services, purchase of equipment, and any other items or services which are to be supplied by Accucode in accordance with this Agreement are set for on the Jellyfish website pricing page.
- Payment Terms
Except as otherwise agreed in writing and signed by an authorized officer of both parties, all undisputed payments due to Accucode shall be due and payable in full within thirty (30) days of receipt by Subscriber of a correct invoice. All payments must be made in U.S. Dollars. All fees are non-refundable except as otherwise provided by the Agreement.
- Failure to Pay
Any undisputed portion of fees that is not paid when due will accrue interest at eighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less, beginning fifteen (15) days after the due date, until paid. Subscriber will be responsible for the cost of any collection activity, including reasonable attorneys' fees. Accucode may, at its option and where permissible by law, also restrict Subscriber’s access to the Software and Services for failure to pay any fees that are past due by more than fifteen (15) days.
The fees exclude all applicable sales, use, and other taxes and all applicable export and import fees, customs duties and similar charges, and Subscriber will be responsible for payment of all such taxes (other than taxes based on Accucode’s net income), fees, duties, and charges, and any related penalties and interest, arising from the payment of the fees or the delivery, access of the Services or the Software. Subscriber will defend, indemnify, and hold harmless Accucode from all claims and liability arising from Subscriber’s failure to report or pay any such taxes, fees, duties or charges. Subscriber will pay any sales or use taxes imposed by any taxing authority and required to be paid by Accucode or Subscriber as a result of an assessment against or upon the Services provided to Subscriber under this Agreement.
- Disclaimer of Warranties
Accucode provides the Software and Services on an “as is” and “as available” basis. Subscriber acknowledges that your use or reliance upon the Software and Services and any third party content contained therein is at your sole risk and discretion. Accucode and its affiliates, partners, and suppliers disclaim any and all representations and warranties regarding the Software and Services, whether express, implied or statutory, as to any matter whatsoever, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Accucode makes no warranty regarding the Software and Services results of use. Accucode further disclaims any warranties implied by the parties’ course of dealing, course of performance, or usage of trade. Accucode and its affiliates, suppliers, and partners make no warranty that the Software and Services will meet your requirements, that the Software and Services will be uninterrupted, accurate, reliable, timely, secure, or error-free. Accucode does not warrant that its electronic files containing information pertaining to Subscriber and Subscriber Data are not susceptible to intrusion, attack or computer virus infection or that unauthorized parties will not access your information. Accucode provides no warranty that the quality of any products, service, or information obtained by Subscriber through the Software and Services will be as represented or meet Subscriber’s expectations, or that any errors in third party content will be corrected.
- CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ACCUCODE OR ITS AFFILIATES, PARTNERS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION DAMAGES FOR LOSS OF BUSINESS PROFITS) ARISING FROM OR RELATED TO THIS AGREEMENT AND THE SERVICES AND SOFTWARE, INCLUDING SUBSCRIBER’S ACCESS OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES OR SOFTWARE, EVEN IF ACCUCODE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCUCODE’S ENTIRE LIABILITY ARISING FROM ANY CAUSE, WHETHER UNDER CONTRACT, TORT, STATUTE OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED FIFTY DOLLARS ($50.00).
- General Provisions
- Relationship of the Parties
The parties are independent contracts. Nothing in this Agreement shall create any partnership, joint venture, agency, franchise, or employment relationship between the parties.
- Governing Law
This Agreement and the legal relations of the parties hereto shall in all respects be governed, construed, and enforced in accordance with the laws of the State of Colorado without regard to conflict of law principles. Any action by Subscriber against Accucode for any cause of action relating to this Agreement shall be brought within one (1) year after any such cause of action first arises.
The waiver by either party of any default or breach under this Agreement shall not constitute a waiver of any subsequent default or breach of the same or of a different kind.
- Entire Agreement
In the event that one or more of the provisions of this Agreement shall be found illegal or unenforceable, then such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Agreement will continue in full force and effect.
- Force Majeure
Neither party shall be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including natural disasters, earthquake, fire, flood, embargoes, acts of the government, labor disputes and strikes, riots, war, armed hostility or other national or international calamity, communications or power failures; provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH OR INTERPRETATION THEREOF, SHALL BE SETTLED BY MANDATORY, BINDING ARBITRATION IN THE STATE OF COLORADO, UNITED STATES OF AMERICA, IN ACCORDANCE WITH THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. SERVICE OF PROCESS IN CONNECTION WITH ANY SUCH DISPUTE SHALL BE BINDING IF SENT EITHER BY EMAIL OR REGISTERED MAIL AT THE ADDRESS SPECIFIED IN THIS AGREEMENT OR AT SUCH ADDRESS AS OTHERWISE SPECIFIED FROM TIME TO TIME. EACH PARTY WILL PAY ITS OWN COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) OF ANY SUCH ARBITRATION (AND EACH PARTY SHALL EQUALLY SHARE IN (I) ANY TRANSLATION COSTS AND (II) THE COSTS AND EXPENSES OF THE ARBITRATOR(S) (INCLUDING RELATED FEES AND EXPENSES, SUCH AS ARBITRATION MEETING ROOM EXPENSES AND TRANSLATOR AND COURT REPORTER FEES) EXCEPT THAT, WHERE THE ARBITRATOR(S) HAVE MADE A DETERMINATION THAT A PARTY HAD NO SUBSTANTIAL BASIS FOR ITS POSITION ASSERTED DURING THE ARBITRATION, THE ARBITRATOR(S) MAY COMPEL SUCH PARTY TO PAY ALL OR A PORTION OF THE OTHER PARTY'S COSTS AND EXPENSES, INCLUDING ADMINISTRATIVE FEES, ARBITRATOR FEES, ATTORNEYS’ FEES, EXPERT FEES, WITNESS FEES, TRAVEL EXPENSES, AND OUT-OF-POCKET EXPENSES. ANY ARBITRATION PROCEEDINGS PURSUANT HERETO SHALL BE GOVERNED BY (I) THE UNITED NATIONS CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS, AND (II) THE UNITED STATES FEDERAL ARBITRATION ACT.
All notices to Accucode under this Agreement are to be delivered by (i) depositing the notice in the mail, using registered mail, return receipt requested, addressed to the address below or to any other address as Accucode may designate by providing notice, (ii) overnight delivery service addressed to the address below or to any other address as Accucode may designate by providing notice, or (iii) hand delivery to the individual designated below or to any other individual as Accucode may designate by providing notice or via any other commercially acceptable means. The notice shall be deemed delivered upon confirmed receipt in the case of subsections (ii-iii) above, and three days after deposit in the mail in accordance with subsection (i) above. Accucode shall provide notices under this Agreement to Subscriber at the email designated by Subscriber at the time Subscriber signs up for an account or at such other email as Subscriber may designate by providing notice. Email notice shall be deemed delivered at the time it is sent as recorded by Accucode’s system.
Accucode: Accucode, Inc.
6886 S. Yosemite St.
Centennial, CO 80112
Attention: Legal Department
Phone No.: 303-639-6111