This software license agreement is a legal agreement (“Agreement”) among you and your organization and PlanSwift Software (“PlanSwift”) describing the terms and conditions applicable to Your use of the Software (as defined herein).
PLEASE EXAMINE THIS AGREEMENT CAREFULLY AND UNDERSTAND THE CONTENT FULLY BEFORE USING THE SOFTWARE. BY CLICKING “I ACCEPT THE AGREEMENT” IN THE SOFTWARE AND USING THE SOFTWARE, YOU REPRESENT THAT (I) YOU HAVE READ AND UNDERSTAND ALL OF THE PROVISIONS OF THIS AGREEMENT; (II) YOU ACCEPT THIS AGREEMENT ON BEHALF OF THE USER (AS DEFINED HEREIN) AND HEREBY BIND THE USER TO THIS AGREEMENT; AND (III) YOU HAVE AUTHORITY TO CONTRACTUALLY BIND THE USER TO THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL THE TERMS OF THIS AGREEMENT AND DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, PLEASE CLICK THE “I DO NOT ACCEPT” BUTTON IN THE SOFTWARE. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU WILL NOT BE REGISTERED TO USE OR ACCESS THE SOFTWARE.
If You are a subscriber or User of any other services, You are also subject to the terms and conditions governing each such service.
“Licensee” means the entity that has purchased a license or licenses to use the Software.
“Representative” means any representative of a Licensee, whether employee, agent, independent contractor, subcontractor, or otherwise, whom Licensee authorizes to access or use the Software on the Licensee’s behalf.
“Reseller” means an authorized reseller of the Software in a Territory.
“Site” means the web site planswift.com and any of its subdomains (for example: myaccount.planswift.com, support.planswift.com, www.planswift.com, sc.planswift.com, etc.)
“Software” means all or any portion of the binary computer software programs, in object code format, which are delivered to Licensee by PlanSwift or an authorized Reseller. Software does not include source code. Software includes Updates, but only if Licensee has purchased such Updates from PlanSwift. Unless specifically stated otherwise, all Software is delivered to and available to Licensee only if and when generally commercially available.
“Territory” means a designated territory in which a Reseller has exclusive rights to distribute the Software.
“Updates” means those subsequent releases of the Software which are generally made available to compliant licensees of the Software who purchase them. Updates shall not include: (i) any releases, enhancements, functionality, services, or products that PlanSwift licenses separately or charges for separately; or (ii) any installation, configuration, or other services. Updates are delivered only if and when generally commercially available.
“User” means any entity that uses the Software.
“You” means any end user of the Software. “You” includes Licensee and its Representatives.
“Your” means of or relating to You.
LICENSE AND USE
Subject to this Agreement, PlanSwift grants to Licensee a limited, non-exclusive, non-transferable license (without the right to sublicense) (“License”) to install and activate the Software on the licensed number of computers. Each license of the Software may only be used on one computer at a time and by one end user at a time. It is expressly prohibited to install the Software on a server or in a hosted application environment instance on one or more of the Licensee’s application servers. Licensee may use the Software for the term of the License(s) to manage the construction estimating and takeoff process and solely for Your own internal business operations. All rights not expressly granted to Licensee are reserved by PlanSwift Software. Licenses may be purchased either as a one-time purchase or on a subscription basis.
Licensee accepts sole responsibility for: (i) Licensee’s system configuration, design, and requirements; and (ii) the selection of the Software to achieve Licensee’s intended results.
As between You and PlanSwift, PlanSwift retains all right, title and interest, including, without limitation, all patent rights, copyrights, trademarks and trade secrets, in and to the Software and any portion thereof, including, without limitation, any copy or derivative work of the Software (or any portion thereof) and any update thereto. You agree to take any action reasonably requested by PlanSwift to evidence, maintain, enforce or defend the foregoing. You shall not take any action to jeopardize, limit or interfere in any manner with PlanSwift’s ownership of and rights with respect to the Software, or any derivative work thereof or update thereto. You shall have only those rights in or to the Software and any derivative work thereof or update thereto granted to it pursuant to this Agreement.
PlanSwift may, at any time during the term of this Agreement and with three (3) days prior notice, request and gain access to User’s premises for the limited purpose of conducting an inspection to determine and verify that User is in compliance with the terms and conditions hereof. User shall promptly grant such access and cooperate with PlanSwift in the inspection; provided, however, the inspection shall be conducted in a manner not intended to disrupt unreasonably User’s business and shall be restricted in scope, manner and duration to that reasonably necessary to achieve its purpose.
PRICING AND PAYMENT
Licensee is subject to and agrees to pay the fees set forth on the Site or as provided by the applicable Reseller in the Territory in which the Software license or subscription is purchased.
For Licenses purchased on a subscription basis, subscription fees are billed on a monthly basis and are collected automatically by debiting the credit card that Licensee provides to PlanSwift.
PlanSwift, and each Reseller (as applicable), reserves the right to change the Fees at any time. Fees applicable to Licensee’s current License(s), subscriptions, and/or support packages at the time of a change in the Fees will continue, through the end of the term of such License(s), subscriptions, and/or support packages.
Licensee may purchase annual Updates and Support Services (as defined herein) for the fees set forth on the Site or as provided by the applicable Reseller in the Territory in which the License is purchased.
PlanSwift provides support services to Licensees who purchase them from PlanSwift, either as stand-alone services or as part of a paid subscription (“Support Services”). Such Support Services include support in installing and using the Software, as well as support to troubleshoot issues with Software installed on the Licensee’s computer(s). For Licenses purchased through a Reseller, the Reseller, not PlanSwift, will provide support for the Software according to the Reseller’s terms. The term “Support Services” does not include any support provided by a Reseller, and PlanSwift shall have no responsibility or liability for any support provided by a Reseller.
The Software is proprietary to PlanSwift and includes information that is the property of PlanSwift and its licensees/users. The Software, its content, and all proprietary information of PlanSwift or its licensors on the Software (collectively “Contents”) are protected by the copyright and/or trade secret laws of jurisdictions throughout the world. Unless You receive the prior written consent from PlanSwift, You shall not copy the Contents, use the Contents other than as permitted by PlanSwift, or disclose the Contents to others.
PLANSWIFT is a registered trademark of PlanSwift Software (“PlanSwift”). PlanSwift Software has registered its trademarks in the United States and in countries throughout the world.
The Site, Software, and the operations thereof are covered under U.S. patents and patent applications, as well as patents and patent applications pending in other countries.
PlanSwift retains all rights, title and interest in and to the Software and the Site. Your use of the Site and Software does not grant or confer any rights to You, by license or otherwise, in or to the Software other than the licensed rights expressly granted herein.
You acknowledge that the Software may contain copyrighted material, trade secrets, or other proprietary information which belongs to PlanSwift, or is licensed by PlanSwift from third parties, or may embody patented subject matter owned by PlanSwift or such third parties.
Except as otherwise provided herein, PlanSwift does not own any data, information or material that You submit in the course of using the Software (“User Data”). Licensee, not PlanSwift, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of all User Data. PLANSWIFT SHALL NOT BE RESPONSIBLE OR LIABLE FOR THE DELETION, CORRECTION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY USER DATA. Notwithstanding the foregoing, PlanSwift reserves the right to use User Data submitted to it as set forth in this Agreement.
USE RESTRICTIONS AND CONDUCT
If You, directly or indirectly, own, manage, participate or otherwise engage in or have any connection with (as an employee, representative, agent or otherwise) any business in the United States or any other foreign country that provides any product or service that is similar to those provided by PlanSwift, You are not permitted to and shall not access or use the Software without prior written consent of PlanSwift.
Except as otherwise expressly authorized herein, You shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party or use the Software for third party training,
commercial time sharing, rental or service bureau use in any way; (b) modify, copy, distribute, transmit, display, reproduce, disassemble, decompile, decrypt, reverse engineer, bypass the security of, or make derivative works based upon any portion of the Software; or (c) access the Software in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Software, or (iii) copy any ideas, features, functions or graphics of the Software.
You shall comply with all applicable international, federal, state and local laws and regulations in Your use of the Software.
You shall not access or attempt to access password protected, secure, or non-public areas of the Software without the prior written consent of PlanSwift.
You shall be solely responsible for Your actions, User Data and any other contents of Your transmissions to the Software and Site. You shall not transmit any materials or information to the Software or Site that infringes on any copyright or other proprietary rights of any other person or entity. You shall not impersonate any person or entity or falsely state or otherwise misrepresent Your identity or affiliation with any person or entity. You shall not post or use the Site or Software to transmit: (a) any unlawful, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, or otherwise objectionable information of any kind, including, without limitation, any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national or foreign law; (b) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or schemes or other unsolicited commercial or non-commercial communication except as otherwise expressly permitted by PlanSwift; or (c) any information or software which contains a virus, Trojan horse, worm, malware or other harmful component.
You shall not use the Software or Site in any manner that violates this Agreement.
You shall not use and shall not authorize, cause, or enable others to use the Software or Site for any unlawful purpose.
YOUR CONFIDENTIALITY AND SECURITY OBLIGATIONS
A. Obligations with Regards to PlanSwift’s and Your Own Confidential Information.
You agree to maintain and protect the confidentiality of the Software and will not disclose to third parties any aspect of the Software, including related software or their contents, or use the Software for any purpose other than authorized herein.
You understand that the Software, the Third-Party Software (as defined herein), Your user name and password, the User accounts, names and passwords, customer numbers, pin numbers and any other information disclosed by PlanSwift to Licensee shall be considered confidential information (“Confidential Information”).
You agree: (a) to not disclose any Confidential Information to any third party without the prior written consent of PlanSwift; (b) to only disclose the Confidential Information to Users, Representatives, employees, and such third parties approved in writing by PlanSwift who are under written obligations of confidentiality with respect to the Confidential Information that are no less restrictive than those contained herein (it being understood that You shall be liable for any failure on the part of any such Representative, employee or third party to comply with this Agreement to the same extent as if such Representative, employee or third party had been parties hereto); (c) to use the Confidential Information solely in accordance with the terms of this Agreement; and (d) to protect the Confidential Information from unauthorized disclosure or use.
You agree to keep sole control and not give the usernames, passwords, and/or PINs to anyone who is not an authorized Representative. You are responsible for any activity that occurs under Your account as a result of Your failure to maintain the security and confidentiality of the Confidential Information, including but not limited to all Users’ usernames, PINs, and passwords. You agree to notify PlanSwift immediately of any unauthorized use of Your account or password or any other breach of security.
B. Exceptions to Confidentiality Obligations.
Your confidentiality obligations under this section will not apply to any information which You can demonstrate (a) was in the public domain prior to it being communicated to You or becomes part of the public domain through no fault of Your own after the disclosure of the information to You; (b) was already in Your possession without an obligation of confidentiality; or (c) is disclosed pursuant to the order of a court of competent jurisdiction, or any order of any governmental agency, provided that You first give notice to PlanSwift of such an order and an opportunity to prevent such a disclosure.
C. Remedies for Breach.
You acknowledge that a breach of this section will result in irreparable and continuing harm to PlanSwift for which there will be no adequate remedy at law and, therefore, PlanSwift will be entitled to appropriate equitable relief.
This section shall survive the termination of this Agreement and remain in effect until the information is no longer confidential. Upon termination of this Agreement or PlanSwift’s request, You shall purge all Confidential Information from Your computer system(s) and at PlanSwift’s option, either (a) destroy all Confidential Information in Your possession, or (b) return all Confidential Information in Your possession to PlanSwift. Within ten (10) days of termination, You or an authorized officer of Your company shall certify in writing that all such Confidential Information has been purged from Your computer system(s) and either destroyed or returned to PlanSwift.
Licensee shall provide access to, and permit PlanSwift to access, the Software and, as necessary, the environment in which the Software resides, for purposes of: (i) providing Software support and error correction; and (ii) determining Licensee’s compliance with the terms of this Agreement; subject to Licensee’s reasonable access authority and security control.
TERM AND TERMINATION
This Agreement is effective until the expiration of an unrenewed License term, or until terminated by either You or PlanSwift, or until automatically terminated as set forth herein. You may terminate this Agreement at any time by permanently discontinuing Your use of the Software and notifying PlanSwift in writing.
Upon termination for any reason, You shall immediately cease using and destroy or return to PlanSwift all copies of PlanSwift’s confidential Information and the Software, in any form, including partial copies and modified versions, and shall certify in writing to PlanSwift that all such copies have been destroyed or returned. You must also destroy all materials obtained from the Software and all copies thereof (excluding Your User Data).
TERMINATION FOR VIOLATION
PlanSwift reserves the right to terminate this Agreement, including, but not limited to, any license granted hereunder, and Your use of the Software for violation by User or any of its Representatives of any of the terms of this Agreement.
In all transactions and processes carried out using the Software, PlanSwift is and acts as a neutral third party, and is not an agent of or affiliated with any party using the Software. Neither the use of the Software nor any provision of this Agreement creates an agency relationship with PlanSwift or between Users or User Representatives of the Software.
Payments made by a User for the use of the Software pursuant to this Agreement do not include any taxes or duties payable in respect of the services provided hereunder in the jurisdiction where the payment is either made or received. Any such taxes are the sole responsibility of User. To the extent that any such taxes or duties are payable or paid by PlanSwift, User agrees to indemnify and pay to PlanSwift promptly upon demand the amount of such taxes or duties, and any penalties, interest, costs, and damages related thereto, in addition to any fees owed for the use of the Software pursuant to this Agreement. PlanSwift shall have the right to add such amounts to any invoice issued to User. If User has obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed, Licensee may provide PlanSwift with any such exemption information. Upon receipt of such exemption information, PlanSwift will use reasonable efforts to provide such invoicing documents as may enable User to obtain from any relevant revenue authority a refund or credit for the amount so paid if such a refund or credit is available.
SECURITY AND CONFIDENTIALITY
PlanSwift takes security seriously and will use commercially reasonable efforts, including the use of usernames, passwords, and encryption, to keep User Data secure and confidential from third parties that are not using the Software. HOWEVER, PLANSWIFT DOES NOT GUARANTEE THAT IT WILL NOT BE THE SUBJECT OF A SECURITY BREACH AND MAKES NO WARRANTY THAT INFORMATION GIVEN TO PLANSWIFT AND/OR STORED IN ANY PLANSWIFT SYSTEM (INCLUDING, WITHOUT LIMITATION, USER DATA) WILL BE COMPLETELY SECURE.
Payment for some of the services provided by PlanSwift will be effected through revolving credit/debit accounts of Users. These transactions will be processed in a secure environment through an appropriate third party credit/debit transaction processor. Except as necessary to process the payment transaction, PlanSwift will use commercially reasonable efforts to keep all payment information (including any credit account information and bank account numbers) provided by User confidential from third parties and from other participants using the Site and Software.
You acknowledge and agree that information that you provide to PlanSwift, including, but not limited to, User Data, may be stored by PlanSwift in a location other than the jurisdiction in which You use the Software.
DISCLAIMER OF WARRANTIES
NONE OF PLANSWIFT, ITS AFFILIATES OR SUBSIDIARIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEE AGENTS, SHAREHOLDERS OR REPRESENTATIVES MAKE ANY REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SITE, THE SOFTWARE, THIRD PARTY SOFTWARE, THIRD PARTY ADD-ONS (as defined herein), SUPPORT SERVICES OR THIRD PARTY SERVICES. WITHOUT LIMITING THE FOREGOING, PLANSWIFT MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY THAT (a) THE USE OF THE SOFTWARE, SITE, SERVICES, THIRD PARTY SOFTWARE, THIRD PARTY ADD-ONS, SUPPORT SERVICES OR THIRD PARTY SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (b) THE SOFTWARE, SITE SERVICES, SUPPORT SERVICES, THIRD PARTY SOFTWARE,THIRD PARTY ADD-ONS, OR THIRD PARTY SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (c) ANY STORED DATA, INCLUDING, WITHOUT LIMITATION, USER DATA, WILL BE ACCURATE OR RELIABLE, (d) THE QUALITY OF ANY SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SITE, SOFTWARE, SERVICES, THIRD PARTY SERVICES, THIRD PARTY ADD-ONS, OR THIRD PARTY SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (e) ERRORS OR DEFECTS WILL BE CORRECTED, OR (f) THE SITE, SOFTWARE, SERVICES, THIRD PARTY SERVICES, THIRD PARTY SOFTWARE, THIRD PARTY ADD-ONS, OR THE SERVER(S) THAT MAKE ANY SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. PLANSWIFT MAKES NO GUARANTEE TO THE ACCURACY OF ANY DATA, INCLUDING MEASUREMENTS, SCALING, OR ANY ASPECT OF THE SOFTWARE.
YOU AGREE THAT THE SOFTWARE AND ITS CONTENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, PLANSWIFT EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THE SITE, THE SOFTWARE, ITS CONTENTS AND THE USE THEREOF, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE.
Some states do not allow the disclaimer or limitation of warranties, so the disclaimers set forth above may not apply to You.
LIMITATION OF LIABILITY
IN NO EVENT SHALL PLANSWIFT, ITS AFFILIATES, PARENTS, OR SUBSIDIARIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SHAREHOLDERS, REPRESENTATIVES, SUPPLIERS OR CONTENT OR SERVICE PROVIDERS BE LIABLE FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DIRECT, INDIRECT, COMPENSATORY, SPECIAL, INCIDENTAL, PUNITIVE AND CONSEQUENTIAL DAMAGES EVEN IF MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE OR OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE OR PERFORMANCE OF THE SOFTWARE AND/OR ANY MATERIALS, PRODUCTS OR SERVICES AVAILABLE WITH THE SOFTWARE.
NONE OF PLANSWIFT, ITS AFFILIATES, PARENTS, OR SUBSIDIARIES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEE AGENTS, SHAREHOLDERS OR REPRESENTATIVES SHALL HAVE ANY LIABILITY WHATSOEVER FOR OR IN CONNECTION WITH THE ACTIONS OR OMISSIONS OF ANY LICENSEE, USER, OR REPRESENTATIVE, THEIR USE OF THE SITE, SOFTWARE, OR THEIR FAILURE TO COMPLY WITH APPLICABLE LAWS.
You specifically acknowledge and agree that PlanSwift is not liable for any defamatory, offensive or illegal conduct of any User or Representative of the Software.
If You are dissatisfied with the Software or Site or any materials contained in the Software or Site, or with this Agreement, Your sole and exclusive remedy is to discontinue use of the Software and Site.
If, notwithstanding this Agreement PlanSwift is found to be liable hereunder for compensable damages relating in any way to Your use of the Software or the Site, You agree that in no event shall PlanSwift’s aggregate liability exceed the greater of (a) the total of any Fees paid by User to PlanSwift in the six months immediately prior to the date on which the claim is made against PlanSwift or (b) US $100.
LICENSEE AND USER WARRANTIES AND INDEMNITY
You represent and warrant that all information submitted by You through the Software is accurate and complete, and that You have taken reasonable steps to ensure the accuracy and completeness of such information. You agree to indemnify, defend, and hold harmless PlanSwift, its officers, directors, employees, agents, shareholders, representatives, suppliers and content and service providers from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees, resulting from the information submitted by You through the Software, any violation of this Agreement or any activity related to the use of the Software by User or any Representative or anyone accessing this Software from Your internet account.
You acknowledge and agree that no relationship other than that of independent contractor is established between You and PlanSwift by either use of the Software or by agreement with this Agreement. You are not an employee, agent, joint venturer or partner of PlanSwift, and neither use of the Software nor agreement with this Agreement create any agency between You and PlanSwift. No party hereto shall represent to any third party that it is the employee, agent, joint venturer or partner of the other or make any representation or warranty on behalf of or in the name of the other or conduct any business or accept payment or service of legal process for the other.
THIRD-PARTY LINKS AND SERVICES
PlanSwift may provide links to websites operated by third parties. PlanSwift makes no representations or warranties whatsoever about any third-party websites that You may access through this Software. PlanSwift is not responsible for the privacy practices or the content of such websites. PlanSwift prohibits the framing of any materials available through the Software.
PlanSwift is designed as a platform that can be customized and programmed to integrate with other software. PlanSwift is not responsible for and makes no representations or warranties whatsoever about (i) any plugins, scripts, extensions or add-ons related to the Software, whether created by You or any third party or (ii) any software development kit (“SDK”) made available on the Site (collectively, “Third Party Add-ons”). Third party plugins, scripts, extension and add-ons will be designated with a third-party label and will be sold in the PlanSwift Plugin Store, but will be supported by the applicable third party and not by PlanSwift. Your use of any SDK provided by PlanSwift shall be subject to the PlanSwift SDK License Agreement, available at https://www.planswift.com/developer/.
The Software may contain some Third-Party Software (as defined herein) for which PlanSwift has obtained the appropriate licensing rights, if applicable. “Third-Party Software” means third party computer programs provided to You or electronic access to computer programs provided to You under this Agreement in connection with the Software. Your use of the Third-Party Software in connection with the Software shall be subject to the terms and conditions set forth herein and any other conditions placed on the use of the Third-Party Software by its owner. You also acknowledge that the owner of such Third-Party Software is the sole and exclusive owner of all right, title, and interest in and to the Third-Party Software, any modifications or improvements made thereto, derivative works made therefrom, and all related materials, documentation, know-how, and intellectual property related thereto.
ABOUT THIS AGREEMENT
PlanSwift reserves the right to change, alter or modify this Agreement for any reason at its sole discretion at any time without prior notice. When we do so, changes in this Agreement will be posted on the Software or Site and will be effective immediately. We recommend that You check this Agreement on a regular basis.
PlanSwift may modify, suspend, or discontinue the Site in its sole discretion at any time without prior notice. PlanSwift shall not be liable for any modification, suspension, or discontinuance of the Site.
CHOICE OF LAW
JURISDICTION AND VENUE
By agreeing to this Agreement, You consent to jurisdiction in the State of Utah. Any dispute related in any way to Your use of the Software shall be venued in the state courts located in Davis County, Utah or the United States District Court for the District of Utah.
The failure of PlanSwift to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by PlanSwift in writing. Any waiver by PlanSwift to enforce any right or provision in this Agreement shall not constitute a subsequent or future waiver of PlanSwift’s rights to enforce this Agreement to the fullest extent.
You may not assign this Agreement without the prior written approval of PlanSwift. Any purported assignment in violation of this section shall be void and unenforceable.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Software must be filed within one (1) year after such claim or cause of action arose or be forever barred.
USER COMMENTS, FEEDBACK, AND SUBMISSIONS
All comments, feedback, postcards, suggestions, ideas, and other information disclosed, submitted, conveyed or offered to PlanSwift on or by the Software or otherwise disclosed, submitted or offered in connection with Your use of the Software (collectively, “Comments”) shall be and remain PlanSwift’s property. Such disclosure, submission or offer of any Comments shall constitute an assignment to PlanSwift of all worldwide rights, titles and interests in all copyrights and other intellectual properties in the Comments. Thus, PlanSwift will own exclusively all such rights, titles and interests and shall not be limited in any way in its use, commercial or otherwise, of any Comments.
PlanSwift is and shall be under no obligation (a) to maintain any Comments in confidence; (b) to pay to User or any Representative compensation for any Comments; or (c) to respond to any Comments.
You agree that no Comments or any other submission submitted by You to the Software will violate any right of any third party, including copyright, trademark, privacy or other personal or proprietary right(s). You further agree that no Comments or other submission submitted by You to the Software will be or contain libelous or otherwise unlawful, abusive or obscene material. You are and shall remain solely responsible for the content of any Comments You make.
You hereby consent that PlanSwift may record and/or monitor any calls that You make to PlanSwift’s client services department and/or that PlanSwift’s client services department makes to You.
PLANSWIFT’S SERVICES AND/OR AVAILABILITY OF THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PLANSWIFT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
PlanSwift will not be held liable for the failure to perform its obligations under this Agreement if such failure is occasioned by a contingency beyond PlanSwift’s reasonable control, including, without limitation, acts of war, labor difficulties, riots, fire, flood, hurricane, windstorm, governmental laws, acts or regulations (including the inability to obtain any necessary permits), or shortages of materials; provided, however, that such relief will only continue for so long as the force majeure condition exists.
LOCAL LAWS AND EXPORT CONTROL
If You use the Software from outside the United States, You are solely responsible for compliance with all applicable laws, including, without limitation, export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any information acquired through the use of the Software, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government.
Where required, PlanSwift may give notice to You by a general posting on www.planswift.com or by electronic mail to Your e-mail address if on record with PlanSwift. Such notice shall be deemed to have been given upon the expiration of twelve (12) hours after sending (if sent by electronic mail). You may give notice to PlanSwift by electronic mail to the address below. If You have any questions about this Agreement, the practices of the Software, or Your dealings with PlanSwift, please e-mail to firstname.lastname@example.org.
This Agreement comprises the entire agreement between You and PlanSwift and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. Unless expressly agreed in a writing signed by User and PlanSwift, any terms and warranties offered by any other individual, agent or entity, including Resellers, that are not expressly stated in this Agreement or that contradict this Agreement are null and void.
Unless otherwise specified in an agreement between Licensee and PlanSwift Software, PlanSwift reserves the right to change the Fees with three months’ prior notice.