Terms of Use

ARROWPOINTE CORP.

GEOPOINTE TERMS OF USE / MASTER SUBSCRIPTION AGREEMENT

(Revised May 15, 2012)

PLEASE READ THESE TERMS OF USE (THESE “TERMS”) CAREFULLY, AS THEY FORM A BINDING AGREEMENT BETWEEN YOU AND ARROWPOINTE CORPORATION (“ARROWPOINTE”) AND GOVERN YOUR USE OF GEOPOINTE, WHICH INCLUDES CLIENT-SIDE AND SERVER-SIDE INTERNET-ENABLED COMPUTER SOFTWARE AND ASSOCIATED DOCUMENTATION (COLLECTIVELY, THE “SOFTWARE”) TOGETHER WITH RELATED SERVICES (THE “SERVICE”).  BY DOWNLOADING, INSTALLING, ACCESSING AND/OR OTHERWISE USING THE SOFTWARE AND/OR THE SERVICE, YOU ACCEPT AND AGREE WITHOUT RESERVATION TO BE BOUND BY THESE TERMS.  IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU ARE NOT AUTHORIZED TO DOWNLOAD, INSTALL OR USE THE SOFTWARE OR THE SERVICE IN ANY WAY. THE SOFTWARE IS LICENSED (NOT SOLD) TO YOU, AND AT ALL TIMES REMAINS THE SOLE PROPERTY OF ARROWPOINTE. YOUR ACCEPTANCE OF THESE TERMS CONSTITUTES AN ESSENTIAL PART OF THE BARGAIN BETWEEN YOU AND ARROWPOINTE, WITHOUT WHICH ARROWPOINTE WOULD NOT AGREE TO EXTEND THE RIGHTS SET FORTH HEREIN.

Arrowpointe reserves the right, in its sole discretion, at any time and from time to time, to replace, modify, add to or retract/delete all or any portion of these Terms. It is your obligation to review the most recent version of these Terms from time to time, to ensure your continued acceptance hereof.  Any revisions to these Terms will become effective twenty (20) business days after such revisions are posted, unless You expressly accept the revised Terms as of an earlier date. Your continued use of the Software and/or Service after the applicable effective date of such revisions will conclusively establish Your acceptance to be bound by the revised Terms. The most recent version of these Terms is accessible at http://links.arrowpointe.com/GPterms, available by link from within the Software.  If You have questions about these Terms, the Software or the Service, please contact Arrowpointe’s customer support as provided at http://www.arrowpointe.com/support.

By accepting these Terms, you represent that you are in compliance with and agree to be bound by all terms, conditions, and policies (including without limitation privacy policies) of the following third party service providers (“Third Party Terms”):

(a) MapQuest (http://cdn.mapquest.com/mq_legal/termsofuse.html),

(b) Google (http://maps.google.com/help/terms_maps.html),

(c) Salesforce.com (http://www.salesforce.com/company/msa.jsp), and

(d) SpatialKey (http://spatialkey.com/terms/index.cfm).

You agree to remain, at all times during the Term, compliant with the Third Party Terms as they may be modified, altered, and/or amended from time to time as each may provide. The foregoing notwithstanding, if You have entered or subsequently enter into a separate written agreement with any of said third parties with respect to the same services, then the terms, conditions and policies set forth in such separate agreement(s) shall supersede and be controlling over the terms, conditions and policies referenced in the links provided above.  You understand that certain materials are provided under license from the aforementioned third party service providers, including but not limited to MapQuest, Inc. and Google, Inc., are used by and/or interact with the Software and the Service, and are subject to copyright and other intellectual property rights owned or licensed by such providers.

1. For purposes of these Terms, “You” means: (a) the individual identified on the invoice, order form or during registration to use the Software and Service, and/or (b) if that individual is entering into these Terms for the benefit of an employer or other third-party, then such employer or third-party.

2. The Software is licensed expressly subject to these Terms, and Your rights to use the Software and Service are conditioned upon: (i) Your compliance with all provisions of these Terms, and (ii) Your timely payment of all applicable Fees (as defined in Section 6 below).

3. Subject to all provisions of these Terms, including without limitation your timely payment of all applicable Fees, Arrowpointe grants You a limited, revocable, non-exclusive, non-sublicensable, non-transferable right and license to install and use the Software, solely for Your benefit, in the manner and for the purposes specified in these Terms and in any documentation which Arrowpointe may provide from time to time in connection with the Software and/or the Service.

4.  Your use the Software and the Service is expressly subject to the following:

(a) Each individual for whom an unpaid temporary trial license has been granted, or for whom the applicable Fees have been timely paid (each a “Subscriber”) (i) may install and make use of the client-side Software solely for such Subscriber’s personal benefit and (ii) access the Service solely as permitted by Arrowpointe. Only the Subscribers hereunder are authorized to access and use the Software and Service.

(b) Arrowpointe may terminate these Terms and your rights hereunder for any reason or no reason, at any time, immediately upon written notice to You (email will suffice), and without liability of any kind to Arrowpointe.

(c) Arrowpointe reserves the right, in its sole discretion, to automatically apply certain upgrades or updates to the Software and push such upgrades or updates to You.

(d) Arrowpointe reserves all rights not expressly licensed or otherwise granted under these Terms.

(e) Use of or access to the Software other than as permitted hereunder is expressly prohibited.

(f) You may not and may not permit any other person to: (i) modify, translate, adapt, arrange, or create derivative works based on the Software, Service or associated documentation for any purpose; (ii) reverse engineer, decompile or disassemble the Software, or any portions thereof; (iii) remove, alter, or obscure any proprietary notices, labels, or marks from the Software or associated documentation; (iv) use any equipment, device, software, or other means to circumvent digital rights protection used in connection with the Software; (v) use the Software to develop a product which is competitive with any Arrowpointe offerings; or (vi) permit the Software to be used by more than the number of Subscribers or on more than the authorized number of devices, as the case may be.

(g) The Software is licensed to You as a single product and its components may not be separated for any purpose. You may not distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or any portion of the Software, access to the Service, or any other rights granted in these Terms, to any other person without the prior written consent of Arrowpointe.

(h) You will at all times comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with your use of the Software and the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. In particular, to the extent required under applicable law, You will provide notice and secure consent of all persons whose locations will be determined using the Software and Service.

(i) Except as expressly permitted by this Agreement, no part of the Software or Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. You agree not to access the Software or the Service in any way other than by the methods and/or interfaces designated by Arrowpointe.

(j) Arrowpointe has the right to monitor Your use of the Software and Service, and to take other reasonable steps to provide and improve the Service, to upgrade the Software, and to assure Your compliance with these Terms. You agree that Arrowpointe has the right to take such actions, and to disable and terminate Your use of the Software and Service if Arrowpointe believes, in its sole discretion, that You are using the Software or Service in any manner other than as expressly authorized under these Terms or applicable law. You hereby grant Arrowpointe the right to remotely access or monitor the device(s) on which the Software is installed and used, and agree to provide Arrowpointe with access rights as necessary to so. You further agree that Arrowpointe may collect and retain data regarding Your use of the Software and may use all such data for any legal purpose it deems necessary to the operation of its business.

5. Subject to these Terms, including without limitation Your timely payment of all applicable Fees, Arrowpointe will provide reasonable technical support services via telephone or email to Your designated support representative. These support services cover only the current publicly available version of the Software and do not cover hardware, operating systems, networks or third party software interaction. You may contact Arrowpointe’s customer support as provided at http://www.arrowpointe.com/support.

6. You agree to pay all applicable license, subscription and other fees for the Software and the Service promptly when due, in accordance with the policies established by Arrowpointe from time to time, unless otherwise agreed in a separate document executed by You and by Arrowpointe (in each case, collectively “Fees”). Except where provided by law or as otherwise expressly provided herein or agreed to by Arrowpointe in a separate signed agreement, all Fees are non-refundable. Unless otherwise agreed in writing, all Fees are exclusive of applicable sales/use taxes and similar taxes, tariffs, duties, charges and assessments (“Taxes”).  You are solely responsible for timely payment of all Taxes, and will indemnify, defend and hold Arrowpointe harmless from and against claim, suit, proceeding or other action resulting from Your non-payment thereof, together with all related penalties and interest.

7. You acknowledge and agree that Arrowpointe or its licensors are the sole and exclusive owner(s) of the Software and the Service, and of all intellectual property rights therein, including without limitation copyrights, trademarks, trade secrets, trademarks and other proprietary rights, title to all of which is hereby expressly reserved. As between You and Arrowpointe, You are the sole and exclusive owner of all data and information which is submitted to Arrowpointe either by you or on your behalf in connection with the Software and/or the Service, provided however that: (i) You hereby grant Arrowpointe a fully-paid-up, royalty-free, worldwide right and license to use all such data and information as necessary or appropriate to provide and improve the Software and the Service and otherwise to conduct Arrowpointe’s business; and (ii) without in any way limiting the generality of the statement set forth in subsection (i) immediately above, if You provide feedback to Arrowpointe regarding the Software, the Service, or any other topic, you agree that Arrowpointe may, without any notice or compensation to you, use and communicate such feedback to third parties for any legal purpose whatsoever.

8. YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW:

(a) THE SOFTWARE AND THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, INTERFERENCE WITH CUSTOMER’S QUIET ENJOYMENT, SYSTEM INTEGRATION OR WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE.

(b) ARROWPOINTE MAKES NO WARRANTY THAT OPERATION OF EITHER THE SOFTWARE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

(c) UNDER NO CIRCUMSTANCES WILL ARROWPOINTE, ITS OFFICERS, DIRECTORS, EMPLOYEES, INDEPENDENT CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, DISTRIBUTORS OR ANY OTHER THIRD-PARTY PARTNERS (COLLECTIVELY “COVERED PARTIES”) BE LIABLE TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, EXEMPLARY, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING BUT IN NO WAY LIMITED TO BUSINESS INTERRUPTION; LOSS OF USE, DATA, REVENUES OR PROFITS; OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), HOWSOEVER CAUSED AND UNDER WHATSOEVER THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF OR INABILITY TO USE THE SOFTWARE OR THE SERVICE, EVEN IF ARROWPOINTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(d) THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY EXPIRATION OR EARLIER TERMINATION OF THESE TERMS AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

(e) IN THE EVENT THAT ARROWPOINTE IS NEVERTHELESS HELD BY A COURT OR OTHER TRIBUNAL OF COMPETENT JURISDICTION TO BE LIABLE TO YOU FOR DAMAGES FOR ANY REASON ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SUBJECT MATTER HEREOF, YOU FURTHER AGREE THAT SUCH LIABILITY WILL BE LIMITED IN THE AGGREGATE TO THE LESSER OF (I) ALL AMOUNTS PAID BY YOU HEREUNDER, OR (II) ONE HUNDRED DOLLARS ($100.00).

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND/OR THE LIMITATION OR EXCLUSION OF LIABILITY IN CERTAIN CASES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU, OR MAY APPLY ONLY IN PART.

9. You will at all times during and after the Term of this Agreement indemnify, defend and hold Arrowpointe and the Covered Partiesharmless from any and all claims, suits, proceedings, damages and/or expenses (including without limitation reasonable attorney and other professional fees) brought against or incurred by Arrowpointe (i) based upon breach of any of Your representations, warranties, obligations or covenants as set forth in this Agreement, or (ii) otherwise resulting from Your use of the Software or the Service.

10. Privacy.  Arrowpointe, the Software and the Service collect only limited personally identifiable information (“PII”) from you.  For example, we collect certain biographical, contact and billing information when you register to use the Software and Service, without which we would not be able to communicate with you or bill you regarding the Software/Service.

We currently use your PII in order to provide you with access to and use of the Software and the Service, as well as to improve the Software and the Service. We also exchange certain PII about you with our third party partners with whom you have established accounts, and you hereby consent to our receipt, use and exchange of this PII in providing the Service.  We do use “cookies,” which are small data files saved on your accessing device, in order to store certain information about you, your preferences, etc., and may also adopt similar complementary or successor technologies from time to time, as they become available or more widely accepted.

You understand that we may also combine PII collected from our users into various aggregate, statistical forms, and in such form no PII of any specific user is discernible/detectable (“Aggregate Data”).  We therefore reserve the right to use, and to transmit to third parties from time to time, in our sole discretion, these forms of Aggregate Data for any legal purpose whatsoever.

11. Term; Termination; Survival.

(a) Subject to these Terms, the license to use the Software will begin upon installation or download of the Software, and will be for the duration specified by Arrowpointe in policies as it may establish from time to time (the “Term”).  Use of the Software before or beyond the Term, as applicable, or any attempt to defeat any time-control disabling function in the Software is an unauthorized use and constitutes a material breach of these Terms and applicable law.

(b) Arrowpointe may, without further obligation or liability to You or any other person or entity, terminate these Terms and Your rights hereunder in the event that You fail to materially comply with these Terms. Upon expiration or earlier termination of these Terms for any reason, (i) neither You nor any other person or entity will have any further right to make any use of the Software or Service pursuant hereto, and (ii) You will immediately cease using or otherwise accessing the Service, and uninstall and delete all Software and associated documentation.

(c) In the event that Arrowpointe terminates these Terms and Your license to use the Software for any reason other than your failure to materially comply with these Terms, Your sole and exclusive remedy will be limited to a refund of the pro rata portion of any prepaid Fees for use of the Software and/or Service during the then-current Term, ; provided however that the availability or non-availability of any such refund, and the method for calculating the amount thereof (if any) shall be at Arrowpointe’s sole option and discretion.

(d) Sections 1, 4(d) through 4(i), 6 (regarding Taxes and indemnity), 7, 8, 9, 11(c), this 11(d), 12, 13, 14 and 15 of these Terms will survive expiration or earlier termination of these Terms.

12. You agree that neither the Software nor access to the Service will be transferred, sublicensed, exported, re-exported or otherwise made available in or into any country or used in any manner prohibited by the United States Export Administration Act or any other applicable export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Software or the Service is identified as subject to export control under the Export Laws, You represent and warrant that You are permitted to receive and use, and are located in a jurisdiction where You are permitted to receive and use, the Software and the Service. You will indemnify, defend and hold harmless Arrowpointe and the Covered Parties from and against any claims, penalties, loss or damage arising out of a breach of Your obligations under this Section. You may not export the Software or associated documentation in violation of these Terms, U.S. or other applicable export control laws.

13. Any dispute regarding these Terms will be governed by the laws of the State of California, without reference to conflict of law principles, and each party hereby submits to and accepts the exclusive jurisdiction of the state and federal courts located in Orange County, California with respect to any dispute arising out of or in connection with these Terms, the Software and/or the Service, and hereby waives all objection to such exclusive jurisdiction. The parties hereby expressly disclaim applicability of the United Nations Convention on Contracts for the International Sale of Goods in connection with these Terms, the Software and/or the Service. In any dispute between Arrowpointe and You in which Arrowpointe prevails, Arrowpointe will be entitled to recover its reasonable attorneys’ fees, legal expert fees, court costs, and related expenses.

14. These Terms together with any other terms referred to or incorporated herein by reference constitute the entire agreement between the parties with respect to the subject matter hereof and merge all prior and contemporaneous understandings regarding the same subject matter. Further, no purchase order or similar document issued by You will modify these Terms even if signed or otherwise accepted by Arrowpointe and, in the event of any conflict between these Terms and any other agreement between You and Arrowpointe, these Terms will control. In the event of any conflict between these Terms and any other document relating to the subject matter hereof, You agree that these Terms will control.

15. If any provision of these Terms is found invalid or unenforceable, the remaining provisions of these Terms will remain valid and enforceable in accordance with their terms. Accordingly, the parties agree that if any provisions are deemed not enforceable, they will be deemed modified to the extent necessary to make them enforceable and in such manner as comes closest to the intentions of the parties to these Terms as is possible. If Arrowpointe’s performance of any of its obligations hereunder is delayed by labor dispute, war, governmental action, acts of terrorism, flood, fire, explosion, other act of nature, the public enemy, or any other matter not within Arrowpointe’s reasonable control, then the date for performance will be extended by the time of such delay. These Terms will inure to the benefit of and be binding upon the parties, their successors and assigns, except that You may not assign or transfer these Terms or the rights granted hereunder without Arrowpointe’s prior written consent. If You are acquiring the Software on behalf of an entity, You represent and warrant that You have the legal capacity to bind such entity to these Terms. The parties acknowledge and agree that these Terms are solely between the parties hereto, and do not create any rights or benefits in favor of any third party.