FLUSHCHECK.COM – COMMERCIAL TERMS AND CONDITIONS
These Commercial Terms and Conditions (“Commercial Terms”) govern all flushcheck.com products and services provided by Oberon3, Inc. (“us” or “we” or “our”) to a business customer of ours directly or through any of our resellers (including employees and subcontractors, referred to as our “Customer” or “you”).
Agreement. The “Agreement” is comprised of these Commercial Terms, the documents referenced herein, and all other documents entered into by the Customer and us.
License. So long as you comply with your obligations under the Agreement and timely pay all of the license fees due to us or to one of our resellers for your use, during the Term you are granted the right to use, according to the terms of any documentation provided by us and in compliance with all applicable laws and regulations, each Product licensed by you under the Agreement in the form provided by us for your internal business needs but not to benefit any other party (“License”). Without limitation, you will not use any Product to provide service bureau, outsourcing or similar services to any party.
Products and Services. Each of our products (each is a “Product”) is described in the Product description (“Product Description”) included at on our website here. We may update each Product Description by posting a new Product Description at that link, and upon posting it will supersede the prior Product Description. Our services, including consulting services to customize Products, are described in each Statement of Work (Exhibit A) entered into by us and you under these Commercial Terms, and all of our services to you are referred to as “Services.” You are responsible for all hardware, software, and connectivity required to access the Products.
Users. Each of your employees or subcontractors using a Product is a “User,” and you may have the number of Users of the Product for which you have purchased licenses either directly from us or through one of our resellers. Every User requires a separate ID. Only Users are permitted to use or access a Product. You will ensure that each User complies with the terms of the Agreement, and you are liable for any failure of a User to so comply.
Deliverables. Items delivered by us to you (“Deliverables”) under a Product Description or a Statement of Work are part of the Product(s) licensed by you to which they relate, and you have the right to use Deliverables only during the Term as part of the Products.
Technical Support. Reasonable assistance from us (“support”) is available at no charge during our normal support hours to assist you with any failure of the Products to perform according to the applicable Product Description. If you have purchased Products through a reseller, you may be able or required to contact your reseller for initial assistance (*Tier 1 support’). If you obtain Tier 1 support from a reseller, we will provide support to the reseller for failures of the Products to perform according to the applicable Product Description. Our support hours are 9 a.m. to 5 p.m., Pacific time, Monday through Friday, except our holidays. Your requests for support can be provided to us by telephone at email@example.com . You may be able to purchase enhanced support hours or scope through Services.or by email to
Changes. We may change Products and these Commercial Terms, including the documents referred to herein, by updating the documents posted at the applicable link, and any change will be effective 30 days after they are posted.
Payments. You are responsible for all Fees described in the order form pursuant to which you purchased the License, either from us or from one of our resellers, as well as all agreed expenses and all taxes and government charges relating to our provision of Products and Services other than taxes on our income. Late payment of amounts due to us will accrue interest until paid at the lesser of 1.5% per month or the maximum amount permitted by law. We may suspend the provision of Products and Services for your failure to pay amounts when due to us or to our reseller for your License or Services, and reinstating Products and Services may be subject to a reinstatement fee.
Confidentiality. In connection with your use of Products and Services, you will receive confidential and proprietary information of us and third parties (“Confidential Information”) which includes any nonpublic information written or oral relating to the Products, Services, Deliverables, or the business, finances, plans, and activities of us and our suppliers. You will keep Confidential Information in confidence, only use it for your permitted use of Products and Services, and not disclose it to any third party except your advisors who agree to provisions regarding Confidential Information at least as favorable to us as those in this Section. You may disclose Confidential Information as required by law, so long as you provide reasonable advance notice to us of the subpoena, court order or other requirements, you provide all reasonable cooperation we request in connection with our efforts to quash the subpoena or obtain a protective order or other protection, and you disclose only the minimum Confidential Information required to be disclosed after our efforts to protect the confidentiality of the Confidential Information.
Ownership. No rights are granted to you except for the License, and we and our licensors retain all ownership and other rights to the Products and Deliverables, including to all derivative works thereof. We reserve the right to use aggregated and anonymized data processed by and/or stored in the Products. You have no rights to the trademarks, tradenames, logos and other symbols used by us and our licensors in connection with the Products and Services. You will not reverse engineer, decompile, disassemble, reproduce, prepare derivative works of, modify or sublicense Products except as specifically permitted under the Agreement. You will only use Products by accessing them as permitted by us, and you will not download or attempt to download Products. You will only make copies of Products as permitted by us to assist you in your permitted use of the License. You will not transfer, lend, lease, sub-license or pledge any of your rights to use the Products, and any attempt by you to do any of the foregoing is void.
Web site. During the Term, you will have access to certain materials posted on our website for authorized Product users at http://flushcheck.com. All nonpublic information on that website relating to Products and Services is Confidential Information.
Product Ideas. You may in your discretion provide suggestions to us for changes to our website or Products and Services, new Products or Services or other ideas for our business (“Suggestions”), and we welcome Suggestions. By submitting a Suggestion, you hereby grant to us a worldwide, non-exclusive, royalty-free, unrestricted, sublicensable, transferable and irrevocable (on any basis whatsoever) license to use the Suggestion in any way we determine without any compensation, attribution, accounting or other obligation to you.
Limited Warranty. We provide the following “Limited Warranty” for Products and Services: Products will perform substantially as described in the Product Descriptions, and Services will be provided substantially as described in the applicable Statement of Work.
Limited Remedy and Exclusions. During the Term, so long as you are in compliance with the Agreement, we will use reasonable efforts to cure any breach of the Limited Warranty for which you provide written notice describing the breach in sufficient detail for us to determine the source of the breach, and so long as you provide that notice within a reasonable time after discovering any such breach relating to a Product, and within 90 days of our performing the Services. The Limited Warranty does not apply to problems caused by your computer equipment, software or data, by any items not provided by us, or by the actions or omissions of any party other than us. EXCEPT FOR THE LIMITED WARRANTY, PRODUCTS AND SERVICES, INCLUDING DELIVERABLES, ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY EXPRESS OR IMPLIED, AND WE DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT PRODUCTS WILL BE ERROR-FREE OR THAT ALL ERRORS WILL BE CORRECTED.
Limitations. EXCEPT FOR (1) PAYMENT OF FEES AND OTHER AMOUNTS DUE FOR PRODUCTS AND SERVICES, (2) A BREACH OF A PARTY’S OBLIGATIONS RELATING TO CONFIDENTIALITY OR INTELLECTUAL PROPERTY RIGHTS, AND (3) A PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR (a) AN AMOUNT IN TOTAL GREATER THAN $10,000 OR (b) CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, RELIANCE OR PUNITIVE DAMAGES, OR DAMAGES FOR LOST PROFITS, REVENUES, GOODWILL OR DATA, REGARDLESS OF THE BASIS OF THE CLAIM AND REGARDLESS OF WHETHER THE PARTY KNEW OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES DISCLAIM THE PROVISIONS OF, AND WAIVE ANY RIGHTS UNDER, THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, THE UNIFORM COMMERCIAL CODE, OR ANY OTHER LAW THE PROVISIONS OF WHICH ARE IMPLIED INTO THIS AGREEMENT UNLESS WAIVED, ALL OF WHICH WILL NOT APPLY TO THIS AGREEMENT IN ANY MANNER.
Healthcare Market. This product is not suitable for any Healthcare application, location or service and is expressly forbidden from use in these areas. Collection of user emails and use of their phone number is not HiPAA protected.
Compliance. You will comply with all applicable legal and contractual obligations relating to privacy, security, integrity and confidentiality of data stored in or processed by any Product, and you will take appropriate measures to ensure such compliance.
Infringement. During the Term, so long as you remain in compliance with the Agreement, if any Product is determined in a final judgment to, or we determine that it is likely that it may be found to, infringe the rights of any third party arising under U.S. copyright or trademark laws, or to our knowledge at the time of delivery, infringe the rights of any third party under U.S. patent laws, we may obtain the right for you to use such infringing item, provide a reasonable replacement, or by notice terminate your License for the infringing Product and refund the Fee paid for such infringing Product for any time after such termination.
Indemnification. During the Term, so long as you remain in compliance with the Agreement, we will defend you from any claims by a third party that any Product or Deliverable in the form delivered by us infringes the third party’s rights arising under U.S. copyright or trademark laws, or to our knowledge at the time of delivery, infringes the third party’s rights under U.S. patent laws, and will indemnify and hold you harmless from any amounts finally awarded in favor of such third party. You will defend us from any claims by a third party relating to your use of Products and Deliverables except to the extent you are indemnified by us in the preceding sentence and will indemnify and hold us harmless from any amounts finally awarded in favor of such third party. The party seeking indemnification will provide to the indemnifying party prompt notice of the claim for which it is seeking indemnification and all cooperation reasonably requested by the indemnifying party. The indemnifying party will have the sole right to settle any claim it is indemnifying, but will not admit fault on the part of the indemnified party.
Termination. The Agreement may be terminated by either party on notice for the breach of the Agreement remaining uncured 10 days after notice from the non-breaching party or if the other party is bankrupt, insolvent, has a receiver appointed for any portion of its business, liquidates, ceases doing business or makes an assignment for the benefit of its creditors. On termination, you will immediately destroy, delete and/or return to us all Deliverables and Confidential Information, and you will have no further right to such items. The following Sections of this Agreement will survive termination to the extent applicable thereafter: Deliverables, Payments, Confidentiality, Ownership, Product Ideas, Limitations, Compliance, Termination, Third Party Software, Arbitration and General Sections.
Third Party Software. Certain Products and Services may include third party software or other items subject to additional terms in or as described in the Product Description or attached to an Order Form, and all of such additional terms are incorporated into and made a part of these Commercial Terms. Each third party licensing software or other items to us is an intended third-party beneficiary of the Agreement and our rights (including all provisions that limit liability, restrict warranties and otherwise protect us) under the Agreement will apply to all of such third parties as though references in the Agreement to us are references to such third parties, but no such party has any direct obligations to you under the Agreement except as expressly set forth in a Product Description or Statement of Work.
No Assignment. You may not assign any of your rights or delegate any of your obligations under the Agreement. Your subcontractors and employees will comply with the terms of the Agreement applicable to you, and you are responsible for their actions and omissions as though they were your actions and omissions.
Force Majeure. The performance of either party, except for the payment of amounts when due, will be excused to the extent the party is unable to perform because of circumstances beyond its reasonable control.
General. The Agreement is the complete and final agreement of the parties relating to the purchase by you and the delivery by us of any products and services and supersedes and cancels any prior communications, representations, understandings and agreements. No different or additional terms set forth in any order form or other document are binding on us unless specifically accepted by us in writing. Modifications (except as permitted in the Changes Section above) to or waivers of any rights under the Agreement will only be effective if in writing signed on behalf of each party. The term “including” means by way of example and not limitation.
Version: March 5, 2016