Survey Management System
Jenss & Associates LLC – Survey Management System (SMS) The license agreement below does not apply to Plan 1 if Plan 1 is provided on a complimentary basis to organizations purchasing a survey in which Jenss & Associates LLC has provided third party survey services. Under this arrangement, Jenss & Associates LLC retains the sole right and discretion to modify or discontinue access to the Survey Management System (SMS) for such organizations. The license agreement below applies to organizations subscribing to SMS Plan 1 on a fee paid basis. End User License and Subscription Services Agreement Notice to user: please read this agreement carefully. By entering your CO Code and PIN and accessing the Survey Management System via the Internet, or by downloading or installing the software, you are becoming a party to a contract with Jenss & Associates LLC and are consenting to all of the terms and conditions of this agreement. This agreement will not apply if you and Jenss & Associates LLC have entered into a signed "hard copy" agreement for the license of the software on terms and conditions that differ from those set forth in this agreement. 1. Definitions. As used in this Agreement: (a) “Documentation” means the electronic, online or print user manuals, handbooks and other materials relating to the Software which are provided by Jenss & Associates LLC; (b) “License Term” shall mean the license term set forth in the Order; (c) “Order” means the purchase order or similar document (written or web) pursuant to which you ordered the Software. (d) “Software” means the software product(s) downloaded from the Jenss & Associates LLC web site, together with any software provided to you by Jenss & Associates LLC on CD-ROM or similar media, any updates or upgrades that may be made available to you from time to time and any add-in modules that you may install from time to time; (e) “Subscription Services” means (i) on-line web access to download the latest updates to the Software; (ii) all major upgrades for the Software generally released by Jenss & Associates; and (iii) email and telephone support services during Jenss & Associates LLC’ normal business hours; (f) “Subscription Term” means the subscription term set forth in the Order. (g) “you” means you personally if you acquire a license to the Software for yourself or the company or other legal entity for which you acquire a license to the Software. 2. License. (a) Grant. Jenss & Associates LLC hereby grants to you, and you hereby accept, subject to the terms and conditions set forth in this Agreement, a non-exclusive license, without the right to sublicense, effective during the License Term, to (i) install and use the computer-executable object code of the Software on a single computer solely for your internal business purposes; and (ii) use the Documentation in connection with your use of the Software. (b) Expiration of License Term. Upon the expiration of the License Term, unless you have renewed your license and paid all associated fees the license will expire. (d) Modification, etc. You may not modify or alter the Software. The source code of the Software contains valuable trade secrets of Jenss & Associates LLC. You may not decompile, disassemble or reverse engineer the Software or otherwise attempt to discover the source code of the Software (except only to the extent you may be specifically permitted under applicable law to do so solely in order to achieve interoperability with other independently created software). You may not remove or alter any copyright or other proprietary notice contained on the Software. (e) Restrictions on Transfer. If you change computers, you must de-install the Software from the old computer before installing it on the new computer. You may not install the Software on a network server or transmit the Software over a computer network. You may not sell, license, sublicense, transfer, assign, lease, rent, share or otherwise make available or disclose to third parties (including via an application service provider (ASP), service bureau or timeshare arrangement) the Software, except that you may assign your right to use the Software in connection with an assignment of this Agreement as specifically permitted in Section 11(d). You may, however, install and use the Software on a single portable or home computer while the original copy is not in use. (f) Ownership. The Software is protected by copyright laws of the United States. Title to and ownership of and all proprietary rights in the Software and each copy shall remain at all times with Jenss & Associates LLC or its third party licensors. This is not an agreement for the sale of the Software to you. Except as stated above, this Agreement does not grant you any intellectual property rights in the Software. 3. Subscription Services. (a) Subscription Services. The subscription service is provides in 90 day increments. More than one increment can be subscribed to at the time of initial subscription or at a subsequent renewal subscription. If payment is not received by the renewal date, the subscription service will be terminated. (b) Surveys Uploaded into the Survey Management System. Jenss & Associates LLC will only upload survey data, excluding survey data that is in the public domain, in which a subscriber to the service can demonstration that they have acquired the survey data in a legitimate transaction with the survey vendor. (c) Individual Accounts. A subscriber will only access to survey data provided to Jenss & Associates LLC as described in paragraph Section 3 (b) above. Upon termination of service, Jenss & Associates LLC is not obligated to return the survey data to the subscriber. Jenss & Associates LLC will deleted the data provided by the subscriber from the Survey Management System. 4. Limited Warranty. Jenss & Associates LLC represents and warrants during the warranty period (30 days after delivery) only that it will use its “best reasonable efforts” to provide software the operates substantially in accordance with the product description. 5. Limitation of Liability. (a) To the maximum extent permitted by law, Jenss & Associates LLC will not be liable for special, incidental, indirect, consequential, reliance, exemplary or punitive damages including, but not limited to, loss of profits, loss of data or loss of use damages, even if Jenss & Associates LLC has been advised of the possibility of the same and even if a remedy set forth herein is found to have failed of its essential purpose. (b) You agree that the maximum liability of Jenss & Associates LLC arising out of or in connection with this agreement, whether in contract, tort, strict liability or otherwise, shall not exceed the actual license fees received by Jenss & Associates LLC from you for the immediately preceding twelve-month period. (c) You recognize that the fee paid for the license rights herein may be substantially disproportionate to the value of the products to be designed in conjunction with the software. For the express purpose of limiting the liability of Jenss & Associates LLC to an extent which is reasonably proportionate to the commercial value of this transaction, you agree to the foregoing limitations on Jenss & Associates LLC’ liability. (d) You may not bring any suit or action against Jenss & Associates LLC for any reason whatsoever more than one year after the cause of action accrued. 6. Termination. (a) Term. This Agreement shall commence upon your initial download of the Software and shall continue in effect until the expiration of the License Term or until sooner terminated in accordance with this Section. (b) Termination By You. You may terminate this Agreement and all licenses granted under this Agreement at any time by discontinuing use of the Software and notifying Jenss & Associates LLC; provided, however, that you shall not in any event be entitled to any refund of license or other fees previously paid. (c) By Jenss & Associates LLC. Jenss & Associates LLC may terminate this Agreement and all licenses granted under this Agreement if you fail to pay when due any amount owed or if you breach any of your obligations under this Agreement. (d) Consequences of Termination. Upon termination of this Agreement for any reason, you must: (i) cease to use the Software, (ii) erase all copies which are stored in computer memory or hard disk or other similar forms or media. 7. Miscellaneous. (a) Entire Agreement. Unless the parties have executed a "hard copy" agreement for the license of the Software, this Agreement sets forth the complete understanding of the parties with respect to the subject matter of this Agreement and supersedes all prior understandings and communications relating thereto. No term or condition of your purchase order or other document provided to Jenss & Associates LLC which is different from, inconsistent with, or in addition to the terms and conditions set forth herein will be binding upon Jenss & Associates LLC. To the extent that this document may constitute an acceptance, this acceptance is expressly conditioned on your assent to the terms and conditions set forth herein. (b) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Alabama as if made in and performed entirely within Alabama, United States of America. (c) Successors and Assigns. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns, but you may assign or otherwise transfer this Agreement or your rights and duties only with the prior written consent of Jenss & Associates LLC, except that you may assign this Agreement, without the prior written consent of Jenss & Associates LLC, to the successor of all or substantially all of your assets or business, provided that such assignee agrees in writing to be bound by the terms hereof. (d) Severability. In the event that any provision of this Agreement shall for any reason be held invalid, illegal or unenforceable by a court of competent jurisdiction, to such extent such provision shall be deemed null and void and severed from this Agreement, and the remaining provisions of this Agreement shall remain in full force and effect. (e) Force Majeure. If Jenss & Associates LLC is unable to perform any of its obligations under this Agreement due to any act of God, fire, casualty, flood, war, strike, shortage or any other cause beyond its reasonable control, and if Jenss & Associates LLC uses reasonable efforts to avoid such occurrence and minimize its duration, then Jenss & Associates’ performance shall be excused and the time for its performance shall be extended for the period of delay or inability to perform. (f) Rights of Licensors. Any licensor of Jenss & Associates LLC shall be a third party beneficiary of this Agreement and shall have the right to enforce the terms of this Agreement against you as they relate to components or other material licensed to Jenss & Associates LLC by such licensor. To the extent provided in the respective license agreements between Jenss & Associates LLC and such licensors, all such licensors and their affiliates (i) disclaim any and all warranties to you; and (ii) disclaim, to the maximum extent permitted by law, liability to you for damages, direct or indirect, incidental or consequential, that might arise from any use of the Software and/or the components or other material licensed to Jenss & Associates LLC. 8. Inquiries. If you have any questions about this Agreement, please contact: Jenss & Associates LLC Corporation, P.O Box 4542., Huntsville, AL 35815. A copy of this Agreement is included with the Documentation and may also be found on the Jenss & Associates LLC web site at www.compkeeper.com.