Document Management, Content Management, Forms Processing, HL7, XML, GIS, Work Flow

TERMS OF SERVICE ::

 

These Terms and Conditions apply to the purchase of FileOn Software Licenses, Services, Hardware Sales and Hardware Leases, and constitute the "Agreement" and/or "License" and/or "Lease" as the context of the transaction dictates, between FileOn, Division of Vertx Systems, LLC (hereinafter jointly referred to as "FileOn"), and the purchaser ("You" or "Client").

 

Software License

This License only applies to FileOn Software and its accompanying files, data and materials ("FileOn Software"). You should carefully read the following terms and conditions before using, installing, copying, or distributing this software. Unless you have a different license agreement signed by FileOn, Division of Vertx Systems. LLC, your use, installation, copying, or distribution of FileOn Software indicates your acceptance of this agreement ("License" or "Agreement").

If you do not agree to all of the terms and conditions of this License, then do not use, install, copy, or distribute any copy of FileOn Software with which this License is included.

The terms and conditions of this License describe the permitted use and user(s) of each Licensed Copy of FileOn Software. For purposes of this License, if you have a valid single-copy license, you have the right to use a single "Licensed Copy" of FileOn Software; if you or your organization have/has a valid multi-user license, then you or your organization have/has the right to use up to a number of "Licensed Copies" of FileOn Software equal to the number of copies indicated in the documents issued by FileOn when granting the license.

 

Scope of License

Each Licensed Copy of FileOn Software may either be used by a single person who uses the software personally on one or more computers, or installed on a single workstation used non simultaneously by multiple people, but not both. This is not a concurrent use license.

Each Licensed Copy may be accessed through a network, provided that you have purchased rights to use a Licensed Copy for each workstation that will access FileOn Software through the network. For instance, if 10 different workstations will access FileOn Software on the network, you must purchase rights to use 10 Licensed Copies of FileOn Software, regardless of whether the 10 workstations will access FileOn Software at different times, or concurrently.

All rights of any kind in FileOn Software which are not expressly granted in this License are entirely and exclusively reserved to and by FileOn. FileOn Software is protected by the United States copyright laws and other applicable laws and treaties. You may use, install and distribute FileOn Software solely as expressly provided in this License. You may not rent, lease, loan, sublicense, modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on, FileOn Software, nor permit anyone else to do so. You may not make access to FileOn Software available to others in connection with a service bureau, application service provider, or similar business, nor permit anyone else to do so.

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Warranty Disclaimers and Liability Limitations

FileOn Software, and any and all accompanying software, files, data and materials, are distributed and provided "AS IS" and with no warranties of any kind, whether express or implied, including, without limitation, any warranty of merchantability or fitness for a particular purpose. FileOn does not warrant, guarantee, or make any representations regarding the use of, or the results of the use of, FileOn Software. FileOn Software is sold on a no-refund basis. FileOn does not warrant that the operation of FileOn Software will be uninterrupted or error-free, or that the use of any passwords and/or encryption features will be effective in preventing the unintentional disclosure of information contained in any file.You acknowledge that good data processing procedure dictates that any program, including FileOn Software, must be thoroughly tested with non-critical data before there is any reliance on it, and you hereby assume the entire risk of all use of the copies of FileOn Software covered by this License. This disclaimer of warranty constitutes an essential part of this License.

Except to the extent expressly prohibited by applicable statutes, FileOn shall not be liable for any damage or financial loss arising out of the use of, or inability to use, FileOn Software. Any liability of FileOn will be limited exclusively to refund of the license fee paid to FileOn. Except to the extent expressly prohibited by applicable statutes, in no event shall FileOn, or its principals, shareholders, officers, employees, affiliates, contractors, subsidiaries, or parent organizations, be liable for any indirect, incidental, consequential, special, or punitive damages whatsoever relating to the use of FileOn Software, or to your relationship with FileOn, (including, without limitation, loss or disclosure of data or information, loss of profit, revenue, business opportunity or business advantage, or business interruption), whether based upon a claim or action of contract, warranty, negligence, strict liability, contribution, indemnity, or any other legal theory or cause of action, even if advised of the possibility of such damages.

 

Restricted Rights

FileOn Software is provided with "Restricted Rights". Use, modification, duplication, release, performance, display, or disclosure by the U.S. Government or government contractors is subject to the restrictions set forth in subparagraph (c)(1) and (2) of the Commercial Computer Software Restricted Rights clauses at 48 CFR 52.227-19, and the provisions relating to Rights in Commercial Computer Software or Commercial Computer Software Documentation at 48 CFR 227.7202-3.

FileOn's sole obligation for breach of the warranties set forth in this section will be to correct or replace that portion of the Services that fails to conform to such warranty; provided, however, that this does not constitute a waiver of any other rights that Client may have at law or in equity.

 

Export Restrictions

FileOn Software is subject to certain export restrictions of the United States Government. If you are (a) in a country to which export from the United States is restricted for anti-terrorism reasons, or a national of any such country, wherever located, (b) in a country to which the United States has embargoed or restricted the export of goods or services, or a national of any such country, wherever located, or (c) a person or entity who has been prohibited from participating in United States export transactions by any agency of the United States Government, then you may not install, download, access, use, or license FileOn Software. By accepting this License, you warrant and represent to FileOn that (1) you do not match the criteria set forth in (a), (b), or (c) above, (2) that you will not export or re-export FileOn Software to any country, person, or entity subject to U.S. export restrictions, including those persons and entities that match the criteria set forth in (a), (b), or (c) above, and (3) that neither the United States Bureau of Industry and Security, nor any other U.S. federal agency, has suspended, revoked, or denied your export privileges.

 

FileOn eLibrary Online Service

 

Third Party Interaction

In your use of the Service, you may enter into correspondence with, purchase goods and/or services, or participate in promotions of advertisers or sponsors showing their goods and/or services through the Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. FileOn shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party.

 

Links to Third Party Sites

FileOn does not endorse any sites on the Internet that are linked through the Service. FileOn is providing these links to you only as a matter of convenience, and in no event shall FileOn be responsible for any content, products, or other materials on or available from such sites.

 

User Accounts

A user account is required to access the Service and may be accessed and used only by those authorized individuals who are registered with FileOn. To open a user account, you or your company must complete the registration process by providing FileOn with current, complete and accurate information as prompted by the registration form. In registering for the Service, you agree to submit accurate, current and complete information about you and promptly update such information. Should FileOn suspect that such information is untrue, inaccurate, not current or incomplete, FileOn has the right to suspend or terminate your usage of the Service. You will choose a personal, non-transferable password. User accounts cannot be "shared" or used by more than one individual.

 

User Responsibilities

You are also solely responsible for any and all activities that occur under your account and ensuring that you exit or log-off from your account at the end of each session of use. You shall notify FileOn immediately of any unauthorized use of your password or account or any other breach of security that is known or suspected by you. You shall also use your best efforts to stop immediately any copying or distribution of Content that is known or suspected by you. FileOn shall not be responsible for any unauthorized access to, or alteration of, your transmissions or data, any material, information or data sent or received, regardless of whether the data is actually received by FileOn, or any transactions entered into through the Service or failure to abide by this Agreement. MISUSE OR ABUSE OF OUR SYSTEM OR OUR SYSTEM RESOURCES (I.E. BANDWIDTH) CAN RESULT IN IMMEDIATE TERMINATION OF YOUR ACCOUNT.

 

User Conduct

You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with the Service. In addition, without limitation, you agree not to use the Service to: (a) use information from the Service in connection with sending unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (b) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (c) transmit through or post on the Service unlawful, harassing, libelous, abusive, harassing, tortious, defamatory, threatening, harmful, abusive, libelous, invasive of another's privacy, vulgar, obscene or otherwise objectionable material of any kind or nature or which is harmful to minors in any way; (d) transmit any material that may infringe the intellectual property rights or other rights of third parties, including trademark, copyright or right of publicity; (e) transmit any material that contains software viruses or other harmful or deleterious computer code, files or programs such as trojan horses, worms, time bombs, cancelbots; (f) interfere with or disrupt servers or networks connected to the Service or violate the regulations, policies or procedures of such networks; (g) attempt to gain unauthorized access to the Service, other accounts, computer systems or networks connected to the Service, through password mining or any other means; or (h) harass or interfere with another user's use and enjoyment of the Service.

FileOn has no obligation to monitor the Service and/or Content or any user's use thereof or retain the content of any user session. However, FileOn reserves the right at all times to monitor, review, retain and/or disclose any information as necessary to satisfy any applicable law, regulation, legal process or governmental request.

Account Information and Data

FileOn does not own any data, information or material that you submit to the Service or store in your account ("Data"). FileOn will not monitor, edit, or disclose any information regarding you or your account, including any Data, without your prior permission except in accordance with this Agreement. Please be aware that FileOn does provide certain user registration and statistical information such as usage or user traffic patterns in aggregate form to third parties but such information will not include personally identifying information and that your Internet protocol address is not transmitted with each message sent from your FileOn account. FileOn may access your account, including its Data, to respond to service or technical problems or as stated in this Agreement. You, not FileOn, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Data and FileOn shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Data.

 

Payment of Fees.

FileOn offers its Service, as described on the FileOn website ( www.fileon.com ) and as published within the Service, for monthly fees (the "Fees") which you will pay to FileOn by authorized credit card. The Fees applicable for the Service are available at www.FileOn.com and as published within the Service. FileOn reserves the right to change the Fees or applicable charges and to institute new charges at any time, upon thirty (30) days prior notice to you (which may be sent by email). Your authorized credit card will automatically be charged Fees on the day you sign up for the Service, or the expiration of the initial trial period, if any, whichever is later. Thereafter, the Fees will automatically be charged to your authorized credit card, in advance, on the date of the month the Service was initially charged. In the event you cancel the Service, FileOn will not refund any Fees already paid by you.

Your FileOn account will be considered delinquent if your credit card company refuses for any reason to pay the amount billed to it and that amount remains unpaid at the beginning of the next accounting cycle. The Service may be suspended, archived or purged from system if account is delinquent for more than one billing cycle. FileOn may impose a charge to restore archived data from delinquent accounts.

If you believe FileOn has billed you incorrectly, you must contact FileOn no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to FileOn's Client Support department (support@fileon.com).

FileOn may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by FileOn thirty (30) days after the mailing date of the invoice, or the Service may be terminated. Unpaid invoices are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, plus all expenses of collection.

FileOn bills you immediately for the extra space you order. You will initially be charged a pro-rated charge for the upgrade based on the number of days left until your regular billing date. Subsequently, you will be billed for all subscription charges on the normal billing date for your account. If you choose to cancel the extra space after your card has been billed for the month, you will not be reimbursed for the days you did not use the extra space.

Termination.

FileOn, in its sole discretion, may terminate your password, account or use of the Service and remove and discard any Data within the Service if you fail to comply with this Agreement. You may terminate your user account upon notice to FileOn at any time; however, you will not receive a refund of any portion of your fees paid to FileOn. Upon termination by FileOn or at your direction, you may request a file of your Data, which FileOn will make available for a fee. You must make such request at the notification of termination to receive such file within (30) days of termination. Upon termination of an account, your right to use such account and the Service immediately ceases. FileOn shall have no obligation to maintain any Data stored in your account or to forward any Data to you or any third party.

 

Proprietary Rights.

Except for the licenses granted herein, you have no right, title or interest in or to the Service or any Content. You agree that FileOn or its licensors retain all proprietary right, title and interest, including copyright and all other intellectual property rights, in and to the Service and Content, including, without limitation, text, images, and other multimedia data. FileOn and/or other FileOn products and services referenced herein are either trademarks or registered trademarks of FileOn or Vertx Systems, LLC.

 

Indemnification.

You shall indemnify and hold FileOn and its parents, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents, harmless from and against any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys' fees and costs) arising out of or in connection with your use of the Service (including the Content) or breach of this Agreement.

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Disclaimer of Warranties

FILEON MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. FILEON DOES NOT REPRESENT OR WARRANT THAT: (I) THE USE OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (II) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (IV) ERRORS OR DEFECTS WILL BE CORRECTED, (V) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY FILEON.

 

Limitation of Liability

IN NO EVENT SHALL FILEON'S AGGREGATE LIABILITY EXCEED THE AMOUNT ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL FILEON BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO YOUR USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, EVEN IF FILEON HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

 

Additional Rights

Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the exclusions set forth above may not apply to you.

 

Local Laws and Export Control

FileOn controls and operates this Service from its location in the United States of America and is subject to the United States Export Administration Laws and Regulations. FileOn makes no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, 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 Service, is or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor is or will be used for nuclear activities, chemical biological weapons, or missile projects, unless specifically authorized by the United States Government for such purposes. You shall comply strictly with all United States export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

 

Modification to Terms

FileOn reserves the right to change the terms and conditions of this Agreement or its policies relating to the Service at any time and shall notify you by posting an updated version of this Agreement on the Service and/or by sending you an email message. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.

 

Pickup Service

Where pickup services are purchased by Client, FileOn will provide a monthly or weekly pickup service, as contracted for; date and time will be communicated by FileOn staff prior to pickup of files, data, and other documents. The schedule may vary from time to time based on route plans developed by FileOn. Client will be required to follow FileOn security and organization procedures.

 

Scanning Services and Special Projects

FileOn scanning services and special projects shall be evidenced by a separate written agreement. Where such services and/or special projects include purchases, licenses, or leases of software, services or hardware, the Terms and Conditions herein shall also apply thereto.

 

Leased Equipment

You have agreed to lease certain equipment in connection with your FileOn account. FileOn leases equipment directly to some of its Clients, and for other Clients assigns these leases to third parties. Even where such equipment leases are assigned, FileOn will guarantee its obligations under the lease will be met. You agree that FileOn has the authority and right to assign such leases to third parties. The equipment leased is as described in your Agreement with FileOn. The parties further agree as follows:

 

Term

This Lease will become effective on Date stated in your Proposal and Agreement with FileOn ('Agreement'). This Lease shall remain in effect for the Initial Term stated in your Agreement, unless earlier terminated by FileOn as provided herein. Upon expiration of the Initial Term, this Lease shall be automatically extended on a month-to-month basis unless Lessee (i) notifies FileOn at least fifteen (15) days before the expiration of the Initial Term of its desire not to extend the lease and (ii) returns the Equipment to FileOn upon the This Lease may not be terminated by Lessee during the Initial Term. expiration of the Initial Term.

 

Deposit, Rent, and Late Payment Fee

The Deposit and Services Fee, if any, stated in the Agreement are due and payable upon execution of the Agreement. FileOn has no obligation to deliver Equipment to Lessee until these amounts have been paid. Monthly rent in the amount stated in the Agreement is due and payable on the same day of each month as the Effective Date. Any delinquent balance will be subject to an interest charge computed on a daily basis for each day that the payment is delinquent, at the lesser of (i) eighteen percent (18%) per year or (ii) the maximum rate permitted by law.

 

Delivery

Lessee shall arrange for shipment of the Equipment to Lessee's facility. Lessee will determine the method of shipment and will select a common carrier, if applicable. All costs of shipment and full value replacement insurance shall be borne by Lessee.

 

Ownership

The Equipment shall remain the property of FileOn and Lessee shall have no right or interest in the Equipment except as expressly set forth herein. The Equipment may not be sold by Lessee, and Lessee will not grant a security interest in, or otherwise encumber the Equipment. The Equipment is, and will at all times remain, personal property notwithstanding that it may become affixed or attached to real property or any improvements thereon. All additions or improvements to the Equipment of any kind made by Lessee or anybody acting on Lessee's behalf shall become component parts of the Equipment, and title thereto shall immediately vest in Lessor.

 

Responsibility for Loss or Damage

All risk of loss of or damage to the Equipment, from any cause whatsoever, shall pass to Lessee upon delivery to Lessee and shall remain with Lessee until the Equipment is returned to FileOn. In the event of any loss or damage to the Equipment, Lessee shall promptly inform FileOn, and shall pay all costs to repair the Equipment, except that Lessee's liability shall be limited to the current replacement cost of the Equipment; and if the Equipment is no longer available, then Lessee's liability shall be limited to the current replacement cost of comparable equipment. Upon receipt by FileOn of payment of full replacement cost, FileOn's interest in the Equipment shall be transferred to Lessee, 'AS IS' and where is. Occurrence of any such loss or damage shall not relieve Lessee of any obligations to make payments under the Agreement.

 

Insurance

Lessee shall procure and continuously maintain and pay for all risk insurance against loss of and damage to the Equipment, in an amount at least equal to the full replacement value of the Equipment, with FileOn as loss payee.

All insurance shall be in such form and with such company(ies) as are reasonably acceptable to FileOn, and shall provide at least thirty (30) days advance written notice to FileOn of any cancellation, change or modification, and shall provide primary coverage for the protection of Lessee and FileOn without regard to any insurance that FileOn may have protecting against similar risks.

Lessee hereby appoints FileOn as its attorney-in-fact with power to make claims, receive payments, and execute and endorse all documents or checks necessary in order to receive payments due under any insurance policy required under this Lease, for the loss of or damage to the Equipment. Upon execution of this Lease, upon request by FileOn, Lessee shall provide FileOn with a copy of the required insurance policies or certificates of insurance.

Taxes

Lessee shall pay all sales, use, excise, personal property, and any other taxes, fees, fines, and penalties relating to ownership, possession, or use of the Equipment during the term of this Lease, except taxes on the net income of FileOn.

 

Location of Use

The Equipment may be used solely at the location specified in the Lessee Information at the end of this Lease, and may not be moved without the prior written consent of FileOn Upon reasonable advance notice, FileOn may enter Lessee's premises during business hours to inspect the Equipment.

 

Care and Use

Lessee shall, at its own expense, maintain and keep the Equipment in good repair, condition, and working order. Lessee will comply with all applicable federal, state, and local laws and ordinances relating to the possession, use, or maintenance of the Equipment, and shall use it in a careful and proper manner. Lessee may not alter the Equipment without Lessor's prior written consent. If FileOn has provided Lessee with a standard maintenance schedule for the Equipment, Lessee shall follow such schedule as the minimum maintenance compliance. Lessee will, upon request, provide FileOn with evidence of compliance with any such maintenance schedule.

 

Indemnity by Lessee

Lessee shall indemnify and defend FileOn against all third party claims, suits, losses, expenses, and liabilities (including FileOn's reasonable attorney's fees) relating to Lessee's use of the Equipment. This indemnity is conditioned upon FileOn (i) giving Lessee prompt notice in writing of such claim, suit, proceeding or threat thereof, (ii) giving Lessee sole control, through counsel of its choice, to defend and/or settle such suit and (iii) giving Lessee all the needed information, assistance and authority, at the Lessee's expense, to enable the Lessee to defend or settle such suit.

 

Return of Equipment

Lessee shall return the Equipment to FileOn immediately upon the expiration or earlier termination of this Lease, in the same condition as received from FileOn, reasonable wear and tear excepted. Lessee shall pay all costs relating to returning the Equipment to FileOn Return instructions to be followed are stated in Exhibit C. Lessee is responsible for any loss of or damage to the Equipment while in transit to back to FileOn.

 

Services

Any additional services provided to Lessee will be invoiced separately. If the charges are within Lessee's credit limits as established by FileOn, payment terms are net fifteen (15) days after the date of the invoice. If credit has not been established, payment for all Services will be due and payable immediately upon their completion.

 

Warranty and Warranty Exclusions

Equipment Warranty The Equipment provided hereunder may be used, and is warranted by FileOn as stated on the product manual accompanying the Equipment. If Equipment fails to work as warranted, it will be repaired or replaced at FileOn's option.

Services Warranty. FileOn warrants that its services will be of a professional quality conforming to generally accepted industry standards and practices. Upon notification by Lessee of any defect or other condition covered by this warranty, FileOn will promptly work with Lessee to correct such defect or condition. The duration of this warranty is thirty (30) days after the services are rendered.

Warranty Exclusions

FILEON SHALL NOT BE LIABLE UNDER THIS WARRANTY IF ITS TESTING AND EXAMINATION DISCLOSE THAT THE ALLEGED DEFECT OR MALFUNCTION IN THE EQUIPMENT DOES NOT EXIST OR WAS CAUSED BY LESSEE''S OR ANY THIRD PERSON'S MISUSE, NEGLECT, IMPROPER INSTALLATION OR TESTING, UNAUTHORIZED ATTEMPTS TO OPEN, REPAIR OR MODIFY THE EQUIPMENT, OR ANY OTHER CAUSE BEYOND THE RANGE OF THE INTENDED USE, OR BY ACCIDENT, FIRE, LIGHTNING, POWER CUTS OR OUTAGES, OTHER HAZARDS, OR ACTS OF GOD.

THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, CORRESPONDENCE WITH DESCRIPTION, AND NON-INFRINGEMENT, ARE EXPRESSLY DISCLAIMED.

Limitation of Liability

TO THE FULL EXTENT ALLOWED BY LAW, FILEON SHALL NOT HAVE ANY LIABILITY, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE), FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, POSSESSION, USE OR OPERATION OF THE EQUIPMENT, EVEN IF FILEON HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. FILEON'S LIABILITY SHALL BE LIMITED TO THE MANUFACTURER'S LIST PRICE OF THE EQUIPMENT.

 

Termination

Termination for Cause. FileOn may terminate this Lease at any time upon written notice if Lessee (i) is in material breach of its obligations hereunder and fails to cure such breach within ten (10) days following written notice of such breach, or (ii) becomes insolvent or files or has filed against it a petition under bankruptcy or insolvency law which remains undismissed after sixty (60) days, makes an assignment for the benefit of creditors, or takes any similar action under applicable bankruptcy or insolvency law. In the event of default or breach of this Agreement by Lessee, FileOn may exercise any one or more of the following remedies in additional to terminating this
Lease for cause:

(I) To declare the entire balance of rent hereunder immediately due and payable;

(II) To take possession of the Equipment, without notice or demand, including the removal of any physical obstructions and the disconnecting and separating of the Equipment from any other property, without any court order or any other process of law. Lessee hereby waives any and all damages caused by such repossession;

(III) To pursue any other remedy available at law or in equity.

Lessee represents that all information provided to FileOn is true and correct, and acknowledges that any material misrepresentation will be grounds for termination for cause without an opportunity to cure.

Obligations upon Termination or Expiration. Termination or expiration shall not relieve Lessee of the obligation to pay any sums due hereunder.

Joint and Several Liability. If more than one Lessee is named in this Lease, each shall be jointly and severally liable for the performance of all obligations set forth herein.

Additional Documents. Upon request by FileOn, Lessee shall execute and deliver to FileOn any documents FileOn deems necessary or desirable to protect FileOn's interests in the Equipment, including UCC filings.

Notices. Notices shall be given in writing to the address stated at the beginning of this Lease, or to such other address as shall be given by either party to the other in writing. Any notice involving non-performance or termination shall be sent by recognized overnight courier or by certified mail, return receipt requested. All other notices may be sent by regular mail, or by fax or e-mail with a confirmation of receipt. All notices shall be deemed to have been given and received on the earlier of actual delivery (except that faxes and e-mails sent on a non-business day will be deemed received on the next business day) or three (3) days from the date of postmark.

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General Provisions for All Transactions

Complete Agreement and Choice of Law
These Terms and Conditions are the complete statement of the agreement between the parties on the subject matter, and merges and supersedes all other or prior understandings, purchase orders, agreements, and arrangements. This Agreement shall be governed by the laws of the State of Connecticut, without regard to Connecticut choice-of-law rules. Exclusive jurisdiction and venue for all matters relating to this Agreement shall be in courts and forum located in the State of Connecticut, and you consent to such jurisdiction and venue. There are no third-party beneficiaries of any promises, obligations, or representations made by FileOn herein. Any waiver by FileOn of any violation of this Agreement by you shall not constitute, nor contribute to, a waiver by FileOn of any other or future violation by you of the same provision, or any other provision, of this Agreement. If any part of this Agreement or the application thereof to any person or circumstance is for any reason held invalid or unenforceable, it shall be deemed severable, and the validity of the remainder of this Agreement, or the applications of such provision to other persons or circumstances, shall not be affected thereby.

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High-risk Applications

In no event does FileOn authorize you or anyone else to use FileOn Software or Services in applications or systems where Software or Service failure to perform can reasonably be expected to result in a significant physical injury, or in loss of property, or in loss of life. Any such use is entirely at your own risk, and you agree to hold FileOn harmless from any and all claims or losses relating to such unauthorized use.

Attorney Fees
In any action to enforce this Agreement the prevailing party shall be awarded all court costs and reasonable legal fees incurred.

Relationship of Parties
The parties hereto are independent contractors and shall not be deemed to be partners, joint venturers or agents of each other.

FileOn Personnel and License Representations
FileOn warrants that the personnel assigned to perform services rendered under this Agreement shall be qualified and professionally capable of performing the Services. FileOn further warrants that it has the requisite and necessary licenses and permits, equipment and is fully qualified to properly perform the Services. FileOn warrants that it will perform the Services in compliance with all applicable laws and regulations and that it will make available to Client, or to the responsible regulatory authority, relevant records, programs, and data as may be reasonably requested by Client.

Privacy Policy
Please see Privacy Statement on FileOn main page, which Statement is hereby incorporated in this Agreement.

Cookies
Cookies are files that your web browser places on your computer's hard drive and are used to tell us whether you have visited the Service previously. FileOn uses a persistent cookie to help save and retrieve usernames used on the Service. FileOn issues a session cookie only to record encrypted authentication information for the duration of a specific session. The session cookie does not include either the username or password of the user.

Communications and Assistance
FileOn and Client may designate persons to act as principal contacts between them to deal with administrative matters arising out of this Agreement. Client hereby agrees to provide assistance as may be reasonably requested by FileOn in connection with FileOn's performance of Services.

No Waiver
There are no third-party beneficiaries of any promises, obligations, or representations made by FileOn herein. Any waiver by FileOn of any violation of this Agreement by you shall not constitute, nor contribute to, a waiver by FileOn of any other or future violation by you of the same provision, or any other provision, of this Agreement. If any part of this Agreement or the application thereof to any person or circumstance is for any reason held invalid or unenforceable, it shall be deemed severable, and the validity of the remainder of this Agree,emt, or the applications of such provision to other persons or circumstances, shall not be affected thereby.

Subcontracting
FileOn reserves the right to subcontract wholly or partly the rights and obligations resulting from this Agreement to any third party without the prior express written consent of Client. Any subcontract made by FileOn shall incorporate, by reference, all terms of this Agreement to the extent practicable. FileOn will guarantee the obligations of the subcontractor under this Agreement.

Equipment
FileOn may utilize third-party vendors or manufacturers of equipment as part of the Service offered. Unless otherwise specifically stated, all claims of service, repair, replacement, theft, damage, misuse or other, whether under warranty or otherwise, shall be the sole responsibility of Client and such vendor and or manufacturer, and FileOn shall have no liabilities or obligations with respect to such equipment. FileOn may enter into arrangements with third-party vendors or manufacturers of equipment to bill fees on their behalf. Such practice shall not make FileOn liable or have obligations with respect to such equipment.

Force Majeure
Neither party shall be liable or deemed to be in default for any delays due to causes beyond the reasonable control of the party (such as war, civil disorders, shortages of raw material or energy, acts of God, or governmental action including regulatory restrictions or actions of regulatory agencies) provided that the affected party promptly notifies the other of the cause and its effects on obligations to be performed hereunder.

Severability
If any provision of this Agreement is found to be invalid, illegal or unenforceable, a modified provision shall be substituted which carries out as nearly as possible the original intent of the parties and the remaining provisions shall in no way be affected thereby.

Assignment
Neither party may assign this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld; provided, however, that either party may assign this Agreement without consent to a successor in interest to substantially all of the business of that party to which the subject matter of this Agreement relates, and that FileOn may assign this Agreement to a responsible third party; provided that FileOn shall provide evidence of responsibility upon Client request.

Construction
Where either the singular or plural number or word is used in this Agreement but required by context to include the other, the same shall include the other; and the masculine gender shall include the feminine and neuter genders, and vice versa. Whenever the word 'day' or 'days' is used, such term shall mean days of the week, and not business/working days. The Terms and Conditions stated herein shall be construed as consistent, with any more specific right or obligation controlling in the event of perceived conflict with a less specific right or obligation.

 

Notices

Notices under this Agreement shall be given in writing to the address as shall be given by either party to the other in writing. Any notice involving non-performance or termination shall be sent by recognized overnight courier or by certified mail, return receipt requested. All other notices may be sent by regular mail, or by fax or e-mail with a confirmation of receipt. All notices shall be deemed to have been given and received on the earlier of actual delivery (except that faxes and e-mails sent on a non-business day will be deemed received on the next business day) or three (3) days from the date of postmark.

 

Headings

Headings used for these Terms and Conditions are for convenience only, and are not intended to be used in construction or interpretation.

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