SBMSCloud.com TERMS and CONDITIONS OF USE
BY CLICKING THE "I ACCEPT" BUTTON DISPLAYED AS PART OF THE SUBSCRIPTION PROCESS, YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS (THE "AGREEMENT") GOVERNING YOUR USE OF SBMSCloud.com’s ONLINE SERVICE. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY.
IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST SELECT THE "I DECLINE" BUTTON AND MAY NOT USE THE SERVICE.
As part of the Service, SBMSCloud.com will provide you with use of the Smart Business Platform, via a web browser interface, using data encryption, transmission, access and storage. Your registration for, or use of, the Service shall be deemed to be your agreement to abide by this Agreement including any materials available on the SBMSCloud.com website incorporated by reference herein, including but not limited to SBMSCloud.com's privacy and security policies. For reference, a Definitions section is included at the end of this Agreement.
1. Privacy and Security; Disclosure
SBMSCloud.com's privacy and security policies may be viewed at https://www.SBMSCloud.com/signin/privacy.php . SBMSCloud.com reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Note that because the Service is a hosted, online application, SBMSCloud.com occasionally may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service.
2. License Grant and Restrictions
SBMSCloud.com hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by SBMSCloud.com and its licensors. You may not access the Service if you are a direct competitor of SBMSCloud. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. Licenses cannot be shared or used by more than one business entity.You may use the Service only for your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
3. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) notify SBMSCloud.com immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to SBMSCloud.com immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you or your Users; and (iii) not impersonate another SBMSCloud.com user or provide false identity information to gain access to or use the Service.
4. Account Information and Data
SBMSCloud.com does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not SBMSCloud.com, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and SBMSCloud.com shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data.
In the event this Agreement is terminated (other than by reason of your breach), SBMSCloud.com will make available to you a file of the Customer Data within 30 days of termination if you so request at the time of termination. SBMSCloud.com reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use Customer Data immediately ceases, and SBMSCloud.com shall have no obligation to maintain or forward any Customer Data.
5. Intellectual Property Ownership
SBMSCloud alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the SBMSCloud.com Technology Platform , the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the SBMSCloud.com Technology or the Intellectual Property Rights owned by SBMSCloud. The SBMSCloud.com name, the SBMSCloud.com logo, and the product names associated with the Service are trademarks of SBMSCloud and no right or license is granted to use them.
6. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments must be made Monthly in advance. All payment obligations are non-cancelable and all amounts paid are nonrefundable. You are responsible for paying for all module licenses ordered for the entire License Term, whether or not such module licenses are actively used. You must provide SBMSCloud with valid credit card or approved purchase order information as a condition to signing up for the Service.
An authorized License Administrator may add module licenses by executing (upgrading) via the Online Order Center. Added module licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting License Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, generally applicable license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month. SBMSCloud reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail.
7. Billing and Renewal
SBMSCloud.com charges and collects in advance for use of the Service. SBMSCloud.com will automatically renew and bill your credit card monthly or annually or as otherwise mutually agreed upon. The fees will remain constant unless SBMSCloud.com has given you at least 30 days prior written notice of a fee increase, which shall be effective upon renewal and thereafter. Fees for other services will be charged on an as-quoted basis.
SBMSCloud.com's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties as applicable to you. You agree to provide SBMSCloud with complete and accurate billing and contact information. This information includes your legal company / entity name, street address, fax, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, SBMSCloud reserves the right to terminate your access to the Service in addition to any other legal remedies.
If you believe your bill is incorrect, you must contact us in writing within 30 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
8. Non-Payment and Suspension
In addition to any other rights granted to SBMSCloud.com herein, SBMSCloud reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for User licenses during any period of suspension. If you or SBMSCloud initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that SBMSCloud may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
SBMSCloud reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that SBMSCloud has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
9. Termination for Cause
Any breach of your payment obligations or unauthorized use of the SBMSCloud.com Technology or Service will be deemed a material breach of this Agreement. SBMSCloud, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, SBMSCloud.com may terminate a free account at any time in its sole discretion. You agree and acknowledge that SBMSCloud.com has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
10. Representations and Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. SBMSCloud represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online SBMSCloud.com help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
11. Mutual Indemnification
You shall indemnify and hold SBMSCloud, its licensors and each such party's parent organizations, 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).
SBMSCloud.com shall indemnify and hold you and your parent organizations, 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).
12. Disclaimer of Warranties
SBMSCloud MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. SBMSCloud AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE, OPERATING SYSTEM, BROWSERS OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) 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 SBMSCloud AND ITS LICENSORS.
13. Internet Delays
SBMSCloud'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SBMSCloud IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. 14. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS 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 THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
15. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
16. Local Laws and Export Control
This site provides services and uses software and technology that may be subject to United States Government controls. SBMSCloud and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service 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.
17. Modification to Terms
SBMSCloud reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Use of the Service after any such changes shall constitute your consent to such changes.
18. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of SBMSCloud but may be assigned without your consent by SBMSCloud to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of you that results or would result in a direct competitor of SBMSCloud directly or indirectly owning or controlling 50% or more of you shall entitle SBMSCloud to terminate this Agreement for cause immediately upon written notice.
19. General
With respect to all Customers, this Agreement shall be in jurisdiction of the State of Ohio, United States, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the State of Ohio, United States. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and SBMSCloud as a result of this agreement or use of the Service. The failure of SBMSCloud 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 SBMSCloud in writing. This Agreement, together with any applicable Order Form or process, comprises the entire agreement between you and SBMSCloud and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
20. Definitions
As used in this Agreement and in any Order Forms now or hereafter associated herewith:
"Agreement" means these online terms of use, whether written or submitted online via the Online Order Center, and any materials available on the SBMSCloud.com website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by SBMSCloud.com from time to time in its sole discretion;
"Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service;
"Customer Data" means any data, information or material provided or submitted by you to the Service in the course of using the Service;
"Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented on the screen after this Agreement is displayed or the date you begin using the Service;
"Initial Term" means the initial period during which you are obligated to pay for the Service equal to the billing frequency selected by you during the subscription process (e.g., if the billing frequency is monthly, the Initial Term is the first month);
"Intellectual Property Rights" means un-patented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
"License Administrator(s)" means those Users designated by you who are authorized to purchase module licenses online using the Online Order Center and to create User accounts and otherwise administer your use of the Service;
“Module License(s)" means the software modules you have subscribed to during any period of your service;
"Online Order Center" means SBMSCloud's online application that allows the License Administrator designated by you to, among other things, add additional Modules to the Service;
"SBMSCloud.com" means collectively SBMSCloud, a United States private company having its principal place of business at 5555 Shephard Road Miamisburg, Ohio 45342, USA. ”SBMSCloud.com Technology" means all of SBMSCloud's proprietary technology (including software, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by SBMSCloud.com in providing the Service;
“Service(s)" means the specific edition of SBMSCloud.com's online smart business solutions, or other corporate ERP services identified during the ordering process, developed, operated, and maintained by SBMSCloud.com, accessible via https://www.SBMSCloud.com or another designated web site or IP address, or ancillary online products and services provided to you by SBMSCloud, to which you are being granted access under this Agreement, including the SBMSCloud.com Technology and the Content;
"User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service and have been supplied user identifications and passwords by you (or by SBMSCloud.com at your request);
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to info@SBMSCloud.com.
