1. Parties and Acceptance
1.a The following describes the terms on which Pensiv, LLC (the “Company”), a limited liability company formed under the laws of Texas with a place of business at 7765 Skylake Drive, Fort Worth, TX 76179, under which offers the Field360 services to you (the “Subscriber).
1.b By clicking “I Accept” or by accessing or using the Field360TM product, Subscriber agrees to all of the terms and conditions set forth in this Agreement, and other terms and conditions that may be published or made available from time to time by Company.
1.c Company reserves the right to modify this Agreement at any time in its sole discretion. These modification will be effective as to Subscriber immediately upon posting the modifications on the Field360 website or in the Field360 interface, or by otherwise providing the modifications to Subscriber. By continuing to use or access the Field360 product after such notification of any modification, Subscriber agrees to the terms and conditions as modified, which then constitute the Agreement. To reject any modified terms and conditions, Subscriber must immediately cease all access and use of the Field360 product.
1.d Neither the existence of this Agreement nor performance under the Agreement creates any employment, partnership, or franchise relationship between Subscriber and Company. Nothing in this Agreement shall be construed to constitute Subscriber as a partner, joint venturer, employee, or general agent of Company, or to grant either party any authority to bind the other in any respect.
2. Definitions
2.a “Confidential Information” as used in this Agreement means any information that is trade secret or is otherwise confidential to Company. Confidential Information does not include information that is presently in the public domain or that is readily ascertainable by proper means by the public.
2.b “Content” as used in this Agreement includes (but is not limited to) information such as text, images, audio, video, photographs, messages, email, hyperlinks, check-ins, location data, ratings, reviews, and data.
3. USE and ACCESS OF Field360
3.a Subscriber is purchasing a limited right to access and use the Field360 product, as set forth herein. Nothing in this Agreement involves or reflects any actual sale or transfer of any software, technology, or documentation associated with the Field360 Product and this Agreement shall not in any way be interpreted to involve or reflect an actual sale or transfer of any software, technology, or documentation associated with the Field360 Product.
3.b Subscriber understands and accepts any responsibilities for compliance with Section 508 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(d) (508 Compliance) and agrees to have its website scanned on a regular basis to ensure compliance. Any violations related to the Field360 product must be immediately reported to Company so that Company may take the appropriate remedial steps.
3.c Subscriber will use the Field360 product only within the USA.
3.d Subscriber takes full responsibility for any check-in or pin photos, or other photos that it provides to Company or uploads through a check-in or any other means. Subscriber’s access to, or its replication, publication, storage, or other use of these photos must not infringe any rights of another, including (but not limited to) any copyrights, trademark rights, privacy rights, publicity rights, or contract rights.
3.e Subscriber will not transmit, distribute, download, copy, cache, host, or otherwise store any information, data, material, or work that infringes any intellectual property rights of another. Company has the right to disable access to, or remove, Content to the extent required under any law or regulation.
3.f Subscriber will not transmit, distribute, download, copy, cache, host, or otherwise store any information, data, material, or work that constitutes or includes pornography, threats of violence, or hate speech.
3.g Subscriber will at all times remain in compliance will all local, state, and federal laws and regulations regarding Internet and Content use, including (but not limited to) issues related to intellectual property rights, defamation, consumer protection, unfair competition, electronic and Internet marketing, telemarketing, privacy, and data security. This includes, for example the Lanham Act, Copyright Act of 1976, Digital Millennium Copyright Act, CAN-SPAM Act of 2003, Health Insurance Portability and Accountability Act, Telephone Consumer Protection Act, Telemarketing and Consumer Fraud and Abuse Prevention Act, FTC’s Telemarketing Sales Rules, and FTC’s Red Flag Rules. Subscriber is solely responsible for knowing, understanding, and complying with all laws and regulations.
3.h Subscriber will not use the Field360 product in any way related to the provision of medical services involving sharing, acquiring, using, or storing sensitive medical information or photographs of patients. Subscriber also understands that Field360 product is NOT HIPPA compliant and is not suitable for use where HIPPA compliance is required.
3.i Subscriber will not use any robot or crawler or other automated process to access the Field360 server, API, or the application for any purpose without Company’s prior express written consent.
3.j Subscriber will not re-direct or bypass source code or use a third-party hosting service or any alternate provider in conjunction with the Field360 product or any code received from the Field360 servers.
3.k Subscriber will not frame, create derivative works from, transfer, access, modify, copy, distribute, transmit, display, perform, reproduce, publish, license or otherwise use in whole or in part any part of the Field360 product except for the purposes expressly provided herein, without Company’s prior express written consent.
3.l Subscriber is solely responsible for determining and acquiring all necessary rights and permissions and determining and complying with all applicable laws and regulations, including acquiring and maintaining any applicable licenses and permits, paying any applicable taxes, and complying with any data-security or privacy laws or regulations.
3.m Company may at any time and in its sole discretion and without notification, remove any Content (including Subscriber’s Content) acquired or uploaded by or through the Field360 product.
3.n Subscriber assumes full responsibility for obtaining property and model release forms for any subjects and/or property included in any photos uploaded to Field360 product. Subscriber will ensure that the photographs taken are done by themselves or their employees or they have full legal rights, including copyright consent, to use them as check-in photos. In not event shall Company be liable for the content of photos uploaded to Field360 product by Subscriber.
3.o Subscriber is fully responsible for obtain proper consent from their customers, if required by law, before sending them review requests via SMS text messages and/or email.
3.p If Subscriber owns the website used to integrate with Field360, they will continue to own their site but will not get any DataPins or any content from Field360's service if they shall cancel services with Field360. If Field360 provides a website, it will become property of Subscriber after merchant approval and Subscriber has successfully billed 10 invoices paid by credit card under our new merchant service or after 12 months, whichever comes first. Under no circumstances shall Subscriber be able to keep content generated using Field360's service, such as DataPins, if they shall cancel.
4. Payment and FEES
4.a Company’s fees for use of and access to the Field360 product vary depending on plan. Subscriber’s billing amount will be established upon set up of Subscriber’s plan. Company may, in its sole discretion, raise its fees at any point.
4.b Services are provided on a month-to-month basis. Invoices will issue monthly, at the __ of every month.
4.c Subscriber must pay electronically by automatically recurring credit card, debit, or ACH payment. Subscriber must notify Company of any billing-account changes at least five days before the invoicing date.
4.d Services are provided on a month to month bases. The first installment is pro-rated and then each additional installment is billed before the first of each month to cover that coming month's services. Credit and debit cards are accepted and are billed automatically prior to the 1st of each month. Subscriber can cancel at any time from within their account.
4.e Subscriber must pay Company’s fees immediately upon invoicing. If Subscriber’s payment is not received by Company within five days of invoicing, Company may limit, suspend or terminate Subscriber’s ability to use or access the Field360 product. Subscriber is solely responsible for any loss or difficulty it experiences because of Company’s suspension or termination of Subscriber’s ability to use or access the Field360 product. For example, Subscriber’s inability to use or access the Field360 product may mean that reviews, checkins, and other Content cease to show on Subscribers website(s) and may cause errors that must be remedied by removing Field360 codes and software from Subscriber’s website.
5. Intellectual Property and Confidential Information
5.a Company is, remains, and will remain the sole owner of Company’s name and Company’s trademarks, patents, copyrights, trade secrets, know-how, and other confidential or proprietary information, be it currently existing or after-arising or after-acquired (collectively, “Company’s Intellectual Property”). Subscriber does not acquire any right in or to Company’s Intellectual Property, or any third-party intellectual property, except as expressly provided in this Agreement. Immediately on termination of this Agreement, any right to Company’s Intellectual Property or to any third-party intellectual property provided to Subscriber under this Agreement also terminates.
5.b Subscriber grants Company a perpetual, irrevocable, world-wide, royalty-free, nonexclusive, fully paid-up, and sublicensable license to store, publish, copy, perform, or in any way permitted by law use any and all Subscriber Content acquired or uploaded by or through the Field360 product.
5.c Subscriber may have reason to access Company’s proprietary and confidential information from time to time, such as business procedures and programs, and technical details of Company’s Field360 product (“Company’s Confidential Information”). All such information is, will be, and will remain Company’s property. Subscriber will hold all of Company’s Confidential Information in strict confidence and will not disclose it to others. Nor will Subscriber use Company’s Confidential Information in any way, commercially or otherwise, except in performing under this Agreement as provided for in this Agreement. In order to protect the proprietary and confidential nature of Company’s Confidential Information as well as Company’s goodwill, during the term of this Agreement and for a period of 24 months thereafter Subscriber will not take any effort to make, use, or sell any product that is a substitute for or rival of Company’s Field360 product.
6. RepresentationS, Warranties, and Indemnities
6.a Subscriber represents and warrants that: (i) it has the right to enter and perform under this Agreement without liability to others and (ii) its efforts provided under this Agreement will be performed in a workmanlike manner, with professional diligence and skill, and in accordance with reasonable commercial standards.
6.b Company provides the Field360 product “as is” and “where is” and Subscriber accesses or uses the Field360 product at Subscriber’s sole risk. Company does not guarantee error-free uninterrupted services or that the product will meet Subscriber’s needs or expectations. Company is not responsible for any data loss associated with Subscriber’s use of the Field360 product.
6.c Company provides no warranty or guarantee of any kind and specifically DISCLAIMS ALL STATUTORY AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.d IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.
6.e Subscriber will defend and indemnify Company and its assignees, directors, officers, employees, and agents and hold Company and its assignees, directors, officers, employees, and agents harmless, from and against all costs or claims arising out of or resulting from this Agreement, Subscriber’s use of or access to the Field360 product, or any negligent act or omission or willful misconduct of Subscriber.
7. TERM AND Termination
7.a The term of this Agreement will commence on the Effective Date and will continue until terminated as provided in this Section. This Agreement may be terminated by either Subscriber or Company for any or no reason at any time by providing the other party written notice of the termination. Termination is effective immediately upon the other party’s receipt of the written notice.
7.b Immediately upon termination of this Agreement, Subscriber will no longer have access to the Field360 product or any associated data, including any photographs, check-in data, other Content or data taken in by or through, or uploaded to or through, the Field360 product.
7.c Subscriber will return to Company any Company property that comes into Subscriber’s possession in the course of this Agreement immediately upon request by Company and, in any event, within thirty days following termination of this Agreement.
7.d Company will not refund any Subscriber payment to Company.
7.e All non-use and non-disclosure confidentiality obligations survive termination of this Agreement.
8. Miscellaneous
8.a Written notices required under this Agreement will be provided either by:
8.1.i electronic mail to Company at ______ and to Subscriber at _____, or
8.1.ii U.S. Postal Service or courier to Company at 8125 Eagle Mountain Circle, Fort Worth, TX 76135 and to Subscriber at ______.
8.b The descriptive title headings used in this Agreement are inserted for convenience and are not meant to and do not control or affect the meaning or construction of any provision of this Agreement.
8.c This Agreement is not assignable except that Company may assign the Agreement, and all its rights and obligations under the Agreement. In the event that Company assigns this Agreement, it will provide Subscriber with written notice of the assignment, identifying the assignee and the assignee’s contact information, within fifteen days of the effective date of the assignment.
8.d This Agreement, and any relevant statute of limitations, will be governed by and interpreted according to the laws of the State of Texas, without regard to its conflict of law rules. Any action relating to or arising out of this Agreement may be brought only in the United States District Court for the Northern District of Texas or in Texas state court in Fort Worth, Texas. The Parties consent to personal jurisdiction and venue in any such courts and to service of process by United States mail or express courier service in any such action. The parties waive any right to a jury trial on any action relating to or arising out of this Agreement. The parties agree that no action or legal proceeding may be initiated more than one year after the incident giving rise to the claim.
8.e In the event that any provision of this Agreement is held or found, in whole or in part, invalid or unenforceable under applicable law, that holding or finding shall not affect the validity or enforceability of the remaining provisions or parts of the provision. To the extent that any provision of this Agreement is unenforceable because it is overbroad, that provision shall be limited to the extent required by applicable law and enforced as so limited.
8.f This Agreement constitutes the complete and exclusive understanding and agreement of the parties and supersedes all prior understandings and agreements, whether written or oral, with respect to the subject matter of the Agreement.
