MADCAP SOFTWARE FEEDBACK TERMS OF SERVICE
The following are the terms and conditions for use of the MadCap Feedback service described herein (the "Service") between MadCap Software, Inc. and you (either an individual or a legal entity that you represent as an authorized employee or agent) ("You"). Please read them carefully. BY CLICKING THE "I ACCEPT" BUTTON, COMPLETING THE REGISTRATION PROCESS AND/OR USING THE SERVICE, YOU ARE STATING THAT YOU ARE ELIGIBLE FOR AN ACCOUNT AND THAT YOU AGREE TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS OF THE SERVICE ("AGREEMENT"). The Service is offered to you conditioned on your acceptance without modification of the terms, conditions, and notices contained herein.1. DEFINITIONS
"Documentation" means any accompanying proprietary documentation made available to You by MadCap for use with the Processing Software, including any documentation available online or otherwise."Flare Software" means MadCap's Flare software version V3 or above.
"Help Pages" means a group of web pages that are linked to an Account and use the same Tracking Code.
"Processing Software" means the proprietary MadCap software and any all upgrades to such, which analyzes the User Data, maintains and organizes user comments and ratings, and generates the Reports in connection with the Service.
"Report" means the resulting analysis shown at the URL provided by MadCap for such purposes for Your Account.
"Servers" means the servers controlled by MadCap or its affiliates upon which the Processing Software and User Data are stored.
"Software" means the Tracking Code and the Processing Software.
"Tracking Code" means the proprietary MadCap Feedback Tracking Code, which is installed on Help Pages created by Flare Software for the purpose of collecting User Data.
"User Data" means the data concerning the characteristics and activities of visitors to your Help Pages, including user comments and ratings provided by users, is collected through use of the Tracking Code and then forwarded to the Servers and analyzed by the Processing Software and saved on the Servers.
2. FEES AND SERVICES
Subject to Section 15 herein, the Service is provided upon the subscription fee charge charged by MadCap. The subscription fee amount is subject to change by MadCap from time to time, effective upon the next renewal of your Service.MadCap may change its fees and payment policies for the Service from time to time including but not limited to the addition of costs related to additional services or upgrades, or for any price increases or decreases, or other fees charged to MadCap or its affiliate by 3rd party vendors for the inclusion of data in the Service reports. The changes to the fees or payment policies are effective upon Your acceptance of such changes which will be posted at www.MadCapSoftware.com (or such other URL MadCap may provide from time to time). (Your acceptance of such changes will be deemed to have occurred if you continue to use the Service as of the effective date of such a change that is properly noticed by MadCap.) Unless otherwise stated, all fees are quoted in U.S. Dollars. Any outstanding balance becomes immediately due and payable upon termination of this Agreement for any reason and any collection expenses (including attorneys' fees) incurred by MadCap will be included in the amount owed, and may be charged to the credit card or other billing mechanism associated with your Account.
3. MEMBER ACCOUNT, PASSWORD, AND SECURITY
To register for the Service, You must complete the registration process by providing MadCap with current, complete and accurate information as prompted by the registration form, including Your e-mail address (username) and password. In addition, you must hold a valid license for your Flare Software copy. You shall protect your passwords and take full responsibility for Your own, and any third party, use of Your accounts. You are solely responsible for any and all activities that occur under Your Account. You agree to notify MadCap immediately upon learning of any unauthorized use of Your Account or any other breach of security. From time to time, MadCap's (or its affiliates') support staff may log in to the Service under Your customer password in order to maintain or improve service, including to provide You assistance with technical or billing issues. You hereby acknowledge and consent to such access.4. NONEXCLUSIVE LICENSE
MadCap hereby grants You a limited, revocable, non-exclusive, non-sublicensable license to install, copy and use the Tracking Code solely as necessary to use the Service for one or more Help Pages that You own and control (collectively, the "Website"). Your license of, use of and access to the Software and the Service (which may include, without limitation, the Software, Documentation and the Reports) is conditioned upon Your use of the Service only in connection with a licensed copy of Flare Software and compliance with the terms of such license. Subject to the terms and conditions of this Agreement, You may remotely access, view and download Your Reports stored at a URL provided by MadCap from time to time. In addition, Your license of, use of and access to the Software and the Service (which may include, without limitation, the Software, Documentation and the Reports) is conditioned upon Your compliance with the terms and conditions of the Agreement, including the following:You will not nor will You allow any third party to (i) copy, modify, adapt, translate or otherwise create derivative works of the Software or the Documentation; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software, except as expressly permitted by the law in effect in the jurisdiction in which You are located; (iii) rent, lease, sell, assign or otherwise transfer rights in or to the Tracking Code, the Processing Software, the Documentation or the Service; (iv) remove any proprietary notices or labels on the Software or placed by the Service; or (v) use, post, transmit or introduce any device, software or routine which interferes or attempts to interfere with the operation of the Service or the Software. You will use the Software, Service and Reports solely for Your own internal use, and will not make the Software or Service available for timesharing, application service provider or service bureau use. You will comply with all applicable laws and regulations in Your use of and access to the Documentation, Software, Service and Reports.
This license will terminate immediately if You fail to comply with the terms of this Agreement. Upon such termination, You must destroy all originals and copies of the Tracking Code in Your possession and so certify in writing to MadCap within three (3) business days of termination and cease any further use of the Service without the express written consent of MadCap.
5. CONFIDENTIALITY
"Confidential Information" includes any proprietary data and any other information disclosed by one party to the other in writing and marked "confidential" or disclosed orally and, within five business days, reduced to writing and marked "confidential". Notwithstanding the foregoing, Confidential Information will not include any information that is or becomes known to the general public, which is already in the receiving party's possession prior to disclosure by a party or which is independently developed by the receiving party without the use of Confidential Information. Neither party will use or disclose the other party's Confidential Information without the other's prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such. You are responsible for safeguarding the confidentiality of Your password(s) and user name(s) issued to You by MadCap, and for any use or misuse of Your account resulting from any third party using a password or user name issued to You. You agree to immediately notify MadCap of any unauthorized use of Your account or any other breach of security known to You.6. INFORMATION RIGHTS AND PUBLICITY
MadCap and its affiliates may retain and use, subject to the terms of its Privacy Policy (located at http://madcapsoftware.com/privacy/, or such other URL as MadCap may provide from time to time), information collected in Your use of the Service. MadCap will not share information associated with You or your Help Pages with any third parties unless MadCap (i) has Your consent; or (ii) concludes that it is required by law or has a good faith belief that access, preservation or disclosure of such information is reasonably necessary to protect the rights, property or safety of MadCap, its users or the public; or (iii) provides such information in certain limited circumstances to third parties to carry out tasks on MadCap's behalf (e.g., billing or data storage) with strict restrictions that prevent the data from being used or shared except as directed by MadCap . When this is done, it is subject to agreements that oblige those parties to process such information only on MadCap's instructions and in compliance with this Agreement and appropriate confidentiality and security measures.7. PRIVACY
You will not (and will not allow any third party to) use the Service to track or collect personally identifiable information of Internet users, nor will You (or will You allow any third party to) associate any data gathered from Your website(s) (or such third parties' website(s)) with any personally identifying information from any source as part of Your use (or such third parties' use) of the Service. You will have and abide by an appropriate privacy policy and will comply with all applicable laws relating to the collection of information from visitors to Your websites. You must post a privacy policy and that policy must provide notice of your use of a cookie that collects anonymous traffic data.8. INDEMNIFICATION
You agree to indemnify, hold harmless and defend MadCap and its affiliates, at Your expense, any and all third-party claims, actions, proceedings, and suits brought against MadCap or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by MadCap or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (i) Your breach of any term or condition of this Agreement, (ii) Your use of the Service, (iii) Your violations of applicable laws, rules or regulations in connection with the Service, or (iv) any trademark or service mark-related claims arising in connection with Your use of the Service. In such a case, MadCap will provide You with written notice of such claim, suit or action. You shall cooperate as fully as reasonably required in the defense of any claim. MadCap reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by You.9. THIRD PARTIES
If You provide access to Your Account or any portion thereof to any third party or use the Service to collect information on behalf of any third party ("Third Party"), whether or not You are authorized to do so by MadCap or its affiliate, the terms of this Section 9 shall apply to You.If You use the Service on behalf of any Third Party, You represent and warrant that (a) You are authorized to act on behalf of, and bind to this Agreement, that Third Party , (b) as between the Third Party and You, the Third Party owns any rights to User Data in the applicable account, (c) You shall not disclose Third Party's User Data to any other party without the Third Party's consent, and (d) there is a license in effect entitling the use of the Flare Software with such Account.
You shall ensure that each Third Party is bound by and abides by the terms of this Agreement. MadCap and its affiliates make no representations or warranties for the direct or indirect benefit of any Third Party. With respect to Third Parties, You shall take all measures necessary to disclaim any and all representations or warranties that may pertain to MadCap and its affiliates, the Service, the Software or the Reports, or use thereof. You agree to indemnify, hold harmless and defend MadCap and its affiliates, at Your expense, against any and all third-party claims, actions, proceedings, and suits brought against MadCap or any of its officers, directors, employees, agents or affiliates, and all related liabilities, damages, settlements, penalties, fines, costs or expenses (including, without limitation, reasonable attorneys' fees and other litigation expenses) incurred by MadCap, or any of its officers, directors, employees, agents or affiliates, arising out of or relating to (a) any representations and warranties made by You concerning any aspect of the Service, the Software or Reports to Third Parties; (b) any claims made by or on behalf of any Third Party pertaining directly or indirectly to Your use of the Service, the Software or Reports; (c) violations of Your obligations of privacy to any Third Party; and (d) any claims with respect to acts or omissions of Third Parties in connection with the Services, the Software or Reports.
10. DISCLAIMER OF WARRANTIES
The information and services included in or available through the Service, including the Reports, may include inaccuracies or typographical errors. Changes are periodically added to the information herein. MadCap and/or its respective suppliers may make improvements and/or changes in the Service or Software at any time, with or without notice. MadCap does not represent or warrant that the Service will be uninterrupted or error-free, that defects will be corrected, or that the Service, the Software or any other software on the Server are free of viruses or other harmful components. MadCap does not warrant or represent that the use of the Service or the Reports will be correct, accurate, timely or otherwise reliable. You specifically agree that MadCap and its affiliates shall not be responsible for unauthorized access to or alteration of the User Data or data from Your Website.THE SERVICE, THE SOFTWARE AND REPORTS ARE PROVIDED "AS IS" AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY MADCAP AND/OR AFFILIATES, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SERVICE, THE SOFTWARE, THE DOCUMENTATION AND REPORTS, INCLUDING WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. MADCAP DOES NOT WARRANT THAT THE SERVICE, THE SOFTWARE OR REPORTS WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE SERVICE. SOME STATES DO NOT ALLOW EXCLUSION OF AN IMPLIED WARRANTY, SO THIS DISCLAIMER MAY NOT APPLY TO YOU.
11. LIMITATION OF LIABILITY
MADCAP AND ITS AFFILIATES WILL NOT BE LIABLE TO USER OR ANY THIRD-PARTY CLAIMANT FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOST DATA COLLECTED THROUGH THE SERVICE), OR INCIDENTAL DAMAGES, WHETHER BASED ON A CLAIM OR ACTION OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, OR OTHERWISE, EVEN IF MADCAP AND/OR ITS AFFILIATES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION CONTAINED IN THIS PARAGRAPH SHALL APPLY REGARDLESS OF THE FAILURE OF THE EXCLUSIVE REMEDY PROVIDED IN THE FOLLOWING PARAGRAPH. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE LIMITATIONS OR EXCLUSIONS IN THIS AND THE FOREGOING PARAGRAPH MAY NOT APPLY TO YOU.MadCap's and its affiliates' total cumulative liability to You or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to this Agreement shall not exceed amounts paid by You for the user of the Service in the preceding three (3) months.
12. SERVICE LEVELS
MadCap does not guarantee the Service will be operable at all times or during any down time (1) caused by outages to any public Internet backbones, networks or servers, (2) caused by any failures of Your equipment, systems or local access services, (3) for previously scheduled maintenance or (4) relating to events beyond MadCap's or its affiliates' control such as strikes, riots, insurrection, fires, floods, explosions, war, governmental action, labor conditions, earthquakes, natural disasters, or interruptions in Internet services to an area where MadCap or its affiliates or Your servers are located or co-located. Complete accuracy in all aspects of Your User Data at all times also is not guaranteed.13. PROPRIETARY RIGHTS NOTICE
The Service, which includes but is not limited to the Tracking Code and the Processing Software and all intellectual property rights in the Service are, and shall remain, the property of MadCap and its affiliates. All rights in and to the Processing Software not expressly granted to You in this Agreement are hereby expressly reserved and retained by MadCap and its licensors without restriction, including, without limitation, MadCap's and its affiliates' right to sole ownership of the Processing and Documentation. Without limiting the generality of the foregoing, You agree not to (and to not allow any third party to): (a) sublicense, distribute, or use the Service outside of the scope of the License granted herein; (b) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Processing Software or otherwise attempt to discover any source code or trade secrets related to the Service; (c) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Service for any purpose without the express written consent of MadCap; (d) register, attempt to register, or assist anyone else to register any trademark, trade name, serve marks, logos, domain names and other distinctive brand features, copyright or other proprietary rights associated with MadCap or its affiliates other than in the name of MadCap or its affiliates, as the case may be; or (e) remove, obscure, or alter any notice of copyright, trademark, or other proprietary right appearing in or on any item included with the Service.14. U.S. GOVERNMENT RIGHTS
If the use of the Service is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), in accordance with 48 C.F.R. 227.7202-4 (for Department of Defense (DOD) acquisitions) and 48 C.F.R. 2.101 and 12.212 (for non-DOD acquisitions), the Government's rights in the Software, including its rights to use, modify, reproduce, release, perform, display or disclose the Software or Documentation, will be subject in all respects to the commercial license rights and restrictions provided in this Agreement.15. TERM and TERMINATION
Either party to the Agreement may terminate it at any time and for any reason.Upon any termination or expiration of this Agreement, MadCap will cease providing the Service, and You will delete all copies of the Tracking Code from all Help Pages (and any and all other pages you control where such code is located) and certify thereto in writing to MadCap within three (3) business days of such termination. In the event of any termination (a) You will not be entitled to any refunds of any usage fees or any other fees, and (b) any (i) outstanding balance for Service rendered through the date of termination, and (ii) other unpaid payment obligations during the remainder of the term of this Agreement will be immediately due and payable in full and (c) all of Your historical report data will no longer be available to You unless a purchase or professional services agreement for the exchange and transfer of such data is entered into as a component of termination.