POOLOGICS END USER LICENSE AGREEMENT

 

VERSION 1.1

UPDATED SEPTEMBER 18, 2016

 

IMPORTANT: READ THIS POOLOGICS END USER LICENSE AGREEMENT (“EULA”) CAREFULLY BEFORE CONTINUING REGISTRATION.  BY CLICKING THE “I ACCEPT” BUTTON YOU SIGNIFY THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO FOLLOW THE TERMS AND CONDITIONS OF THIS EULA, INCLUDING, WITHOUT LIMITATION, THE TERMS AND CONDITIONS OF DOCUMENTS WHICH ARE INCORPORATED BY REFERENCE HEREIN.  IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS EULA, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE POOLOGICS SOFTWARE PLATFORM.

A.   Definitions.

 “Order” refers to the agreement to license the Poologics Software through our website www.poologics.com.

“Poologics” refers to Poologics, Inc. 

 “Poologics Software” refers to the free or premium Poologics project and business management Software as a Service (SaaS) platform provided by Poologics through its website.   

 “You” or “your” refer to any individual or entity ordering or using the Poologics Software. 

“Your Data” refers to any data that you input or import into the Poologics Software on behalf of yourself or the entity for which you work or employed or is derived from the Poologics Software, including, but not limited to, information regarding vendors, prospects, receivables, payments, marketing, contracts, documents, customers, finances, templates, projects, or any other data.

B.    Rights Granted.

Upon Poologics’ acceptance of the Order and until the Order is canceled or is otherwise terminated, you have the nonexclusive, non-assignable limited right to use the Poologics Software for your internal business operations or for the entity for which you work or are employed subject to the terms of this EULA.  You are responsible for your compliance with this EULA.  Your rights to use the Poologics Software are subject to this EULA.

You acknowledge that Poologics has no delivery obligation and will not ship copies of the Poologics Software to you as part of the services.  You agree that you do not acquire under the EULA any license to use the Poologics Software in excess of the scope and/or duration of the services, as specified in the Order.  Upon the cancelation or termination of the Order, your right to access or use the Poologics Software and the services provided therein shall terminate, subject to the right, for a limited period of time, to obtain a copy of Your Data, as specified herein in Section I.

C.    Ownership and Restrictions.

You or the entity for which you work or are employed retains all ownership and intellectual property rights in and to Your Data.  Poologics retains all ownership and intellectual property rights to the Poologics Software and its services.  You may not remove or modify any program markings or any notice of Poologics’ proprietary rights from the Poologics Software.  You may also not make the Poologics Software or any materials associated with the Poologics Software available in any manner to any third party for use in the third party’s business operations.  You may also not modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Poologics Software or access or use the Poologics Software or associated services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to Poologics.

You may also not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Poologics Software or associated materials available to any third party other than as expressly permitted under the terms of the EULA.  No part of the Poologics Software may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means.  You also agree to make every reasonable effort to prevent unauthorized third parties from accessing the Poologics Software.

D.   Updates.

Poologics may update or enhance the Poologics Software from time to time.  Such updates may occur automatically.  You should review any notice of any update and conform to the instructions provided by Poologics regarding any update, which may include the requirement to consent to the terms of the EULA

E.   Your Data.

In conjunction with you use of the Poologics Software, Your Data may be input, imported or derived from the Poologics Software, among other things, to manage prospects, post information to discussion boards, track receivables and payments, utilize marketing tools, manage contracts, create performance and other goals, provide feedback, integrate with your website, establish forecasts, create templates, upload project images, devise customized web forms or to communicate with vendors and customers. You are solely responsible for the content of Your Data in whatever form it is imported, exported or delivered from the Poologics Software. By agreement of this EULA, you attest that you have rights to Your Data and have permission to use Your Data in conjunction with the Poologics Software.

YOU SHOULD NOT INCLUDE ANY PERSONAL INFORMATION REGARDING ANY INDIVIDUALS IN YOUR DATA. "Personal information" includes, but is not limited to, the following information (as defined in Section 1798.81.5 of the California Civil Code): as individual's first name or first initial and his or her last name in combination with any one or more of the following data elements, when either the name or the data elements are not encrypted or redacted: (A) Social security number; (B) Driver's license number or California identification number; (C) Account number, credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual's financial account; and (D) "Medical information," which means any individually identifiable information, in electronic or physical form, regarding the individual's medical history or medical treatment or diagnosis by a health care professional.

Poologics treats Your Data as confidential and will not provide access to Your Data to any third party.  Poologics may access Your Data to perform services for support, consulting or other services to confirm your compliance with this EULA.  This may include testing and applying new product or system versions, patches, updates and upgrades, monitoring and testing system use and performance, and resolving bugs and other issues you have reported to Poologics.  Any copies of Your Data created for these purposes are only maintained for time periods relevant to those purposes.

Poologics may also use Your Data on an aggregate or anonymized basis to conduct and/or to provide analytics or to report trends in the pool construction industry. Poologics will not provide information to third parties regarding your specific customers or vendors in conjunction with these analyses and reports. 

Poologics may be required to retain or provide access to Your Data to comply with legally mandated reporting, disclosure or any other legal process requirements.

Poologics does not use Your Data except as stated above.  Poologics may process Your Data, but does not control your collection or use practices for Your Data. You control access to Your Data and any requests or questions related to this data should be directed to you and not Poologics.  You are responsible for providing any notices and/or obtaining any consents necessary for you to input Your Data into the Poologics Software and for Poologics to access, use, retain and transfer Your Data as specified in this EULA.

F.    Security and Breach Notification.

Poologics is committed to maintaining the security of the services that it provides, including the Poologics Software, and has in place commercially reasonable physical, administrative and technical measures designed to prevent unauthorized access to those services.  However, we cannot and do not guarantee the complete security of information you provide to us through your use of the Poologics Software, including Your Data. 

You are solely responsible for proper back-up of Your Data and you shall take appropriate measures to protect such data.  You are also responsible for any data that is input, derived from, imported to, or exported from the Poologics Software, including to or from any third party applications.  Poologics assumes no liability or responsibility whatsoever if Your Data is lost or corrupted.

If Poologics determines that Your Data has been misappropriated or wrongly acquired by a third party, Poologics will promptly report to you such misappropriation or acquisition.

G.   Warranties, Disclaimers and Exclusive Remedies

Poologics warrants that the services it will perform are in all material respect in accordance with the EULA and the Order.  If the services provided to you for any given month during the services term were not performed as warranted, you must provide written notice to Poologics at the address listed below no later than five business days after the last day of that particular month detailing the nature of the alleged breach of warranty.

POOLOGICS DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT POOLOGICS WILL CORRECT ALL SERVICE ERRORS.  YOU ACKNOWLEDGE THAT POOLOGICS DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES.  POOLOGICS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS AND SUCH INTERRUPTIONS DO NOT CONSIST OF A BREACH OF WARRANTY.

POOLOGICS DOES NOT GUARANTEE THE PERFORMANCE OR RELIABILITY OF ANY PROGRAMS OR APPLICATIONS THAT ARE RUN BY THIRD PARTIES THAT CONNECT WITH AND/OR LINK TO THE POOLOGICS SOFTWARE, INCLUDING DOCUSIGN, QUICK BOOKS, GOOGLE CALENDAR OR OTHER PRODUCTS.  YOUR USE OF THESE THIRD PARTY APPLICATIONS OR PROGRAMS IS SUBJECT TO THE TERMS OF USE OF SUCH PROGRAMS AND POOLOGICS IS NOT LIABLE FOR YOUR VIOLATION OF SUCH TERMS OF USE.  POOLOGICS IS ALSO NOT LIABLE FOR ANY EXPORT OF YOUR DATA TO ANY THIRD PARTY PROGRAM OR APPLICATION.

FOR ANY BREACH OF THE ABOVE WARRANTY, POOLOGICS WILL REMIT A SERVICES FEE CREDIT TO YOU CALCULATED AT FIVE PERCENT (5%) OF NET MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH THE BREACH OCCURRED.  THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO POOLOGICS, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND POOLOGICS' SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THE AGREEMENT.

TO THE EXTENT NOT PROHIBITED BY LAW, THESE WARRANTIES ARE EXCLUSIVE AND THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS INCLUDING FOR HARDWARE, SYSTEMS, NETWORKS OR ENVIRONMENTS OR FOR MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE.

H.   End of Agreement.

Services provided under this EULA shall be provided for the period defined in the Order, as renewed by making ongoing monthly payments specified in the Order, unless early terminated in accordance with the EULA or by the failure to pay such monthly payments.  The term of the services and any renewals are collectively defined as the “services term.”  At the end of the services term, all rights to access or use the services, including the Poologics Software, shall end.  In addition, Poologics may immediately suspend your password, account, and access to or use of the services (i) for failure to pay Poologics, or (ii) violation of any provision of this EULA and the failure to cure such violation within 30 days of Poologics’ initial notice thereof.  Any suspension by Poologics of the services for violation of any provision of the EULA shall not excuse any obligation to make payment(s) as agreed in the Order.

Provisions that survive termination or expiration of the EULA are those relating to limitation of liability, payment and others which by their nature are intended to survive.

I.      Retrieval of Your Data

In the event of the termination of the EULA under Paragraph H, Poologics may permit you to access the services solely to the extent necessary for you to retrieve Your Data then in the services environment.  You agree and acknowledge that Poologics has no obligation to retain Your Data and that Your Data may be irretrievably deleted after 10 days following the termination of the EULA.

J.     Fees.

The agreement to pay fees is set forth in the Order.  All fees due under this agreement are non-cancelable and the sums paid nonrefundable. 

K.   Nondisclosure.

By virtue of this EULA and the Poologics Software, the parties may have access to information that is confidential to one another.  We each agree to disclose only information that is required for the performance of obligations under this agreement.  Confidential information shall include Your Data and all information clearly identified as confidential at the time of disclosure.

L.    Entire Agreement.

You agree that the information which is in this EULA and is incorporated into this agreement, including the Order, is the complete agreement for the services ordered by you, and that the agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such services.  If any term of this EULA or the Order is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purposes and intent of the agreement.  The EULA and the Order may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online by authorized representatives of you and Poologics.

M.  Limitation of Liability.

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES UNDER THE AGREEMENT), DATA, OR DATA USE.  POOLOGICS MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS EULA, WHETHER IN CONTRACT OR TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO POOLOGICS FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.  ANY DAMAGE IN YOUR FAVOR AGAINST POOLOGICS SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THE AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.

N.   Other.

·      Poologics is an independent contractor and we agree that no partnership, joint venture, or agency relationship exists between us.

·      You shall obtain at your sole expense any rights and consents from third parties necessary for Poologics to perform the services under the EULA and the Order and in regard to Your Data.

·      The agreement is governed by the substantive and procedural laws of California and you and Poologics agree to submit to the exclusive jurisdiction of, and venue in, the courts in Orange County in California in any dispute arising out of or relating to the agreement.

·      If you have a dispute with Poologics or wish to provide other notice, please provide notice to Poologics, 34 Waterworks Way, Irvine, California 92618.

·      You may not assign the EULA or give or transfer the services described therein or an interest in them to another individual or entity.

·      Except for actions for nonpayment or breach of Poologics’ proprietary rights, no action, regardless of form, arising out of or relating to the agreement may be brought by either party more than two years after the cause of action has accrued.

O.   Force Majeure

Neither of us shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party.

P.    Restrictions on Use of the Services.

You agree not to use or permit use of the Poologics Software that violates applicable laws, ordinances or regulations.  In addition to any other rights afforded to Poologics under the agreement, Poologics reserves the right to remove or disable access to any material that violates the foregoing restrictions.  Poologics shall have no liability to you in the event that Poologics takes such action.  You agree to defend and indemnify Poologics against any claim arising out of a violation of your obligations under this section.

Q.   Statistical Information.

Poologics may compile statistical information related to the performance of the services, and may make such information publicly available, provided that such information does not incorporate Your Data and/or identify your confidential information or include your company’s name.  Poologics retains all intellectual property rights in such information.

R.    Third Party Web Sites.

The Poologics Software may enable you to add links to web sites and access to content, references to products and services of third parties, including vendors, users, customers, and other third parties.  Poologics is not responsible for any third party web sites or the content related to third parties provided on or through the services and you bear all risks associated with the access to the web sites and input of data into the Poologics Software.

S.     Customer Reference.

 

You agree that Poologics may identify you as a recipient of services and use your logo in sales presentations, marketing materials and press releases.