Welcome to the homecareit.com website. Please review these Terms of Service (“Terms”), which govern your use of the website and services provided by it.
These Terms apply to the relationship between the organization which has requested we provide services to them, and has agreed to pay for those services. Individual End Users using the Service under a contract with their organization are subject to the “Individual Terms of Service” which can be found at https://homecareit.com/terms.html.
The website homecareit.com provides a web-based system to assist home care agencies to organize and coordinate aide, client, scheduling, payroll, and billing information in one place (the “Service”). The Terms have been written to describe the conditions under which the Service is being made available to you. The Terms discuss important limitations about the way you may use and rely upon materials you find on the Service. Read the Terms carefully. By using the Service, you will be deemed to have accepted it. If you do not accept the Terms, you may not use the Service.
In this document, “we” or “us” means IT Resources LLC (dba IT Resources), and its members, managers, employees, partners, agents, representatives, affiliates, contractors, service providers, and/or designees; “both of us” means both you and us; “End User” means an individual person using the Service; “Terms of Service” or “Terms” means these Terms of Service and documents incorporated by reference; “Content” means information, data, text, software, music, sound, photographs, graphics, video, messages or other materials made available through the Service; “Our Content” means information, data, text, software, music, sound, photographs, graphics, video, messages or other materials that we may make available through the Service (not including Content provided by you or End Users); “Site” means https://homecareit.com and any other website designated by us as being subject to the Terms; “Subscription” means the right to access the Service; and “you” means the organization using the Service (which may include sole proprietors).
1. THE SERVICE.
We provide you with a variety of items through the Service. The Service may include certain communications from us, such as service announcements, and administrative messages, and that these communications are considered part of the use of the Service and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Service shall be subject to the Terms. The Service is provided “AS-IS” and we assume no responsibility for the timeliness, deletion, misdelivery or failure to store any End User communications or personalization settings. You are responsible for obtaining access to the Service and that access may involve third party fees (such as internet service provider or airtime charges), and you are responsible for those fees. In addition, you must provide and are responsible for all equipment necessary to access the Service.
2. INTERNAL USE ONLY OF SERVICE.
We grant you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to and conditional upon compliance with these Terms (including without limitation payment) for the Subscription Term described below. We reserve and retain all rights not expressly granted to you. You may not access the Service if you are a direct competitor of us or the Service, except with our prior written consent. 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 may 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 available on it in any way; (ii) modify or make derivative works based upon the Service or Our Content; (iii) create Internet "links" to the Site or "frame" or "mirror" any Content available on the Site 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.
3. INDIVIDUAL USER ACCOUNTS
User accounts cannot be shared or used by more than one individual End User but may be reassigned from time to time to new End Users who are replacing former End Users who have terminated employment or otherwise changed job status or function and no longer use the Service. User accounts must represent actual persons. User accounts consist of a Real Name and a Username. The Real Name must be the user's actual real name and the Username is a login name unique across all of Home Care IT. User passwords must not be shared among user accounts.
4. ACQUISITION OF USE RIGHTS.
(a) Initial Term. You acquire rights to use the Service subject to these Terms by submission of Order Form(s), and payment of amounts due under those Order Forms, specifying the type, quantity and term (“Subscription Term”) of such services, as a result of which you are entitled to the rights set forth in these Terms. “Order Form” means the document executed under or referring to these Terms specifying the kind and quantity of usage rights and the related Subscription Term, which may be a web-submitted form. No Order Form is valid or creates any rights under these Terms until accepted by us. We reserve the right to reject any Order Form for any reason or no reason.
(b) Renewal Term. The Initial Term shall be extended for additional periods (each, a “Renewal Term”) unless terminated in writing by either of us not later than (a) sixty (60) days prior to the expiration of the then current Subscription Term if the Subscription Term is annual or greater or (b) seven (7) days prior to the expiration of the then current Subscription Term if the Subscription Term is less than annual (for example, monthly). Unless otherwise specified in the relevant Order Form, each Renewal Term shall be of the same length as the original Subscription Term (but not more than 12 months each).
5. YOUR REGISTRATION OBLIGATIONS.
Certain portions of the Service may require registration and provision by you of certain information regarding yourself to us. If you register, you represent that you are at least 18 years old and are not a person barred from receiving services under the laws of the United States or other applicable jurisdiction. You must: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the “Registration Data”) and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or we have reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, we have the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
6. ACCOUNT, PASSWORD AND SECURITY.
You may receive or create a password and account designation upon completing the Service's registration process. You are responsible for maintaining the confidentiality of the password and account designation, and are fully responsible for all activities that occur under your password or account. You must (a) immediately notify us of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session. We cannot and will not be liable for any loss or damage arising from your failure to comply with this Section.
7. BILLING, TAXES.
You agree to pay all charges, recurring fees, applicable taxes and other charges (collectively herein “Charges”) incurred by you at the rates in effect for the billing period in which those charges are incurred.
The initial charges will be equal to the fee currently in effect for one Enterprise account, which includes one End User account, plus the current number of total additional End User Subscriptions multiplied times the End User Account fee currently in effect. If you are on a tiered pricing plan, the fees for an Enterprise account and for End User Subscriptions are determined by the average number of active clients in your Customer Data in the month prior to the month for which you are being billed from the beginning of the month until the time billing is generated. Payments must be made monthly in advance unless otherwise mutually agreed upon in an Order Form. All payment obligations are noncancelable and all amounts paid are nonrefundable. You are responsible for paying for all End User Accounts that you have approved in the Users section of Home Care IT for any portion of the Subscription Term, whether or not such End User Subscriptions are actively used. You must provide us with valid credit card or approved purchase order information as a condition to signing up for the Service. An authorized system administrator may add Subscriptions by adding users to the account. Added Subscriptions will be subject to the following: (i) added Subscriptions will be coterminous with the preexisting Subscription Term (either Initial Term or Renewal Term); (ii) the Subscription fee for the added Subscriptions will be the then current, generally applicable Subscription fee; and (iii) authorization for End Users added in the middle of a billing month will be charged in full for that billing month. We reserve the right to modify our 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. All pricing terms are confidential, and you agree not to disclose them to any third party.
We charge and collect in advance for use of the Service. We will automatically renew and bill your credit card or issue an invoice to you each month or as otherwise mutually agreed upon. The renewal charge will be equal to the fee for one Enterprise account, which includes one End User account, plus the then-current number of total additional End User Subscriptions times the Subscription fee in effect during the prior term, unless we have 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.
For most billing plans we will charge your designated credit card monthly, but some charges are billed on a different schedule. You are responsible for all charges incurred, including applicable taxes and purchases made by you or anyone who is using an authorized account that you have caused to be created or for which you have otherwise indicated your agreement to be responsible for payment. This means that, unless your account or credit card information is obtained unlawfully or fraudulently, you will be responsible for all usage and purchases made on your card.
A service charge, up to the maximum allowed by the state you reside in, will be assessed to your account for each check that is returned to us for insufficient funds. Initial payment for usage are normally prepaid. Payments for additional usage is due prior to commencement of such usage. If your account is delinquent, your account (and accordingly use of the Service) may be suspended or canceled at our sole discretion. If your account is suspended, regular charges continue to accrue until you cancel your account. We may, at our sole discretion, charge a fee to reinstate a suspended account. Interest charges of 1% per month (or the highest rate permitted by law if lower than 1% per month) will accrue daily on any unpaid balance which is more than 30 days old. You agree to pay all sales and use taxes, duties, or levies which are required by law as well as all attorney and collection fees arising from efforts to collect any unpaid balance on your account.
You agree to provide us with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and System Administrator (meaning those Users designated by you who are authorized to add Users and to create User accounts and otherwise administer your use of the Service). 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, we reserve the right to terminate your access to the Service in addition to any other legal remedies.
You should let us know about any billing problems or discrepancies within 60 days after they first appear on your account statement. If you do not bring them to our attention within 60 days, you agree that you waive your right to dispute such problems or discrepancies. Additionally, if any charges are being collected by us on behalf of a supplier, then such supplier shall be an express third party beneficiary of this Section. All currency references are in U.S. dollars. All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities. You, and not us, are responsible for any such taxes, levies, or duties related to your transactions, excluding only our United States federal or state income taxes.
8. GENERAL PRACTICES REGARDING USE AND STORAGE.
The maximum disk storage space provided to you at no additional charge for document storage (including aide photos and pdf documents) is as specified at http://homecareit.com in the online user guide accessible via the Service under the Savings Documents help topic. There is no limit to the amount of transactional data allowed. If the amount of disk storage required exceeds these limits, you will be charged the then-current storage fees. We will use reasonable efforts to notify you when the average storage reaches approximately 90% of the maximum; however, any failure by us to so notify you shall not affect your responsibility for such additional storage charges. We reserve the right to establish or modify our general practices and limits relating to storage of files and Customer Content and End User Data.
9. MODIFICATIONS TO SERVICE.
We may at any time and from time to time to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. We shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
We may, under certain circumstances and without prior notice, immediately suspend or terminate your account and access to the Service. Cause for such suspension or termination shall include, but not be limited to, (a) breaches or violations of the Terms or other incorporated agreements or guidelines, (b) requests by law enforcement or other government agencies, (c) a request by you (self-initiated account deletions), (d) discontinuance or material modification to the Service (or any part thereof), (e) unexpected technical or security issues or problems, (f) you have engaged in fraudulent or illegal activities, and/or (g) nonpayment of any fees owed by you in connection with the Service. Termination of your account includes (a) removal of access to all offerings within the Service, (b) deletion of your password and all related information, files and content associated with or inside your account (or any part thereof), and (c) barring further use of the Service. Further, all terminations for cause shall be made in our sole discretion and we shall not be liable to you or any third-party for any termination of your account, any associated email address, or access to the Service.
You may, upon fifteen (15) days’ prior written notice, terminate the Service in the event of a breach by us of any material term or condition of the Terms and a failure to cure such breach. In such event, we shall refund to you on a pro-rata basis any prepaid Service fees as of the effective date of termination.
11. DEALINGS WITH THIRD PARTIES.
The Service may provide, or third parties may provide, links to other web sites or resources. Because we have no control over such sites and resources, we are not responsible for the availability of such external sites or resources, and do not endorse and are not responsible or liable for any Content, products, or other materials on or available from such sites or resources. We are not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Content or services available on or through any such site or resource.
12. OUR PROPRIETARY RIGHTS.
We alone (and our licensors, where applicable) shall own all right, title, and interest, including all related intellectual property rights, in and to the Service, Our Content and the Service and any necessary software used in connection with the Service (“Software”). This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Software or the intellectual property rights owned by us. The Home Care IT name, the Home Care IT logo, and the product names associated with the Service are our trademarks or trademarks of third parties, and no right or license is granted to use them.
You may not access the Service by any means other than through the interface that is provided by us for use in accessing the Service.
You may voluntarily provide (in connection with use of the Service, use of our products or otherwise) suggestions, comments or other feedback to us with respect to items or information provided by us on the Service or otherwise. We are not required to hold such feedback in confidence, and such feedback may be used by us for any purpose without obligation of any kind; provided, that we will not disclose the source of specific feedback without your consent; and nothing in the Terms restricts the use by you of such feedback or ideas that you provide to us.
In general, the Service is provided in a manner which does not result in your downloading or using any of our Software. In the event that we do, however, provide you with Software (such as a plug-in or similar item), we grant you a personal, non-transferable and non-exclusive right and license to use the object code of its Software on a single computer in connection with your access to the Service; provided that you do not (and do not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, grant a security interest in or otherwise transfer any right in the Software. You may not modify the Software in any manner or form, or to use modified versions of the Software, including (without limitation) for the purpose of obtaining unauthorized access to the Service. You may not rent, lease, loan, sell, distribute or create derivative works based on the Software, in whole or in part. You may not reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion of the Service (including your account name), use of the Service, or access to the Service.
13. CUSTOMER CONTENT.
(a) Definition. “Customer Content” is Content you provide us for use with the Service, provided the term “Customer Content” does not include materials which are modifications of Our Content nor does it include End User Data.
(b) Ownership of Customer Content. You retain all copyright and other proprietary rights in the Customer Content you provide us.
(c) Authorization to Provide Customer Content through the Service. In order to provide the use of the Service for your use, we need your permission to utilize the Customer Content for that purpose. Accordingly, by providing us Customer Content for use in connection with the Service you grant us the worldwide, royalty-free, and non-exclusive license during the Subscription Term to use, reproduce and display any Customer Content which you submit, post or display on or through, the Service as authorized by you in the use of the Service.
(d) Changes to Customer Content for Technical Reasons. You acknowledge and agree that, in the course of performing the technical steps required to provide the Service to your users, we may (a) transmit or distribute Customer Content over the public internet for the purpose of fulfilling our obligations under this Agreement; and (b) make such changes to the Customer Content as are necessary to conform and adapt that Customer Content to the technical requirements of connecting networks, devices, services or media for the purpose of fulfilling our obligations under this Agreement.
14 RIGHTS TO END USER DATA.
(i) “Aggregated Non-Personal Information” is information about users and their use of the Service (which may be derived from End User Data or End User Submissions) collected or combined in such manner so that it no longer reflects or references you or any individually identifiable End User.
(ii) “End User Data” means End User Submissions, Registration Information, Customer Service Communications or Log Information. “Registration Information” is any information provided when voluntarily registering for use of the Service, including, but not limited to, username and password and email address, and which may include Personal Information. “Customer Service Communications” is any information that is reported to us about the operation of the Service, including bug reports or requests for enhancements. “Log Information” is information servers automatically record relating to the usage of the system which may include information such as Internet Protocol address, other addressing information, the date and time of requests and authentication tokens used to validate the identity of a user.
(iii) “End User Submissions” means information, data, text, software, music, sound, photographs, graphics, video, messages or other materials expressly made available through the Service by End Users.
(iv) “Personal Information” is information that you or an End User provides to us which personally identifies an individual, such as by name, email address or billing information.
- (b) Ownership of End User Data. We make no claim of ownership of End User Data.
(e) Right to End User Data Post-Termination. In the event these Terms are terminated (other than by reason of your breach), we will make available to you a file of the End User Data within 30 days of termination if you so request at the time of termination. We reserve the right to withhold, remove and/or discard End User Data without notice for any breach, including, without limitation, your non-payment. Upon termination for cause, your right to access or use End User Data immediately ceases, and we shall have no obligation to maintain or forward any End User Data.
15. COMPLIANCE WITH STANDARDS OF CONDUCT AND CONFIDENTIALITY.
(a) Your Use of the Service. You agree not to use the Service (or cause End Users to use the Service) in violation of our standards of conduct posted at https://homecareit.com/conduct as amended from time to time, in particular you may not: use the Service in a manner that would cause you or us to violate any applicable local, state, national or international law, including any rules and regulations of any securities exchange, any rules, regulations, requirements, procedures or policies in force from time to time relating to the Service, and any export or re-export laws, rules and regulations; interfere with or disrupt the Service or take any steps to interfere with or in any manner compromise any security measures with respect to the Service or any data or file transmitted, processed or stored on or through the Service.
16. END USER CONDUCT.
(a) Responsibility for Conduct. You understand that all End User Submissions, whether publicly posted or privately transmitted, are the sole responsibility of the person from whom such End User Submissions originated. This means that you, and not us, are entirely responsible for all End User Submissions that you upload, post, email, transmit or otherwise make available via the Service. We do not control the End User Submissions posted via the Service and, as such, do not guarantee the accuracy, integrity or quality of such End User Submissions.
(b) Screening of End User Submissions. We may or may not pre-screen End User Submissions, but that we and our designees shall have the right (but not the obligation) in their sole discretion to pre-screen, refuse, or move any End User Submissions that is available via the Service. Without limiting the foregoing, we and our designees shall have the right to remove any End User Submissions that violates this Agreement or is otherwise objectionable. You must evaluate, and bear all risks associated with, the use of any End User Submissions, including any reliance on the accuracy, completeness, or usefulness of such End User Submissions.
(c) Access to Account Information and End User Submissions. We may access, preserve, and disclose your account information and End User Submissions if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to: (a) comply with legal process; (b) enforce this Agreement; (c) respond to claims that any End User Submissions violates the rights of third-parties; (d) respond to your requests for customer service; or (e) protect our (or our users or the public's) rights, property, or personal safety.
(d) Security Features. The Service and Software embodied within the Service may include security components that permit digital materials to be protected, and use of these materials is subject to usage rules set by us and/or End User Submissions providers who provide End User Submissions to the Service. You may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorized reproduction, publication, further distribution or public exhibition of the materials provided on the Service, in whole or in part, is strictly prohibited.
(a) You hereby agree to defend, indemnify and hold us and our subsidiaries, affiliates, officers, agents, co-branders or other partners, and employees, consultant and agents harmless from any claim or demand (including reimbursing us any reasonable attorneys' fees incurred by us prior to your assumption of the defense of any such claim or demand), made by any third party due to or arising out of Customer Content or End User Submissions made available through the Service, or your violation of any rights of another. We retain the right to retain counsel of our choosing in our sole discretion and at our sole expense to participate in any defense of such claim or demand. You have the sole right to defend or settle such claim at your expense provided such settlement provides for a complete release of claims against us and imposes on us no obligations.
(b) We hereby agree to defend, indemnify and hold you harmless from any claim or demand made by any third party alleging that the Service infringes a US patent, copyright, trademark or constitutes a misappropriation of a trade secret. Notwithstanding the foregoing, we shall have no liability to you (or any other person) or obligation with respect to any claim arising from materials you submit, post, transmit or make available through the Service. We have the sole right to defend or settle any such claim at our expense provided such settlement provides for a complete release of claims against you and imposes on you no obligations.
18. DISCLAIMER OF WARRANTIES.
(a) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) WE MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS, AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TERMS.
19. INTERNET DELAYS.
THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
20. 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 ONE (1) 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.
21. EXCLUSIONS AND LIMITATIONS
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS OF MAY NOT APPLY TO YOU.
22. LOCAL LAWS AND EXPORT CONTROL
The Site provides services and uses software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies. The user of the Site acknowledges and agrees that the Site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. This Site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000
We and our 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 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 Content contrary to United States law is prohibited.
We may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in our account information, or by written communication sent by first class mail or pre-paid post to your address on record in our account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to us (such notice shall be deemed given when received by us) at any time by a letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to us at the following address: IT Resources, 1646 Massachusetts Avenue, Lexington, MA 02420, addressed to the attention of: General Manager.
24. GENERAL INFORMATION.
(a) Entire Agreement. The Terms constitutes the entire agreement between both of us and governs your use of the Service, superseding any prior agreements between both of us with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use or purchase certain other services, affiliate services, third-party Content, or third-party software.
(b) Choice of Law and Forum. The Terms and the relationship between both of us shall be exclusively governed by the laws of the United States and the Commonwealth of Massachusetts without regard to its conflict of law provisions. Your exclusive forum for bringing any claim or cause of action against us is the courts located in Suffolk County, Massachusetts U.S.A. You hereby accept and submit to the personal and exclusive jurisdiction of such courts in any proceeding or action. With respect to any such proceeding or action brought in such courts, you hereby irrevocably waive, to the fullest extent permitted by law: (a) any objection you may have now or in the future to such jurisdiction or venue, and (b) any claim that such action or proceeding has been brought in an inconvenient form. Nothing limits either party’s right to commence and prosecute any legal or equitable action or proceeding before any court of competent jurisdiction to obtain injunctive or any other form of relief. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Terms must be filed within one (1) year (or, if different, the minimum amount of time permitted by law) after such claim or cause of action arose or be forever barred.
(c) Arbitration. Notwithstanding anything herein, if we elect in our sole discretion to resolve any claim through arbitration, you must cooperate fully with and be bound by such arbitration, without further recourse of any kind. The American Arbitration Association (“AAA”) shall preside over such arbitration. Such arbitration shall be exclusively governed by the laws of the United States and the Commonwealth of Massachusetts without regard to its conflict of law provisions. All proceedings shall take place in the City of Boston metropolitan area. If there is a conflict between the rules of the AAA and any provision of the Terms, the Terms shall govern. You are responsible for all costs that you incur in the arbitration, including without limitation, expert witnesses or attorneys. The reasonable filing fees and arbitrator’s costs and expenses shall be advanced by us. The prevailing party in any arbitration shall be entitled to reimbursement for all of its fees, costs, and expenses related to the arbitration, including without limitation, all fees, costs, and expenses related to filing, arbitrators, expert witnesses, attorneys, and other third parties.
(d) Waiver and Severability of Terms. Either party’s failure to exercise or enforce any right or provision of the Terms shall not constitute a waiver of such right or provision. If any provision of the Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms remain in full force and effect.
(e) No Third Party Beneficiaries. Except as otherwise expressly provided in the Terms, there shall be no third party beneficiaries to the Terms.
(f) Restrictions on Assignment. These Terms may not be assigned by you without our prior written approval, which may be withheld in our discretion, but may be assigned without your consent by us 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 ours directly or indirectly owning or controlling 50% or more of you shall entitle us to terminate this Agreement for cause immediately upon written notice.
(g) Statute of Limitations. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
(h) Titles. The section titles in the Terms are for convenience only and have no legal or contractual effect.
25. OTHER AGREEMENTS.
We may provide products or services under the terms of a separate agreement between you and us (each, an “Other Agreement”). Our obligations with respect to any product, service, or access that we make available to you under any Other Agreement shall be governed solely by the Other Agreement under which such product or service is provided and the Terms shall not be deemed or construed to alter the terms of such Other Agreements.
26. ACCEPTING THE TERMS.
(a) Agreement to Terms. In order to use the Service, you must first agree to the Terms. You may not use the Service if you do not accept the Terms.
(b) Eligibility to Use the Service. You may not use the Service and may not accept the Terms if (a) you are not of legal age (either under the laws of the Commonwealth of Massachusetts or the laws of the jurisdiction of which you are a resident or from which you use the Service) to form a binding contract with us, or (b) you are a person barred from using the Service under the laws of the United States or other countries including the country in which you are resident or from which you use the Service.
(c) Use by Minors. Any individual under the age of 18 years (“Minor”) must have a parent or guardian accept the Terms in order for such Minor to use the Service. A parent or guardian who accepts the Terms on behalf of a Minor will be primarily liable for ensuring complete and proper compliance with the Terms, including any payment obligation. A parent or guardian who accepts the Terms on behalf of a Minor will continue to be primarily liable for the obligations mentioned in the Terms even when the Minor has attained the age of 18, unless the parent or guardian obtains our express written consent to the contrary.
(d) Acceptance of Terms by an Organization. If you are entering into the Terms on behalf of a company or other organization, you must have the authority to bind your company or organization to the Terms and commit funds on its behalf. Titles that typically carry that authority include, without limitation: Chairman, Principal, President, Officer, Vice President, Director, Controller, Finance Manager or Purchasing Manager. We may reject the Terms if we determine, in our sole discretion, that you do not have the appropriate authority. In any case, if you are entering into the Terms on behalf of a company or other organization, you represent that you have the authority to bind it to the Terms and commit funds on its behalf, and the terms “you” and “your” will refer to that company or organization.
(e) Representation of Eligibility. In any of the above cases, you represent that you satisfy all of the above eligibility conditions. If you do not satisfy the above conditions, or if you do not agree with the Terms, you may not use the Service or any portion thereof; in that case we may also terminate the Terms and your use of the Service immediately without liability to you.
(f) Acceptance by Electronic Submissions. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by the Terms. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, you hereby agree to the use of electronic signatures, contracts, orders and other records and to electronic delivery of notices, policies and records of transactions initiated or completed through the Service. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records.
27. AMENDMENT AND UPDATING OF THE TERMS.
We may desire to make changes to the Terms from time to time to update it, for example to add references to different products and services, including increasing the price of the Service, and such changes may be made accordance with any one of the following procedure:
(a) By Agreement. A modification, amendment, or waiver of any provision of the Terms shall be effective if in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.
(b) New Subscription Term. We may specify amended or updated terms that apply to Renewal Terms, in which case we will make a new copy of the Terms available to you at least thirty (30) days prior to the renewal date, and such amended or updated Terms will be applicable without your express written consent (with the understanding that you can prevent such Terms from being applicable to you by cancelling the renewal within 30 days of receipt such a change notice).