By downloading and accessing this EZfeed Mobile application (“App”) or by accessing and using the EZfeed Mobile Internet site via an Internet browser (“Browser Application”), you acknowledge your agreement to this Electronic Services User Agreement (“Agreement”). This Agreement contains important legal information regarding your access and use of this App and/or Browser Application.
Subject to and conditioned upon my consent to the terms set forth in this Agreement, DHI Computing Service, Inc. (“Amelicor”) grants me a limited, revocable, nontransferable and nonexclusive license to use Amelicor’s mobile electronic services (“Services”) on any Access Device (as such term is defined below) that I own or control. Such license is in addition to any additional agreement(s) referred to and incorporated into this Agreement below with respect to the Services generally or certain programs and services that may be accessed via the Services.
I understand that this Agreement is between me and Amelicor and states the terms and conditions of my use of the Services. I agree to use the Services only in accordance with this Agreement. If I do not agree with the terms of this Agreement, I understand I may not use and agree to refrain from using the Services. The Services include but are not limited to the EZfeed Mobile App, the EZfeed Mobile Browser Application, and any online system, whether web-based, wireless or otherwise, established by Amelicor directly or through online business partners that Amelicor may make available in the future. The Services and the data, information and content available to me through the Services depend on the nature of my relationship with Amelicor. The Services make available to me a variety of interactive computer, handheld device and Internet-based services which may allow me to provide and access information in connection with the Amelicor data processing software that I, and, if applicable, my employer and/or employee and/or consultant/service provider and/or client (each, an “Authorized User”), have separately licensed from Amelicor (“Software”) for use in connection with the operations of such Authorized Users (collectively, the “Authorized Activities”). For purposes of this Agreement, any Authorized User whose right to use the Services, whether pursuant to this or a separate agreement, derives from my licensing of Software from Amelicor shall be referred to as “My Authorized Users.” Certain Services may be available via one or more different types of electronic devices or means, including a personal computer, handheld device, internet-ready telephones, personal data assistants or other electronic means (collectively, “Access Devices”) as Amelicor may elect from time to time. Available Access Devices may differ among different offerings within the Services. The Services may be marketed under various brand names including, without limitation, “EZfeed Mobile”.
I understand that I and/or My Authorized Users must enter certain information through the Services using an Access Device in order to use certain aspects of the Services and/or to request to have Amelicor send information to an Access Device. This information may include the identity of the types of information I and/or My Authorized Users are requesting Amelicor to send, information regarding the Access Device(s) and information relating to the Authorized Activities. I understand that my and My Authorized Users’ use of the Services and Amelicor’s use of this and any other information I and/or My Authorized Users enter through the Services is subject to the terms of Amelicor’s Privacy Policy , which is incorporated by reference into this Agreement.
I understand that my and My Authorized Users’ use of certain of the Services will be subject to the terms of any license agreement relating to any Software required for such Service, and that my and My Authorized Users’ use of the Services may be subject to license or usage terms in printed license agreement(s), displayed in the Software and/or posted online by Amelicor. In the event of any conflict between the terms of this Agreement and such other terms, the terms of this Agreement shall govern. I agree to be bound by the terms of such license agreements and terms, including without limitation the prohibitions on distribution and copying, the exclusion of all representations and warranties, and the limitation of remedies.
I, and My Authorized Users, shall be the only authorized users of the Services under this Agreement and shall only use the Services for uses related to the Authorized Activities. I agree that neither I nor any of My Authorized Users shall re-disseminate, publish, broadcast or otherwise commercially exploit any information obtained through the Services in any manner to third parties without the express written consent of Amelicor, unless I have otherwise agreed in writing with Amelicor based on the nature of my relationship. I shall be responsible for the confidentiality and use of my and My Authorized Users’ user names, passwords, and other security data, methods and for the physical security of my and My Authorized Users’ Access Devices. I understand that I shall be responsible for all orders electronically transmitted, or use of any data, information, or services obtained, by myself and/or any of My Authorized Users, using my or My Authorized Users’ user names, passwords, security codes and other security data. I agree that Amelicor shall not be under a duty to inquire as to the authority or propriety of any instructions or recommendations given to Amelicor by me or any of My Authorized Users or via my account, and shall be entitled to act upon any such instructions and/or recommendations; and Amelicor will not be liable for any losses that I or any of My Authorized Users incur (including any claims, damages, actions, demands, or other losses, as well as any costs, expenses charges, attorneys’ fees, or other fees and expenses incurred by me or any of My Authorized Users, or other liability arising out of any such instructions or recommendations, as long as such instructions and/or recommendations reasonably appear to be authentic). I agree that the Services are the proprietary property of Amelicor and are protected by applicable copyright law.
I understand that there may be delays with or interruptions or failures of the Services and I agree to accept the risk and responsibility associated with such delays, interruptions and failures. I understand that Services availability and response time may be subject to certain conditions. Amelicor shall not be responsible for, and makes no warranties regarding, the access, speed or availability of the Services, Internet or network services.
By using the Services, I recognize that the use of these Services depends on certain factors outside of Amelicor’s control, and is subject to current limitations of wireless and network technologies. By using these Services, I agree that Amelicor is not responsible for any losses that may result from my use of the Services and acknowledge the following risks: (1) wireless access may be delayed or interrupted, or may be unavailable; (2) data transmitted through wireless access, even if encrypted, may be intercepted by unauthorized persons; (3) my failure to physically secure my Access Device or to protect my passwords can result in unauthorized access; (4) the accuracy and timeliness or completeness of data transmitted through wireless access cannot be guaranteed; and (5) response times may be delayed by volume or systems capacity.
I recognize that my and My Authorized Users’ use of the Services may involve the transmission of information that may be considered confidential information. By using the Services and/or authorizing My Authorized Users to use the Services, I consent to the transmission by electronic means of such confidential information through the Services; such consent shall be effective at all times that I or any of My Authorized Users use the Services. I acknowledge that Amelicor cannot assure the security or privacy of electronic transmission of such information. Accordingly, I must assess whether use of the Services is adequately secure to meet my particular needs. For certain types of transactions, Amelicor may request personalized security codes or other information, and may utilize encryption. I understand that use of certain aspects of the Services, including without limitation wireless Internet or network services, may allow others to identify my geographical location. Amelicor will not be liable for any losses resulting from unauthorized transactions if the transaction reasonably appears to be authentic. Amelicor will take reasonable security precautions, but Amelicor disclaims any liability for interception of any confidential information, data or communications.
I understand that I am responsible for monitoring my and My Authorized Users’ account(s) relating to the Software with Amelicor. This includes making sure that any requests submitted through the Services are properly reflected within such account(s) with Amelicor, and that confirmations, statements and any other expected communications are received. It also includes reviewing these documents to see that information about such account(s) is accurate and contains nothing suspicious. I understand that all transactions made using the Services by myself or any of My Authorized Users are at my risk and responsibility. I further understand I must notify Amelicor of the existence of certain circumstances relating to my or My Authorized Users’ use of the Services. Specifically, I agree that any transactions made by me or any of My Authorized Users and any information furnished to me or any of My Authorized Users by use of the Services shall be subject to the following terms and conditions to the extent such terms and conditions are not superseded by applicable laws and/or regulations:
a. If there is any type of discrepancy or suspicious or unexplained occurrence relating to the Services or my or My Authorized Users’ use of the Software, I shall immediately notify Amelicor.
b. If I or any of My Authorized Users have not received an expected communication, or if I or any of My Authorized Users have a question or believe we have found an error in any communication from Amelicor, I will notify Amelicor immediately.
c. I understand that I and each of My Authorized Users are to each have our own individual user accounts and passwords and we shall not use another user’s user account and password. I shall immediately notify Amelicor if any password that I or any of My Authorized Users use with the Services is lost or stolen or if there is unauthorized use of such a password or use of such a password by any person other than myself or one of My Authorized Users.
If I fail to notify Amelicor when any of the above conditions (a) - (b) occur (and in any event if the above condition (c) occurs), neither Amelicor nor any of its employees, agents, affiliates, or control persons, nor any third parties, can or will have any responsibility or liability to me, any of My Authorized Users or to any other person whose claim may arise through me or any of My Authorized Users for any claims with respect to the handling, mishandling, or loss of any information.
Notwithstanding my notification to Amelicor, Amelicor shall not be liable for any claims, demands, actions, losses, damages, liability, costs, charges, counsel fees, or expenses of any nature (“Losses”) related to the Services except as expressly set forth in this Agreement. I understand that Amelicor shall not be deemed to have received any instructions or recommendations electronically transmitted by me or any of My Authorized Users until Amelicor has acknowledged to me that the instructions or recommendations have been received by Amelicor.
I understand that so long as Amelicor sends communications to me or any of My Authorized Users at the physical or electronic address of record given by me or any of My Authorized Users to Amelicor, or to any other address given to Amelicor by an authorized person, the communications are legally presumed to have been delivered, whether I or any of My Authorized Users actually received them or not. In addition, confirmations and statements are legally presumed to be accurate unless I or any of My Authorized Users specifically tell Amelicor otherwise. All questions, complaints or claims pertaining to the Services shall be directed to:
DHI Computing Service, Inc.
Attn: EZfeed Customer Support
1525 West 820 North
Provo, Utah 84601
(801) 373-8518 ext. 6704
ezfeed@amelicor.com
Any liability arising out of the Services for which Amelicor is determined to be responsible shall not exceed the greater of (a) $10,000, (b) the minimum amount allowed under applicable law and (c) the amount of license fees for this App and/or Browser Application that I, and if applicable, My Authorized Users, have paid to Amelicor during the consecutive six (6) month period preceding the date on which I or my agent first provided Amelicor with written notice of my first claim against Amelicor. While all information accessible through the Services has been obtained from sources believed to be reliable, I understand that Amelicor will not be responsible whatsoever for the accuracy, timeliness, completeness, or use of any information received by it or received by me or any of My Authorized Users from Amelicor through the Services and that Amelicor does not make any warranty concerning such information. I agree that Amelicor shall not be responsible for any Losses caused by telecommunications network, encryption or communications line failure, unauthorized access, theft, systems failure, systems delays and other occurrences beyond its reasonable control. To the extent that any Services use Internet, wireless or related electronic or telephonic services to transport data or communications, Amelicor will take reasonable security precautions, but Amelicor disclaims any liability for interception of any such data or communications.
I expressly acknowledge and agree that the use and storage on my and My Authorized Users’ Access Device(s) of any information available through use of the Services is at my sole risk and responsibility.
Amelicor DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN RESPECT TO THE SERVICES OR ANY INFORMATION, PROGRAMS OR PRODUCTS OBTAINED FROM, THROUGH, OR IN CONNECTION WITH THE SERVICES. THE SERVICES MAY CONTAIN TECHNICAL AND OTHER ERRORS AND LIMITATIONS AND ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. Amelicor CANNOT AND DOES NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NON-INFRINGEMENT, SECURITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE SERVICES AND ALL INFORMATION MADE AVAILABLE THROUGH THE SERVICES. THE ENTIRE RISK AS TO RESULTS AND PERFORMANCE OF THE SERVICES IS ASSUMED BY ME. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT, CONTRACT OR OTHERWISE, SHALL Amelicor BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF ANTICIPATED BENEFITS ARISING OUT THE USE, RESULTS OF USE, OR INABILITY TO USE THE SERVICES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS.
I agree to indemnify and hold harmless Amelicor from and against Losses arising from my or My Authorized Users’ (a) violation of this Agreement; or (b) violation of Amelicor’s or any third party’s rights, including but not limited to copyright, proprietary and privacy rights. This indemnification and hold-harmless obligation will survive the termination of the Agreement.
I understand that Amelicor may limit access to all or a portion of the Services to persons who meet certain criteria (“Eligibility Criteria”). The identification of Eligibility Criteria is within Amelicor’s sole discretion and is subject to change at any time and from time to time. The Services may provide access to information regarding additional products and services that may be subject to different Eligibility Criteria than those required to qualify for the Services.
I agree to be liable for any and all fees, charges or expenses that Amelicor may charge or I may incur in connection with the use of the Services by me, any of My Authorized Users or any other person through use of my or any of My Authorized Users’ user names, passwords, security codes, equipment, or otherwise, if any. I understand and acknowledge that Amelicor is not delivering telecommunication, Internet, or any other means of electronic access and that I am responsible for maintaining appropriate contracts with third parties to obtain such services and I will be solely responsible for paying all charges related thereto. I agree to obtain access to and be solely liable for all payments related to all equipment and Access Devices necessary to access the Services. I further understand that my ability to make use of the Services may be limited by technical or other limitations present in the equipment, systems and Access Devices I use to access the Services.
I agree that Amelicor may modify, change, or discontinue the Services in whole or in part, at any time. I agree that Amelicor may immediately terminate its provision of the Services to me if I or any of My Authorized Users (i) breach this Agreement, (ii) breach any other agreement between myself or any of My Authorized Users and Amelicor, (iii) have jeopardized the proper and efficient operation of the Services, or (iv) engaged in activity which is contrary to Amelicor’s policies. Any unauthorized use of the Services, whatsoever, shall result in automatic termination of this Agreement.
Amelicor may revise, modify or amend this Agreement at any time without notice. While Amelicor may notify me of changes to this Agreement, I understand I should check this Agreement regularly. The Agreement is available through a link on the home page of the application at all times. If a court of competent jurisdiction deems any provision of this Agreement unenforceable, that provision will be enforced to the maximum extent permissible, and the remaining provisions will remain in full force and effect.