Terms of Service
BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD AND AGREE TO BE BOUND BY ALL OF THE TERMS, CONDITIONS AND NOTICES CONTAINED IN THIS AGREEMENT JUST AS IF YOU HAD SIGNED THIS AGREEMENT.
1. Your Use of Services. Subject to the terms and conditions of this Agreement, You may access and use the Services through the Website or the App for the Term (as defined in Section 3) below. The Services may be used only in connection with the processing of Your information and such data, and not the information or data of any third party. You may not use the Services in any way that: (i) does not comply with the terms of this Agreement, as amended by Dulaney Group from time to time, or any other terms, rules, or guidelines provided by Dulaney Group concerning your use of the Services; (ii) may subject Dulaney Group to unfavorable regulatory action, violate any law, infringe upon the rights of third parties, or subject Dulaney Group to liability for any reason; or (iii) might adversely affect Dulaney Group’s public image, reputation or goodwill. All right, title and interest in and to the Services are owned and retained exclusively by Dulaney Group. Except for the rights and licenses expressly provided herein, all rights, title, and interest in the Services, including all corrections, enhancements, and modifications thereof, are reserved by Dulaney Group. You are responsible for your employees, contractors and agents compliance with the terms and conditions of this Agreement.
YOU ARE SOLELY RESPONSIBLE FOR USING THE SERVICES IN A MANNER THAT COMPLIES WITH LAWS, RULES, DIRECTIVES, REGULATIONS AND OTHER REQUIREMENTS OF GOVERNMENT AND REGULATORY AUTHORITIES, INCLUDING, WITHOUT LIMITATION, EMPLOYMENT AND PRIVACY RELATED LAWS (COLLECTIVELY, “LAWS”). YOU SHALL NOT USE THE SERVICES IN ANY MANNER THAT VIOLATES LAWS.
2. Your Use of Agent Software. As part of the Services, Dulaney Group will make available to You for download from the Website a software agent to be installed on the computer of each of Your employees or contractors (Your “Workforce”) whom you will monitor using Services (the “Software”). Subject to the terms and conditions of this Agreement, Dulaney Group grants You a non-exclusive, non-transferable license to use the Software (in object code only) and the corresponding user documentation (“Documentation”, Software and Documentation referred to together as the “Product”) as described herein. The term “Product” shall include any corrections, enhancements, updates or other modifications, including any custom modifications, to the Software and Documentation delivered to You. The Product shall be used solely by You in connection with Your use of the Services as is permitted herein. All rights not expressly granted herein are retained by Dulaney Group. Except as allowed under this Agreement, You agree not to reproduce, copy, modify, translate, reverse engineer, disassemble, decompile or otherwise attempt, or permit others to attempt, to discover the source code of the Software, in whole or in part. You agree not to use the Software in any way to design or develop a competing software product. You shall not sublicense, distribute or otherwise make the Software available to a third party. You shall not permit any parent, subsidiaries, affiliated entities or third parties to use the Software and Documentation without the prior written permission of Dulaney Group.
3. Term and Termination. This Agreement allows you to access and use the Services for the term You selected by you when you purchased access to the Services, or during the free evaluation period granted to You by Dulaney Group to evaluate the Services, unless earlier terminates as provided in this Agreement (the “Term”). Dulaney Group reserves the right to terminate Your access to the Services, without notice and in its sole discretion, if Dulaney Group believes that Your use of the Services does not comply with the terms of this Agreement including payment of applicable fees.
4. Your Information. You represent that the information provided by You in the online registration form is accurate, complete and current, and You agree to update that information promptly if there is any change.
5. Your Password. You are responsible for keeping Your passwords secret and confidential. You agree that You are responsible for any communications, transactions or use of the Services, which are made using Your passwords, together with any fees, charges, liabilities or obligation which may result from such use. You are responsible for changing any of Your passwords that have been stolen or otherwise compromised or are being misused.
6. Fee.Prices for the Services are as set forth when you purchased access to the Services and shall be payable in accordance with Dulaney Group’s then-current terms of payment.
We reserve the right to change service fees upon thirty (30) days notice. Your continued use of the Services after such modifications will be deemed to be Your conclusive acceptance of such changes. If You are dissatisfied as a result of such changes, Your only recourse is to terminate your access to the Services.
All fees paid to Dulaney Group are nonrefundable. You are responsible for paying all sales, use, excise, ad valorem and other taxes (excluding taxes based on the net income of Dulaney Group) arising out of Your use of or access to the Services. If Dulaney Group does not receive payment when due, Dulaney Group may immediately terminate Your access to the Services.
7. Content. You acknowledge and agree that all right, title and interest in and to the information, data, software, photographs, graphics, videos and other material (collectively the “Content”) provided by Dulaney Group in connection with the Services, including, without limitation, any copyrights in or to the Content, belong to Dulaney Group and its content providers, and You will not assert any claims to the contrary. You may not: (i) copy, edit, alter, modify or prepare any derivative works of the Content or any portion thereof; (ii) remove or alter any credits, notices (including, without limitation, copyright, trademark and service mark notices), or logos which are included as a part of the Services; or (iii) resell, sublicense or otherwise transfer, distribute or make available to others all or any portion of the Content in any form.
8. User Materials. (a) As part of the Services, You may create or provide, or the Services may collect information, data and other materials in an electronic format which will be utilized through the Services (collectively “User Materials”). User Materials includes, without limitation, information that You provide in the online registration form. You represent that You have obtained all necessary third party rights, including, without limitation, copyrights, for any User Materials that belong to third parties. You acknowledge that by providing any User Materials to Dulaney Group, You authorize Dulaney Group to use User Materials for the purpose of facilitating Your use of the Services, including, without limitation, registering You to use the Services, billing You for the Services, permitting You to access your User Materials (as defined below), personalizing communications to You, and generally to improve the Services.
(b) Dulaney Group will have the right, in its discretion, to store User Materials or delete User Materials following the expiration or termination of the Services. Dulaney Group will use reasonable efforts to notify You before it deletes any User Materials, but Dulaney Group shall not be responsible if it fails to do so or if You do not receive Dulaney Group’s notification. While Dulaney Group will implement commercially reasonable security measures to maintain the security of User Materials, Dulaney Group will not be liable to You for any disclosures of Users Materials to third parties or any other breaches of security affecting You or User Materials.
9. Warranties. Dulaney Group hereby warrants that during the term of this Agreement, the Services will perform, in all material respects, in accordance with its then-current published functional specifications. In the event of any failure of the Services to perform in a material respect to such specifications, Dulaney Group will, as Your sole and exclusive remedy for such failure, repair the Services.
EXCEPT FOR THE FOREGOING WARRANTY, THE USE OF THE SERVICES AND THE SOFTWARE IS PROVIDED “AS IS”, “AS AVAILABLE”, AND WITHOUT ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND DULANEY GROUP HEREBY DISCLAIMS THE SAME. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DULANEY GROUP NEITHER WARRANTS THAT THE SERVICES WILL BE PROVIDED IN AN UNINTERRUPTED, SECURE OR ERROR-FREE MANNER NOR DOES DULANEY GROUP MAKE ANY WARRANTY AS TO THE RESULTS OBTAINED FROM THE SERVICES OR AS TO THE ACCURACY OR RELIABILITY OF THE SOFTWARE OR OTHER CONTENT PROVIDED THROUGH THE SERVICES. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DULANEY GROUP, ITS AGENTS OR EMPLOYEES WILL CREATE A WARRANTY AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. ANY USE OF THE SERVICES IS AT YOUR OWN RISK.
10. Limitation of Liability. DULANEY GROUP WILL NOT BE LIABLE FOR ANY, INDIRECT, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR INABILITY TO USE THE SERVICES OR SOFTWARE (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST PROFITS OR BUSINESS INTERRUPTION), WHETHER ARISING FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES OR EMAILS, ERRORS, DEFECTS, VIRUSES OR OTHER MALICIOUS CODE, DELAYS IN OPERATION OR TRANSMISSION, OR ANY FAILURE OF PERFORMANCE, EVEN IF DULANEY GROUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE LIABILITY OF DULANEY GROUP TO YOU FOR ALL CLAIMS IN THE AGGREGATE ARISING OUT OF THIS AGREEMENT OR YOUR USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES, WHETHER ARISING IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE OR STRICT LIABILITY), EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY YOU HEREUNDER IN THE ONE YEAR PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Indemnification. You agree to defend, indemnify and hold harmless Dulaney Group, its officers, directors, employees, contractors, and suppliers, and licensors, from and against any and all loss, claim or liability (including without limitation all attorneys’ fees and expenses) which they may incur in connection with: (a) Your breach of this Agreement; (b) Your use of the Services; or (c) any User Materials.
12. Amendment. Dulaney Group will have the right to modify and restate the terms and conditions of this Agreement, and such modification(s) will be effective immediately upon Dulaney Group sending you notice of the modification. Your continued use of the Services after such modifications will be deemed to be Your conclusive acceptance of all modifications to this Agreement. If You are dissatisfied as a result of such modification(s), Your only recourse is to terminate your access to the Services.
13. Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to the choice of law provisions thereof.
14. Arbitration. Dulaney Group and You agree that any claim, dispute or controversy, whether in contract, tort (intentional or otherwise), whether pre-existing, present or future, and including constitutional, statutory, common law, regulatory and equitable claims in any way arising out of or relating to: (1) the Services; or (2) the relationship between Dulaney Group and You, including the validity, enforceability or scope of this Agreement or any part hereof (collectively, “Claim”), shall be resolved, upon the election of either Dulaney Group or You, by binding arbitration pursuant to this arbitration provision and the applicable rules of American Arbitration Association in effect at the time a Claim is filed. In the event of a conflict between this arbitration provision and the rules of the arbitration administrator, this arbitration provision shall govern. No class actions or joinder or consolidation of any Claim with other persons are permitted in the arbitration without the written consent of Dulaney Group and You. Any arbitration hearing that You attend will take place in Mocksville, North Carolina. Upon request of either party, the arbitrator shall prepare a short, reasoned written opinion supporting the arbitration award. Judgment upon the award may be entered in any court having jurisdiction. Nothing in this arbitration provision shall prevent Dulaney Group from seeking or obtaining injunctive relief as a result of a violation or threatened violation of this Agreement and any such injunctive action shall not constitute a waiver of the requirement of arbitration for any Claim. YOU AND DULANEY GROUP AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS LOCATED IN MOCKSVILLE, NORTH CAROLINA.
15. Consent to Electronic Communications. You consent to Dulaney Group providing You in electronic form any information or notices that Dulaney Group may be required by law to send to You or that may pertain to the Services provided pursuant to this Agreement, or use of information You may submit in connection with the Services provided pursuant to this Agreement (collectively “Information”). Dulaney Group may provide Information to You: (1) via e-mail at the e-mail address You designated to Dulaney Group (if any); or (2) in the course of Your use of the Services provided pursuant to this Agreement, including, without limitation, via a screen or page within the Website.
If Your e-mail address changes, You must notify Dulaney Group of such change immediately. If You fail to do so, You understand and agree that any communications sent via e-mail shall nevertheless be deemed to have been provided or made available to You in electronic form. You may withdraw Your consent to receive Information by making a request in writing to the following address: Dulaney Group, LLC. 390 S. Salisbury St. Mocksville, NC 27028. Please provide Your physical address and email address to request the change. If You choose to withdraw Your consent to electronic communications, then You may be unable to access certain features or functionality that would otherwise be made available to You.
16. Miscellaneous. This Agreement and the rights granted hereunder shall not be assigned or transferred by You, in whole or in part. Dulaney Group shall be free to assign this Agreement without Your consent. Without limiting the foregoing, You may not provide any third party with access to the Services. If any provision of this Agreement is held invalid, such invalidity shall not affect any other provisions of this Agreement. Headings are inserted for reference only and shall not be construed as a part of this Agreement. No failure or delay on the part of Dulaney Group to exercise any right under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right preclude any other or further exercise thereof or of any other right. This Agreement represents the entire understanding and agreement between You and Dulaney Group concerning your Use of the Services and Product and supersedes any prior representations, understandings or agreements.
IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICE. BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD THE TERMS AND CONDITIONS OF THIS AGREEMENT AND YOU AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS.