Service Agreement – Hosted Dynamics GP

Service Agreement – Hosted Dynamics GP

Last Updated: July 2010

This is a contract between you and the myGPcloud company listed in section 27 of this contract. This contract refers to myGPcloud as “we,” “us,” or “our.” This contract applies to any myGPcloud website, service (including pre-release services) and software, including all updates, support, and content. This contract refers to all of these as the “service.” This contract also covers your use of any additional myGPcloud services that myGPcloud makes available through this service and for which you sign up while this contract is in force, unless other terms accompany those services. If so, those terms apply. You represent that you are at least 18 years of age and have attained the age of majority where you reside.

You may use the service only if you agree to these terms. If you do not agree, do not use the service. Please note that we do not provide warranties for the service. This contract limits our liability and disclaims warranties for the service to the maximum extent permitted by law. This contract also requires you to indemnify us. Please read these sections of the contract carefully.

1. When You May Use the Service

If you create an account to use the service, you may start using the service as soon as you have finished the sign–up process. As indicated during the setup process, some parts of the service may not be available right away while we configure them for your use. If you do not create an account to use the service, you cannot use the available service right away.

2. How You May Use the Service

In using the service, you will:

1.    comply with all laws,

2.    comply with any codes of conduct or other notices we provide,

3.    comply with the myGPcloud Anti-Spam Policy,

4.    keep your password secret, and

5.    promptly notify us if you learn of a security breach related to the service.

3. How You May Not Use the Service

In using the service, you may not use the service in any way that is against the law or harms myGPcloud or its affiliates, resellers, distributors, and/or vendors (collectively, the “myGPcloud parties”),

  • damage, disable, overburden, or impair the service (or the networks connected to the service) or interfere with anyone’s use and enjoyment of the service,
  • resell or redistribute the service, or any part of the service,
  • upload,post, e-mail, or otherwise make available any content that
  • incites,advocates, or expresses pornography, obscenity, vulgarity, profanity, hatred, bigotry, racism, or gratuitous violence,
  • is intended to threaten, stalk, defame, defraud, degrade, victimize, or intimidate an individual or group of individuals for any reason, including on the basis of age, gender, disability, ethnicity, sexual orientation, race, or religion, or to incite or encourage anyone else to do so, or
  • is illegal or violates any laws, including laws related to adult activities and content, child pornography, criminal activities, piracy and counterfeiting, gambling, drugs, online pharmacies, copyright and other intellectual property laws, defamation, libel, and rights of privacy,
  • use the service to sell, market, distribute or advertise, or facilitate the sale, marketing, distribution or advertising of illegal gambling (including online casinos, sports books, bingo, and poker),
  • illicit drugs, pharmaceuticals, or controlled substances,
  • counterfeit, pirated, or stolen goods,
  • goods that are considered indecent, obscene, or pornographic,
  • Nazi memorabilia,
  • registered or unregistered securities, or
  • any goods or services that if sold via the service would cause myGPcloud or you toviolate any laws and regulations,
  • use any portion of the service as a destination linked from any unsolicited bulk messages or unsolicited commercial messages (“spam”),
  • use any unauthorized third-party software or service to access the myGPcloud instant messaging network (currently known as the .NET Messenger service),
  • use any automated process or service to access and/or use the service (such as a BOT, a spider, periodic caching of information stored by myGPcloud or “meta-searching”), or
  • use any unauthorized means to modify or reroute, or attempt to reroute the service.

4. Your Service Account

You may establish a service account and password for the service. You are responsible for all activity that takes place under your service account and/or passwords. You may not authorize any third party to access and/or use the service on your behalf.

5. How We May Change This Contract

myGPcloud may change this contract at any time without notice. If we make a material change to this contract, we will notify you at least 30 days before the change takes place. If you do not agree to the change, you must cancel and stop using the service before the change takes place. If you do not stop using the service, your continued use of the service will be under the changed contract.

6. Charges and Billing

If the service is available without a fee, then this Section 6 will not apply. This section applies in all situations in which you pay myGPcloud directly for the service. If you pay a company other than myGPcloud for the service, then the charges and billing terms are as stated by that company. Even if you do not pay for the service, you may still incur other charges incidental to using the service; for example, charges for phone or Internet access, mobile text messaging, wireless service and other data transmissions.

  • Payment. When you sign up for a service, you will provide a payment method. You confirm that you are authorized to use the payment method. You authorize us to charge you for the service using your payment method and for any paid feature of the service for which you choose to sign up or use while this contract is in force. We may charge you a different amount than what you approved. 
  • Charges. If your service is provided on an annual basis, we will charge you for the service in advance. If your service is provided for an indefinite period or automatically renewed, we will charge monthly for the services you will receive in the next month. We may charge you at one time for more than one of your prior billing periods. If we told you that the service will be provided indefinitely or automatically renewed, we may automatically renew your service and charge you for any renewal term. 
  • Updates to your Billing Account. You must keep all information in your billing account accurate and current, including your billing address and any expiration date for your payment method. You may change your payment method at any time. If you tell us to stop using your payment method and do not provide an alternative payment method, we will cancel your service. Your notice to us will not affect charges we submit to your billing account before we reasonably could act on your request. 
  • Trial Period Offers. You may receive a limited time of free service or some other trial period offer. Unless we tell you otherwise, if you are participating in any trial period offer, you must cancel the service by the end of the trial period to avoid incurring charges or having your service downgraded to a service for which there is no subscription fee. If you do not cancel your service and we have told you that the service will automatically be converted into a paid subscription at the end of the trial period, then you authorize us to charge your payment method for the service. If we downgrade your service to one for which there is no subscription fee, some of your data may not be available to you and myGPcloud may delete that data permanently from our servers. You are responsible for taking the necessary steps to back up your data and ensuring that you maintain your primary means of business.  
  • Prices and Price Increases.  The price for the service excludes taxes, phone and Internet access charges, mobile text messaging, wireless service and other data transmissions, unless stated otherwise. These taxes and charges are your responsibility. Currency exchange settlements are based on your agreement with your payment method provider.  If there is a specific time length and price for your service offer, then that price will remain in force for that time. When the offer period ends, we will charge you a new price for that service.  We may change the price of a service from time to time, but we will give you at least 10 business days notice before a new price takes effect. If you do not agree to the new price, then you must cancel and stop using the service before the new price takes effect. If your service is on a period basis (for example, monthly or annually), then the new price will start on the date that we indicate.  
  • Refund Policies. All charges are non-refundable unless expressly stated otherwise, or otherwise provided by law. The costs of any returns will be at your expense, unless otherwise provided by law. 
  • Payments To You. To receive a payment or refund due to you, you must promptly provide us with all information we need to make the payment (for example, bank account information for receiving the payment). You must provide us with the information we request before your right to receive payment accrues. You are responsible for the accuracy of the information you provide and any taxes you may incur as a result of receiving a payment. If you receive a payment that was not due to you, we may reverse or seek return of the payment, and you agree to cooperate with us. 
  • Online Statement/Errors. We will only provide you with an online billing statement. If you ask us to mail a copy to you, we may charge you a retrieval fee. If we make an error on your bill, we will correct it promptly after you tell us and we investigate the charge. You must tell us within 120 days after an error first appears on your bill. If you do not tell us within this time, we will not be required to correct the error. You release us from all liability and claims of loss resulting from any error that you do not report to us within 120 days after the error first appears on your online statement. If you do not tell us within this time, we will not be required to correct the error. 
  • Late Payments. Except to the extent prohibited by law, we may assess a late charge if you do not pay on time regardless of any disputes you may have raised about your bill. You must pay these late charges when we bill you for them. The late charge will be the lesser of 1% of the unpaid amount each month or the maximum rate that is permitted by law. We may use a third party to collect past due amounts. You must pay for all reasonable costs we incur to collect any past due amounts. These costs may include reasonable attorneys’ fees and other legal fees and costs. We may suspend or cancel your service if you do not pay in full and on time.

7.    Changes to the Service – Cancellation or Termination

  • By myGPcloud. We may change the service at any time and for any reason without notice. If we cancel a particular service or feature, we will make commercially reasonable efforts to replace it with a comparable service or feature, but we are not obligated to do so. We may cancel or suspend your service or a portion of your service at any time and for any reason without notice, including if you violate the terms of this contract. If we do, your right to use the service will stop right away. Cancellation of the service will not change your obligation to pay any charges due on your billing account. If we cancel the service without cause, we will refund the unused portion of your service charge for that period on a pro-rated basis. 
  • By You. You may cancel your service at any time for any reason. Go to http://billing.myGPcloud.com for information about cancelling your service. Certain service offers may require cancellation charges, and you will pay all cancellation charges as specified in the materials describing the offer. Cancellation of the service by you will not alter your obligation to pay all charges made to your billing account. We will refund the unused portion of your service charge for the applicable period on a pro rata basis. 
  • Data. Upon termination or cancellation of the service by you or us for any reason, myGPcloud may delete your data permanently from our servers. You are the owner of the data and therefore must make arrangements with myGPcloud for backup and shipment of your data. myGPcloud will notify you prior to the permanent deletion of your data from our servers. You shall be solely responsible for providing, verifying, updating, and uploading/downloading company data to the servers, and any and all files, pages, data, works, information and/or materials transmitted to and from the servers.  Such sole responsibility for the data shall extend to the accuracy, integrity and completeness of the data, as well as to the maintenance of backup data. myGPcloud or its affiliates are not responsible for any corruption of the data that may occur as a result of transmission, or due to software or hardware or other system malfunction. The data is the property of you, the customer. See Addendum A for services regarding backups. 
  • Waiver of rights and obligations. To the extent necessary to implement the termination of this contract, each party waives any right and obligation under any applicable law or regulation to request or obtain intervention of the courts to terminate this contract. 

8. Limits on Service

myGPcloud may establish limits on the service. For example, we may limit:

  • the maximum storage space on myGPcloud’s servers available to you, 
  • the number of service accounts to which you may subscribe, 
  • how long we retain an inactive service account, which we define as one where you do not sign in to the service for an extended period of time, and 
  • the number of transactions you can conduct through a service.

 

9. Service Level Availability

mygpcloud will be available to you for at least ninety-nine and one half percent (99.5%) of the Scheduled Available Time during any given calendar month. In the event myGPCloud is unable to provide Customer with access to an appropriate server at the Hosting Facility in order to deliver the service with at least 99.5% availability during the Scheduled Available Time in any given calendar month, you shall receive a credit to its next monthly fee then due equal to 15% of the fee due for the month in which at least 99.5% availability was not achieved. If myGPCloud is unable to provide at least 99% availability during the Scheduled Available Time in any given calendar month, you shall receive a credit to its next monthly fee then due equal to 25% of the monthly fee due for the month in which at least 99% availability was not achieved.  If myGPcloud is unable to provide at least 98% availability during the Scheduled Available Time in any given calendar month, you shall receive an aggregate credit to its next monthly fee then due

equal to 35% of the monthly fee due for the month in which at least 98% availability was not achieved. The foregoing credits for any given calendar month are not cumulative.

  • “Scheduled Available Time” means twenty-four hours a day, seven days a week, excluding: (1) scheduled maintenance downtime of 2 hours per week, plus 12 hours per quarter for maintenance updates, etc; (2) maintenance downtime for specific critical Software issues; and (3) any downtime due to software defects or due to circumstances caused by Customer, or due to events or interruptions caused by other forces beyond the immediate control of myGPcloud and RoseASP. 

 

10. Backup Schedules

myGPcloud will be responsible for performing the following types and frequency of backups during the service: 

Description

Timing

Device

Daily Full data backup; database
backup is on a schema basis to allow for recovery of individual company
schemas, data is kept for one week locally.  SQL transaction logs are captured at a
point in time, once daily, M-F, when the daily backup process is completed.
Backup server
local disk
Weekly Each Friday night a full
data base backup is taken
Backup server local disk
for ONE week & removable tape rotated offsite on a 5 week rotation
Monthly On the 10th
day of every month a full data base backup is taken to capture prior month
end data
Backup server local
disk for ONE month & removable
tape rotated offsite on a 12 month rotation
Annual On the 20th of
January each year a year-end full data base backup is taken to capture prior
yr data
Backup server local disk
for ONE year & removable tape rotated offsite on a SEVEN (7) year
rotation
As Needed At the request of
Customer
Removable media –
CD, tape, etc.

 

Removable backups of your data shall be maintained by myGPcloud in a secure, off-site storage location during the use of the service.  Copies of the backup data shall be made available to you as directed by the Customer in a predefined schedule which may be updated weekly. Costs for nonscheduled back-ups and for copies of off-site backups are listed in Addendum A.

11. A Service May be A Pre-release Version

A particular service may be a pre-release version. It may not work the way a final version of the feature or service will. We may change it for the final, commercial version. We may not release a
commercial version. We also reserve the right to change a pre-release service at any time without advance notice to you.

12. myGPcloud Does Not Have Editorial Control Content.

myGPcloud, you and third parties may be able to post or store materials, including data, documents, information, advertisements, communications, messages and links to third party Web sites (“content”) on the service.

Intellectual property rights.

mygpcloud does not sanction or approve the unauthorized use of content protected by copyright and other intellectual property rights. You understand that sharing content that violates others’ copyrights and intellectual property rights violates this contract. You represent and warrant that the use and publication of the content by you and any of your associated account users does not violate the intellectual property rights of any third party. You understand that myGPcloud may remove content at any time without notice when the content violates this contract or an applicable code of conduct, or when we have a good faith reason to believe it is necessary to do so.

Public areas of the service.

You agree to post content and use public areas of the service in accordance with this contract and the codes of conduct posted for these public areas. You understand that myGPcloud does not control or endorse the content that you and others post in public areas of the service. myGPcloud doesn’t claim ownership of content that you and others post or provide. By posting or otherwise providing content in public areas of the service, you are granting to mygpcloud and the public free, unlimited worldwide and perpetual permission to use, modify, copy, distribute, and display the content in connection with the service, and publish your name with the content. You also give the public permission to grant these rights to others. You represent and warrant that you have all the rights necessary for you to grant the rights in this section and that the use and publication of the content does not breach any law. myGPcloud will not pay you for content you post on public areas of the service.

 Links to third-party Web sites.

The service, including public areas of the service, may contain links to third-party web sites. These third-party web sites are not under myGPcloud’s control. If myGPcloud has included these links in the service, we provide them to you as a convenience only. The inclusion of these links is not an endorsement by myGPcloud of any third-party Web site, service or product. myGPcloud reserves the right to disable links to any third-party Web site that you or other customers post on the service.

13. Privacy Monitoring your use. We consider your use of the service to be private.

 However, to the maximum extent permitted by law, you authorize myGPcloud to access or disclose information about you, your account, your data, your content and your communications when we have a good faith reason to believe it is necessary to do so to

  • comply with the law or legal process served on us 
  • enforce and investigate potential violations of this contract, including use of the service to participate in or facilitate activities that violate the law, 
  • protect the rights, property or safety of myGPcloud, its employees, customers, or the public. 

Transfer of personal information.

Personal information collected through the service may be stored and processed in the United States or any other country or region in which mygpcloud or its affiliates, subsidiaries, or agents maintain facilities. By using the service, you consent to any such transfer of information outside of your country or region. myGPcloud abides by the safe harbor framework as set forth by the U.S. Department of Commerce regarding the collection, use, and retention of data from the European Union. You may read more about transfers of this data in the Privacy Statement.

Performance and usage data.

In order to provide you the service, we may collect certain information about service performance, your computer and your service use. We may automatically upload this information from your computer. This data will not personally identify you. You may read about this information collection in more detail in the Privacy Statement.

Filtering technology.

We may use technology or other means to protect the service, protect our customers, or stop you from breaching this contract. Examples include filtering to stop spam or increase security. These means may hinder your use of the service.

14. Software Use.

The terms that come with any myGPcloud software associated with the service apply to your use of that software. Your right to use the software ends when your right to use the service terminates or expires. Please see the attached Microsoft Dynamics License Agreement.

Documentation.

You may copy and use any documentation provided with the software for your internal reference purposes.

Scope of License.

Copyright and other intellectual property laws and treaties protect the software. The software is licensed, not sold. This contract only gives you some rights to use the software. myGPcloud reserves all other rights. You may not

  • work around any technical limitations in the software, 
  • reverse engineer, decompile or disassemble the software, except and only to the extent that applicable law expressly permits it, despite this limitation, 
  • make more copies of the software than specified in this contract or allowed by applicable law, despite this limitation, 
  • publish the software for others to copy, 
  • use the software in any way that is against the law, 
  • rent, lease, or lend the software, or 
  • use the software for commercial software hosting services.

Export Laws.

 The software is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users, and end use. For additional information, see www.microsoft.com/exporting.

15. Materials that myGPcloud Licenses To You Documents.

You may have access to information on the service such as white papers, training guides, videos, knowledge-base articles, datasheets and FAQs (“documents”). Unless otherwise specified, you may use the documents only for informational purposes. You may not copy, distribute, modify, or make derivative works of the documents. Educational institutions that are officially accredited under local law may download and copy the documents for distribution only in the classroom.

Limitations.

The license grant to use media elements, templates, and documents provided with the service does not include a license to the design or layout of the service or any mygpcloud owned, operated, licensed, or controlled Web site. You should not copy or retransmit any logo, graphic, sound, or image from the service, unless myGPcloud expressly permits it. myGPcloud and its suppliers do not warrant or guarantee that the media elements, templates, and documents are accurate and suitable for your purposes. Their inclusion with the service is not an endorsement of them by myGPcloud. Nothing available from the service is intended to be professional advice, including but not limited to, investment, tax, or legal advice.

16. Intellectual Property Rights

myGPcloud retains all right, title and interest in and to the service, including all copyrights, patents, trade secrets, trademarks, and other intellectual property rights. myGPcloud reserves all rights not expressly granted. This contract does not grant or imply any rights to any myGPcloud trademarks, trade names, or logos.

17. Windows Live™ ID

Windows Live ID is a multi-purpose authentication Web service that makes it easy for you to sign in to Web sites and will be required for access to Microsoft’s CustomerSource. You may not use any software or hardware that reduces the number of users directly accessing or using Windows Live ID (sometimes called “multiplexing” or “pooling” software or hardware). You are solely responsible for any dealings with third parties (including advertisers) that support Windows Live ID, including the delivery and payment for goods and services. This contract applies to you whenever you access or use Windows Live ID credentials. When you use Windows Live ID to gain access to any site or service, the terms and conditions for that site or service may also apply to you. Please refer to the terms of use for each site or service that you visit.

18. Advertisements

myGPcloud runs advertisements on the service. We reserve the right to change the manner of advertising on the service. You understand that any dealings you have with advertisers on the service are between you and those advertisers, not myGPcloud.

19. Third party services

myGPcloud may make services from third parties available to you through the service. These services are the responsibility of the third party, not myGPcloud. The third party service providers may require you to accept additional terms and conditions and/or pay a fee in order to use their services. Those additional terms and conditions are between you and the third party. Any third party’s use of information you provide as part of using their service is subject to the privacy statements and practices of that third party and/or their suppliers. myGPcloud encourages you to review the privacy statement of these third party providers. myGPcloud is not responsible for the privacy statements or privacy practices of these third party providers or their suppliers.

20. Your Dealings with Others

You understand that you, and not myGPcloud, have the direct relationship with any third party with whom you have dealings, including advertisers and anyone purchasing or selling goods or services, through the service. You are solely responsible for your dealings with any third party, including

  • delivery of and payment for goods and services, 
  • processing your customer orders, payments, and other transactions, 
  • verifying the validity of your customers’ orders before finalizing the order, 
  • informing your customers of the status of orders or transactions, 
  • providing all customer support related to orders or transactions (e.g., lost orders, billing disputes, payments, etc.), 
  • determining, collecting and remitting to the appropriate authority all taxes (if any) arising from or related to such orders or transactions, and 
  • the purchase and use by you and your associated accounts of any third party products and services.

21. Feedback

If you give feedback about the service to myGPcloud, you give to myGPcloud, without charge, the right to use, share, and commercialize your feedback in any way and for any purpose. You also give to third parties, without charge, any patent rights needed for their products, technologies, and services to use or interface with any specific parts of a myGPcloud software or service that includes the feedback. You will not give feedback that is subject to a license that requires myGPcloud to license its software or documentation to third parties because we include your feedback in them. These rights survive this contract.

22. Our Notices to You; Your Notices to Us

This contract is in electronic form. We have promised to send you certain information in connection with the service and have the right to send you this information. There may be other information about the service that the law requires us to send to you. We may send this information to you in electronic form. We may provide required information to you:

  • in the member center when we first send you an e-mail notice alerting you to the notice in the member center, or 
  • by e-mail at the e-mail address you specified when you signed up for the service. Notices will be deemed given and received on the transmission date of the e-mail. As long as you can access and use the service, you have the necessary software and hardware to receive these notices. If you do not consent to receive notices  electronically, you must cancel the service. We cannot accept e-mail notices at this time.

23. No Warranty

  • myGPcloud makes no guarantee about the reliability and accuracy of the service or the results obtained from the service. You understand that the security mechanisms in the service have inherent limitations and that you are responsible for determining that the service meets your needs. 
  • We provide the service “as-is,” “with all faults” and “as available.” You bear the risk of using it. To the maximum extent permitted by law, the myGPcloud parties give no express warranties, guarantees, or conditions. You may have additional rights under your local laws that this contract cannot change. To the extent permitted by law, we exclude any implied warranties or conditions including those of merchantability, fitness for a particular purpose, workmanlike effort, non-infringement, and satisfactory quality.

24. Liability Limitation

You can recover from the myGPcloud parties only direct damages up to an amount equal to your service charge for one month or the equivalent of $5 USD (whichever is greater). To the extent permitted by law, you cannot recover any other damages from the myGPcloud parties, including consequential, lost profits, special, indirect, or incidental damages. This limitation applies to

  • any matter related to the service, 
  • any matter related to content that appears on the service, including advertisements and content posted by myGPcloud, you and third parties, 
  • any matter related to your data that you use with the service, including any failures by you to back up your data, 
  • any matter related to media elements, templates, and documents licensed to you by the myGPcloud parties, 
  • any matter related to third-parties’ Web sites and content (including code), third-party services, third-party programs, and third-party conduct, 
  • dealings between third-parties and you,
  • any matter related to your advertising campaigns on third-party Web portals, 
  • any matter related to viruses or other disabling features that affect your access to or use of the service, 
  • any matter related to incompatibility between the service and other services, software, and hardware, 
  • any matter related to delays or failures you may have in initiating, conducting or completing any transmissions, transactions, or dealings with third-parties in connection with the service, 
  • use of the service by any third-party to whom you have given access, 
  • illegal activities by third-parties, including security breaches, and 
  • claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, or other tort to the extent permitted by applicable law.
  • It also applies even if this remedy does not fully compensate you for any losses, or fails of its essential purpose, or mygpcloud knew or should have known about the possibility of the damages.

Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you. They also may not apply to you because your province or country or region may not allow the exclusion or limitation of incidental, consequential, or other damages.

25. Claim Must Be Filed Within One Year

To the extent permitted by law, any claim related to this contract or the service must be brought within one year. The one-year period begins on the date when the claim first could be filed. It if is not filed, then that claim is permanently barred. This section applies to you and your successors. It also applies to myGPcloud and its successors and assigns.

26. Indemnity

You agree to defend, indemnify and hold the myGPcloud parties harmless from and against any and all claims, losses, liability, costs, and expenses (including attorneys’ fees) arising from your use of the service, violation of this contract, or violation of any third-party’s rights.

27. Company, Applicable Law, and Place for Resolving Disputes

This contract is between you and myGPcloud, a DBA of RoseASP.com (Company). All claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will be subject to the laws of your state of residence in the United States, or if you live outside the United States, the laws of the country to which we direct your service. You and RoseASP.com irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts in San Diego County, California, USA for all disputes arising out of or relating to this contract.

28. Contract Interpretation

All parts of this contract apply to the maximum extent permitted by law. A court may hold that we cannot enforce a part of this contract as written. If this happens, then that part will be replaced with terms that most closely match the intent of the part that we cannot enforce. The rest of this contract will not change. This contract, together with any codes of conduct and other notices we provide, is the entire contract between myGPcloud and you regarding the service. It supersedes any other contract or statements related to the service. If you have confidentiality obligations related to the service, those obligations remain in force (for example, you may have been a tester for a pre-release version of a service). The section titles in the contract do not limit the other terms of this contract.

29. Assignment

myGPcloud may assign this contract, in whole or part, at any time without notice to you. You may not assign this contract, or any part of it, to any other party. Any attempt to do so is void. Instead, you may cancel your service. The other party may then establish a service account and enter into a contract with us.

30. Force Majeure

myGPcloud will not be liable for any loss or damage or be deemed to be in breach of this contract due to any event or circumstance beyond its reasonable control, including, war, invasion, electrical shortages, terrorist attacks, earthquakes, or acts of God.

31. Notices

All notices should be sent to:

 

RoseASP.com,Inc.

11512 El Camino Real, Ste 310

San Diego, CA 92130

myGPcloud is a registered trademark of RoseASP.com. Any rights not expressly granted are reserved.

MICROSOFT SOFTWARE LICENSE TERMS

MICROSOFT DYNAMICS GP 9.x, GP 10.x, GP 2010

These license terms are an agreement between Microsoft Corporation (or based on where you are located, one of its affiliates) and you. Please read them.  They apply to the software named above, which includes the media on which you received it, if any.  The terms also apply to any Microsoft updates, supplements, Internet-based services, and support services for this software, unless other terms accompany those items. If so, those terms apply.  These license terms supersede the license terms embedded in the software.

By installing, having installed, or using the software, you accept these terms. If you do not accept them, do not install, have installed or use the software. If you comply with these license terms, you have the rights below.

1. OVERVIEW.

a. Software.

The software may include

  • server software;
  • client software that can be installed on devices and used with the server software;
  • additional components that may be separately licensed; and
  • any fixes, patches or updates for the software.

b. License Model.

The software is licensed based on

  • the number of copies of system databases that you install;
  • the number of your users or devices that access the system database; and
  • additional components you license.

2. DEFINITIONS.

  • “you” means the legal entity that has agreed to these license terms and your affiliates;
  • “Affiliate” means any legal entity that owns, is owned by, or that is under common ownership with a party;
  • “ownership” means more than 50% ownership;
  • “client software” means the software that allows a single personal computer, workstation, terminal, handheld computer, personal digital assistant, or other electronic device (“device or devices”) to access or use the server software or to use certain aspects of the server software when disconnected from the server; “server software” means the software that provides services or functionality on your server (your computers capable of running the server software are “servers”);
  • “system database” means the underlying database that controls your users and financial reporting units;
  • “point of sale device” means one device, used by any user, to access your system database for the purpose of completing customer facing sales or services transactions;
  • “business process outsourcing” means the contracting of a specific critical or non-critical business task, function or process to a third-party service provider, where (i) the services provided include direct or indirect access to the software, and (ii) the software license is not obtained directly from Microsoft; and
  • “partner” means the partner that has signed a partner agreement with Microsoft authorizing the partner to market and distribute the software.

3. INSTALLATION AND USE RIGHTS.

a. Server Software.

You may install an unlimited number of copies of the server software to access your system database.  However, you may only use the number of copies that your license key permits. You may not duplicate license keys without Microsoft’s prior written consent.

b. Client Software.

You may install an unlimited number of copies of the client software. However, you may use the client software only with the server software.

c. Additional Components.

You may install an unlimited number of copies of the additional components you have licensed for your system database. You must obtain a separate license for each system database if you wish to install an additional component for multiple system databases. You may not duplicate license keys without Microsoft’s express written consent. For additional information and license restrictions regarding additional components, see www.microsoft.com/dynamics/purchase/editionsandlicensing.mspx.

 

4. ADDITIONAL LICENSING REQUIREMENTS AND/OR USE RIGHTS.

 

a. User Licenses.

In addition to the server software license, you must acquire user licenses for the total number of users that access the system database directly or indirectly. User licenses are specific to a system database and may not be used with or shared among different system databases. You may license concurrent users, named users, device CALs or the external connector depending on the type of access to the system database that the user requires. For users that are you or your affiliates’ employees, contractors or agents, you must license concurrent users, named users and/or device CALs.  For all other access to the system database, including access where no individual users are involved, you must license the external connector, concurrent users, named users or device CALs. The types of user licenses are,

  • “Concurrent users” are licenses that allow any individual to access the system database.  The number of concurrent users licensed refers to the maximum number of individuals that may access the system database simultaneously; 
  • “Named users” are licenses that are specific to individual users and may not be shared among individual users; 
  • “Device Client Access Licenses (device CAL)” are licenses that permit one point of sale device, used by any user, to access the system database; and 
  • “External connector” is a license that allows any third party user to access a single system database. “Third party users” are any concurrent user or named user that is not your or your affiliates’ employees, contractors or agents.

For additional information about the types of user licenses and the license restrictions regarding user licenses, see www.microsoft.com/dynamics/purchase/editionsandlicensing.mspx.

 

b. Multiplexing.

Hardware or software you use to

  • pool connections, 
  • reroute information, 
  • reduce the number of devices or users that directly access or use the software, or
  • reduce the number of devices or users the software directly manages,

(sometimes referred to as “multiplexing” or “pooling”), does not reduce the number of licenses you need.

c. External Connector Licenses.

You must assign each external connector license you acquire to a system database.  Each external connector license assigned to a system database permits any number of third party users to access that system database. You do not need concurrent, named user or device CAL licenses for those users. You may not use the external connector for business process outsourcing purposes. However, you may use the software to provide business process outsourcing services to unaffiliated third parties provided that they do not access the software or system database.

d. Third Party Hosting.

You may have a third party host the software on your behalf solely for access by you and your affiliates. You may not permit your third party hosting vendor to allow access to the software by unaffiliated third parties except as otherwise allowed through an external connector license. Your third party hosting vendor must agree to be bound by these terms.

e. License Grant for Templates.

You may copy and use templates provided with the software and identified for such use in documents and projects that you create. You may distribute those documents and projects non-commercially.

f. Restrictions related to the use of Crystal Reports.

If Crystal Reports Runtime Server is included in the software, you may not distribute the Crystal Reports Runtime Server component of the software (the “Runtime Component”) with any general-purpose report writing, data analysis or report delivery product or any other product that performs the same or similar functions as the Runtime Component. You may not use the Runtime Component to create for distribution a product that is generally competitive with Business Objects product offerings.  You may not use the Runtime Component  to create for distribution a product that converts the report file (.RPT) format to an alternative report file format used by any general-purpose report writing, data analysis or report delivery product that is not the property of Business Objects.

g. Modification Disclaimer.

You may modify the software only as necessary to use it for your internal business purposes if you received it in source code form or you or any third party acting on your behalf have licensed tools from Microsoft that allow you or that third party acting on your behalf to modify the object code form. You agree that Microsoft is not responsible for any problems that result from modifications made by you, a partner, or any other third party acting on your behalf, or any problems that are caused by third party hardware or software.    Microsoft does not, and will not have any obligation to, provide technical or other support for any modifications made by you, a partner or any other third party.  Microsoft does not make any representation, endorsement, guaranty or assurance of the suitability of the software for your business, the suitability of the partner or any other third party to create modifications or to implement the modifications or the software, or that any modification created, implemented, supported and/or serviced by, for or on behalf of you or any third party will meet your business needs or operate successfully with the software. Microsoft and its partners are independent entities and Microsoft is not liable for nor bound by any acts of such business partners.

h. Additional Functionality.

Microsoft may provide additional functionality for the software. Other license terms and fees may apply.

i. Complex Software.

The software is complex computer software. Its performance will vary depending on your hardware platform, software interactions, the configuration of the software and other factors. The software is neither fault tolerant nor free from errors, conflicts or interruptions.

5. INTERNET-BASED SERVICES.

Microsoft provides Internet-based services with the software. Microsoft may change or cancel them at any time.

a. Consent for Internet-Based Services.

Certain features in the software may connect to Microsoft or third party service provider computer systems over the Internet. In some cases, you will not receive a separate notice when they connect. You may switch off these features or not use them. For more information about these features, see the software documentation. By using these features, you consent to the transmission of this information. Microsoft does not use the information to identify or contact you.

b. Computer Information.

Certain features in the software use Internet protocols, which send to the appropriate systems computer information, such as your Internet protocol address, the type of operating system, browser, name and version of the software you are using, and the language code of the device where you installed the software. Microsoft uses this information to make the Internet-based services available to you. Some of these features include, but are not limited to:

Web Content Features. Features in the software can retrieve related content from Microsoft and provide it to you. To provide the content, these features send to Microsoft the type of operating system, name and version of the software you are using, type of browser and language code of the device where you installed the software. Examples of these features are clip art, templates, online training, online assistance and Appshelp. You may choose not to use these web content features.

c. Use of Information.
Microsoft may use the device information, error reports, and malware reports to improve our software and services. We may also share it with others, such as hardware and software vendors. They may use the information to improve how their products run with Microsoft software.

d. Misuse of Internet-based Services.

You may not use these services in any way that could harm them or impair anyone else’s use of them. You may not use the services to try to gain unauthorized access to any service, data, account or network by any means.

6. BENCHMARK TESTING.

You must obtain Microsoft’s prior written approval to disclose to a third party the results of any benchmark test of the software.

7. SCOPE OF LICENSE.

The software is licensed, not sold. This agreement only gives you some rights to use the software.  Microsoft reserves all other rights.  Unless applicable law or a separate written contract with Microsoft gives you more rights despite this limitation, you may use the software only as expressly permitted in this agreement.  In doing so, you must comply with any technical limitations in the software that only allow you to use it in certain ways.

You may only use the software for your internal business purposes. You may not:

  • work around any technical limitations in the software;
  • reverse engineer, decompile or disassemble the software, except and only to the extent that applicable law expressly permits, despite this limitation;
  • make more copies of the software than specified in this agreement or allowed by applicable law, despite this limitation;
  • publish the software for others to copy;· rent, lease or lend the software;

or

  • use the software for commercial software hosting services.

Your rights to use the software are perpetual but may be revoked if you or your affiliates do not comply with the terms of this agreement. Rights to access the server software do not give you any right to implement Microsoft patents or other Microsoft intellectual property in software or devices that access the server.

8. BACKUP COPY.

You may make multiple copies of the software for backup, development and testing purposes, so long as such copies are not used in production and the development is for your internal use only.  Your backup copies may be hosted by a third party on your behalf.

9. FAIL-OVER RIGHTS.

You may run a single passive fail-over instance of your system database for temporary support.

10. LICENSE TRANSFER.

You may not transfer the software to a third party without Microsoft’s prior written consent.  If permitted, there may be additional charges for transferring the software to a third party.

11. DOCUMENTATION.

Any person that has valid access to your computer or internal network may copy and use the documentation for your internal, reference purposes.

12. ACADEMIC EDITION SOFTWARE.

You must be a “Qualified Educational User” to use software marked as “Academic Edition” or “AE.”  If you do not know whether you are a Qualified Educational User, visit www.microsoft.com/education or contact the Microsoft affiliate serving your country.

13. DOWNGRADE.

Instead of installing the software, you may install and use an earlier version. This agreement applies to your use of the earlier version.  If the earlier version includes different components, any terms for those components in the agreement that comes with the earlier version apply to your use of them. Microsoft is not obligated to supply earlier versions to you.  At any time, you may replace an earlierversion with this version of the software.

14. EXPORT RESTRICTIONS.

The software is subject to United States export laws and regulations.  You must comply with all domestic and international export laws and regulations that apply to the software.  These laws include restrictions on destinations, end users and end use. For additional information, see www.microsoft.com/exporting.

15. SUPPORT SERVICES.

Microsoft provides support services for the software as described at www.support.microsoft.com/common/international.aspx.

16. LOCALIZATION AND TRANSLATION.

Microsoft provides localizations and translations for the software as described at www.microsoft.com/dynamics.

17. ENTIRE AGREEMENT.

This agreement (including the warranty below), and the terms for supplements, updates, Internet-based services and support services that you use, are the entire agreement for the software and support services.

18. APPLICABLE LAW.

a. United States.

If you acquired the software in the United States, Washington state law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles. The laws of the state where you are located govern all other claims, including claims under state consumer protection laws, unfair competition laws, and in tort.

b. Outside the United States.

If you acquired the software in any other country, the laws of that country apply.

c. Attorneys’ Fees and Costs.

If you or Microsoft files a lawsuit, brings an action or otherwise pursues a claim against the other in connection with or arising out of this agreement or the software, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses (including any appeal).

19. LEGAL EFFECT.

This agreement describes certain legal rights. You may have other rights under the laws of your state or country. You may also have rights with respect to the party from whom you acquired the software. This agreement does not change your rights under the laws of your state or country if the laws of your state or country do not permit it to do so.

20. DEFENSE OF INFRINGEMENT AND MISAPPROPRIATION CLAIMS.

Microsoft will defend you against any claims made by an unaffiliated third party that the software infringes its patent, copyright or trademark or misappropriates its trade secret, and will pay the amount of any resulting adverse final judgment (or settlement to which Microsoft consents). You must notify us promptly in writing of the claim and give us sole control over its defense or settlement. You agree to provide us with reasonable assistance in defending the claim, and Microsoft will reimburse you for reasonable out of pocket expenses that you incur in providing that assistance. The terms “misappropriation” and “trade secret” are used as defined in the Uniform Trade Secrets Act, except in the case of claims arising outside the United States, in which case “misappropriation” will mean intentionally unlawful use and “trade secret” will mean “undisclosed information” as specified in Article 39.2 of the TRIPs agreement. Our obligations will not apply to the extent that the claim or adverse final judgment is based on (i) your use of the software after Microsoft notifies you to discontinue use due to such a claim; (ii) your combining the software with a non-Microsoft product, data or business process including third party add-ons or programs; (iii) damages attributable to the value of the use of a non-Microsoft product, data or business process; (iv) your altering or modifying the software, including any modifications by third parties; (v) your distribution of the software to, or its use for the benefit of, any third party; (vi) your use of Microsoft trademark(s) without express written consent to do so; or (vii) for any trade secret claim, your acquiring a trade secret (a) through improper means; (b) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (c) from a person (other than Microsoft or its affiliates) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret. You will reimburse us for any costs or damages that result from these actions.  If Microsoft receives information concerning an infringement or misappropriation claim related to the software, Microsoft may, at its expense and without obligation to do so, either (i) procure for you the right to continue to run the software, or (ii) modify the software or replace it with a functional equivalent, to make it non-infringing, in which case you will stop running the software immediately. If, as a result of an infringement or misappropriation claim, your use of the software is enjoined by a court of competent jurisdiction, Microsoft will, at its option, either procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund the amount paid and terminate this license.

If any other type of third party claim is brought against you regarding Microsoft’s intellectual property, you must notify us promptly in writing. Microsoft may, at its option, choose to treat these claims as being covered by this section.  This Section 20 provides your exclusive remedy for third party infringement and trade secret misappropriation claims.

21. LIMITATION ON AND EXCLUSION OF DAMAGES.

You can recover from Microsoft and its suppliers only direct damages up to the amount you paid for the software except for claims covered by Section 20. You cannot recover any other damages, including consequential, lost profits, special, indirect or incidental damages.

This limitation applies to

  • anything related to the: (i) software, (ii) services, (iii) content (including code) on any third party Internet sites, or (iv) third party programs; and
  • claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, loss of data, damage to records or data, loss of goodwill, loss as a consequence of a business interruption or any other tort to the extent permitted by applicable law.

It also applies even if:

  • repair, replacement or a refund for the software does not fully compensate you for any losses; or
  • Microsoft knew or should have known about the possibility of the damages.

Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you.

*************************************************************************************

LIMITED WARRANTY

A. LIMITED WARRANTY.

The software will perform substantially as described in the original user documentation Microsoft provides for the software.

B. TERM OF WARRANTY; WARRANTY RECIPIENT; LENGTH OF ANY IMPLIED WARRANTIES.  

The limited warranty covers the software for one year after acquired by you. If you receive supplements, updates, or replacement software during that year, they will be covered for the remainder of the warranty or 30 days, whichever is longer.

To the extent permitted by law, any implied warranties, guarantees or conditions last only during the term of the limited warranty. Some jurisdictions do not allow limitations on how long an implied warranty, guarantee or condition lasts, so these limitations may not apply to you.

C. EXCLUSIONS FROM WARRANTY.

This warranty does not cover problems caused by your acts (or failures to act), the acts (or failures to act) of others, including but not limited to, modifications or implementations made by you, a partner, or any other third party acting on your behalf, or events beyond Microsoft’s reasonable control.

D. REMEDY FOR BREACH OF WARRANTY.

Microsoft will repair or replace the software at no charge. If Microsoft cannot repair or replace it, Microsoft will refund up to the amount your partner paid for the software to Microsoft.  It will also repair or replace supplements, updates and replacement software at no charge. If Microsoft cannot repair or replace them, it will refund up to the amount Microsoft charged for them, if any. You must uninstall the software and return any media and other associated materials to Microsoft with proof of purchase to obtain a refund. These are your only remedies for breach of the limited warranty.

E. CONSUMER RIGHTS NOT AFFECTED.

You may have additional consumer rights under your local laws, which this agreement cannot change.

F. WARRANTY PROCEDURES.

You need proof of purchase for warranty service, if the licenses you claim covered by the warranty are not reflected in Microsoft’s internal records. To make a claim under this warranty, you should contact your partner. If your partner is unable to assist you, please contact Microsoft at

1. United States and Canada.

For warranty service for software acquired in the United States and Canada, contact Microsoft at:

  • (800) MICROSOFT;

or

  • Microsoft Customer Service and Support, One Microsoft Way, Redmond, WA 98052-6399.

2. Europe, Middle East and Africa.

For warranty service for software acquired in Europe, the Middle East or Africa, Microsoft Ireland Operations Limited makes this limited warranty. Please contact Microsoft at

  • Microsoft Ireland Operations Limited, Customer Care Centre, Atrium Building Block B, Carmanhall Road, Sandyford Industrial Estate, Dublin 18, Ireland;

or

  • the Microsoft affiliate serving your country (see www.microsoft.com/worldwide).

3. Outside United States, Canada, Europe, Middle East and Africa.

If you acquired the software outside the United States, Canada, Europe, the Middle East and Africa, contact the Microsoft affiliate serving your country (see www.microsoft.com/worldwide).

G. NO OTHER WARRANTIES.

The limited warranty is the only direct warranty from Microsoft. Microsoft gives no other express warranties, guarantees or conditions. Where allowed by your local laws, Microsoft excludes implied warranties of merchantability, fitness for a particular purpose and non-infringement. If your local laws give you any implied warranties, guarantees or conditions, despite this exclusion, your remedies are described in the Remedy for Breach of Warranty clause above, to the extent permitted by your local laws.

H. LIMITATION ON AND EXCLUSION OF DAMAGES FOR BREACH OF WARRANTY.

The Limitation on and Exclusion of Damages clause above applies to breaches of this limited warranty. This warranty gives you specific legal rights, and you may also have other rights which vary from state to state or country to country.

Addendum A – Additional a la Carte Services

We understand that if you are going to run your business using myGPcloud, you may request some additional services from time to time. Below is a list of our a la carte services that are available to our customers as needed: To request these services, please fill out the support request and a service representative will contact you for further assistance. Support for the below listed items are available from 8am EST to 8pm EST, Monday – Friday.

Application Support Services                                                                                    Fees

Technical Support Incidents (per
incident)*
$ 150.00 per incident
Call Packs – 5 $ 695.00
Call Packs – 10 $1,350.00
Call Packs – 15 $1,950.00
Call Packs – 20 $2,500.00
Unlimited Support – Business
Essentials(plus)
$3,250.00
Unlimited Support – Advanced
Management(plus) 1 -10 users
$4,250.00
Unlimited Support – Advanced
Management(plus) 10+ users
$5,000.00

*Five free technical support incidents are granted to each customer on the onset of the subscription.

Technical Services                                                                                                          Fees

Additional Backup – per backup $ 199.00
Database Restore $ 199.00
Database Creation $ 199.00
Backup for shipment to customer $ 250.00
Reinstall of database (clean install) $ 150.00
Clean installation of TEST Company $  150.00
Copy of live database – transferred to
TEST
$ 150.00
Additional Gigs of storage $ 10 per GIG over 5 Gigs
Additional Databases (monthly) per
database *
$   50.00
Citrix client installation – for MAC
users
$ 25.00  per month- covers all users

*Each customer company receives two databases: TEST and production. Up to five additional production databases can be procured under this offering.

Consulting Technical Services                                                                                   Fees

Import of Chart of Accounts $450.00
Import of Vendor Master and Customer
Master Files
$900.00
Import of Inventory Master Files $450.00
Import of Bill of Materials $900.00
Import of Fixed Asset Files $600.00
Import of Trial Balance  – per year $450.00
Import of General Ledger Transactions
– per year
$600.00
Import of Open Payables $600.00
Import of Open Receivables $600.00
Import of Open Sales Orders $600.00
Import of Open Purchase Orders $600.00
Import of Outstanding Checks for Bank
Reconciliation
$450.00
Customized Checks/Sales Order/Purchase
Orders
$150.00 – $500.00
QuickBooks data conversion services Available – call for
quotation
Peachtree data conversion services Available – call for
quotation

All import services will require the customer to compile data in predefined Excel templates – Customer is responsible for the accuracy and quality of the data conversion.  Lead times on imports will vary by volume and detail of transactions.

Additional Terms and Conditions:  All calls will be responded to in two hours or less. Response time does not guarantee resolution. Response guarantee pertain to the time in which the technician gather the information and begins working on the case. All support incidents are assigned a case number. Our definition of a support incident is: one issue brought up with a support engineer. Any further assistance needed with the issue is considered an ongoing incident.  Multiple calls or emails may be required to solve an ongoing incident. Any additional calls or emails required to solve an ongoing issue with an assigned case number are included in the initial charge. If any new, unrelated support incidents arise while working on an ongoing issue, those will be considered a new incident. It will be assigned a separate case number and charged appropriately. myGPcloud reserves the right to appropriately consider certain support incidents outside the scope of technical support. Prices are subject to change without notice.