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 web
site, 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 to
violate 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.
6. 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 rata
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
·
“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 earlier
version 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.