Subject to the terms and conditions herein, Fence Sense hereby grants Subscriber a non-exclusive, nontransferable license to access and use the Software via Fence Sense’s application server over the internet for the sole purpose of creating and maintaining documentation related to Subscriber’s business. Fence Sense, in its sole discretion, reserves the right to delete, modify, or amend the Software at any time for any reason, without notification.
Subscriber shall use the Software only for its internal business operations and shall not permit the Software to be used by or for the benefit of anyone other than Subscriber without Fence Sense’s prior written permission. Subscriber is responsible for (i) providing data in the format requested by or required by the Software or Fence Sense service features; (ii) prohibiting any of Subscriber’s employees, independent contractors or other agents or \representatives who have access to the Software from transmitting to or sharing password codes that allow access to the Software with any other person; and (iii) using the Software and services in accordance with all applicable laws and regulations. When using the Software, Subscriber will use its best efforts to ensure that Subscriber does not introduce any viruses, worms, unauthorized cookies, trojans, malicious software, “malware,” or other program, routine, subroutine, or data designed to disrupt the proper operation of the Software or any part thereof or any hardware or software used by Fence Sense in connection therewith, or which, upon the occurrence of a certain event, the passage of time, or the taking of or failure to take any action, will cause the Software or any part thereof or any hardware, software or data used by FenceSense in connection therewith, to be improperly accessed, destroyed, damaged, or otherwise diminished, made inoperable or inaccessible.
Title to any proprietary rights in the Software, or any components thereof (including without limitation all copyrights, patents and trademarks and applications therefore, and all trade secrets therein), shall remain in and be the sole and exclusive property of Fence Sense or its licensors, as applicable. Subscriber acknowledges and agrees that all copyright, trade secret and other intellectual property rights of whatever nature in and to the Software are and shall remain the property of Fence Sense or its licensors, as appropriate, and nothing in the Agreement shall be construed as transferring any aspects of such rights to Subscriber or any other third party
Subscriber shall own all data input by Subscriber into the Software (“Subscriber Data”). Fence Sense will not disclose to any person any Subscriber Data except that Fence Sense may disclose such Subscriber Data (i) as provided in the Agreement, (ii) as required by law or legal process, provided that in doing so Fence Sense gives prompt written notice to Subscriber of any request or demand for such disclosure that is received by Fence Sense to allow Subscriber the opportunity to obtain a protective order except to the extent prohibited by applicable law or court order. Notwithstanding anything herein to the contrary, Subscriber shall be permitted electronic access to Subscriber Data residing on Fence Sense’s application server at all times, except when Subscriber’s access has been suspended or terminated, during a period of repair, or during scheduled maintenance of the Software or the application server.
All information contained in our website, printed materials and any and all other materials, all of our logos, designs, marks, indicia, statements, and technologies (“Confidential Information”) are owned exclusively by Fence Sense for our explicit and exclusive use and are protected by copyright laws. Permission to use, copy or distribute such information may be granted for non-commercial use only, and only in conjunction with the proper and legal intellectual property notices clearly displayed. You agree to preserve Fence Sense’s Confidential Information from disclosure or improper use. You also agree not to furnish or disclose Confidential Information to any person not privileged to have it and without Fence Sense’s written consent. The term “Confidential Information” does not include: (i) any information known prior to such disclosure free of any obligation to keep it confidential, and (ii) any information that is within the public domain at the time of disclosure or that subsequently enters the public domain through no action on your part or any person having an obligation of confidence to the receiving party respecting such information.
The initial term of this Agreement commences on the date that Subscriber signs the Service Schedule (the “Effective Date”) and shall continue for a period of one year (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive one year terms (the “Renewal Terms”) unless otherwise terminated in accordance with this Agreement.
Fence Sense may terminate Subscriber’s access to any part of the Software, for any reason whatsoever and without notice. For example, if you tamper with, corrupt or abuse the Software or services, fail to pay in accordance with this Agreement, breach the Business Associate Agreement contained herein, or conduct any illegal activities through or by our Software or services, we will terminate your account immediately and without warning. We will prosecute to the fullest extent of the law. Subscriber may terminate this Agreement and use of the Software by providing at least ninety (90) days’ written notice sent by completing a termination form at https://www.fencesenceco.com/cancel. The notice must specify the termination date.
During the Term, Subscriber shall pay to Fence Sense a licensing and hosting fee for access to and use of the Software (the “License and Hosting Fee”, also referred to as the “Subscription”). The License and Hosting Fee for the Initial Term is set forth on the Service Schedule. Unless otherwise indicated in the Service Schedule, the License and Hosting Fee will be charged monthly with the first License and Hosting Fee being due within thirty (30) days of the Effective Date. At least thirty (30) days prior to the end of the Initial Term and each subsequent Renewal Term, Fence Sense shall provide Subscriber with notice of any changes to the License and Hosting Fee that will take effect during a Renewal Term. Unless Subscriber terminates this Agreement prior to the start of the Renewal Term, such changes in the License and Hosting Fee will go into effect on the first day of the Renewal Term. At least thirty (30) days prior to the end of the Initial Term and each subsequent Renewal Term, Fence Sense shall provide Subscriber with notice of any changes to the License Fee that will take effect during a Renewal Term. Unless Subscriber terminates this Agreement prior to the start of the Renewal Term, such changes in the License Fee will go into effect on the first day of the Renewal Term. If the payment form you provided expires, we will notify you in advance to update your payment source. If during the Term, payment is not received by within five (5) business days of the due date and the form of payment you provided is unavailable for automatic payment, then your access to the Software will be suspended until all License and Hosting Fees then due and owing are paid in full. The payment information you provided will be handled, managed and stored in a commercially reasonable manner. This information is encrypted and stored securely and safely, or transferred securely and safely to a qualified and trusted third party for processing, and used exclusively and solely for the purpose of paying the License and Hosting Fee and any other purposes authorized by you.
Customer service, tech support calls, or emails sent via the Fence Sense email (firstname.lastname@example.org) generally will be responded to within 24 business hours. Reported bugs or requests for design changes also will be \ acknowledged generally within 48 business hours. If a solution to the reported request is not possible within a 48 hour time frame, you will be provided with an estimated “time for completion.” For training, much of what is required is available through self-driven module tutorials. Please also use Live Chat linked through fencesenseco.com, in the lower right corner; email email@example.com; or telephone at 1.855.444.6204.
THE SOFTWARE AND ASSOCIATED SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND. FENCE SENSE SPECIFICALLY DISCLAIMS ALL WARRANTIES EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SOFTWARE, OPERATION OF THE SOFTWARE, ANY PARTICULAR APPLICATION OR USE OF THE SOFTWARE, AND THE SERVICES PROVIDED BY FENCE SENSE. FENCE SENSE MAKES NO WARRANTY (I) THAT THE SOFTWARE AND ASSOCIATED SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR VIRUS FREE; OR (II) REGARDING ANY THIRD PARTY SOFTWARE, SERVICES, WEBSITES OR TOOLS INCORPORATED INTO THE SOFTWARE. IN NO EVENT SHALL FENCE SENSE BE HELD LIABLE FOR ANY DAMAGES, LOSSES, COSTS OR LIABILITIES ASSOCIATED WITH (I) FENCE SENSE’S INABILITY TO PERFORM ANY OR ALL OF THE SERVICES DUE TO IMPROPERLY FORMATTED OR CORRUPT FILES, VIRUSES OR INCOMPATIBILITY; (II) HUMAN OR MACHINE ERRORS, OMISSIONS, LOSSES OF SUBSCRIBER DATA, DELAYS IN TRANSMISSION OF CLAIMS, OR DAMAGE TO SUBSCRIBER DATA OR MEDIA; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY SUBSCRIBER DATA, ELECTRONIC TRANSMISSIONS OR TRANSACTIONS INITIATED, RECEIVED BY OR THROUGH THE SOFTWARE; (IV) ANY THIRD PARTY SOFTWARE, WHETHER OR NOT SUCH THIRD PARTY SOFTWARE IS INCORPORATED INTO THE SOFTWARE OR SOLD TO SUBSCRIBER BY FENCE SENSE; OR (V) ANY “HYPERLINKS” TO THIRD PARTY SITES THAT ARE PROVIDED WITHIN THE SOFTWARE. To the extent not prohibited by applicable law, under no circumstances, including but not limited to negligence, shall we, our subsidiaries, affiliates or licensors, be liable for any direct, indirect, incidental, special, consequential, punitive or exemplary damages that arise from the use, inability to use, or the results of use of the Software, our services or any part of our site. In no event shall our total liability to you for all damages, losses, and causes of action, whether in contract, tort, or otherwise, including but not limited to negligence, exceed one hundred dollars ($100).
You agree to indemnify and hold Fence Sense and its subsidiaries, affiliates, shareholders, officers, directors, agents, licensors, suppliers, other partners, employees, and representatives harmless from any claims or demands, including reasonable attorneys’ fees, made by any third party due to or arising out of your use of or connection to our Software, our services, our site, your violation of this Agreement, or your violation of any rights of another. Human Services under the American Recovery and Reinvestment Act, Sections 4101 and 4102.
In the event that we may collaborate with, co-brand, purchase, or sell one or more of our businesses, your personally identifiable information may be transferred as a part of the collaboration, co-branding, purchase, or sale. Any such arrangements will include provisions in the contract requiring the participating business to treat your personally identifiable information in the same manner required by this policy, including any amendments.
Please check www.fencesenseco.com often, as we reserve the right to change the End User License Agreement or policies regarding the use of the Software at any time.
Nothing in this Agreement will create or imply an agency relationship between the parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the parties.
If any term of this Agreement is found to be unenforceable or contrary to law, it shall be modified to the minimum extent necessary to make it enforceable, and the remaining portions of this Agreement shall remain in full force and effect.
No party shall be held responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure to perform is caused by events or circumstances beyond the delaying party’s reasonable control.
The waiver by any party of any breach of covenant will not be construed to be a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the party waiving its rights.
The End User License Agreement together with the Service Schedule and any Attachments, Exhibits, or Statements of Work constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior agreements, proposals, negotiations, representations, or communications relating to the subject matter. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective officers or representatives duly authorized to do so.