Software Terms of Use

Please read the following terms and conditions before using our services.

Welcome to MANAGEtoWIN!  Please review our Privacy Policy which also governs your usage of MANAGEtoWIN.  You accept the conditions of these Terms of Use and our Privacy Policy whenever you visit any MANAGEtoWIN website.  In addition, when you use any current or future MANAGEtoWIN service you will also be subject to the terms and policies ("Terms") applicable to those services.  If Terms of such services are not consistent with these terms, those Terms take precedent.

We reserve the right, at our sole discretion to change, modify, add or remove portions of these terms at any time.  We will attempt to notify you via email of any changes, but suggest that you periodically check these terms for changes.  Your continued use ofMANAGEtoWIN signifies your consent to our then current terms of use.

These Terms of Use and our Privacy Policy are effective on February 25, 2010, for current users, and upon acceptance as evidenced by usage of MANAGEtoWIN for new users. 

Copyrights

There are two types of content on MANAGEtoWIN:

1.    MANAGEtoWIN:  MANAGEtoWIN and content that has been developed by our Company, including without limitation all site design, text, graphics, logos, buttons, images, audio and video clips, and the selection and arrangement of all of the foregoing, is the property of MANAGEtoWIN, Inc. (the “Company”) and is protected by U.S. and international copyright laws.  The content may be used for the sole purpose of using MANAGEtoWIN and our services.  Any other use of the content, including without limitation the reproduction, modification, distribution or transmission is prohibited. 

2.    Client:  Registered Client users may post content to their MANAGEtoWIN site for use by their organization only.  In doing so, you represent to our Company that your posting of such content does not violate another person's or entities' copyright.  Our Company does not have general access to content you place on your MANAGEtoWINwebsite for internal use. 

 License and Restrictions

1.    License:  Our Company grants Client a limited, nonexclusive, nontransferable License to access and use MANAGEtoWIN in accordance with the terms set forth herein. 

2.    Data Entry Restrictions.  The Client shall not, and shall not permit others to, enter data into the database other than via the following methods, if applicable:  (i) User-keyed data using the MANAGEtoWIN interface, (ii) the MANAGEtoWIN import utility, and (iii) other MANAGEtoWIN integrations as they become available.  

3.    Software Use Restrictions.The Client shall not, and shall not permit others to, directly or indirectly: (i) use MANAGEtoWIN outside of the context of MANAGEtoWIN or for purposes other than those set forth herein; (ii) attempt to remove MANAGEtoWIN, download, copy, recreate, disassemble, modify, translate, reverse engineer or decompile MANAGEtoWIN; (iii) remove, alter or obscure any copyright or other proprietary notices on MANAGEtoWIN; (iv) sell, rent, lease or sublicense or otherwise transfer the Client’s right to use MANAGEtoWIN as set forth herein; or (v) use MANAGEtoWIN other than for the Client’s internal business purposes.  Our Company shall have the right without notice to audit and inspect the Client’s MANAGEtoWIN site to verify compliance with these limitations. 

 Additional Prohibited Activities

You are also prohibited from the following activities on MANAGEtoWIN.  All determinations regarding the removal of such material shall be made at the sole discretion of our Company.

While using MANAGEtoWIN, you will not:

  • Use our services if you cannot form legally binding contracts, are under the age of 18, or have been suspended from our services;

  • Transmitting through or posting any unlawful, profane, hateful, harmful, threatening, abusive, harassing, obscene, vulgar, defamatory, racially, ethnically or otherwise objectionable material of any kind, including without limitation any material that encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any law; 

  • Violate any laws or third party rights;

  • You agree that you will not use our site or services for chain letters, junk mail, or "spamming;"

  • Circumvent or manipulate any fees owed to our Company;

  • Intentionally post false, inaccurate, misleading, defamatory, or libelous content;

  • Transfer your username and password to another party without the consent of the appropriate decision maker at your organization;

  • Distribute viruses or any other technologies that may harm the interests or property of MANAGEtoWIN registered users and/or our websites;  or

  • Copy, modify, or distribute content that does not belong to you or your organization.

Term and Termination

Your subscription shall be in effect upon appropriate payment from the Client and remain in effect on a month-by-month basis until terminated.  Your subscription shall renew for successive one-month terms (each, a “Renewal Term”) upon expiration of the Initial Term or any Renewal Term.  Your subscription may be terminated at any time by either party for any reason.

Payment

The Client shall pay their initial Set-up Fee and first month’s Subscription Fee prior to being given access to their MANAGEtoWIN website.  The Client must provide a credit card for future monthly Subscription Fees to be charged automatically the day before each new month begins.   Credit card information must be maintained as current by the Client.  Failure to pay a monthly Subscription Fee on schedule may result in immediate suspension ofMANAGEtoWIN services to the Client.  The Client shall pay any attorneys’ fees and/or other costs incurred by our Company in collecting any payment due hereunder.  Federal, state and local taxes will be added to all Fees as applicable.  “MANAGEtoWIN, Inc.” is the company charging your credit card for Fees.

Rights of our Company

Our Company is not obligated or responsible for screening, policing, editing or monitoring any areas of our services.  Our Company may, without notice, terminate or suspend a Company or user's access to all or any portion of MANAGEtoWIN, if our Company believes in its sole discretion that such user's conduct is inappropriate, violates any applicable law, or harms or is potentially harmful to any other user or third party.

Security

The Client acknowledges and agrees MANAGEtoWIN functions solely as a conduit for the receipt, storage, processing and transmission of employee data and other related or similar information (“Data”), without regard to whether Data is input into MANAGEtoWIN via the Client or a third party to which they have allowed access.  Our Company shall not monitor, exercise control over, or provide any substantive review, evaluation, or assessment of any Data.  The Client agrees that it has complete responsibility for any claim by any person or entity that any Data was unlawfully or improperly delivered, received, stored, processed, copied, adapted, reproduced, published, transmitted or divulged, and any other similar claims arising out of the Client’s or another party’s proper or improper use ofMANAGEtoWIN or accessing of MANAGEtoWIN.  Our Company (i) utilizes various methods to accomplish redundancy of Internet connectivity, power, and server environment, (ii) utilizes various security devices and measures (“Security Devices”) that are commercially available as of the date of your subscription, and (iii) utilizes a commercially available virus scanning device to scan every file on MANAGEtoWIN servers (“Virus Scanning Device”).  Notwithstanding that our Company utilizes such Security Devices and Virus Scanning Devices, our Company makes no representation the Data and/or MANAGEtoWIN could not be compromised through or by a third party.

Service Level

1.    Availability.  Subject to the terms and conditions of your subscription, our Companyshall use commercially reasonable efforts to provide MANAGEtoWIN on a twenty-four (24) hours a day, seven (7) days a week basis throughout the term of this Agreement.   Company agrees that from time to time MANAGEtoWIN may be inaccessible or inoperable for any reason, including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs that our Company may undertake from time to time; or (iii) causes beyond the control of our Company or that are not reasonably foreseeable by our Company, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures.  The Client further agrees the availability of MANAGEtoWIN may be inaccessible during periods of time for whichour Company have scheduled upgrades or other changes to MANAGEtoWIN.  The Client agrees our Company has no control of availability of MANAGEtoWIN on a continuous or uninterrupted basis.

2.    Exclusive Remedy.  Our Company’s total liability, and the Client’s sole remedy, for any failure by our Company to meet the above-described service levels is the Client’s ability to terminate this Agreement.

Maintenance

During the term of your subscription, our Company shall provide maintenance services to Company which shall include (i) correction of Failures; (ii) bug fixes and maintenance patches; (iii) answers to general how-to questions; (iv) email support, which shall be available from 9:00 a.m. to 5:00 p.m. Pacific Standard Time, Monday through Friday, excluding federal holidays (subject to change); and (v) upgrading to new versions ofMANAGEtoWIN upon major releases by our Company.  Such services shall be communicated between our Company and the Client via email.  

Limitation of Liability

THE INFORMATION AND SERVICES ON MANAGEtoWIN ARE PROVIDED ON AN "AS IS" BASIS AND OUR COMPANY, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXPRESSLEY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  OUR COMPANY DOES NOT WARRANT THAT SUCH INFORMATION, SERVICES, PRODUCTS AND MATERIALS WILL BE ERROR FREE, CURRENT, ACCURATE, RELIABLE OR FREE FROM DEFECTS OR COMPUTER VIRUSES.  Note: Some jurisdictions may not allow the exclusion of implied warranties, so the above exclusions may not apply to you.

Our Company specifically does not warrant the speed with which the Client will be able to connect to MANAGEtoWIN, that the Client will experience no Data loss or MANAGEtoWINdowntime, that the operation of, or access to, MANAGEtoWIN will be uninterrupted or error‑free, or that all MANAGEtoWIN errors will be corrected.

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR (A) ANY INDIRECT DAMAGES OR OTHER RELIEF ARISING OUT OF THE USE OF OR INABILITY TO USE MANAGEtoWIN, (INCLUDING, BUT NOT LIMITED TO, MANAGEtoWIN DOWNTIME, LOST DATA, LOST PROFITS, OR LOST OPPORTUNITIES), ANY SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL AND/OR PUNITIVE DAMAGES OR OTHER SIMILAR CLAIMS, EVEN IF EITHER OR BOTH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) FOR ANY CLAIM (EXCEPT AN INTELLECTUAL PROPERTY INFRINGEMENT CLAIM AS SET FORTH IN THE INFRINGEMENT WARRANTY HEREIN) BY ANY OTHER PARTY.  IF MONETARY DAMAGES ARE IMPOSED UPON EITHER PARTY IN FAVOR OF THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT, BOTH PARTIES AGREE THAT IN NO EVENT WILL SUCH MONETARY DAMAGES EXCEED THE MOST RECENT THREE MONTH’S SUBSCRIPTION FEES PAID BY COMPANY TO MANAGEtoWIN UNDER THIS AGREEMENT.

Intellectual Property Infringement Warranty

Our Company warrants MANAGEtoWIN and the use thereof, do not infringe upon or misappropriate any copyrights, trademarks or patents registered or issued in the United States (“Infringement Warranty”)

Indemnification

Our Company shall indemnify and defend the Client against any claims, costs, liabilities or expenses (“Claims”) incurred or suffered by the Client as a result of our Company’s breach of the Infringement Warranty;  provided, however, that the Client: (i) provides our Company with prompt notice of any such claim or allegation, (ii) allows our Company to assume the defense or settlement of same in its sole discretion, and (iii) provides reasonable assistance to our Company upon request in resolving any such matters.  In the case of a final award of damages in any such suit, our Company will pay such award, but shall not be responsible for any settlement made without its prior written consent.  If our Company is held to have infringed a third party’s copyright, trademark or patent registered or issued in the United States, our Company shall, at its option: (i) modify MANAGEtoWIN, as applicable, in a manner to make it non-infringing; (ii) replace the infringing software with non-infringing software; and/or (iii) attempt to obtain a license from the owner of the intellectual property that MANAGEtoWIN, as applicable, is held to infringe.  Our Company’s total responsibility and liability, and the Client’s sole remedy, for any actual or alleged breach of the Infringement Warranty is the most recent month’s Subscription Fees paid by the Client.  Without limitation of the foregoing, in no event shall our Company be liable for any indirect, special, or consequential damages resulting from any breach of the Infringement Warranty.

The Client agrees to indemnify and hold harmless our Company, its affiliates, officers, directors, employees and agents, from and against any third party claims, liability, damages and costs (including without limitation attorney's fees), arising from your use ofMANAGEtoWIN, your violation of these terms of use and the activities of any user of your account.

Data Ownership

Data entered by the Client is and shall at all times remain the sole and exclusive property of the Client, and the Client warrants and represents to our Company that Client has the right to use the Data.  MANAGEtoWIN and any modifications, translations, adaptations, upgrades, and enhancements thereto are and shall at all times remain the sole and exclusive property of our Company.  MANAGEtoWIN is protected by copyright and other intellectual property laws and international treaties.  The Client shall neither own nor hereby acquire any claim or right of ownership in or to MANAGEtoWIN or any MANAGEtoWIN services.

Data Processing Errors

In the event of information processing errors caused by our Company, our Company shall, upon written notice from the Client of such error, promptly correct such error, whenever possible, without additional charge to the Client.  In the event of processing errors caused by the Client’s or a third party’s submission of inaccurate or incomplete Data or other causes for which our Company is not responsible, our Company shall correct such error at the expense of the Client upon receiving signed written authorization to do so.

Relationship of Parties

Nothing contained in this Agreement shall be construed to create a partnership, agency, joint venture, or employer/employee relationship between the parties.  Neither party has the authority to assume or create any obligation or responsibility, express or implied, on behalf of, or in the name of, the other party or to bind such other party in any way.  Each party shall be responsible for wages, taxes, withholding, insurance (including, without limitation, workman’s compensation), hours and conditions of employment of its personnel during the term hereof.

Governing Law

The laws of the state of California govern any claim relating to MANAGEtoWIN and the materials contained on MANAGEtoWIN, without reference to its conflicts of law rules.  You agree to the following:

1.    Any controversy or claim arising out of or relating to the interpretation or enforcement of this Agreement, or the breach thereof, shall be settled by binding arbitration (such as JAMS/Endispute or another private arbitrator or service, but specifically excluding the American Arbitration Association).  Venue for any arbitration shall be in a United States city selected solely by our Company.  In the event of a dispute regarding the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs incurred from the inception of the dispute.

2.    Your subscription is severable, such that the invalidity of any term of these Terms of Use and our Privacy Policy shall not affect the validity of any other term.  Any such invalid term shall be subject to partial enforcement to the maximum extent permitted under applicable law. 

3.    The headings contained in this Terms of Use and our Privacy Policy are for convenience only and shall not be deemed to be a substantive part of your subscription terms.

4.    This Terms of Use and our Privacy Policy shall inure to the benefit of and be binding upon the parties, their successors and assigns.  Your subscription may not be assigned by either party without the prior written consent of our Company.

5.    The failure by our Company to insist upon strict performance of any provision hereof shall not constitute a waiver of such provision.  All waivers must be in writing to be enforceable.

6.    No lawsuit, action or other proceeding, regardless of form, arising out of this Agreement, may be brought by the Client more than six months after the cause of action has arisen.

7.    All notices pursuant to this Agreement shall be in writing and made via hand delivery, certified mail, (return receipt requested, postage prepaid), or overnight delivery via a commercially respected courier (service fees prepaid) to the receiving party.