COMMON CENSUS SOFTWARE AND APPLICATION SERVER PROVIDER LICENSE


BEFORE YOU EITHER (1) INSTALL THE COMMON CENSUS EMPLOYEE BENEFITS SOFTWARE PRODUCT (THE “SOFTWARE”) ON YOUR COMPUTER, OR (2) LOG ON TO THE COMMON CENSUS ASP EMPLOYEE BENEFITS SYSTEM (THE “SERVICE”), PLEASE CAREFULLY REVIEW ALL TERMS AND CONDITIONS OF THIS LICENSE (THE “LICENSE”) AND BE SURE YOU UNDERSTAND THEM. BY CHOOSING “I ACCEPT” YOU BECOME A PARTY WITH COMMON CENSUS, INC. (HEREIN “COMMON CENSUS”) TO THE LICENSE AND ARE LEGALLY BOUND BY ITS TERMS AND CONDITIONS AS SHOWN WHETHER YOU ARE AN INDIVIDUAL OR ENTITY. IF YOU DO NOT AGREE TO ANY OF THE TERMS AND CONDITIONS SHOWN, YOU MUST NOT INSTALL THE SOFTWARE OR LOG ON TO THE SERVICE. THE TERMS OF THIS AGREEMENT SUPERCEDE THE TERMS OF ANY PURCHASE ORDER THAT YOU MAY SUBMIT. THIS AGREEMENT INCORPORATES THE TERMS AND CONDITIONS OF THE SUBSCRIPTION AGREEMENT FOR USE OF THE SOFTWARE AND SERVICE.

DATA MANAGEMENT DISCLAIMER.

COMMON CENSUS AND COMMON BENEFITS TOOLS INVOLVE INFORMATION ACCUMULATED FROM THE EMPLOYER, THE INDIVIDUAL (EMPLOYEE), INSURANCE INTERMEDIARIES (BROKERS, CONSULTANTS) CARRIERS AND OTHER PARTIES THAT MAY USE THE DATABASE. THE INFORMATION FEED INTO THE DATABASE AND THE INFORMATION EXTRACTED FROM THE DATABASE IS ONLY AS ACCURATE AS THE PARTICIPANTS THAT ARE USING THE SYSTEM. FURTHERMORE, THE BUSINESS PROCESS OF SENDING DATA TO HOME OFFICES, THIRD PARTY ADMINISTRATORS OR OTHER ENTERPRISES THAT ARE EXPECTING DATA DELIVERY (ON A REGULAR OR AD HOC BASIS) IS CONTROLLED BY THE END USER. COMMON CENSUS WORKS WITH LICENSE HOLDER TO DEVELOP A PROCESS BUT IT IS THE RESPONSIBILITY OF THE LICENSEE TO EXERCISE THE TOOLS PROVIDED AND THE RESPONSIBILITY OF THE LICENSEE TO ASSURE DATA REACHES THE INTENDED DESTINATION.

BENEFITS INFORMATION DISCLAIMER.

THE SOFTWARE IS DESIGNED TO ASSIST AN EMPLOYER WITH THE ADMINISTRATION OF EMPLOYEE BENEFITS. IT IS NOT INTENDED, NOR MAY IT BE IN ANY MANNER CONSIDERED A SUBSTITUTE FOR SPECIFIC LEGAL OR TAX ADVICE ABOUT ANY BENEFIT, QUALIFIED PLAN OR INSURANCE PROGRAM. TAX AND LEGAL MATTERS AS WELL AS ALL COMPLIANCE ISSUES MUST BE REVIEWED AND APPROVED BY YOUR OWN LEGAL OR TAX ADVISORS. ENROLLMENT, RATES, AND ADMINISTRATIVE OPERATIONS MUST BE CONFIRMED WITH EACH CARRIER. OFFICIAL ENROLLMENT AND/OR CHANGES FOR ALL INSURANCE PRODUCTS MUST BE COMPLETED ON INSURANCE COMPANY APPROVED FORMS. RECORDING OF DATA IN THIS PROGRAM MAY NOT BE SUFFICIENT TO SATISFY ANY CARRIER UNLESS SUCH CARRIER HAS SPECIFICALLY APPROVED IT.

GRANT OF LICENSE IN SOFTWARE AND SERVICE.

This License grants you the following rights to use the Software and Service, which is licensed to you and not sold:

  • Application Server. You may access and use the Service running remotely on the server provided by Common Census (the “Site”) according to the terms of the Subscription Agreement.
  • Application Software. You may install the Software on one (1) CPU. You must periodically access the Site to validate the license for installed software.
  • Database Backup. The Software and Service creates a database containing your employee benefit information (the “Database”), which is stored on a special server at the Site. Under this License, you may make and store an unlimited number of copies of the Database on a storage device of your choosing, such as a network server, with such copy to be used only to back up and re-install the database on the Site.

DESCRIPTION OF OTHER RIGHTS AND LIMITATIONS.

  • Limitations on Reverse Engineering, Decompilation, Disassembly and Access. You may not copy, reproduce, modify, reverse engineer, de-compile, or disassemble the Software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. As per the terms of the Subscription Agreement, you agree to notify CC immediately of any circumstances of which you have knowledge relating to any unauthorized use or copying of the Software or access to the Site by any persons or entity not authorized to do so.
  • Separation of Components. The Software is licensed as a single product. Its component parts may not be separated for use on more than one computer.
  • Rental. You may not rent or lease the Software or permit access to the Site to others.
  • Software Transfer. You may permanently transfer all of your rights under this License, provided you retain no copies of the Software, you transfer all of the Software (including all component parts, the media and printed materials, any upgrades, this License and, if applicable, the Certificate of Authenticity), and the recipient agrees to the terms of this License. If the Software is an upgrade, any transfer must include all prior versions of the Software.
  • Termination. Without prejudice to any other rights, Common Census may terminate this License immediately if you fail to comply with the terms and conditions of this License, your Subscription Agreement or any other agreement between you and Common Census. Further, if you are accessing this software via an agreement you have with a third party licensee of Common Census, this Agreement and your access to the software may be terminated by Common Census in the event that such third party licensee fails to comply with the terms of its agreements with Common Census. In any such termination event, you must destroy all copies of the Software and all of its component parts.

COPYRIGHT.

All title and copyrights in and to the Software (including but not limited to any images, photographs, animations, video, audio, music, and text incorporated into the Software), the accompanying printed materials, and any copies of the Software, are owned by Common Census. The Software is protected by U.S. copyright laws and international treaty provisions. Therefore, you must treat the Software like any other copyrighted material except that you may either make copies of the database solely for backup or archival purposes. You may not copy the printed materials accompanying the Software.

CONFIDENTIALITY AND SECURITY.

  • Security. Common Census will take reasonable steps to keep your data stored on the Site private by (1) transmitting your data in encrypted form over a secure socket connection to the Site and (2) maintaining good security practices on the Site. You acknowledge that such security efforts by Common Census are reasonable under the circumstances. You further agree to use the same care and discretion to avoid disclosure, publication, or dissemination of your own data, but in no event less than reasonable care. You agree promptly to notify Common Census in writing of any circumstances that become known to you surrounding any possession, use, or knowledge of your data by any person or entity other than those authorized under this Agreement. You agree to assume sole responsibility for the security of your own hardware configuration and the passwords used in accessing the Site.
  • Client System Requirements, Responsibilities. You are responsible for procuring, installing and maintaining at your location such hardware, software and Internet connectivity as may be required to run the Software and access the Site. Common Census reserves the right to charge additional service fees if you require assistance with respect to such basic setup.
  • US Government Restricted Rights. The Software and documentation are provided with Restricted Rights. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) or the Commercial Computer Software–Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is Common Census, Inc., 90 Bridge Street 1st Floor, Westbrook, ME 04092.

MISCELLANEOUS.

This License is governed by the laws of the State of Maine and applicable U.S. law. In the event of a dispute between the parties, you irrevocably submit to the jurisdiction of the state or federal courts sitting in Maine, with venue in Cumberland County, Maine.

LIMITED WARRANTY.

Common Census warrants that the Software and the Service will perform substantially in accordance with the accompanying written materials for a period of ninety (90) days from the date of receipt. Some states and jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to you.

CUSTOMER REMEDIES.

Your exclusive remedy shall be, at Common Census’ option, either (a) refund of the setup fees and subscription fees for the three (3) months prior to the event giving rise to a warranty issue, or (b) repair or replacement of the Software that does not meet Common Census’ Limited Warranty and which is returned to Common Census. This Limited Warranty is void if failure of the Software or hardware has resulted from accident, abuse, or misapplication. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer. Outside the United States, neither these remedies nor any product support services offered by Common Census are available without proof of purchase from an authorized international source.

NO OTHER WARRANTIES.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMMON CENSUS DISCLAIMs ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, WITH REGARD TO THE SOFTWARE AND SERVICE. THIS LIMITED WARRANTY GIVES YOU SPECIFIED LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION.

EXPORT COMPLIANCE.

You hereby (1) assure Common Census that you shall adhere to the U.S. Export Administration laws and regulations and shall not export, re-export or release any software, source code, technical data, or products received from Common Census or the direct product of such software, source code or technical data to any proscribed country listed in the U.S. Export Administration regulations unless properly authorized by the U.S. Government, and (2) agree that this assurance will be honored even after expiration of this Agreement. You acknowledge that you are familiar with U.S. Government export policy and regulations and undertake to be and remain in full compliance with such policy and regulations.

LIMITATIONS OF LIABILITY.

COMMON CENSUS SHALL NOT BE HELD LIABLE FOR ANY DAMAGES SUFFERED, WHETHER IN CONTRACT, IN TORT, UNDER ANY WARRANTY THEORY, OR OTHERWISE FOR ANY AMOUNT IN EXCESS OF THE TOTAL AMOUNT PAID TO COMMON CENSUS BY YOU PURSUANT TO THIS AGREEMENT DURING THE THREE (3) MONTHS PREVIOUS TO THE EVENT CAUSING SUCH DAMAGES. UNDER NO CIRCUMSTANCES SHALL COMMON CENSUS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS) OF A PARTY OR ANY THIRD PARTY, EVEN IF A PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN PARTICULAR, BUT WITHOUT LIMITATION, COMMON CENSUS SHALL HAVE NO LIABILITY FOR ANY LOSS, CORRUPTION, OR INACCURACY OF ANY OF YOUR DATA OR OF ANY OF YOUR CUSTOMERS OR THIRD PARTIES THAT MAY RESULT IN WHOLE OR IN PART FROM THE USE OF THE COMMON CENSUS SOFTWARE.

ACCEPTABLE USE POLICY.

You are independently responsible for complying with all applicable laws in all of your actions related to your use of Common Census services, regardless of the purpose of the use. You may not use this site to engage in any illegal activity. You may not use this site to engage in conduct which is defamatory, libellous, threatening or harassing or that infringes on a third party’s intellectual property or other proprietary rights. In the event you engage in activity that is illegal, defamatory, libellous, threatening, or harassing, Common Census reserves the right to disclose any information you provide through the use of this site or other Common Census owned electronic sites or applications to law enforcement authorities as deemed appropriate in the sole discretion of Common Census. You agree that any information you provide through this site will be truthful and accurate. Common Census reserves the right to require a customer change their User ID or answers to security questions if they are deemed inappropriate at Common Census’s sole discretion and judgment.