END USER LICENSE AGREEMENT AND TERMS OF SERVICE
READ CAREFULLY THIS END USER LICENSE AGREEMENT AND TERMS OF SERVICE (THE “AGREEMENT”), WHICH CONTAINS THE EXCLUSIVE TERMS AND CONDITIONS BETWEEN LINXX, INC. (“LICENSOR”) AND YOU FOR USE OF THE SERVICES (AS DEFINED BELOW). YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT, UNDER ALL APPLICABLE LAWS AND ON BEHALF OF LICENSEE. BY SELECTING THE “ACCEPT” BUTTON OR BY DOWNLOADING, ACCESSING, INSTALLING OR USING ANY OF THE SERVICES (“ACCEPTANCE”), YOU CREATE A LEGALLY ENFORCEABLE CONTRACT WHERE LICENSEE AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT WITHOUT MODIFICATION. IF YOU CANNOT OR DO NOT AGREE TO ALL TERMS AND CONDITIONS IN THIS AGREEMENT, YOU SHOULD DISCONTINUE INSTALLATION AND YOU ARE PROHIBITED FROM DOWNLOADING, ACCESSING, INSTALLING OR USING THE SERVICES.
“Documentation” means the Software user guide and other technical documentation delivered by Licensor. “Services” means the Software and Licensor’s information aggregation, messaging, notifications and management services provided on a remote basis (which may include via web browser) in connection with the Software, individually or collectively, as context dictates. “Software” means Licensor’s Linxx application (in executable format only), and all updates to such application that Licensor makes available to Licensee under this Agreement. “You, ” “Your” or “Licensee” means you, the individual entering into this Agreement on behalf of the entity on whose behalf you obtain or access the Software and/or Services. For the avoidance of doubt, references to “you” and “Licensee” are references to you and such entity, collectively.
2. ACCESS USE.
Subject to all of the terms and conditions in this Agreement and your payment of any fees in the amounts and at the times as specified during the registration process (as they may be prospectively modified from time to time by Licensor in its sole discretion), Licensor grants Licensee a nonexclusive, nontransferable right and license to (a) install and use the Software and Documentation without modification and (b) access the Services, as provided by or on behalf of Licensor on a remote basis.
Licensee shall not sublicense, distribute or otherwise transfer any Software to any of its customers or other third parties or permit third parties to access or use the Services. Licensee’s use of the Services shall comply with all other limitations, prohibitions and conditions described in the Documentation and in this Agreement, including restrictions regarding the number of active copies of the Software.
Licensor does not offer or provide any technical support or other services under this Agreement. Such services may be available, if at all, upon such terms and conditions as Licensee and Licensor (or its authorized agent) may agree in a separate arrangement.
3. PROPRIETARY RIGHTS.
Unless and only to the extent expressly specified in this Agreement, Licensee shall not directly or indirectly (a) disassemble, decompile, reverse engineer or otherwise try to discover any source code or underlying organization, structures, ideas or algorithms of the Services (except and only to the extent these restrictions are expressly prohibited by applicable statutory law), (b) copy, adapt, combine, integrate, bundle, create derivative works of, translate, localize, port or otherwise modify any Services or Documentation, (c) use the Services or Documentation, or allow the transfer, transmission, export or re-export of all or any part of the Software or Documentation or any product thereof, in violation of any export control laws or regulations of the United States or any other relevant jurisdiction or (d) obscure, alter or remove any printed or on-screen proprietary or legal notice displayed by or contained on or in any copy of the Software or Documentation.
2. No Implied License.
Except for the limited rights and licenses expressly granted hereunder, no other right, license or option is granted, no other use is permitted and Licensor (and its licensors) owns and retains all rights, title and interests in and to the Services and Documentation.
3. Third Party Software.
The Services may operate, interface and/or be delivered with other software licensed from and owned by third parties, the use of which may be subject to additional or different terms set forth in the applicable open source or other license described in the Documentation. Licensee is solely responsible for installing, operating and maintaining all necessary rights to use any third party software with which the Services interact and for ensuring that use of the Services complies with all end user terms and conditions applicable such use. Licensor shall have no liability to Licensee for Licensee’s failure or inability to do any of the foregoing. Licensee agrees to indemnify and hold Licensor harmless from any claims resulting from any such failure by Licensee.
4. License to Your Materials.
Licensee acknowledges and agrees that the Services may access information, data and other content or materials which you have access to or use in connection with third party software or services (“Licensee Materials”). You hereby grant Licensor a license to process, reproduce and otherwise act with respect to such Licensee Materials, solely to enable Licensee to operate the Services. You represent and warrant that you have the right to allow Licensor to access such Licensee Materials for use with the Services pursuant to this Agreement.
4. NO WARRANTIES.
THE SERVICES AND DOCUMENTATION ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. NEITHER LICENSOR NOR ITS SUPPLIERS OR LICENSORS WARRANT THAT THE SERVICES WILL FUNCTION IN ANY ENVIRONMENT OR BE COMPATIBLE WITH ANY APPLICATION OR THIRD PARTY SOFTWARE OR INFORMATION, OR THAT ITS OPERATION WILL BE ERROR-FREE OR UNINTERRUPTED OR OTHERWISE MEET LICENSEE’S BUSINESS REQUIREMENTS. TO THE FULLEST EXTENT PERMITTED BY LAW, LICENSOR (FOR ITSELF AND ITS LICENSORS) HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, REGARDING THE SERVICES AND DOCUMENTATION, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF ACCURACY, INTEGRATION, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
5. LIMITATION OF LIABILITY.
EXCEPT TO THE EXTENT THAT ANY EXCLUSION OR LIMITATION OF LIABILITY IS VOID, PROHIBITED OR UNENFORCEABLE BY APPLICABLE LAW (INCLUDING WITH RESPECT TO BODILY INJURY OF A PERSON), IN NO EVENT SHALL LICENSOR (OR ITS LICENSORS) BE LIABLE CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) LOSS OF DATA, LOSS OR INTERRUPTION OF USE, OR COST TO PROCURE SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (B) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL OR (C) DAMAGES IN THE AGGREGATE IN EXCESS OF THE GREATER OF (I) THE AMOUNT PAID TO LICENSOR FOR THE SERVICES AND (II) $100, IN EACH CASE EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
6. TERM AND TERMINATION.
This Agreement shall commence upon Acceptance and continue in effect unless and until terminated as provided in this Agreement.
Licensee may terminate this Agreement at any time by giving written notice to Licensor. Licensor may terminate this Agreement if (a) Licensee materially breaches any provision of this Agreement or (b) the Services is found to infringe or misappropriate any third party’s intellectual property or proprietary rights, or becomes subject to an injunction prohibiting its use, or Licensor reasonably believes either of the foregoing conditions may be likely to occur.
Upon any termination of this Agreement, all rights, obligations and licenses hereunder shall cease, except that the following shall survive: (a) all obligations that accrued prior to termination (including any payment obligations) and remedies for breach of this Agreement; (b) Licensee shall stop using, de-install and destroy all copies of the Software and Documentation; and (c) the provisions of Sections 3 (Proprietary Rights), 4 (No Warranties), 5 (Limitation of Liability), 7 (General Provisions) and this Section 6.
7. GENERAL PROVISIONS.
1. Entire Agreement.
This Agreement constitutes the entire agreement, and supersedes all prior negotiations, understandings or agreements, between the parties about the subject matter of this Agreement. No change, consent or waiver will be effective unless in writing and signed by the party against which enforcement is sought. If any provision is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement otherwise remains in full force and effect and enforceable.
Licensee authorizes Licensor to include Licensee’s name and logo in customer listings that may be published as part of Licensor’s marketing efforts.
3. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its conflicts of law provisions. The parties hereby consent and agree that the sole and exclusive jurisdiction and venue for actions related to this Agreement in the state or federal courts located in New York, New York
The failure of either party to enforce its rights or remedies under this Agreement at any time for any period will not be construed as a waiver of such rights or remedies. In the event of any breach or threatened breach of Section 3, Licensee agrees that Licensor will suffer irreparable damage for which it will have no adequate remedy at law. Accordingly, in addition to any other remedy, Licensor shall be entitled to injunctive and other equitable remedies to prevent or restrain such breach or threatened breach, without the necessity of proving actual damages or posting any bond.
This Agreement and the rights and obligations hereunder may not be assigned or otherwise transferred without the prior written consent of the other party, except that either party (without consent) may assign its rights and obligations hereunder to any of its affiliates or to any successor to all or substantially all of its business that concerns this Agreement (whether by sale of stock or assets, merger, consolidation or otherwise). This Agreement will be binding upon, and inure to the benefit of, the successors, representatives, and permitted assigns of the parties.
For US government users, the use, duplication, reproduction, modification, release, disclosure or transfer of the Software or Documentation is restricted in accordance with FAR 12.212 for civilian agencies and DFAR 227.7202 for military agencies. The Software is commercial computer software and the Documentation is commercial computer software documentation. The use of the Software and Documentation is further restricted in accordance with the terms of this Agreement.