EFFECTIVE DATE: March 20, 2020
Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services.
This Agreement is governed by and construed in accordance with the substantive and procedural laws of the United States and the State of Pennsylvania, except that body of Pennsylvania law concerning conflicts of law. You and Company agree to submit to the exclusive jurisdiction of, and venue in, the courts of Fayette county Kentucky in any dispute arising out of or relating to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement.
Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
Title, ownership rights, and intellectual property rights in the Software shall remain with Company and/or its suppliers or licensors. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Company’s or its suppliers’ or licensors’ ownership of or rights with respect to the Software. The Software is protected by intellectual property laws.
Subject to the terms and conditions of this Agreement, Company hereby grants to you a non-exclusive, non-transferable, limited license (the “License”) to use the Software and Documentation only: (i) for your own personal or internal business purposes, and (ii) for the duration of the License. If you have executed a written agreement with Company regarding the Company Products, then such executed agreement will govern your use of the Company Products instead of this Agreement.
Except as otherwise expressly permitted in this Agreement, You may not: (a) reproduce or copy any of the Software; (b) modify or create any derivative works of the Software, including translation or localization; (c) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Software; (d) redistribute, encumber, sell, rent, lease, sublicense, or otherwise transfer rights to the Software; (e) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Software; (f) without Company’s prior written consent (which may be given or withheld in Company’s sole discretion) either (a) provide service bureau services using the Software, or (b) otherwise enter into an agreement with a third party to use the Software on such third party’s behalf for the primary purpose of obviating the third party’s need to license the Software itself; (g) copy the printed materials accompanying the Software, or (h) disclose results of any Program benchmark tests without Company’s prior written consent; or use any Company name, trademark or logo. As between Licensee and Company, any changes to, modifications to, or derivative works of the Software shall become the exclusive property of Company.
Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.
TERMINATION OF THE LICENSE
The License may be terminated either: (i) by you at any time by notifying Company in writing; (ii) automatically, upon your failure to comply with any term or condition of this Agreement;; or (iii) in the case of Demonstration Software, upon written notice by Company. Upon termination of the License, all of your rights to use the Software and Documentation terminate and you agree to destroy or return all copies of the Software and Documentation to Company, and further you agree that Company shall have the right to conduct an audit to verify such destruction or return. To the extent Company terminates the License for any of your Company Products, then Company may terminate the License for all of your Company Products. You acknowledge that no refunds of any Company Product fees will be made due to termination of this License.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE COMPANY PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. IN ANY CASE, COMPANY’S AND ITS SUPPLIERS’ AND LICENSORS’ ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE THE SUM OF THE FEES YOU PAID FOR THIS LICENSE (IF ANY), WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF COMPANY TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE.
Company may audit your use of the Program. You are not permitted to use the Product for any purpose other than in connection with your authorized use of Product. You agree to comply with any applicable third-party terms of agreement when using the Program.
LIMITATION OF WARRANTIES
You assume responsibility for the selection of the Company Products to achieve your intended results and for the installation and use of, and results obtained from, the Company Products. Company does not warrant that the functions contained in the Company Products will meet your requirements or that the operation of the Company Products will be uninterrupted or error free. (ii) EXCEPT AS EXPRESSLY PROVIDED ABOVE, THE COMPANY PRODUCTS ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY AND ITS SUPPLIERS AND DISTRIBUTORS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT). (iii) THE ABOVE WARRANTIES DO NOT APPLY TO OTHER NON- COMPANY SOFTWARE OR DEVICES WHICH MAY BE INSTALLED IN, CONNECTED TO, OR DISTRIBUTED WITH THE HARDWARE, WHETHER OR NOT SUCH DEVICES ARE SOLD OR INSTALLED BY A DISTRIBUTOR. THE SOLE WARRANTY, IF ANY, WITH RESPECT TO SUCH DEVICES IS THE WARRANTY DISTRIBUTED BY THE MANUFACTURER THEREOF. (iv) EXCEPT AS MENTIONED ABOVE, NO OTHER WARRANTY FOR ANY COMPANY PRODUCTS, WHETHER EXPRESS OR IMPLIED, MAY BE GIVEN BY ANY PERSON, FIRM OR CORPORATION, INCLUDING THE DISTRIBUTOR, WHICH BIND COMPANY. (v) Some jurisdictions do not allow the exclusion of implied warranties, or a limitation on how long an implied warranty may last, so the above limitations may not apply to you. To the extent permissible, any implied warranties are limited to thirty days. This warranty gives you specific legal rights. You may have other rights which vary from jurisdiction to jurisdiction.
Each party hereto acknowledges that by reason of its relationship with the other party hereunder, it may have access to confidential information and materials concerning the other party’s business, technology, and/or products that is confidential to the other party (“Confidential Information”). Each party’s Confidential Information is of substantial value to the party, which value could be impaired if such information was disclosed to third parties or used in violation of this Agreement. Written or other tangible Confidential Information must at the time of disclosure be identified and labeled as Confidential Information belonging to the disclosing party. When disclosed orally or visually, Confidential Information must be identified as confidential at the time of the disclosure, with subsequent confirmation in writing within fifteen (15) days after disclosure. Each party agrees that it will not use in any way for its own account or the account of any third party, such Confidential Information, except as authorized under this Agreement, and will protect Confidential Information at least to the same extent as it protects its own Confidential Information and to the same extent that a reasonable person would protect such Confidential Information. Neither party may use the other party’s Confidential Information except to perform its duties or exercise its rights under this Agreement. The Confidential Information restrictions will not apply to Confidential Information that is (i) already known to the receiving party at the time of access hereunder, (ii) becomes publicly available through no wrongful act of the receiving party, (iii) independently developed by the receiving party without benefit of the disclosing party’s Confidential Information, (iv) has been rightfully received from a third party not under obligation of confidentiality or (v) is required to be disclosed by law, provided the party compelled to disclose the Confidential Information provides the party owning the Confidential Information with prior written notice of disclosure adequate for the owning party to take reasonable action to prevent such disclosure, where reasonably possible. Unless otherwise agreed to by both parties, upon termination of this Agreement or an applicable Addendum, each party will return the other party’s Confidential Information.
DATA COLLECTION AND PRIVACY
The Program may collect information about Your use of the Program, including information You provide directly or through automated means, such as geolocation (only if You choose to share it), Program usage, time stamp, Device and OS identification, login credentials, and other information. Company may use this information for purposes, such as identity management, security, auditing. marketing, service delivery, and product improvement.
Company shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
You agree that this Agreement is the complete agreement pertaining to the subject matter hereof (including references to information contained in a URL or referenced policy) and this Agreement supersedes all prior or contemporaneous written or oral agreements or representations existing between you and Company with respect to such subject matter. You acknowledge that the terms of this Agreement (including the license for the Program) are separate from the terms governing Server Product, and that this Agreement does not include the grant of any right to use Server Product. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective. Company’s failure to enforce any right or provisions in this Agreement will not constitute a waiver of such provision, or any other provision of this Agreement. The parties hereby confirm that they have requested that this Agreement and all related documents be drafted in English.
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