Please read and agree to these terms carefully before using this service. This website, http://www.turboupdates.com, (the “Site”) is owned and managed by Updates4Me, LLC (“we” “Licensor”). Licensor is the entire legal and beneficial owner of the Licensed Product which is made available to the User (“you” “User” “Licensee”) through cloud based service. The following Terms and Conditions apply when a User accesses and uses this Site. By accessing the Site or using the license/service, you are agreeing to be bound by these website Terms and Conditions of Use, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing this Site. The materials contained in this Site are protected by applicable copyright and trademark laws.
Capitalized terms shall have the meanings set forth or referred to in this Section, or in the Section in which they first appear in the Agreement.
[“Acceptance Testing" has the meaning set forth in Section 8.]
"Action" means any third-party claim, suit, action or proceeding alleging that the Licensed Software [(excluding all Open-Source Components)] infringes or misappropriate any patent, patent application issued or published on or before the Effective Date, copyright or trademark of that third party under the laws of your country or other applicable jurisdiction.
"Authorized Users" means the employees of the Licensee who are authorized to use the Licensed Software.
“Business Day” means any day which is not a Saturday, Sunday or public holiday.
"Confidential Information" means all nonpublic or proprietary information treated as confidential by a Party, including all: (a) information concerning a Party's past, present and future business affairs including finances, products, services, organizational structure, internal practices, forecasts and sales; (b) unpatented inventions, ideas, methods and discoveries, trade secrets, know-how and other confidential intellectual property; (c) designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, protocols, processes, and other visual depictions, in whole or in part, of any of the foregoing; (d) any third-party confidential information included with, or incorporated in, any information provided by a Party; and (e) all Notes prepared by or for a Party or its Representatives that contain, reflect or are derived from, in whole or in part, any of the foregoing. Except as required by applicable federal, state or local law or regulation, "Confidential Information" shall not include information that, at the time of disclosure: (1) is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Agreement by the receiving Party or any of its Representatives; (2) is, or thereafter becomes, available to the receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (3) was known by or in the possession of the receiving Party or its Representatives, as established by documentary evidence, prior to being disclosed by or on behalf of the disclosing Party; or (4) was or is independently developed by the receiving Party, as established by documentary evidence, without reference to or use of, in whole or in part, any of the disclosing Party's Confidential Information.
"Controlled Technology" has the meaning set forth in Section 6.
"Documentation" means user manuals, technical manuals and any other materials provided by the Licensor, in printed, electronic or other form, that describe the installation, operation, use or technical specifications of the Licensed Software.
"Initial Term" has the meaning set forth in Section 16.1.
"Intellectual Property Rights" means all (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, (c) copyrights and copyrightable works (including computer programs), mask works and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection provided by applicable law, regulations or rules in any jurisdiction throughout the world.
"Legal Order" has the meaning set forth in Section 15.2.
"Licensed Software" means TurboUpdates Software Application, together with any Maintenance Releases provided to the Licensee pursuant to this Agreement.
"Loss or Losses" means damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses, including reasonable attorneys' fees, resulting from any Action that is subject to indemnification under Section 18.
"Maintenance Release" means any update or release of the Licensed Software that the Licensor may provide to the Licensee from time to time during the Term, that may contain, among other things, error corrections, enhancements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Licensed Software, but does not constitute a New Version."New Version" means any new version of the Licensed Software that the Licensor may from time to time introduce and market generally as a distinct licensed product, and which the Licensor may make available to the Licensee at an additional cost under a separate written agreement.
"Notes" means any notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations or other materials, in printed, electronic or other form.
"Permitted Use" means use of the Licensed Software by an Authorized User for the benefit of the Licensee in the ordinary course of its internal business operations.
“Product” is a SaaS Product named “TurboUpdates” which is a customer communication software designed to send frequent updates to your customers and measure their satisfaction in real-time.
"Renewal Term" has the meaning set forth in Section 16.1.
"Representatives" means a Party's and its successors' and permitted assigns' affiliates, employees, officers, directors, partners, shareholders, agents, attorneys and third-party advisors.
"Term" has the meaning set forth in Section 16.1.
[“Test Data" has the meaning set forth in Section 8.1 subclause1.][“Test Estimates" has the meaning set forth in Section 8.1 subclause1.]
[“Warranty Period" has the meaning set forth in Section 16.2 subclause1.]
In order to access some features of the Site, you will have to create an account. You must be 18 years of age or older; and submit a valid email address; select a username and password during the registration process. By electing to use these services; (a) you warrant that all information you submit while registering is current, true and accurate; (b) you agree to update this information; (c) You will not create more than one personal profile: (d) If we disable your account, you will not create another one without our permission; (e).you agree not to use the Services for any unlawful purpose. The password chosen by you is known only to you. You are entirely responsible for maintaining the confidentiality of your password. You agree not to use the account, username, or password of another User at any time or to disclose your password to any third party. You agree to notify turboupdates.com immediately if you suspect any unauthorized use of your account or access to your password. You are solely responsible for any and all use of your account by any third party. You agree that you are aware about the charges for using this service through mobile internet gateway and will not raise any dispute in this regard with turboupdates.com. You also represent that you are not a person barred from receiving the Services under the laws of your country or other applicable jurisdiction If you provide any information that is untrue, inaccurate, not current or incomplete, or if turboupdates.com has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, turboupdates.com has the right to suspend or terminate your account and refuse any and all current or future use of the Services (or any portion thereof).
3. License Grant.
The Licensor hereby grants to the Licensee a non-exclusive, non-transferable, limited license to use the Licensed Software and Documentation during the Term solely in accordance with the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by this Site and its licensors.
4. Scope of Use.
The total number of Authorized Users shall not exceed the number set forth under this Agreement, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the license fees payable hereunder.
4.2 Permitted Use.
The Licensee shall use the Licensed Software solely for its Permitted Use, except as otherwise expressly provided in this Agreement. The Licensor may deny any individual access to the Licensed Software on written notice to the Licensee if the Licensor, in its sole discretion, believes that person's use of the Licensed Software would violate any provision of this Agreement, regardless of whether Licensee designated that person as an Authorized User.
5. Use Restrictions.
The Licensee shall not, and shall not permit any Representatives or third parties to, in any manner:
5.1 modify, alter, amend, fix, translate, enhance or otherwise create derivative works of the Licensed Software;
5.2 reverse engineer, disassemble, decompile, decode or adapt the Licensed Software, or otherwise attempt to derive or gain access to the source code of the Licensed Software, in whole or in part, except as and only to the extent this restriction is prohibited by law or, with respect to Open-Source Components included in the Licensed Software, under the applicable open-source software license agreements governing the use of these components;
5.3 remove, disable, or otherwise create or implement any workaround to, any security features contained in the Licensed Software;
5.4 remove, delete or alter any trademarks, copyright notices or other Intellectual Property Rights notices of the Licensor or its licensors, if any, from the Licensed Software;
5.5 copy the Licensed Software, in whole or in part, except that the Licensee may make one copy of the Licensed Software solely for testing, disaster recovery or archival purposes. Any copy of the Licensed Software made by the Licensee:(a) shall remain the exclusive property of the Licensor;(b) be subject to the terms and conditions of this Agreement; and(c) must include all copyright or other Intellectual Property Rights notices contained in the original;
5.6 rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Licensed Software available to any third party for any reason;
5.7 use the Licensed Software in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including:(a) power generation systems;(b) aircraft navigation or communication systems, air traffic control systems or any other transport management systems;(c) safety-critical applications, including medical or life-support systems, vehicle operation applications and any police, fire or other safety response systems; and(d) military or aerospace applications, weapons systems or environments;
5.8 use the Licensed Software in violation of any federal, state or local law, regulation or rule; or
5.9 use the Licensed Software for purposes of competitive analysis of the Licensed Software, the development of a competing software product or service or any other purpose that is to the Licensor's commercial disadvantage.
6. Export Regulation.
The Licensed Software, Documentation and any related technical data, and products utilizing the Licensed Software, Documentation or such technical data (collectively, "Controlled Technology") may be subject to United States export control laws, including the U.S. Export Administration Act and its associated regulations. The Licensee shall not, and shall not permit any third parties to, export, re-export or release, directly or indirectly any Controlled Technology to a jurisdiction or country to which the export, re-export or release of any Controlled Technology is prohibited by applicable federal law, regulation or rule. The Licensee shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting or re-exporting any Controlled Technology.
10.1 License Fees. In consideration of the rights granted to the Licensee under this Agreement, the Licensee shall pay to the Licensor the fees of $25 per month per user in accordance with the terms of this Section 9. If the Term is renewed for any Renewal Term(s) pursuant to Section 16.1, the Licensee shall pay the then-current license fees that the Licensee charges for the Licensed Software during the applicable Renewal Term.
10.2 Payment Terms.
The Licensee shall pay 100% of the license fees due and owing under this Agreement within five (5) days of the Effective Date. All payments hereunder shall be in U.S. dollars and made by certified check, wire transfer, credit card or PayPal. Licensee hereby authorizes the Licensor to charge their credit card automatically at the end of each month.
10.3 Late Payment.
The Licensee shall notify the Licensor in writing of any dispute with any invoice (along with all relevant details regarding the dispute) within five (5) days from the date of invoice. Invoices for which no such timely notification is received shall be deemed accepted by the Licensee as true and correct. All undisputed late payments shall bear interest at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. In addition to all other remedies available under this Agreement or at law (which the Licensor does not waive by the exercise of any rights hereunder), the Licensor shall be entitled to suspend the Licensee's use of the Licensed Software if the Licensee fails to pay any amount when due hereunder and such failure continues for ten (10) days following written notice thereof.
The Licensee shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by the Licensee hereunder; provided, that, in no event shall the Licensee pay or be responsible for any taxes imposed on, or with respect to, the Licensor's income, revenues, gross receipts, personnel or real or personal property or other assets.
During the Term, the Licensor shall provide the Licensee with all Maintenance Releases (including updated Documentation) that the Licensor may, in its sole discretion, make generally available to its licensees at no additional charge. All Maintenance Releases, upon being provided by the Licensor to the Licensee hereunder, shall be deemed Licensed Software subject to all applicable terms and conditions in this Agreement. The Licensee shall install all Maintenance Releases as soon as practicable after receipt. The Licensee shall not have any right hereunder to receive any New Versions of the Licensed Software that the Licensor may, in its sole discretion, release from time to time. The Licensee may license any New Version that the Licensor generally makes available to its licensees at the Licensor's then-current list price and subject to a separate license agreement, provided that the Licensee is in compliance with the terms and conditions of this Agreement.
The Licensee acknowledges and agrees that the Licensed Software is being licensed, not sold, to the Licensee by the Licensor. The Licensee further acknowledges and agrees that it shall not acquire any ownership interest in the Licensed Software under this Agreement, and that the Licensor reserves and shall retain its entire right, title and interest in and to the Licensed Software and all Intellectual Property Rights arising out of or relating to the Licensed Software except as expressly granted to the Licensee in this Agreement. The Licensee shall promptly notify the Licensor if the Licensee becomes aware of any possible third-party infringement of the Licensor's Intellectual Property Rights arising out of or relating to the Licensed Software and fully cooperate with the Licensor, at the Licensor's sole expense, in any legal action taken by the Licensor against third parties to enforce its Intellectual Property Rights. The Licensee shall use commercially reasonable efforts to safeguard the Licensed Software (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.
13. Security Measures.
The Licensor or its Representatives may, in the Licensor's sole discretion, audit the Licensee's use of the Licensed Software under this Agreement at any time during the Term and for one (1) year following the expiration or termination of this Agreement, provided that no more than two (2) audits may be conducted in any twelve (12) month period. The Licensee shall reasonably cooperate with the Licensor's audit and provide reasonable access to records, equipment, information and personnel requested by the Licensor. The Licensor shall only examine information directly related to the Licensee's use of the Licensed Software. The Licensor may conduct audits only during the Licensee's normal business hours and in a manner that does not unreasonably interfere with the Licensee's business operations. If the audit determines that the Licensee's usage of the Licensed Software exceeded the usage permitted by this Agreement, the Licensee shall pay to the Licensor all fees due for such excess usage of the Licensed Software, plus any reasonable costs incurred by the Licensor in conducting the audit, within thirty (30) days of the date of written notification of the audit results. If no excess usage is found, the Licensor shall reimburse the Licensee for any reasonable costs incurred by the Licensee in cooperating with the audit within ten (10) days of the date of written notification of the audit results.
15.1 Receiving Party Obligations.
Each Party acknowledges and agrees that they each may gain access to or become familiar with the other Party's Confidential Information. Except as set forth in Section 15.2, each Party, as the receiving Party of the other Party's Confidential Information, shall:(a) protect and safeguard the confidentiality of the disclosing Party's Confidential Information with at least the same degree of care as the receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;(b) not use the disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to perform its obligations under this Agreement, or otherwise in any manner to the Disclosing Party's detriment;(c) not disclose any such Confidential Information to any person or entity, except to the receiving Party's Representatives who (1) need to know the Confidential Information to assist the receiving Party, or act on its behalf, in relation to the Purpose or to exercise its rights under the Agreement; (2) are informed by the receiving Party of the confidential nature of the Confidential Information; and (3) are subject to confidentiality duties or obligations to the receiving Party that are no less restrictive than the terms and conditions of this Agreement; and(d) be responsible for any breach of this Agreement caused by any of its Representatives.
15.2 Required Disclosure.
The receiving Party may disclose the disclosing Party's Confidential Information pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a "Legal Order"), provided that the receiving Party shall first make commercially reasonable efforts to provide the disclosing Party with:(a) prompt written notice of such requirement so that the disclosing Party may seek, at its sole cost and expense, a protective order or other remedy; and(b) reasonable assistance, at the disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.
16. Term; Termination.
This Agreement shall commence on the Effective Date and, unless terminated earlier pursuant to any of its express provisions, shall continue thereafter for a period of one (1) year (the "Initial Term"). Upon expiration of the Initial Term, this Agreement shall automatically renew for additional successive one (1) year terms, or for such shorter period as may result from termination pursuant to an express provision hereof, unless either Party provides written notice of nonrenewal at least thirty (30) days prior to the end of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term"). If the Term is renewed for any Renewal Term(s) pursuant to this Section 16, the terms and conditions of this Agreement during each such Renewal Term shall be the same as the terms in effect immediately prior to such renewal, subject to any change in the amount of license fees payable hereunder by the Licensee during the applicable Renewal Term as set forth in Section 10.1. In the event either Party provides timely notice of its intent not to renew this Agreement, then, unless otherwise terminated in accordance with its terms, this Agreement shall terminate on the expiration of the then-current Term.
This Agreement may be terminated prior to the expiration of the Term on written notice:(a) by the Licensor, if the Licensee fails to pay any amount when due hereunder and such failure continues for ten (10) days after the Licensee's receipt of written notice of nonpayment;(b) by the Licensor, if the Licensee commits a material breach of any provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by the Licensee within ten (10) days after the Licensee's receipt of written notice of such breach;(c) by the Licensee, if the Licensor commits a material breach of any warranty set forth in Section 17.2 and such breach is not cured by the Licensor in accordance with Section 17.5;(d) by either Party, effective immediately, if the other Party files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.
16.3 Effect of Termination.
The expiration or termination of this Agreement, for any reason, shall not release either Party from any liability to the other Party, including any payment obligation that has already accrued hereunder. On the expiration or termination of this Agreement, for any reason, the Licensee shall:(a) immediately discontinue use of the Licensed Software;(b) within ten (10) days, at the Licensor's option and at the Licensee's expense, return to Licensor or destroy all copies of the Licensed Software, Documentation and all materials containing the Licensor's Confidential Information. This requirement applies to partial and complete copies in all forms, in all types of media and computer memory, and whether or not modified or merged into other materials; and(c) within thirty (30) days, certify in writing to the Licensor that all such copies and materials have been returned or destroyed, and that Licensee's use of the Licensed Software has been discontinued.
The provisions of Section 5 through Section 6, Section 9, and Section 11 through Section 25 shall survive the expiration or earlier termination of this Agreement for any reason, provided that with respect to Section 14, each Party's obligations under this Section 16.4, shall survive the expiration or earlier termination of this Agreement for a period of one (1) year from the date of such expiration or termination, except for Confidential Information that constitutes a trade secret under any applicable law, in which case, such obligations shall survive for as long as such Confidential Information remains a trade secret under such law.
17. Representations and Warranties.
17.1 Mutual Representations.
Each Party represents to the other Party that it: (a) is an entity duly organized and validly existing under the laws of its jurisdiction of organization;(b) is qualified and licensed to do business and in good standing in every jurisdiction where such qualification and licensing is required for purposes of this Agreement; and(c) has all necessary power and authority to negotiate, execute, deliver and perform its obligations under this Agreement.
17.2 Limited Warranty.
Subject to the limitations set forth in Section 17.3 and Section 17.4, the Licensor warrants to the Licensee that for a period of one hundred-eighty (180) days from the date of installation of the Licensed Software (the "Warranty Period"): the Licensed Software shall substantially conform in all material respects to the specifications set forth in the Documentation, when installed, operated and used as recommended in the Documentation and in accordance with this Agreement.
17.3 Licensee Requirements.
The limited warranty set forth in Section 17.2 shall only apply where the Licensee:(a) notifies the Licensor in writing of the warranty breach before the expiration of the Warranty Period;(b) has promptly installed all Maintenance Releases to the Licensed Software that the Licensor previously made available to Licensee; and(c) as of the date of notification, is in compliance with all other terms and conditions of this Agreement (including the payment of all license fees then due and owing).
Notwithstanding anything to the contrary in this Section 17.4, the limited warranty set forth in Section 17.2 shall not apply to problems arising out of or relating to:(a) Licensed Software, or the media on which it is provided, that is modified or damaged by the Licensee or its Representatives, or any other software or hardware that are operated with or incorporated into the Licensed Software other than as specified in the Documentation or expressly authorized by the Licensor in writing;(b) the Licensee's or any third party's negligence, abuse, misapplication or misuse of the Licensed Software, including any use of the Licensed Software other than as specified in the Documentation or expressly authorized by the Licensee in writing;(c) the Licensee's failure to promptly install all Maintenance Releases that the Licensor has previously made available to the Licensee;(d) the operation of, or access to, the Licensee's systems or network;(e) any beta software, software that the Licensor makes available for testing or demonstration purposes, temporary software modules or software for which the Licensor does not receive a license fee;(f) the Licensee's breach of any material provision of this Agreement; or(g) any other circumstances or causes outside of the reasonable control of the Licensor (including abnormal physical or electrical stress).
17.5 Remedial Efforts.
If the Licensor breaches any of the warranties set forth in Section 17.2, the Licensor may, at its sole option and expense, take any of the following steps to remedy such breach:(a) replace any damaged or defective media on which the Licensor supplied the Licensed Software or Documentation;(b) amend, supplement or replace any incomplete or inaccurate Documentation;(c) repair the Licensed Software;(d) replace the Licensed Software with functionally equivalent software; and/or(e) terminate this Agreement and, provided that the Licensee fully complies with of its post-termination obligations as set forth in Section 16.3, promptly provide to the Licensee a pro rata refund of the license fees previously paid by the Licensee for the remaining Term of this Agreement following the date of such termination.
17.6 Sole Remedy.
If the Licensor does not cure a warranty breach or terminate this Agreement as provided in Section 17.5 within a reasonable period of time after the Licensor's receipt of written notice of such breach, the Licensee shall have the right to terminate this Agreement as provided in Section 16.2(b). Provided that the Licensee fully complies with of its post-termination obligations as set forth in Section 16.3, the Licensor shall promptly provide to the Licensee a pro rata refund of the license fees previously paid by the Licensee for the remaining Term of this Agreement following the date of such termination. THIS Section 17.6 SETS FORTH THE LICENSEE'S SOLE REMEDY AND THE LICENSOR'S ENTIRE LIABILITY FOR ANY BREACH OF ANY WARRANTY SET FORTH IN THIS AGREEMENT.
EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN Section 15.2 OF THIS AGREEMENT, THE LICENSED SOFTWARE IS PROVIDED "AS IS" AND THE LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE LICENSED SOFTWARE, DOCUMENTATION, MEDIA AND ANY OTHER SERVICES AND MATERIALS PROVIDED TO THE LICENSEE UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES (EXCEPT AS EXPRESSLY SET FORTH IN THE DOCUMENTATION), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE.
18.1 Indemnification Obligation.
The Licensor shall indemnify, defend and hold harmless the Licensee and its Representatives from and against any Action that is brought against the Licensee and all related Losses that are incurred by the Licensee, provided that the Licensor shall not be obligated to indemnify the Licensee or any of its Representatives in any Action or for any Losses incurred in relation to, arising out of or resulting from, in whole or in part: (a) any combination of the Licensed Software with any hardware, system or other software not provided or authorized in writing by the Licensor, if such infringement would not have occurred but for such combination; (b) any modification of the Licensed Software not provided or authorized in writing by the Licensor, or the Licensee's or any third party's negligence, abuse, misapplication or misuse of the Licensed Software, if such infringement would not have occurred but for such modification, neglect or misuse; (c) any breach by the Licensee of its material obligations set forth in this Agreement; or (d) any events or circumstances outside of the Licensor's commercially reasonable control (including any third-party hardware or software bugs, defects or malfunctions).
18.2 Mitigation. If the Licensed Software, or any part of the Licensed Software, becomes, or in the Licensor's opinion is likely to become, subject to an infringement claim, the Licensor may, at its sole option and expense, take any of the following steps to avoid or mitigate any potential losses: (a) notify the Licensee in writing to cease using all or a part of the Licensed Software, in which case the Licensee shall immediately cease such use on receipt of the Licensor's notice; (b) obtain the right for the Licensee to continue to use the Licensed Software; (c) modify or replace the Licensed Software with functionally equivalent software (which replacement software shall be deemed Licensed Software under this Agreement) that the Licensor believes to be non-infringing; and/or (d) immediately terminate this Agreement on written notice to the Licensee and, provided that the Licensee fully complies with its post-termination obligations set forth in Section 16.3, promptly provide to the Licensee a pro rata refund the license fees previously paid by the Licensee for the remaining Term of this Agreement following the date of such termination.
18.3 Licensee Obligations; Control of Defense.
If the Licensee receives notice or otherwise becomes aware of the commencement or threatened commencement of any Action for which indemnity may be sought under this Section 18.3, the Licensee shall promptly provide the Licensor with written notice of such Action. On receipt of such notice, the Licensor shall be entitled to, at its sole option, assume the control of the defense, appeal or settlement of such Action. The Licensee shall fully cooperate with the Licensor in connection therewith. The Licensee shall be entitled at any time to employ separate counsel to represent the Licensee, but if the defense, appeal or settlement of such Action has been assumed by the Licensor, any separate counsel employed by the Licensee shall be at the Licensee's sole expense. The Licensee shall not settle any Action without the Licensor's prior written consent, which shall not be unreasonably withheld, conditioned or delayed.
18.4 Sole Remedy.
THIS Section 18 SETS FORTH THE LICENSOR'S SOLE LIABILITY AND ENTIRE OBLIGATION AND THE LICENSEE'S EXCLUSIVE REMEDY FOR ANY ACTION THAT IS BROUGHT AGAINST THE LICENSEE.
19. Equitable Remedies.
The Licensee acknowledges that a breach or threatened breach of this Agreement by the Licensee or its Representatives may cause irreparable harm to the Licensor for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by the Licensee or its Representatives, the Licensor shall, in addition to any and all other rights and remedies that may be available at law (which the Licensor does not waive by the exercise of any rights hereunder), be entitled to seek a temporary restraining order, injunction, specific performance and any other equitable relief that may be available from a court of competent jurisdiction.
20. Limitation of Liability.
20.1 No Consequential or Indirect Damages.
IN NO EVENT WILL THE LICENSOR OR ANY OF ITS REPRESENTATIVES BE LIABLE UNDER THIS AGREEMENT TO THE LICENSEE OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, DATA, REVENUE OR PROFIT, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.20.2 Maximum Liability. IN NO EVENT WILL THE LICENSOR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID OR PAYABLE TO THE LICENSOR PURSUANT TO THIS AGREEMENT. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
21. Warranties & Disclaimer. The site and its licensors make no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the service or any content. The site and its licensors do not represent or warrant that (a) the use of the service will be timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the service will meet user’s requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by user through the service will meet user’s requirements or expectations, or (e) the service or the server(s) that make the service available are free of viruses or other harmful components. Licensor shall not be responsible or liable for disclosure of any sensitive or personal information including social security information by Users during their communication with others. The service and all content are provided to User strictly on an “as is” basis. Licensor shall not be responsible for any loss to the user due to system unavailability. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by the Site and its Licensors.
22. Internet Delays. The Site’s services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. The Site is not responsible for any delays, delivery failures, or other damage resulting from such problems.
23. Governing Law; Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Connecticut without giving effect to any choice or conflict of law provision or rule that would cause the application of Laws of any jurisdiction other than those of the State of Connecticut. Any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted [exclusively] in the federal courts of the United States or the courts of the State of Connecticut, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice or other document by mail to such Party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The Licensee shall not withhold payment of any fees owing under this Agreement by reason of any set-off of any claim or dispute with the Licensor, whether relating to the quality or performance of the Licensed Software or otherwise.
24. Waiver of Jury Trial.
Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by a Party from time to time in accordance with this Section 24).
26.1 Force Majeure.
Excepting only Licensee's payment obligations under this Agreement, neither Party shall be in default hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to any cause beyond its reasonable control, including strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond such Party's reasonable control.
26.2 Further Assurances.
Each Party shall, on the reasonable request and at the sole cost and expense of the other Party, take, execute, acknowledge and deliver all such further acts, documents and instruments necessary to give full effect to this Agreement.
26.3 Relationship of the Parties.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, or other form of joint enterprise between the Parties. The relationship between the Parties shall at all times be that of independent contractors. Neither Party shall have authority to contract for or bind the other in any manner whatsoever.
Neither Party shall use the other Party's trademarks, service marks, trade names, logos, symbols or brand names, or otherwise issue or release any announcement, statement, press release or other publicity or marketing materials relating to the existence or subject matter of this Agreement, or the relationship between the Parties, in each case, without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed.
26.5 Entire Agreement.
This Agreement, together with all exhibits attached hereto, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each Party hereto. In the event of a conflict between the terms, provisions and conditions contained in the body of this Agreement and the terms, provisions and conditions contained in the Exhibits to this Agreement, the term, provisions and conditions contained in the body of this Agreement shall prevail. In no event shall the provisions of any purchase order or any associated documentation used by the Licensee, constitute a binding agreement between the Parties or serve to modify the provisions of this Agreement, regardless of any failure of the Licensor to object to any purchase order or associated documentation.
The Licensee shall not assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the Licensor. Any purported assignment or delegation in violation of this Section 25.5 shall be null and void. No assignment or delegation shall relieve the Licensee of any of its obligations hereunder.26.7 No Third-party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
No waiver by any Party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No waiver by any Party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
26.10 Attorneys' Fees. In the event that either Party institutes any legal suit, action or proceeding against the other Party arising out of or relating to this Agreement, the prevailing Party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such Party in conducting the suit, action or proceeding, including reasonable attorneys' fees and expenses and court costs.
For purposes of this Agreement, (a) the words "include," "includes" and "including" shall be deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; and (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections and Exhibits refer to the Sections of, and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The Exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein.
The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile[, e-mail or other means of electronic transmission (to which a signed PDF copy is attached)] shall be deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
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