THIS END USER LICENSE AGREEMENT (“AGREEMENT”) BETWEEN YOU (“YOU” OR “LICENSEE”) AND ALL AXS HOLDINGS, LLC, AN IDAHO LIMITED LIABILITY COMPANY (“LICENSOR”), PROVIDES THE TERMS AND CONDITIONS UNDER WHICH LICENSOR WILL LICENSE TO LICENSEEE CERTAIN TOVUTI™ BRAND SOFTWARE.
BY CLICKING ON THE “I ACCEPT” BUTTON, SIGNING A COPY OF THIS AGREEMENT, OR DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU ACCEPT THIS AGREEMENT AND AGREE TO ITS TERMS AND CONDITIONS. IT IS IMPORTANT THAT YOU READ THIS ENTIRE AGREEMENT BEFORE ACCEPTING THIS AGREEMENT. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ORDER, PURCHASE, ACCEPT DELIVERY OF, INSTALL, OR USE THE SOFTWARE. YOUR USE OF THE SOFTWARE IS CONDITIONED ON YOUR ACCEPTANCE OF THIS AGREEMENT AND YOUR COMPLIANCE WITH THE TERMS AND CONDITIONS PROVIDED IN THIS AGREEMENT. WE ENCOURAGE YOU TO REVIEW THIS AGREEMENT IN ITS ENTIRETY BEFORE ACCEPTING THIS AGREEMENT.
THIS AGREEMENT WAS LAST UPDATED BY US ON MARCH 31, 2017. WE MAY AT ANY TIME, WITHOUT PRIOR NOTICE TO YOU, REVISE THIS AGREEMENT, WHICH REVISIONS WILL BE EFFECTIVE IMMEDIATELY.
1.2.. Solely for the period Licensor is providing software-as-a-service to Licensee or, if applicable, Licensee’s employer or independent contractor, under a Master Subscription Agreement (the “Term”), Licensor grants to Licensee and Licensee accepts from Licensor a non-exclusive, revocable, non-sublicensable and non-transferable license under Licensor’s copyrights (the “License”) in the United States to download, install and use the machine-code version of the software together with any related technical specification documentation (the “Documentation”) provided by Licensor (collectively, the “Software”) on a single computer or mobile device, provided that Licensee comply with the terms herein.
1.4.. Subject only to the License, Licensor shall retain all right, title and interest, including all patent rights, copyrights and trademarks, in and to the Software and all derivative works. Licensee shall indemnify, defend, and hold harmless Licensor harmless from and against any claim made or brought against Licensor by a third-party alleging that Licensee’s use of the Software infringes or misappropriates the intellectual property rights of a third-party or violates applicable law if Licensee’s use of the Software was in breach of the terms of this Agreement.
1.6.. Except as otherwise expressly permitted herein, Licensee and its principals, agents and employees shall not (and shall not allow any third party) to: (i) decompile, disassemble, or otherwise reverse engineer (except to the extent that applicable law prohibits reverse engineering restrictions) or attempt to reconstruct or discover any source code, underlying ideas, algorithms, workflows, file formats or programming or interoperability interfaces of the Software by any means whatsoever, (ii) remove any product identification, copyright, trademark or other notices, (iii) provide, lease, lend, use for timesharing, service bureau or hosting purposes or otherwise use or allow others to use the Software to or for the benefit of third parties, including, but not limited to, entities with which the Licensee or the principals of the Licensee are affiliated in any way, (iv) modify, or, except to the extent expressly authorized herein, incorporate into or with other software or create a derivative work of any part of the Software, (v) disseminate information or analysis (including, without limitation, benchmarks) regarding the quality or performance of the Software from any source, without prior written authorization by Licensor, or (vi) use the output or other information generated by the Software (including, without limitation, output describing the structure of a software program) for any purpose other than use by the Software in accordance with its specifications, or (vii) share the application in a client/server or networked environment.
2.1. THIS SOFTWARE IS PROVIDED BY LICENSOR “AS-IS” AND WITH ALL FAULTS ACCEPTED, WITH NO WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND. LICENSOR MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS OR IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW) WITH RESPECT TO THE SOFTWARE, THE DOCUMENTATION, OR OTHER MATERIALS PROVIDED BY LICENSOR. LICENSOR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR THAT OPERATION OF THE SOFTWARE WILL BE SECURE OR UNINTERRUPTED. LICENSEE MAY HAVE OTHER STATUTORY RIGHTS; HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERMISSIBLE DURATION. MOREOVER, IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE.
3.2.. Solely during the Term, and provided Licensee has paid the applicable support and maintenance fees (if any), Licensor shall provide support and maintenance in accordance with Licensor’s then-current policies. Any patches, updates, etc. provided as part of Software maintenance shall be included within the definition of Software for the purposes of this Agreement to the extent made available by Licensor.
3.4.. Upon Licensee’s request, Licensor will provide training to Licensee in accordance with Licensor’s then current training offerings and at Licensor’s then current prices at mutually agreed upon times and locations. In the event training services are provided at locations other than at Licensor’s premises, Licensee shall be responsible for all travel, meals, hotel and other associated expenses related to providing such training services.
3.6.. Licensee agrees, if requested by Licensor, to participate in beta testing of subsequent releases of the Software and to provide feedback on functionality, interoperability, security and other performance metrics as Licensee may reasonably request. Licensee may be required to enter into a separate agreement covering Licensee’s and Licensor’s respective rights and obligations with respect to any beta testing.
4.2.. This Agreement shall commence on the date it is first accepted by Licensee, and shall continue for the Term unless earlier terminated as provided in Section 4.2.
4.4.. Licensor may terminate this Agreement (a) for cause if Licensee fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach or (b) immediately in the case of a breach of Section 1.3. Licensor may terminate this Agreement in connection with a termination of Licensor’s Master Subscription Agreement with Licensee, or, if applicable, Licensee’s employer or independent contractor, on the same terms and conditions set forth in the Master Subscription Agreement.
4.6.. Sections 1.2, 1.3, 2, 4, 5, 6, and 8 shall survive termination. Upon the expiration of the Term or the termination of this Agreement pursuant to Section 4.2, Licensee shall immediately cease all use of the Software and return or destroy all copies of the Software and all portions thereof and so certify to Licensor. Termination is not an exclusive remedy, and all other remedies will be available whether or not this Agreement is terminated.
5.1. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, LICENSOR SHALL NOT BE LIABLE OR OBLIGATED WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR UNDER CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY (i) FOR ANY AMOUNTS IN EXCESS OF THE TOTAL AMOUNT PAID TO LICENSOR BY LICENSEE WITH RESPECT TO THE COPIES OF SOFTWARE THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE MONTH PERIOD PRIOR TO ACCRUAL OF THE CAUSE OF ACTION; (ii) FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, FOR ANY LOST PROFITS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES, TECHNOLOGY, SERVICES OR RIGHTS); (iii) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (iv) FOR ANY MATTER BEYOND LICENSOR’S REASONABLE CONTROL.
6.1. On Licensor’s written request Licensee shall furnish Licensor with a signed certification certifying that the Software is being used pursuant to the terms of this Agreement including any copy and user limitations. Licensor may audit the Software in use by Licensee. With prior reasonable notice, Licensor may perform a physical audit of the Software in use by Licensee and, if applicable, the number of authorized users associated with such use, provided that such audit is during regular business hours. In the event the audit reveals a material discrepancy, Licensee shall pay Licensor the then current fees for the number of licenses and/or authorized users reflected in the discrepancy and maintenance for any unauthorized use of the software.
7.1. Licensee or, if applicable, Licensee’s employer or independent contractor, may request or authorize Licensor to download and install the Software on Licensee’s computer or mobile device on Licensee’s behalf and, in such event, Licensee agrees and acknowledges that Licensor is authorized and directed to accept this Agreement on Licensee’s behalf (including, without limitation, by affirmatively clicking through any prompts relating to this Agreement or the Software). Licensee agrees that the terms and conditions provided in this Agreement are binding on Licensee, and Licensee shall comply fully with such terms and conditions, even if Licensor accepts this Agreement, downloads and installs the Software on Licensee’s computer or mobile device, or affirmatively clicks-through any prompts relating to this Agreement or the Software on Licensee’s behalf.
8.1. If Licensee (or Licensor at the request and on behalf of Licensee) downloads or accesses the Software via the Apple Store, then Licensee also agrees to any terms and conditions established by Apple with respect to the Apple Store and the Software. Without limiting the generality of the foregoing, Licensee and Licensor acknowledge and agree to the following Apple terms and conditions:
9.2.. The remedies under this Agreement shall be cumulative and not alternative and the election of one remedy for a breach shall not preclude pursuit of other remedies unless as expressly provided in this Agreement.
9.4.. This Agreement shall be governed in all respects by the internal laws of the State of Idaho (excluding conflict of laws principles) and without regard to the U.N. Convention on Contracts for the International Sale of Goods. Any dispute regarding this Agreement shall be subject to the exclusive jurisdiction of and venue within the state or federal courts located in the county in which Licensor’s principal offices are located, and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts.
9.6.. All notices under this Agreement shall be in writing and deemed to have been effectively given and received: (i) five (5) business days after the date of mailing if sent by registered or certified U.S. mail, postage prepaid, with return receipt requested; (ii) when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine and a copy of such facsimile is promptly sent by another means specified in this Section 8.3; or (iii) when delivered if delivered personally or sent by express courier service. Unless otherwise specified by the receiving party, all notices shall be addressed as follows:
9.7. If to Licensee: As set forth in purchasing information provided to Licensor prior to download.
9.8. If to Licensor: ALL AXS HOLDINGS, LLC
126.96.36.199.1. Attn: CEO
188.8.131.52.2. 201 N Maple Grove, Suite 110
184.108.40.206.3. Boise, Idaho 83704
9.10.. Licensee understands and acknowledges that certain technology licensed hereunder may be subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibit export or diversion of certain products and technology to certain countries or persons. Licensee warrants that it will comply in all respects with the export restrictions applicable to any materials or technology provided hereunder and will otherwise comply with the Export Administration Regulations or other United States laws and regulations in effect from time to time. Without limiting the foregoing, (i) Licensee represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) Licensee agrees to not permit any person to access or use the Software in violation of any U.S. export embargo, prohibition or restriction.
9.12.. Licensee shall not assign or otherwise transfer any of its rights, obligations or licenses hereunder without the prior written consent of Licensor, including any assignment by operation of law as a result of the merger or acquisition of Licensee, and only upon the original Licensee’s fully divesting itself, himself or herself of all possession of the Software and all media and copies thereof. Subject to the foregoing, the provisions of this Agreement shall apply to and bind the successors and permitted assigns of the parties.
9.14.. The relationship created by this Agreement is one of independent contractors, and not partners, franchisees or joint venturers. No employees, consultants, contractors or agents of one party are employees, consultants, contractors or agents of the other party, nor do they have any authority to bind the other party by contract or otherwise to any obligation, except as expressly set forth herein. Neither party will represent to the contrary, either expressly, implicitly or otherwise.
9.16.. Licensee acknowledges and agrees that there are no third party beneficiaries of this Agreement.
9.18.. If any covenant set forth in this Agreement is determined by any court to be unenforceable by reason of its extending for too great a period of time or by reason of its being too extensive in any other respect, such covenant shall be interpreted to extend only for the longest period of time and to otherwise have the broadest application as shall be enforceable. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, which shall continue in full force and effect.
9.20.. The failure of either party to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any rights, and the obligations of the party with respect to such future performance shall continue in full force and effect.
9.22.. This Agreement, together with all exhibits or addenda hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions of the parties. In the event of any conflict between the terms and conditions of this Agreement and your applicable Master Subscription Agreement, the terms and conditions of the Master Subscription Agreement shall prevail.
9.24.. Either party shall be excused from any delay or failure in performance hereunder, except the payment of amounts due by Licensee, caused by reason of any occurrence or contingency beyond its reasonable control, including but not limited to, acts of God, earthquake, floods, lightning, labor disputes and strikes, other labor or industrial disturbances, riots, war, acts of the public enemy, insurrections, embargoes, blockages, regulations or orders of any government, agency or subdivision thereof, shortages of materials, rationing, utility or communication failures, casualty, novelty of product manufacture or other unanticipated product development problems, and governmental requirements. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay; provided that such party shall give notice of such force majeure event to the other party as soon as reasonably possible.
9.26.. Licensee shall pay on demand all of Licensor’s reasonable attorneys’ fees and other costs incurred by Licensor to collect any amounts due and payable under this Agreement In any action arising out of or related to this Agreement, if the defendant is determined by a court of competent jurisdiction to have prevailed regarding the action, then the defendant shall be entitled to an award of its reasonable attorneys’ fees and costs of defending the action.
9.28.. The Software and accompanying Documentation are deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 2.212, as applicable. Any use, modification, reproduction, release, performing, displaying or disclosing of the Software by the U.S. Government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.