end user license agreement
End User License Agreement
L7 INFORMATICS, INC.
END USER LICENSE AGREEMENT
This End User License Agreement is a legal contract between L7 Informatics, Inc. (“
L7”) and you, as either an individual or an entity, and sets forth the terms and conditions that govern your access to and use of the Products (as defined below). If you are entering into this Agreement on behalf of an entity, then you represent and warrant that you have the power and authority to bind such entity to these terms and conditions.
PLEASE READ THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT CAREFULLY. BY CLICKING THE “I ACCEPT AND AGREE” BUTTON OR BY OTHERWISE DOWNLOADING, ACCESSING, INSTALLING OR USING THE PRODUCTS, YOU REPRESENT THAT YOU HAVE PURCHASED THE PRODUCTS FROM AN AUTHORIZED L7 RESELL.ER (AS FURTHER DESCRIBED HEREIN) AND ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO ACCEPT AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT, YOU MUST CLICK THE “I DECLINE” BUTTON AND IMMEDIATELY CEASE AND REFRAIN FROM DOWNLOADING, ACCESSING, INSTALLING OR USING THE PRODUCTS and you must destroy any and all copies of the Software under your control.
L7 is willing to license the Software (as defined below) or provide access to and use of the Hosted Services (as defined below), as applicable, to you only upon the condition that you have signed, either manually or electronically, an Order Form (as defined below) to license the Software or subscribe to Hosted Services under the Agreement (as defined below) and that you accept all of the terms contained in this End User License Agreement, as it may be amended from time to time, plus any additional terms set forth in any Supplemental License Agreement referenced in the Order Form (collectively, with this End User License Agreement, including all L7 policies and other documents referenced in this End User License Agreement, the “
Agreement“). To the extent of any conflict between the terms of this End User License Agreement and any Supplemental License Agreement, the Supplemental License Agreement shall apply.
When you download the Software, it may be protected by a watermark. In such case, once your payment is confirmed, you will be given a unique code. Once you enter the code, the watermark will disappear. The Order Form sets forth the fees you will pay and the duration of your license or subscription (“
Subscription Term”), and each Order Form constitutes a transaction under this Agreement. For purposes of the Agreement, an “
Order Form” means the quotation provided to you by L7 or an L7 Reseller (defined below) for the Products.
1. Products and Basic Definitions.
1.1. “Software” means any L7 software that you license through an Order Form made to L7 or a L7 Reseller. The term also includes:
(a) all related software documentation;
(b) any Updates (defined below) to such software;
(c) any add-ons, plug-ins, application programming interfaces or Internet-based components of the software provided by L7 (but not third parties) (“
Supplementary Software“); and
(d) any third party software embedded in or provided with L7’s software (“
Embedded Software“). Your detailed rights to use Software are in Section 2 below.
Any add-ons, plug-ins, application programming interfaces or other components of L7 software offered by third parties (through the L7 or otherwise) or created by you or your contractors are not “Software” and, in spite of any provision to the contrary in this Agreement, L7 is not responsible, and does not offer any warranty, indemnity or support, for those items.
1.2. “Hosted Services” are any L7 on-site or online services for software to which you subscribe, which can include “on demand” versions of software or services, and other online services provided by L7 from time to time, if any. “Hosted Services” always means the version of the Hosted Services as described in L7’s then-current service descriptions. Your detailed rights to use Hosted Services are set forth in Section 3 below.
1.3. “Products” are the Software and/or the Hosted Services.
1.4. Limits on Number of Authorized Users. When you buy a L7 Enterprise (ESP) License to the Software or a subscription to the Hosted Services, you become an “Enterprise User” under this Agreement and can run the Software in one production instance with up to a maximum number of users, which are counted based on number of then-authorized users for Software, and number of seats or logins for Hosted Services (collectively, “Authorized Users“). You pay fees based on the maximum number of Authorized Users. You may increase the maximum number of Authorized Users for additional fees. You designate your Authorized Users through the Products. Authorized Users will be limited to your employees, representatives, consultants, contractors and agents, who can be your Customers, as defined herein. You are responsible for all use of the Products by each of your Authorized Users and compliance by your Authorized Users with the terms of this Agreement. All Enterprise Users are subject to the provisions in this Agreement covering Authorized Users.
1.5. Limits on Number of Samples. When you buy a L7 Enterprise (ESP) Sample License to the Software, you become an “Enterprise User” under this Agreement and can run the Software in one production instance generating up to a maximum number of production samples, which number is tracked by the Software (“Authorized Samples”). All Enterprise Users are subject to the provisions in this Agreement covering Authorized Users.
1.6. “Designated Limits” are the specific number of Authorized Users or, if applicable, the specific number of Authorized Samples, for which you have paid fees and which have been authorized by L7.
1.7. L7’s Maintenance Offerings. L7 offers limited “Maintenance” to you as described on the L7 website at https://support.l7informatics.com. Maintenance generally includes: (a) any updates (including new features), patches and bug fixes for the Software (“Updates“) when and if generally released at L7’s sole discretion; (b) unlimited web-based customer support, and telephone customer support for up to a specified number of support tickets, as described in the website link above; and (c) other support features, if any, as described in the website link above.
1.8. Purchase through a “L7 Reseller”. Fees are payable directly to L7 (as described in Section 5 below) unless you ordered the Products from a L7 authorized reseller (“L7 Reseller“). If you ordered any Product from a L7 Reseller, then the sections of this Agreement referring to orders from L7, or payments to L7, do not apply for those Products. Instead, you agree to pay the L7 Reseller the fees to which you separately agreed to pay to the L7 Reseller. No L7 Reseller may change the terms of this Agreement (but may impose additional restrictions on use of the Products). No promises, warranties or agreements of any nature by any L7 Reseller are binding on L7.
2. License to Use L7 Software.
2.1. Software, Generally. (a) L7 grants you a worldwide, non-exclusive, non-transferable, non-sublicenseable right to use the Software, subject to the terms of this Agreement. Only Authorized Users may use the Software. You agree that you will not, at any time, exceed the Designated Limits except for Non-Production Purposes, as set forth in Section 2.2 below. All use of Software must be maintained and protected in accordance with this Agreement and the relevant L7 documentation and policies.
(b) This is a license, not a transfer of title, to the Software. You acknowledge that the Software contains respective trade secrets of L7, and its suppliers and licensors, including, without limitation, the specific internal design and structure of individual programs and associated interface. By using the Software after any modifications, you agree to all of the modifications that were made.
2.2. Copies, Backup and Testing. You may make a limited number of copies of the Software as is strictly necessary for purposes of data protection, archiving, backup and testing, and, only if you are an Enterprise User, your internal development purposes (e.g., of End User Modifications or End-User Plug-ins, as defined below, but not development of your unrelated products or services) (collectively, “Non-Production Purposes“). For clarity, your employees and contractors may use the Software for these Non-Production Purposes, and you will be responsible for their compliance with terms this Agreement; provided, however, that users solely using the Software for Non-Production Purposes will not count against your limit on the number of Authorized Users. Unless L7 agrees otherwise in writing, you may only install, use or make available the Software on your hardware systems, whether owned, leased or controlled. You will be responsible for any use of the Software on any hardware systems not owned, leased or controlled by you (“Uncontrolled Systems“).
2.3. Updates and Supplementary Software. The terms for Software in this Agreement apply to any Updates and Supplementary Software, unless L7 provides different terms. L7 may cease making available Supplementary Software and Internet-based services used with the Software at any time.
2.4. Open Source Software. The Software may contain or be provided with components subject to the terms and conditions of “open source” software licenses (collectively, “Open Source Software“). To the extent required by the license that accompanies the Open Source Software, the terms of such license will apply to your use in lieu of the terms of this Agreement with respect to such Open Source Software, including any provisions governing access to source code, modification or reverse engineering.
2.5. Source Code. L7 may provide some or all elements of Software in source code form (“Source Code“). Unless otherwise specified, you may modify Source Code solely to develop bug fixes, customizations and additional features (“End User Modifications“) and, in spite of any other provision in this Agreement to the contrary, may only use End User Modifications internally for purposes of using the Software licensed from L7. You may not make error corrections to, or otherwise modify or adapt, the Software or create derivative works based upon the Software, or permit third parties to do the same. L7 will have no warranty, indemnity, maintenance, support or other obligations relating to, and assumes no liability for, any End User Modifications or any effect they may have on the operation of the Products.
2.6. IP Protection Mechanisms. The Software has license protection mechanisms and other features designed to manage and protect L7’s, and its suppliers’ and licensors’, intellectual property rights. Whether using Source Code or not, you shall not modify or alter these mechanisms and features, or try to circumvent them, or the usage rules they are designed to enforce.
3. Use of L7 Hosted Services.
1. Access Rights. You may access and use Hosted Services, if any, during the applicable Subscription Term, subject to the terms of this Agreement. Only Authorized Users may use the Hosted Services, and only up to the permitted number of Authorized Users. All use of the Hosted Services must be in accordance with the relevant L7 documentation and policies.
2. Subscription Term and Automatic Renewals of Hosted Services. You designated your Subscription Term on the Order Form for Hosted Services. Once that initial Subscription Term expires, the Subscription Term will continue, automatically renewing for successive terms of the same period (but no longer than one (1) year each) unless either you or L7 notifies the other of non-renewal at least fifteen (15) business days prior to the upcoming expiration date, or L7 ceases to make a particular Hosted Service available, as applicable. Renewals are charged at L7’s then-current rates unless otherwise agreed, and L7 will, at its discretion, charge you using the credit card on file on or after the expiration date or send you an invoice. For clarity, “Subscription Term” means the initial term, and any and all renewal terms.
3. Evaluations. For evaluations of Hosted Services, the “Subscription Term” does not apply. Instead, any pre-determined evaluation period will be specified by L7. L7 may notify you of the remaining number of days through the Hosted Services. In spite of any provision in this Agreement to the contrary, L7 does not offer any warranty, indemnity, maintenance or support for any Hosted Services offered on an evaluation basis. L7, at its discretion, may apply any additional or different terms and conditions to any evaluations of Hosted Services.
4. End User Data. (a) Unless otherwise specified, you retain ownership of the data and information that you provide through the Hosted Services, including any code uploaded (as described below) (“End User Data“). Your use of the Hosted Services and all End User Data must comply with your own privacy policies and all domestic, foreign and international laws and regulations, including those relating to data privacy, international communications, and the exportation of technical or personal data. You are solely responsible for the accuracy, content and legality of all End User Data. You agree not to submit any content that is obscene, defamatory, libelous, threatening, harassing, pornographic, racially or ethnically offensive, that encourages conduct that would be considered a criminal offense or give rise to any civil liability. You will not submit any material (including any virus, bot, worm, scripting exploit or other harmful code) that is likely to harm or corrupt the Hosted Services or any computer systems or data. You represent and warrant to L7 that you have sufficient rights in the End User Data to grant the rights in this Section and that the End User Data does not infringe or violate the rights of any third party. You agree that L7 may, in its sole discretion, delete or remove any End User Data at any time and with or without notice.
(b) You hereby grant L7 a non-exclusive license to copy, distribute, perform, display, store, modify, and otherwise use End User Data in connection with operating the Hosted Services.
(c) You agree that L7 may also use aggregate, anonymous, information to measure general Hosted Service usage patterns and characteristics of its user base and otherwise to improve its products and services, and may include such information about its customers in promotional materials or reports to third parties. For clarity, this information will not reference names, phone numbers, email addresses or other personally identifiable information.
5.Your Responsibility for Systems. You are responsible for your own Internet connection and must use software, systems and equipment compatible with the Hosted Services, as set forth in the applicable L7 policy. Your web browsers and other software must support the Secure Socket Layer (SSL) protocol or other protocols accepted by L7. L7 is not responsible for any End User Data lost, altered, intercepted or stored across networks not owned or operated by L7.
5. Customer Obligations.
2.1. Accounts and Passwords. You will provide accurate, current and complete information when registering with L7 and ordering Products and agree to update your information if it changes. L7 may send notices, statements and other information to you by email or through your account, if any, for Hosted Services. You agree to keep all your Authorized Users’ passwords and usernames confidential and will not share them with third parties. You are responsible for all actions taken by or through your accounts. You are responsible for all damages and losses resulting from your failure to keep your passwords and usernames secure.
2.2. Embedded Software. (a) All of the other terms in this Agreement covering the Software also cover Embedded Software. You are granted a license to use Embedded Software, subject to the following additional terms: You may use Embedded Software only for its internal purposes, including for Customer Use, as permitted below, in conjunction with the applicable Product as provided by L7, and may only use the Embedded Software as part of, and through, that Product. You may not install, access, configure or use any Embedded Software (including any application programming interfaces, tools, databases or other components of any Embedded Software) separately or independently of the rest of the Product, whether for production, technical support or any other purposes, or otherwise attempt to gain direct access to any Embedded Software components, or permit anyone else (including your customers) to do any of the foregoing. In spite of any provision in this Agreement to the contrary, you will not modify any Embedded Software. You are responsible to the applicable third party licensor (“Embedded Software Licensor“) for all damages and losses resulting from a material breach of this Agreement by you.
(b) Some Embedded Software may include source code provided as part of the Embedded Software Licensor’s standard shipment. That source code will be governed by the terms for Embedded Software in this Agreement, and not the terms for Source Code in Section 2.6 above.
(c) You understand that the applicable Embedded Software Licensor retains all ownership and intellectual property rights to the Embedded Software. Embedded Software Licensors (and any other third party licensors of any components of the Products) are intended third party beneficiaries of this Agreement with respect to the items they license and may enforce this Agreement directly against you; but, to be clear, no Embedded Software Licensor assumes any of L7’s obligations under this Agreement. In addition, you agree to the Embedded Software-related audit provisions in Section 6 below.
(d) Embedded Software may include or be accompanied by third party technology that may be appropriate or necessary for use with some Embedded Software. Such technology may be specified in the applicable documentation and policy(ies) for the Product or otherwise specified by L7, and is licensed to you only for use with the Product with which it is provided under the specified third party license terms, and not this Agreement. L7 may, from time to time, also provide additional or substitute terms for Embedded Software if required by the Embedded Software Licensor, and you must comply with those terms.
2.3. Requirements for Plug-ins. You may add specific abilities to Products by developing your own plug-ins for Products (“End User Plug-ins“) and may distribute such End User Plug-ins to third parties, if and only if: (a) you are permitted by L7, through documentation for the Product or an authorized L7 customer communication, to add abilities to the Products; and (b) you strictly follow L7’s written requirements for developing plug-ins and application programming interfaces, including any requirement to notify L7 of the development in advance. End User Plug-ins distributed through L7 will be subject to the terms for them set forth on L7’s website.
2.4. Use by Your Customers. (a) Your customers (“Customers“) may be Authorized Users. You are responsible for Customers the same as any other Authorized User and must enter into valid, binding agreements with Customers consistent with this Agreement, including the additional conditions below. A Customer’s permitted use of Products under this Agreement is called “Customer Use“.
(b) In addition to all other terms in this Agreement, the following conditions apply to Customer Use:
You may not distribute or make available any Product on a standalone basis. Instead, you may only make available the Product to Customers in order to support Customers’ use of content and features that are part of your own existing offerings.
You may not resell or offer under your own mark the Product or otherwise charge Customers for use of the Product itself, but may charge your Customers as part of an overall program that includes access by your Customers to your content or features as supported by the Product.
Customers may interact with the Product, but may not receive any administrator, configuration or similar access to the Product.
In making available Products to Customers, you may not violate any other term or condition in this Agreement, such as reverse engineering and anti-circumvention restrictions.
(c) L7 will not have any direct or indirect liability or obligation to any Customers, and Customers do not acquire any rights under this Agreement.
(d) L7 understands that Product usage may be flexible and that you may identify new proposed uses for the Products. If you have questions about whether a proposed use complies with these rules, please email L7 at firstname.lastname@example.org.
2.5. Restrictions on Use of Products. You will not, and will not allow any Authorized User or other third party, to:
(a) resell, assign, rent, give, transfer, pass title to, lease, copy, provide access to or sublicense (including without limitation on a timeshare, subscription service, hosted service or outsourced basis) any Product to any third party (for use in its business operations or otherwise) or anyone else besides Authorized Users in accordance with this express terms of this Agreement, or permit anyone besides Authorized Users to use any data or information not owned by you that is generated by the Products (and, in the event you grant any security interest in any Products, the secured party has no right to use or transfer the Products);
(b) use any Product to provide, or incorporate any Product into any product or service provided to, a third party, except as expressly permitted above for Customer Use;
(c) reverse engineer, decompile, disassemble, decipher, decrypt, or otherwise seek to discover or obtain the Source Code or non-public application programming interfaces to Products (including any data structure or similar materials produced by the Products), except to the extent expressly permitted by applicable law despite this prohibition (and then only upon advance notice to L7);
(d) modify, adapt or create derivative works of a Product (excluding End User Modifications and End User Plug-ins);
(e) remove or obscure any proprietary or other notices of L7 or any third party contained in any Product (including any information or data generated by the Products);
(f) use any Product for commercial solicitation purposes or spam;
(g) use the L7 name or any L7 trademarks or logos except as permitted in Section 4.6 hereof; and/or
(h) commit any act or omission that could result in damage to L7’s, or its suppliers’ or licensors’, reputations.
You will not attempt to do any of the foregoing, encourage others to do so, or otherwise attempt to bypass or circumvent any usage restrictions in this Agreement.
2.6. Attribution. In any use of the Software, you agree to include the following attribution to L7 on all user interfaces in the following format: “Powered by L7TM“, which must in every case include a link to http://www.l7informatics.com, and which must be in the same format as delivered in the Software. Further, if you publish a scientific paper using the Software for analysis, you agree to cite L7 in the following format: L7 Informatics, Inc., available at www.L7informatics.com [Software (v. ___) © 20__].
2.7. Export Control. If a Product is acquired by you in the United States, you acknowledge that the Product is subject to U.S. export jurisdiction and you agree to comply with all applicable international and national laws that apply to the Product, including the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. The import and export of any Product may be subject to control or restriction by applicable local law. You are solely responsible for determining the existence and application of any such law to any proposed import and export and for obtaining any needed authorization. You agree not to export, directly or indirectly, any Product (or any direct product thereof) from any country in violation of applicable laws.
2.8. Indemnity. Subject to the limitation of Section 13 hereof, you agree to indemnify, defend and hold harmless L7, and its directors, officers, owners, contractors (including Embedded Software Licensors), subcontractors and consultants (collectively, “L7 Group”) from claims of direct damages (each a “Claim”) arising out of, or in connection with: (a) a material breach of this Agreement by you; (b) any End User Data; (c) any End User Modifications, End User Plug-ins or other modifications of or combinations with a Product, or any service or product offered by you in connection with or related to a Product; (d) any Uncontrolled Systems; or (e) any representations or warranties made by you, including any Authorized User, regarding a Product to any third party. L7 will provide you with written notice of any such Claim within a reasonable time. You will have the exclusive right to control and direct the investigation, defense, or settlement of such Claim; provided, that L7 may participate in the claim at its own expense and you may not settle any claim without L7’s prior written consent. L7 will, at your expense, reasonably cooperate with you in defense of a Claim.
3. Fees and Payment; Taxes
3.1. General. You must pay all fees on or before the Pay Term set forth in the Order Form or, if no such Pay Term is stated, within fifteen (15) days after the date of L7’s invoice or notice. Renewal fees for Hosted Services will be charged as described in Section 3.2 hereof. Late payments are subject to interest charges equal to the lesser of 1% per month on any outstanding balance or the maximum permitted by law, which charges accrue from the due date, plus all collection expenses. You will continue to be charged during any period of suspension. L7 may charge such unpaid fees and charges to your credit card or otherwise invoice them to you. You agree that you are not relying on the future availability of any Products (including any Embedded Software) in agreeing to, or making, your payments pursuant to this Agreement.
3.2. Taxes. You are responsible for paying all Taxes and duties, if any, applicable to your order of Products. To the extent L7 is responsible to remit such Taxes and duties, if any, to a governmental authority, you will pay such Taxes and duties to L7 along with your fees and L7 will so remit them to the governmental authority. Notwithstanding the foregoing, you may have obtained an exemption from relevant Taxes and/or duties as of the time such Taxes and/or duties are levied or assessed. In that case, you will have the right to provide to L7 with an exemption certificate meeting the requirements of the applicable governmental authority and L7. L7 will use reasonable efforts to provide applicable invoices that may enable you to obtain a refund or credit from the governmental authority of the amount you have paid to the governmental authority if such a refund or credit is available. Under this Agreement, “Taxes” means all federal, state, municipal or other governmental Taxes, duties, fees, levies, premiums, assessments, surcharges, withholdings, or any other charges of any kind relating to the license or delivery of the Products, but excluding ad valorem or income Taxes.
4. License Certifications and Audits
Upon L7’s written request, you will provide L7 with a signed certification certifying that all Products are being used pursuant to the terms of this Agreement, including any access and user limitations. With prior reasonable notice of at least ten (10) days, L7 (or its authorized agent) may audit the use of the Products by you and your Authorized Users, provided such audit is during your regular business hours. You will provide reasonable assistance and access to information in the course of any audit. You are responsible for such audit costs only if the audit reveals that your use of the Products is not in accordance with the permitted scope of use. If any certification or audit reveals that you have exceeded your Designated Limits, L7 has the right to invoice you for any past or ongoing excessive use and you must pay the invoice in accordance with Section 5 hereof. These remedies are without prejudice to any other remedies available to L7 at law or equity or under this Agreement. You agree that L7 may report audit results to any applicable Embedded Software Licensor or may assign the right to audit you under this Section 6 to Embedded Software Licensors. When the audit is assigned, then in spite of any provision in this Agreement to the contrary, Embedded Software Licensor will not be responsible for your costs incurred in cooperating with the audit.
5. L7’s Ownership Rights; Feedback
5.1. Ownership. L7, and its suppliers and licensors, reserve all rights not expressly granted to you under this Agreement. The Products (including any content or information contained therein) and all copies thereof are protected by copyright and other intellectual property laws and treaties. L7, and its suppliers and licensors, own the respective title, copyright, and other intellectual property rights in: (a) the Products; (b) all copies, modifications and derivative works of the Products; and (c) underlying software (including any incorporating Feedback) (“L7 Technology“). You agree that you do not acquire any ownership rights in L7 Technology.
5.2. Feedback. “Feedback” means any feedback, comments, suggestions or materials (including, to the extent disclosed to L7, any End User Modifications, but excluding End User Plug-ins) that you may provide to L7 about or in connection with the Products, including any ideas, concepts, know-how or techniques contained therein. You may provide Feedback in connection with Maintenance and otherwise. You hereby grant L7 a worldwide, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise use the Feedback for any purpose, including incorporating or implementing the Feedback in the Products. You agree that L7 may use all Feedback without any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed your Confidential Information, and nothing in this Agreement (including Section 8 hereof) limits L7’s right to independently use, develop, evaluate or market software and other products, whether incorporating Feedback or otherwise.
Except as otherwise set forth in Section 7 above, each party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“
Receiving Party“) from the disclosing party (“
Disclosing Party“) constitute the confidential property of the Disclosing Party (“
Confidential Information“), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any L7 Technology, and the terms of this Agreement, shall be deemed Confidential Information of L7 without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (d) is independently developed by employees of the Receiving Party who had no access to such information; or (e) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that, upon any such disclosure by the Receiving Party, the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
7. Event of Default.
7.1. An “Event of Default” means, with respect to a party alleged to have taken or been affected by any of the actions set forth below in this Section (the “Defaulting Party”): (a) the failure by the Defaulting Party to make, when due, any payment required under this Agreement if such failure is not remedied within five (5) Business Days after written notice of such failure is given to the Defaulting Party by the other Party (“Non-Defaulting Party”); (b) any representation or warranty made by the Defaulting Party in this Agreement proves to have been materially false or misleading when made or ceases to remain true during the term of this Agreement; (c) except as provided in Subsection 9.1(a) above, a material breach of this Agreement by the Defaulting Party and such breach is not remedied within ten (10) Business Days after written notice of such breach is given to the Defaulting Party by the Non-Defaulting Party or excused in writing by the Non-Defaulting Party or by an event of force majeure; and/or (d) the Defaulting Party becomes Bankrupt or Insolvent.
7.2. “Bankrupt” means with respect to any entity, when such entity (a) files a petition or otherwise commences, authorizes or acquiesces in the commencement of a proceeding or cause of action under a bankruptcy, insolvency, reorganization or similar law, or has any such petition filed or commenced against it, which is not dismissed within sixty (60) days; (b) makes an assignment or any general arrangement for the benefit of creditors; (c) otherwise becomes bankrupt or insolvent (however evidenced); (d) has a liquidator, administrator, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets. “Insolvent” means with respect to a party, when such party shall be unable to pay liabilities as they mature or such party shall admit in writing its inability to pay its debts generally as they become due.
8.1. Term. Subject to sooner termination under Section 10.2 below, this Agreement is effective and shall remain in effect until terminated by either party upon thirty (30) days’ prior written notice to the other party; provided, that any transaction(s) under an effective Order Form shall remain in effect pursuant to the Subscription Term set forth in the Order Form, and the provisions of this Agreement shall continue to apply thereto, until both parties have fulfilled any and all of their respective obligations with respect to the transaction(s) set forth in the Order Form.
8.2. Termination of Orders. If an Event of Default described in Section 9.1(a) through (c) hereof occurs during the Subscription Term set forth in an effective Order Form, the Non-Defaulting Party shall have the right to: (a) designate a day, no earlier than the day such notice is effective and no later than twenty (20) days after such notice is effective, as an early termination date (“Early Termination Date”) to terminate, with respect to one or more Products, the Order Form and this Agreement; and/or (b) immediately suspend performance, with respect to one or more Products, upon written notification to the Defaulting Party. Upon the occurrence of any Event of Default described in Section 9.1(d) hereof as it may apply to either party, this Agreement will automatically terminate, without notice, and without any other action by either party as if an Early Termination Date had occurred on the day prior to the occurrence of the Event of Default described in Section 9.1(d) hereof. In spite of any provision in this Agreement to the contrary, you will pay L7 all fees and any other amounts due through the Early Termination Date.
8.3. Termination of Free Accounts/Evaluation. L7 may terminate any free account or evaluation usage at any time in its sole discretion and without notice.
8.4. Rights Upon Termination. Subject to the next sentence, immediately upon the Early Termination Date, or other termination of an Order Form and/or this Agreement: (a) a Non-Defaulting Party shall have the right to damages, if any, from the Defaulting Party, subject to the terms of this Agreement; and (b) your rights under this Agreement will terminate and, at your own cost, you must: (i) cease using, and require all Authorized Users to cease using, all the terminated Products; (ii) remove all copies of Software from your computer systems and any Uncontrolled Systems; and (iii) if requested by L7, either return to L7 all Software and/or provide L7 with written certification that you have destroyed all copies of the Software and other L7 Confidential Information, all of which must be done in within ten (10) days after the date of such request. If you are a Defaulting Party with respect to L7’s Confidential Information or intellectual property rights, there may not be an adequate remedy available at law; therefore, in addition to, or in combination with, actual damages, L7 has the right to seek an injunction, specific performance or other form of equitable relief.
8.5. No Refunds. Upon termination of this Agreement for whatever reason, you will not be entitled to credits or refunds for any unused portion of this Agreement.
8.6. Survival. All payment and other obligations accrued as of the date of any expiration or sooner termination of this Agreement shall survive termination of this Agreement. Further and without limitation, the following Sections of this Agreement shall survive any expiration or sooner termination of this Agreement: Sections 4.5, 4.7, 4.8, 5 through 20; provided, that no expiration or earlier termination of such Sections shall affect, waive, discharge or extinguish any action, suit, proceeding or claim for material breach occurring thereunder prior to such expiration or earlier termination.
9. L7 Indemnification for Infringement
9.1. Subject to the limitation of liability set forth in Section 13 below, L7 will indemnify, defend and hold you harmless against any direct damages based on a third party claim that your use of a Product in the form provided by L7 and in compliance with this Agreement infringes a United States or European Union patent or registered copyright (“Claim“), and will pay those damages finally awarded against you by a court of competent jurisdiction, or agreed to in writing by L7 as settlement, as a result of such Claim; provided that L7 is: (a) promptly notified and furnished a copy of such Claim; (b) given all relevant evidence in your possession, custody or control; and (c) given reasonable assistance in, and sole control of, the defense thereof and all negotiations for its settlement.
9.2. L7 will have no obligation to defend and no liability for any damages to the extent that a Claim is based upon: (a) use of a Product in combination with any non-L7 product, software or equipment; (b) use of a Product in a manner or for an application other than for which it was designed or intended to be used, regardless of whether L7 was aware of or had been advised of such use; (c) modifications to a Product by any person or entity other than L7 (including any End User Modifications); or (d) other circumstances or occurrences that are covered in your indemnification obligations in Section 4.8 hereof.
9.3. If a Product becomes, or in the opinion of L7 may become, the subject of a Claim, L7 may, at its option and in its discretion: (a) procure for you the right to use the Product free of any liability; (b) replace or modify the Product to make it non-infringing; or (c) terminate your right to continue using such Product and refund, in the case of Software, any license fees related to this Software paid by you (depreciated on a three-year straight line basis) or, in the case of a Hosted Service, any prepaid amounts for the service no longer being provided.
This Section 11 states the sole liability of L7 and your exclusive remedy for any infringement of intellectual property rights in connection with any Product provided by L7 under this Agreement.
10. Warranties; Disclaimers of Warranties
10.1.General. Each party represents and warrants to the other that it has the legal power and authority to enter into this Agreement. Further, if you are an entity, you represent and warrant to L7 that the person signing the Order Form and binding you to this Agreement has all the necessary power and authority to do so.
10.2.DISCLAIMER OF WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT AS EXPRESSLY SET FORTH HEREIN, L7 AND ITS THIRD PARTY SUPPLIERS AND LICENSORS PROVIDE THE PRODUCTS AS IS AND WITH ALL FAULTS, AND HEREBY DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PURPOSE. Without limiting the foregoing, L7 and its third party suppliers/licensors make no representation, warranty or guaranty (a) as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of any Products or any content therein or generated therewith, (b) that (i) the use of any Products will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (ii) the Products will meet your requirements or expectations, (iii) any stored data will be accurate or reliable or that any stored data will not be lost or corrupted, (iv) the quality of any Products, services, information, or other material purchased or obtained by you through the Products will meet your requirements or expectations, (v) errors or defects will be corrected, or (vi) the Products (or any server(s) that make a hosted service available) are free of viruses or other harmful components. Without limiting the foregoing, to the maximum extent permitted by applicable law, L7 and its third party suppliers and licensors make no representations or warranties whatsoever with respect to, and assume no liability for, any Products provided on an evaluation basis. In addition, L7 and its third party licensor and suppliers shall not be liable for delays, interruptions, service failures and other problems inherent in use of the internet and electronic communications or other systems outside the reasonable control of L7.
YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULLEST EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE LIMITED WARRANTY PERIOD.
10.3.Hosted Services Facilities. The Hosted Services, if any, will be controlled and operated from facilities in the United States. L7 makes no representations that the Hosted Service is appropriate or available for use in other locations. Those who access or use the Hosted Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including export and import regulations.
11. Limitation of Liability
11.1.Maximum Liability. Notwithstanding any damages either party might incur for any reason whatsoever, to the maximum extent permitted by applicable law, the entire liability of either party (including a Defaulting Party) under this Agreement, and the other party’s (including a Non-Defaulting Party’s) exclusive remedy hereunder, shall be limited to the actual damages such party incurs, up to the amount actually paid by you for, as applicable: (a) such Software, depreciated on a three-year straight line basis; or (b) such Hosted Service in the last twelve (12) months preceding the date on which the claim arose. To the maximum extent permitted by law, Embedded Software Licensors will not be liable to you for any damages whatsoever, including direct damages or the types of damages disclaimed herein.
11.2.Other Disclaimers. In no event shall either party (or their respective third party suppliers and licensors) be liable for any special, incidental, punitive, indirect, or consequential damages (including lost profits or revenue) whatsoever arising out of or in any way related to this Agreement. You agree that L7 (on behalf of itself and its third party suppliers and licensors) disclaims all warranties and liability with respect to loss, loss of use or corruption of any data (including data you may provide) and the costs of procurement of any substitute goods.
11.3.Failure of Essential Purpose. The parties agree that the limitations specified in this Section 13 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
12. Force Majeure. Neither party shall be liable hereunder by reason of failure or delay in the performance of its obligations hereunder (except for the non-payment of money) on account of strikes, shortages, riots, insurrection, war, acts of terrorism, fires, flood, storm, explosions, earthquakes, acts of God, governmental action, labor conditions, or any other cause which is beyond the reasonable control of the party.
13. Publicity Rights. L7 may identify you as a customer in Product promotional material. You may request that L7 cease identifying you on a going forward basis by submitting an email to support@L7informatics.com. Requests may take thirty (30) days to process.
14. Assignment. You may not assign your rights and obligations under this Agreement without the prior written consent of L7, which consent will not be unreasonably withheld or delayed; provided, that your proposed assignee must agree to be bound by the terms of this Agreement. L7 may assign its rights and obligations under this Agreement in whole or in part without your consent. Any permitted assignee shall be bound by the terms of this Agreement.
15. Governing Law; Waiver of Jury Trial
15.1.Applicable Law. This Agreement is governed by the laws of the State of Texas, without regard to its principles governing conflicts of law.
15.2.Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.
15.3.Waiver of Jury Trial. To the extent permitted by law, each of the parties hereto hereby knowingly, voluntarily and intentionally waives the right either of them may have to a trial by jury in respect of any litigation based hereon, or arising out of, under or in connection with this Agreement. This provision is a material inducement for the parties entering into this Agreement.
16. DMCA Notices. If you believe that any content on L7’s Hosted Services or site violates its copyright, you should notify L7’s copyright agent in writing at L7’s main business address and write “Attn: Copyright Enforcement” on your notice. L7 cannot take action unless you give us all the required information. In order for L7 to take action, you provide the following information in your notice: provide your physical or electronic signature; identify the copyrighted work that you believe is being infringed; identify the item that you believe is infringing and include sufficient information about where the material is located (including which website) so that L7 can find it; provide L7 with a way to contact you (such as address, telephone number, or email); provide a statement that you believe in good faith that the item identified as infringing is not authorized by the copyright owner, its agent, or the law to be used by L7; and provide a statement that the information you provide in your notice is accurate, and that you are authorized to act on behalf of the copyright owner whose work is being infringed.
17. Government End Users. The Products are commercial computer software. If you are an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Products were developed fully at private expense. All other use is prohibited.
18. General. This Agreement is the entire agreement between you and L7 relating to the Products, and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement. If any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason and in any respect, such invalidity, illegality, or unenforceability thereof shall not affect the remainder of the Agreement, which shall be, in full force and effect, enforceable in accordance with its terms. This Agreement may not be modified or amended except as described on the first page of this End User License Agreement or otherwise with the written agreement of L7 (which may be withheld in its complete discretion without any requirement to provide reasons). As used herein, “including” (and its variants) means “including, without limitation” (and its variants). No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors. This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party.