END USER LICENSE AGREEMENT
This End User License Agreement (this “Agreement”) is a binding agreement between Impact LED Signs, LLC (“Licensor”) and the person or entity utilizing services from Licensor in accordance with the terms hereof (“Licensee”).
YOU SHOULD CAREFULLY READ THIS AGREEMENT BEFORE USING THE APPLICATION. OPENING THE APPLICATION OR USING ANY PART OF THE SOFTWARE SIGNIFIES YOUR ACCEPTANCE AS “LICENSEE” OF THIS AGREEMENT AND YOU FURTHER REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.
Definitions. For purposes of this Agreement, the following terms have the following meanings:
“Affiliate” means an entity that, directly or indirectly, through one or more intermediaries, is (a) controlled by the Licensee, (b) under common control with Licensee, or (c) controls Licensee, in each case where the term “control” means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract interest or otherwise.
“Documentation” means user manuals, technical manuals, and any other materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Licensee” has the meaning set forth in the preamble.
“Licensor” has the meaning set forth in the preamble.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Product” means the Licensor’s CloudLED.com platform or any software, application or platform used in conjunction therewith, into which Licensor embeds the Software.
“Software” means any software program, whether in whole or in part, that is embedded in the Product for which Licensee receives a limited as hereinafter described license.
“Term” has the meaning set forth in Section 10.
“Third Party” means any Person other than Licensee or Licensor.
“Update” has the meaning set forth in Section 7(a).
License Grant and Scope. Subject to and conditioned upon Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable limited license during the Term to use the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 4 or elsewhere in this Agreement. This license grants Licensee the right to use and run the Product as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s business purposes in connection with its purchase of Products or Services from Licensor. Such use is permitted only in connection with the Product in which the Software is embedded.
Third-Party Materials. The Software may include software, content, data, or other materials, including related documentation, that are owned by Persons other than Licensor and that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee of any Third-Party License is also a breach of this Agreement.
Use Restrictions. Licensee shall not, and shall not permit any Person to, directly or indirectly:
(a) use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;
(b) provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation without the written consent of Licensor;
(c) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
(d) combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;
(e) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
(f) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
(g) copy the Software or Documentation, in whole or in part;
(h) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
(i) use the Software or Documentation in violation of any law, regulation, or rule; or
(j) use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage.
- Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by any other Person to whom Licensee may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.
Compliance Measures. The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under Section 4. Licensee shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features.
Maintenance and Support.
(a) Subject to Section 7(b), during the Term, Licensor may provide such updates, upgrades, bug fixes, patches, and other error corrections (collectively, “Updates”) as Licensor makes generally available to licensees of the Software then entitled to maintenance and support services. Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Licensor may provide some or all Updates via download from a website designated by Licensor and that Licensee’s receipt thereof will require an internet connection, which connection is Licensee’s sole responsibility. Licensor has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release, or Update in its sole discretion.
(b) Licensor reserves the right to condition the provision of maintenance and support services, including all or any Updates, on Licensee’s registration of the copy of Software for which support is requested. Licensor has no obligation to provide maintenance and support services, including Updates:
(i) for any but the most current version or release of the Software;
(ii) if Licensee is in breach under this Agreement; or
(iii) for any Software that has been modified other than by or with the authorization of Licensor, or that is being used with any hardware, software, configuration, or operating system not specified in the Documentation or expressly authorized by Licensor in writing.
Collection and Use of Information.
(a) Licensee acknowledges that Licensor or its designee may, directly or indirectly, collect and store information regarding Licensee’s use of the Software and Product and about equipment on which the Software is installed or through which it otherwise is accessed and used, including, without limitation, the Product, through:
(i) the provision of maintenance and support services; and
(ii) security measures included in the Software as described in Section
(b) Licensee agrees that the Licensor may use such information for any purpose related to any use of the Software or Product by Licensee or on Licensee’s equipment, including but not limited to:
(i) improving the performance of the Software or developing Updates;
(ii) verifying Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software; and
(iii) synthesizing such data for purposes of market analytics.
Intellectual Property Rights. Licensee acknowledges that Licensor (or its third party licensors, as applicable) is the owner of all right, title and interest in and to Software and the Documentation, as well as the Intellectual Property Rights related to the Product into which any of the foregoing are embedded, all prior and subsequent versions thereof, and all other Intellectual Property Rights related to the Software and the Documentation, as well as the Product into which any of the foregoing are embedded, including without limitation patents, designs, mask works, trademarks, know-how and other proprietary rights, and that Licensee shall obtain no right whatsoever in any of the foregoing except to the extent necessary to use the Product and use the license granted hereunder. Licensor shall have the right, in its sole discretion, to disclose, publish, and apply for and prosecute to issuance or grant, at its expense, under any applicable international laws or treaties, patent, copyright, design registration, or other intellectual property protection anywhere in the world, in connection with the Software, Documentation, Product, and Intellectual Property Rights. Licensee agrees to use all commercially reasonable efforts and security precautions to protect the Software, Documentation, Product, and Intellectual Property Rights from infringement, misappropriation, theft, misuse, unauthorized access, reproduction or distribution. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software, Documentation, and/or Product and fully cooperate with Licensor, at Licensor’s sole expense, in any legal action taken by Licensor to enforce its Intellectual Property Rights.
Term and Termination.
(a) This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”).
(b) Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation.
(c) Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured ten (10) days after Licensor provides written notice thereof.
(d) Licensor may terminate this Agreement, effective immediately, if Licensee 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.
(e) Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation.
(f) Licensee acknowledges and agrees that any destruction or disposal of the Software, Documentation, or Product must be done in accordance with applicable Federal, state, and local law.
Warranty/Limitation of Liability.
(a) LICENSOR MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, PRODUCT, OR INTELLECTUAL PROPERTY RIGHTS INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. THE LIMITED WARRANTY SHALL BE THE EXCLUSIVE REMEDY AVAILABLE TO ANY PERSON.
(b) IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(c) IN NO EVENT SHALL 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 PURCHASE PRICE OF THE PRODUCT, EXCEPT TO THE EXTENT SUCH LIABILITY ARISES FROM LICENSOR’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
Export Regulation. The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. 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, re-exporting, releasing, or otherwise making the Software or Documentation available outside the US.
US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
Assignment. Licensee may not assign this Agreement or the license contained herein whether in whole or in part, without the written consent of Licensor. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Licensee of any of its obligations under this Agreement. The covenants and conditions contained in the Agreement shall apply to and bind the parties and the heirs, legal representatives, successors and permitted assigns of the parties.
Governing Law/Forum Selection. This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in Hamilton County, Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Notice. Any notice required or otherwise given to Licensor pursuant to this Agreement shall be in writing and mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service to: Impact LED Signs, LLC, 2420 Holloway Road, Louisville, KY 40299. Licensor may change such addresses from time to time by providing notice to Licensee.
Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of this Agreement and signed by an authorized representative of each party. 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. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, 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.
Indemnification. License shall indemnify, defend, and hold harmless Licensor and Licensor’s officers, directors, employees, agents, successors, and assigns (each a “Licensor Indemnitee”), from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the cost of enforcing any right to indemnification hereunder incurred by Licensor or any Licensor Indemnitee in connection with any claim, suit, action, or proceeding (each an “Action”) by Licensee or any third party (other than an affiliate of Licensor or any Licensor Indemnitee) to the extent arising out of or relating to Licensee’s breach of this Agreement or use of the Software, Documentation, Product, or Intellectual Property Rights by or on behalf of Licensee (or any of its representative), provided in no event shall Licensee have any such obligation with respect to any Action which has been finally determined to primarily result from Licensor’s breach of this Agreement or Licensor’s gross negligence or willful misconduct.
Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. There are no other promises, conditions, understandings or other agreements, whether oral or written, relating to the subject matter of this Agreement. This Agreement may be modified in writing and must be signed by both Licensor and Licensee. If any part or parts of this Agreement shall be held unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect. If any provision of this Agreement is deemed invalid or unenforceable by any court of competent jurisdiction, and if limiting such provision would make the provision valid, then such provision shall be deemed to be construed as so limited.