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This End User License Agreement (the "Agreement"), is a binding agreement between Insight Flooring Technologies, L.L.C. (the "Licensor") and You, the individual who has downloaded this Application and assented to these terms on his or her own behalf, or the entity on whose behalf the Application has been downloaded and these terms assented to (the "Licensee").
LICENSOR PROVIDES THE APPLICATION SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE "ACCEPT TERMS" BUTTON, YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) 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. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE APPLICATION TO LICENSEE AND YOU MUST NOT INSTALL THE APPLICATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR 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 APPLICATION THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR'S APPLICATION.
"Authorized Users" means the following individual persons authorized to use the Application pursuant to the license granted under this Agreement: each individual who is himself or herself a licensee, and for whom the appropriate License Fee has been paid, or each individual using the Application on behalf of an entity that itself is a licensee, and for each such individual the appropriate License Fee has been paid.
"Licensee" has the meaning set forth in the preamble.
"License Fees" means the license fees, including all taxes thereon, required to be paid by Licensee for the license granted under this Agreement.
"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.
"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.
"Application" means the [QuoteHero] Application program for which Licensee is purchasing a license.
"Term" has the meaning set forth in Section 9.
"Third Party" means any Person other than Licensee or Licensor.
"Update" has the meaning set forth in Section 5(b).
2. License Grant and Scope. Subject to and conditioned upon Licensee's payment of the License Fees and Licensee's strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Application, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 3 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee's Authorized Users, to:
(a) Download, and install one (1) copy of the Application on one (1) computer or electronic device owned or leased, and controlled by, Licensee. Each such computer or electronic device shall be for a single Authorized User.
(b) Use and run the Application as properly installed in accordance with this Agreement and solely for Licensee's internal business purposes. Such use is permitted only on the computer or electronic device on which the Application is installed, at the physical location thereof and not via any remote access or other network.
(c) Transfer any copy of the Application from one computer or electronic device to another, provided that the number of computers or electronic devices on which the Application is installed at any one time does not exceed the number permitted under Section 2(a).
(a) use (including make any copies of) the Application beyond the scope of the license granted under Section 2;
(b) modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application or any part thereof;
(c) combine the Application or any part thereof with, or incorporate the Application or any part thereof in, any other programs;
(d) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
(e) 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 Application, including any copy thereof;
(f) copy the Application, in whole or in part;
(g) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Application, or any features or functionality of the Application, 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;
(h) use the Application in violation of any law, regulation or rule; or
(i) use the Application for purposes of competitive analysis of the Application, the development of a competing software product or service or any other purpose that is to the Licensor's commercial disadvantage.
4. Responsibility for Use of Application. Licensee is responsible and liable for all uses of the Application 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 Application by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Application, whether such access or use is permitted by or in violation of this Agreement.
(a) Subject to Section 5(c), the license granted hereunder entitles Licensee to the basic Application maintenance and support services described in Section 5(b), which are subject to change from time to time at the Licensor’s sole discretion and without notice to Licensee:
(i) for one month following the date of installation; and
(ii) thereafter, solely if Licensee pays the applicable License Fee.
(b) Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches and other error corrections (collectively, "Updates") as Licensor makes generally available free of charge to all licensees of the Application 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 the Application, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Licensor may provide 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. Updates do not include any new version or new release of the Application 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.
(i) for any but the most current or immediately preceding version or release of the Application;
(ii) for any copy of the Application for which all previously issued Updates have not been installed;
(iii) if Licensee is in breach under this Agreement; or
(iv) for any Application that has been modified other than by Licensor.
(a) Licensee acknowledges that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Application and about equipment on which the Application is installed or through which it otherwise is accessed and used, through:
(i) the provision of maintenance and support services; and
(ii) the storage of Licensee’s data on Licensor’s servers.
(b) Licensee agrees that the Licensor may use such information for any purpose related to any use of the Application by Licensee or on Licensee’s equipment, including but not limited to:
(i) Improving the performance of the Application or developing Updates; and
(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 Application.
7. Intellectual Property Rights. Licensee acknowledges and agrees that the Application is provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Licensor reserves and shall retain its entire right, title and interest in and to the Application and all Intellectual Property Rights arising out of or relating to the Application, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard the Application from infringement, misappropriation, theft, misuse or unauthorized access.
8. Payment. All License Fees are payable on a monthly basis and are non-refundable. Each copy of the Application on each computer or electronic device for each Authorized User requires payment of $49.99 per month, with payment due on the first day of the then-current monthly Term.
(a) Any renewal of the license hereunder shall not be effective until the fees for such renewal have been paid in full on the first day of the then-current monthly Term.
(b) In the event Licensee opts to pay License Fees through recurring automated monthly payments, such payments will be automatically incurred on the first day of the then-current monthly Term until Licensee notifies Licensor in writing to discontinue such automated payments or discontinues such automated monthly payments through settings features offered by Licensor through the Application.
(c) In the event Licensee fails to timely pay the monthly License Fee, this Agreement will automatically terminate without notice to Licensee, and all access to the Application and related services shall immediately cease.
(a) This Agreement and the license granted hereunder shall remain in effect from month to month until terminated as set forth herein (the "Term").
(b) Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Application.
(c) Licensor may terminate this Agreement, effective immediately and without notice to Licensee, if Licensee breaches any terms of this Agreement, including failure to pay the applicable License Fee. Any opportunity for Licensee to cure such breach is not required prior to termination and is within Licensor’s sole discretion.
(d) Licensor may terminate this Agreement, effective immediately without notice to Licensee, 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 and/or delete all copies of the Application. No expiration or termination shall affect Licensee's obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.
(a) THE APPLICATION IS PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED APPLICATION WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER APPLICATION, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
(a) IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE APPLICATION, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, 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.
(b) IN NO EVENT WILL LICENSOR'S AND ITS AFFILIATES', INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS' AND SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR THE APPLICATION, THAT IS THE SUBJECT OF THE CLAIM.
(c) THE LIMITATIONS SET FORTH IN Section 11(a) AND Section 11(b) SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
12. Export Regulation. The Application 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 Application to, or make the Application 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 Application available outside the US.
13. US Government Rights. The Application 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 Application 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.
(a) This Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Dallas and County of Dallas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
(b) Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to 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 Licensor's reasonable control.
(c) 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 as may be designated by a party from time to time in accordance with this Section 14(c). If the Licensee does not so designate an address in accordance with this Section, the most current form of contact information submitted upon downloading the Application and entering into this Agreement shall be used by the Licensor and shall suffice for the purposes of this Section 14(c). Unless subsequently modified by Licensor in accordance with this Section 14(c), all notices to Licensor under this Section are to be sent to the following email address: firstname.lastname@example.org
(d) This Agreement constitutes the sole and entire agreement between Licensee and Licensor 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.
(e) Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor's prior written consent, which consent Licensor may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Licensor's prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 14(e) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
(f) 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 any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(g) This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto, and such signature may include affirmative acts of assent such as clicking an “I agree” or “accept terms” button. 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 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.
(h) 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.
(i) 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.
(j) 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.
(k) The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.