If you are using the Application on your own behalf as an individual, then all references to the “Customer” shall mean you in your personal capacity. If you are acting as an employee, consultant or other authorized representative (“Representative”) of an entity using the Application, then “Customer” shall mean such entity.
- “Customer Data” means any information provided by Customer to the Application and stored locally on the Customer’s hardware or on the Customer’s Salesforce or social media accounts.
- “Documentation” means any documentation describing the use and functionality of the Application available at Licensor’s website.
- “End-User” means the Customer, if the Customer is an individual, or the Representative, if the Customer is an entity.
- “Subscription Fees” mean any fees paid by Customer for the right to access and use the Application. The Application currently does not require any Subscription Fees, though Licensor reserves the right to impose Subscription Fees in its discretion.
- “Taxes” means any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, sales, use or withholding taxes.
- TERMS OF LICENSE.
- CUSTOMER RESTRICTIONS AND RESPONSIBILITIES RELATING TO USE OF THE APPLICATION.
- 3.1 LEGAL USE OF APPLICATION. Customer shall not, either directly, or through an End-User, employee, agent or other third party, use the Application in a manner that is prohibited by any law or regulation, that violates any third party rights or that facilitates the violation of any law, regulation or third party rights, or that would disrupt any third party use or enjoyment of any services provided by Licensor.
- 3.3 CUSTOMER BREACH. IF CUSTOMER FAILS TO COMPLY WITH THE OBLIGATIONS SET FORTH IN THIS SECTION 3, LICENSOR RESERVES THE RIGHT TO SUSPEND THE CUSTOMER’S USE OF THE APPLICATION UNTIL SUCH FAILURE IS REMEDIED OR TERMINATE CUSTOMER’S USE OF THE APPLICATION.
- 4.1 OWNERSHIP OF INTELLECTUAL PROPERTY. As between the parties, Licensor or its third- party providers shall retain all ownership rights in the Application and the technology, software, products, processes, algorithms, user interfaces and know-how related to the Application. Customer shall retain all ownership rights in its Customer Data. No license, right or interest in any Licensor or Customer trademark, copyright, trade name or service mark is granted hereunder.
- 4.2 LICENSE OF FEEDBACK. Licensor shall have a royalty-free, fully paid-up, nonexclusive, perpetual, irrevocable, worldwide, transferable, sublicensable license to use, copy, modify, or distribute, including by incorporating into the Application, any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its End-Users relating to the Application.
- SUBSCRIPTION FEES FOR CERTAIN VERSIONS OF THE APPLICATION.
- 5.1 SUBSCRIPTION FEES. Licensor may in the future charge Subscription Fees for certain versions of the Application. Customer shall be charged monthly in advance for Subscription Fees, in accordance with Licensor’s then current billing procedures. All payment obligations are non-cancelable and upon payment all payments made by Customer are non-refundable. Any payment not received from Customer by the due date may result in suspension of Customer’s ability to access the Application until payment is made.
- 5.2 TAXES NOT INCLUDED. Unless otherwise provided, Licensor’s fees do not include any Taxes, and Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding Taxes based on Licensor’s net income or property. If Licensor has the legal obligation to pay or collect Taxes for which Customer is responsible, the appropriate amount shall be charged to and paid by Customer, unless Customer provides a valid tax exemption certificate authorized by the appropriate taxing authority.
- 5.3 MONITORING OF END-USER LICENSES. Customer is responsible for monitoring Customer’s use of the Application by End-Users. If Customer’s use of the Application is found to be greater than that contracted for, at Licensor’s option Customer will be charged for the additional End-User license Subscription Fees for the period commencing on the date of use of such additional End-User licenses, or Licensor may suspend all use of Application until such payment or terminate all use of the Application.
- NO WARRANTIES.
- 6.1 NO WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION IS PROVIDED “AS-IS” AND NEITHER LICENSOR NOR ITS THIRD PARTY PROVIDERS MAKE, AND YOU RECEIVE, NO WARRANTY (EXPRESS, IMPLIED OR STATUTORY) WITH RESPECT TO THE APPLICATION OR ANY USE THEREOF. LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, DESIGN, CONDITION, CAPACITY, PERFORMANCE, TITLE, ACCURACY, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. CUSTOMER UNDERSTANDS AND ACKNOWLEDGES THAT LICENSOR DOES NOT WARRANT THAT THE APPLICATION WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL SOFTWARE ERRORS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR, ITS EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE WARRANTIES OR CREATE ANY NEW WARRANTIES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO A PORTION OF THE ABOVE EXCLUSION MAY NOT APPLY TO CUSTOMER. IN THAT EVENT, ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THIRTY (30) DAYS FROM THE DATE OF DELIVERY OF THE APPLICATION. THIS WARRANTY GIVES USER SPECIFIC LEGAL RIGHTS. CUSTOMER MAY HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION. LICENSOR DOES NOT MAKE ANY REPRESENTATION THAT USE OF THE APPLICATION IS APPROPRIATE OR AVAILABLE FOR USE IN LOCATIONS OUTSIDE OF THE UNITED STATES OR WHERE IT IS ILLEGAL OR PROHIBITED BY LAW OR LICENSOR.
- 6.2 NO WARRANTY AGAINST LOSS OF DATA. Without limiting the generality of the foregoing disclaimers, Customer acknowledges that it is Customer’s responsibility to backup Customer Data and any other data stored in the Application. The Application is not designed to operate without error. In no event will Licensor assume liability for any loss or corruption of Customer Data or other data stored in the Application.
- LIMITATION OF LIABILITY.
- 7.2 WAIVER OF CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER PERSONAL INJURY OR COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO CUSTOMER’S USE OR INABILITY TO USE THE APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU.
- 7.3 NO EXCEPTIONS. THE LIMITATIONS IN THIS SECTION 7 SHALL APPLY WHETHER OR NOT LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
- TERM AND TERMINATION.
- GENERAL TERMS.
- 9.7 EXPORT CONTROL. Customer agrees to comply with all applicable export regulations of the United States Department of Commerce and with the United States Export Administration Act, as amended from time to time, and with all applicable export laws and regulations of other jurisdictions with respect to the provision and use of the Application.
Luminix and Pulsar are trademarks of Licensor. Salesforce is a registered trademark of Salesforce, Inc.
Updated: May 25, 2012