The terms and conditions of this Service Agreement (the "Agreement") constitute a legal agreement between you (either an individual or, if purchased or otherwise acquired by or for an entity, such entity) ("Customer") and Lemmino, Inc. ("Lemmino") with respect to the use of Lemmino Software (as defined below) by the Customer. By either executing a Lemmino Order (as defined below); installing, copying, downloading or otherwise accessing the Software; electronically accepting; or executing this Agreement, Customer agrees to be bound by the terms of this Agreement. If Customer does not intend to be legally bound to the terms and conditions of this agreement, Customer may not access or otherwise use the Software and must promptly return all copies of the Software in the manner provided herein.
In consideration of the mutual covenants herein expressed, and other true and valuable consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereby agree as follows:
The following capitalized terms found in this Agreement have the meanings and applications set forth below:
1.1 "Affiliate" means those entities under common control with or controlled by a party, such common control or control being defined as the ownership of more than fifty percent (50%) of the voting equity of the entity or ownership of securities to which are attached voting rights capable of electing more than fifty percent (50%) of the entity's board of directors.
1.2 "Device" means Customer's mobile devices, including but not limited to mobile phones, smartphones, tablet computer and computing devices, personal digital assistants, enterprise digital assistants, and any similar or similarly functioning electronic devices, which may be monitored and managed by the Software, whether owned by Customer or by Customer's Users.
1.3 "Order" means a Lemmino "quote," purchase order, and/or any other form or writing that is physically or electronically executed by both Customer and Lemmino pursuant to which Customer seeks to purchase the offerings subject to this Agreement. This Agreement is incorporated by reference into any Order without modification. The Order sets forth, as applicable, the (i) number of licenses, (ii) type of Software, (iii) type of license, (iv) pricing, and (v) hours and cost of any Software Related Services to be provided.
1.4 "Software Related Services" mean services related to the Software performed by Lemmino as reflected in an Order or in an SOW pursuant to an Order or an SOW such as installation, activation, training, software configuration, hosting environment configuration, modification, integration, reconfiguration, assessment, optimization, or other Software-related services and excludes professional services for the development of custom software or other intellectual property (which would be governed by a separate agreement).
1.5 "Software" means the Lemmino proprietary software in machine-readable, object code form only that is more fully described in the Order, including (any software provided as an included part of the Software that is owned by one or more third parties and licensed to Lemmino; any corrections to the current version of the Software; and any subsequent versions, releases, or upgrades of the Software which Lemmino makes generally available without payment of an additional License fee.
1.6 "SOW" means a statement of work executed by the parties, specifying the terms and conditions, deliverables, and compensation for delivery of Software Related Services or other items.
1.7 "User" means Customer's authorized individual user of a Device or the Software.
2. ELIGIBILITY TO USE THE WEBSITE
Lemmino will only provide access to the Software to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the Software only under the supervision of a parent or legal guardian who agrees to be bound by this Agreement. The Agreement is not intended for children under the age of 13.
3. ACCESS AND USE OF THE SOFTWARE
3.1 License Grant
All licenses granted hereunder are limited, revocable (as provided herein), nonexclusive, non-transferable, world-wide, non-sublicensable licenses to the Software (each a "Software License"). The Software components provided under each Software License include those necessary for the number and type of Devices indicated on each Order. Any Affiliate of Customer may use any Software License granted hereunder and, in such event, all references to Customer shall be deemed to be references to the Customer or Affiliate, as applicable. All Software Licenses are subject to the terms, conditions and restrictions set forth in this Agreement; the fees set forth in the applicable Order; and the payment requirements set forth in this Agreement. All Software Licenses are granted solely for the purposes set forth in this Agreement. In connection with any Software License, Customer may make a reasonable number of copies of the Software for backup, disaster recovery, and/or archival purposes, provided Customer also reproduces on such copies any copyright, trademark, or other proprietary marking and notice contained in the Software and does not remove any such marks from the original. Unless otherwise stated herein or in an Order, the Software is licensed on a per Device basis and as such the Software (i) may only be used or accessed by Customer on no more than the number of Devices specified on each Order; (ii) a Software License may be transferred from Device to Device; and (iii) the Software may be used to monitor an unlimited number of Devices. Other than any software provided as an included part of the Software, Customer shall be responsible for activating, obtaining, and/or maintaining any third party components, hardware, or software that become necessary or desirable.
Customer may from time to time place Orders for the Software. Orders will be deemed accepted by Lemmino upon the earlier of when the requested access to the Software has been provisioned by Lemmino or when Lemmino otherwise informs Customer of Lemmino's acceptance of such Order, whichever is earlier (" Order Effective Date"). Unless otherwise specified in an Order and subject to Customer's payment of all applicable fees, Lemmino will deliver to Customer, within 5 business days after the Order Effective Date, a copy of the password and username for a person designated by Customer to create and manage Devices and accounts associated with the Customer. In the event that Customer wishes to place additional Devices under a Software License or avail itself of any other offerings set forth herein, the parties shall execute an Order detailing the number and type of additional Software Licenses and/or other offerings to be obtained. Pricing for such Orders shall be as set forth in the original Order, subject to any pricing changes made pursuant to this Agreement, or, if no pricing is provided in the original Order, Lemmino's then-current published prices shall apply. To the extent that Lemmino is requested to provide additional Software Related Services to Customer (such as training or installation), they shall be provided pursuant to an Order or SOW, billed at Lemmino's then-current rates for Software Related Services, and invoiced to Customer. Software Related Services provided on Customer's premises shall be subject to Lemmino's reimbursement policies.
To the extent reflected in an Order, a Software License providing for the use of the Software on a subscription basis shall be hereinafter referred to as a "Subscription License." The term for Subscription Licenses shall be month to month, unless another term is specified in an Order (the " Subscription Period"). The initial Subscription Period begins on the the date Customer is first granted access to the Software under the first Subscription License. In the event additional Subscription Licenses are added during a Subscription Period, such Subscription Licenses shall be coterminous with the then current Subscription Period and the fees for the same shall be prorated accordingly. Unless Customer terminates Subscription Licenses by notifying Lemmino at least ten (10) days prior to the expiration of a Subscription Period, such Subscription Licenses shall automatically renew for an additional Subscription Period.
If Customer is licensing the Software for evaluation purposes ("Trial License"), the Software shall be used solely for the purposes of testing and evaluating the Software in a non-production environment. The Trial License shall be for a period of thirty (30) days from the date Customer is first granted access to the Software under the applicable Trial License or for such other period as agreed between the parties in writing (the " Trial Period"). Customer is solely responsible for taking appropriate measures to back up its systems and for taking other measures to prevent any loss of files or data during the Trial. At the conclusion of the Trial Period, Customer may terminate this Agreement immediately upon notice to Lemmino and shall comply with its obligations hereunder. To the extent that Customer continues to use the Software after the end of the Trial Period, then the Trial License(s) shall convert to Subscription License(s) under this Agreement at Lemmino's then-current rates, terms, and conditions.
3.5 Third Party Software
Lemmino may provide certain software or other product to Customer that is (i) owned by one or more third parties; (ii) licensed by Lemmino from such third parties; (iii) not included as a part of the Software; and (iv) subsequently sublicensed by Lemmino to Customer, as reflected in an Order (collectively, " Third Party Software"). Third Party Software may be provided in addition to the Software as a convenience for Customer, but are not required or necessary for the use of the Software. If any Third Party Software is delivered to Customer pursuant to an Order, with respect to such Third Party Software Lemmino hereby (i) assigns, sublicenses, or passes through to Customer all assignable warranties, representations, covenants, and indemnities granted to Lemmino by any third party in connection therewith along with the remedies for breach of such. To the extent that Lemmino is not permitted to take one or more of the foregoing actions, Lemmino will, at Customer's request and expense, enforce the foregoing protections on behalf of Customer to the extent permitted to do so under the terms of the applicable third party license. Other than the foregoing, all Third Party Software listed in an Order are provided "AS IS," with no other warranties of any kind. Any Third Party Software sublicense will terminate when this Agreement terminates, when the Software License terminates, or when the Software is no longer being used by Customer. Third Party Software shall be subject to the License Restrictions (defined below). IN NO EVENT WILL LEMMINO BE LIABLE FOR THE PERFORMANCE OF ANY THIRD PARTY SOFTWARE OR THE BREACH OF ANY WARRANTY RELATED THERETO. LEMMINO SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES (INCLUDING ANY WARRANTY OF NON-INFRINGEMENT) AND DISCLAIMS ALL LIABILITY, INCLUDING ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS OR SAVINGS, AND ANY LOSS OR DAMAGE, CAUSED BY ANY THIRD PARTY PRODUCT.
With respect to each Software License, Customer hereby agrees to the following restrictions (hereinafter referred to as, " License Restrictions"):
(i) Customer shall not share with or assign, copy, sublicense, transfer, lease, rent, sell, distribute, install, or otherwise provide to any non-Affiliate party (other than Users) the Software License, the Software, any use or application of the Software, or Customer's rights under this Agreement, nor shall Customer pledge as security or otherwise encumber, the Software;
(ii) Customer shall use the Software solely, if Customer is an entity, for Customer's internal use within Customer's ordinary business operations and, if Customer is an individual, for Customer's personal use; provided that any use will be in accordance with all applicable laws and regulations, and as provided in this Agreement and any supplemental limitations specified or referenced in the relevant Order, if any;
(iii) Customer shall not use the Software or any of its features to invade the privacy of any person or otherwise violate any law, including, but not limited to, by usage of GPS functionality, location/tracking services, and the like;
(iv) Other than as expressly set forth in this Agreement, Customer shall not modify, adapt, translate, duplicate, disassemble, decompile, reverse assemble, reverse compile, or reverse engineer, or take similar action with respect to the Software for any purpose, or attempt to discover the underlying source code or algorithms of the Software;
(v) Customer shall not engage in competitive analysis, benchmarking, use, evaluation or viewing of the Software or create any derivatives based upon the Software, whether for Customer's internal use or for license or for resale;
(vi) Customer shall not employ any entity that licenses or provides any software, product, or service that is competitive with the Software to use the Software on Customer's behalf, view the Software, or provide management, staging, support, hosting, or similar services with regard to the Software without the prior written consent of Lemmino; and
(vii) Customer shall not permit any party, whether acting directly or on behalf of Customer, to breach or violate any of these License Restrictions.
4. PROPRIETARY RIGHTS
Title to and ownership of the Software and all Lemmino copyrights, names, trademarks, trade names, service marks or any other identifying characteristics are proprietary intellectual property of significant value and goodwill to Lemmino and all associated intellectual property rights relating thereto (the " Lemmino IP") are retained by Lemmino. This Agreement only grants Customer the limited right to use the Lemmino IP under the terms and restrictions specified in this Agreement. Customer does not, and will not, acquire any other right, title or interest in any Lemmino IP, which will at all times remain the exclusive property of Lemmino or the applicable third party licensor to Lemmino. Customer will not remove, suppress, or modify in any way any proprietary marking which is on or in the Lemmino IP, or which is on any media supplied with the Lemmino IP, except where expressly allowed. Customer acknowledges and agrees that Lemmino shall be the sole owner of any subsequent versions, releases, or upgrades of the Software, corrections to the current version of the Software, or derivatives of the Software which are developed by Lemmino during and after the term of this Agreement. Without limiting the foregoing, Customer expressly acknowledges and agrees that Lemmino shall be the sole owner of any newly-developed intellectual property including but not limited to (i) newly-developed, revised, or modified source code and (ii) inventions where such are related in any way to the Software or Lemmino's general business, regardless of the creator, whether such are developed, revised, or modified in response to Customer's requests, suggestions, or ideas, even if performed as Software Related Services paid for by Customer. During the term of this Agreement and thereafter, Customer shall not assert the invalidity of the Lemmino IP, or contest Lemmino's right, title or interest therein and thereto, and Customer shall not cause, influence, or assist in any manner whatsoever, any other party to make any such assertions or contest.
If you elect to access or use any paid component of the Software, such as becoming a subscriber of one of the available plans or via an Order, you agree to pay all fees and charges associated with your subscription or Order on a timely basis ("Fees"). All Fees (including any taxes and late fees, as applicable) will be charged to the credit card you provide to Lemmino during the registration process, or other payment method arranged during your registration with the Service. If paying using a credit card, you agree to maintain valid credit card information in your account information. By submitting your credit card information to Lemmino, you are authorizing Lemmino to charge your credit card the Fees associated with the plan you have selected.
6. CUSTOMER DATA
Customer is responsible for ensuring that Users comply with Customer's obligations under this Agreement. Customer will duly observe all of its obligations under any relevant data protection law or regulation that may apply to the relationships contemplated under this Agreement, including, specifically, any obligation for Customer to configure the Software appropriately, provide notice, obtain consents or file registrations with applicable data protection authorities. Customer will configure the Software in accordance with all applicable laws and regulations. Further, as required by applicable law or regulation, Customer will notify Users that any Content provided as part of the Software will be made available to a third party (i.e., Lemmino) as part of Lemmino providing the Software. "Content" means any and all data, applications, files, information or materials accessed, transmitted, uploaded, published or displayed through the Software by Customer, Users, or any third party users and/or their Devices. It does not include personal information that may be collected during the activation or maintenance of a Customer account or Usage Data (as defined below).
6.2 Usage Data
7. CONTENT SECURITY AND DATA PRIVACY
Without limiting Section 9.1 (Warranty Disclaimer), your obligations under this Agreement, or this Section, Lemmino will implement commercially reasonable administrative, physical, and technical measures including disaster recovery procedures designed to any and all Content against accidental or unlawful loss, access or disclosure.
7.2 Data Storage and Processing
Customer agrees that Content and Usage Data collected or received by Lemmino in connection with the download, installation, configuration, maintenance, support and use of the Software may be transferred, stored and processed in the United States or any other country in which Lemmino or its Affiliates or service providers maintain facilities. By downloading, installing, or using the Software, or by receiving customer support assistance, Customer consents to the worldwide processing of both technical and personal information. Lemmino is enrolled in the U.S. Department of Commerce Safe Harbor Program and will remain enrolled in this program or another replacement program through the Term of this Agreement.
7.3 Third Party Processing
Customer authorizes Lemmino to subcontract processing of Content under this Agreement to a third party provided that: (i) Lemmino will ensure any subcontractor it appoints will protect the Content to a standard which is substantially equivalent to the standard that is set forth in this Agreement; and (ii) Lemmino will be responsible for the acts, errors and omissions of any subcontractor Lemmino appoints to process the Content.
In the course of performance of this Agreement, either party ("Discloser") may find it necessary to disclose to the other party (" Recipient"), or Recipient may otherwise obtain from Discloser, certain proprietary information, which includes, but is not limited to that which relates to software, computer codes or instructions, developments, inventions, processes, designs, drawings, engineering, pricing, research, statistics, business plans, product plans, products, services, customers or prospective customers, contractors, licensors, suppliers, markets, marketing, finances, and any other materials that have not been made available to the general public and which have been the subject of reasonable efforts to be kept secret ("Confidential Information").
Confidential Information does not include information that: (a) was in the public domain at the time of Discloser's communication thereof to Recipient, (b) becomes part of the public domain after the time of disclosure, through no improper action of Recipient; (c) was in Recipient's possession free of any obligation of confidence at the time of Discloser's communication thereof to Recipient; (d) can be shown by documentation to have been independently developed by the Recipient without the use of or reference to any Confidential Information; (e) is not treated as confidential by Discloser; or (f) is approved for release by Discloser in writing.
8.3 Permitted Uses; Degree of Care
Recipient shall use any Confidential Information received (or derivatives thereof) solely for the purpose of performing its obligations under this Agreement. Recipient shall not disclose or permit any non-Affiliate party access to any Confidential Information, except to Recipient's officers, directors, employees, contractors, representatives, or agents on a need to know basis and where all such officers, directors, employees, contractors, representatives, or agents have confidentiality obligations at least as restrictive as those set forth in this Section. Recipient agrees to use reasonable efforts to protect the confidential or proprietary nature of such Confidential Information (and any derivatives thereof), using at least the same degree of care it utilizes for the protection of its own strictly confidential and proprietary information.
The obligations under this Agreement will continue: (i) with respect to Confidential Information (and/or derivatives thereof) that does not constitute a trade secret, in perpetuity after the termination of this Agreement; and (ii) for any Confidential Information (and/or derivatives thereof) that constitutes a trade secret, for so long as such information remains a trade secret under applicable law. Notwithstanding the foregoing, in the event disclosure is required by court, government order, or law (such as state open records or freedom of information acts), Recipient shall (x) promptly notify Discloser of such order or requested disclosure so that it may seek a protective order or other appropriate remedy and (y) only disclose such Confidential Information to the extent required.
9. WARRANTIES DISCLAIMER; LIMITATION OF LIABILITY; INDEMNIFICATION
9.1 Warranty Disclaimer
EXCEPT AS EXPRESSLY SET FORTH IN THIS Agreement, THE SOFTWARE, HOSTED SERVICES, THIRD PARTY SOFTWARE, MAINTENANCE, UPDATES AND ENHANCEMENTS, SOFTWARE RELATED SERVICES, OR DELIVERABLES PROVIDED AS A RESULT OF THE PERFORMANCE OF MAINTENANCE OR SOFTWARE RELATED SERVICES (COLLECTIVELY, THE "WARRANTED MATTERS") ARE PROVIDED "AS IS" AND LEMMINO AND ITS LICENSORS, DEVELOPERS, AND OTHER SUPPLIERS (THE " LEMMINO PARTIES") FURTHER DISCLAIM THAT THE FUNCTIONS CONTAINED IN THE WARRANTED MATTERS WILL MEET THE REQUIREMENTS OF CUSTOMER OR OPERATE ERROR FREE. EXCEPT AS EXPRESSLY SET FORTH IN THIS Agreement, THERE ARE NO OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED BY STATUTE, OPERATION OF LAW, TRADE USAGE, COURSE OF PERFORMANCE OR DEALING OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, FITNESS FOR A PARTICULAR USE, NONINFRINGEMENT, TITLE, ACCURACY, OR COMPLETENESS; ALL SUCH WARRANTIES BEING SPECIFICALLY AND FULLY DISCLAIMED BY THE LEMMINO PARTIES. OTHER WRITTEN OR ORAL REPRESENTATIONS OR AFFIRMATIONS OF FACT, INCLUDING BUT NOT LIMITED TO, STATEMENTS FROM LEMMINO OR ANY OTHER SOURCE REGARDING THE PERFORMANCE OF THE WARRANTED MATTERS THAT ARE NOT CONTAINED IN THIS Agreement, SHALL NOT BE BINDING ON THE LEMMINO PARTIES AND ARE HEREBY EXPRESSLY DISCLAIMED. LEMMINO FURTHER DISCLAIMS ANY LIABILITY TO CUSTOMER OR USERS FOR ANY THIRD PARTY CHARGES, INCLUDING, BUT NOT LIMITED TO, DATA ,USAGE, OR TELECOM CHARGES, FOR DEVICES MANAGED BY THE SOFTWARE.
9.2 Limitation of Liability
EXCEPT FOR BREACHES OF THE LICENSE RESTRICTIONS, CONFIDENTIALITY OBLIGATIONS, OR MISUSE OF A PARTY'S INTELLECTUAL PROPERTY RIGHTS ("IP"), OR CLAIMS UNDER THE INDEMNITY PROVISIONS OF THIS Agreement: (A) NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, OR ANY LOST PROFITS, REVENUE, DATA, OR DATA USE AND (B) EITHER PARTY'S MAXIMUM AGGREGATE LIABILITY FOR ALL DAMAGES ARISING OUT OF OR RELATED TO THIS Agreement OR ANY ORDER, WHETHER SUCH ACTION IS BROUGHT IN LAW, EQUITY, CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, SHALL BE LIMITED TO THE SOFTWARE LICENSE FEES PAID BY CUSTOMER AND RECEIVED BY LEMMINO HEREUNDER IN THE LAST TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
9.3 Indemnification by Lemmino
Lemmino will defend Customer against any third party claim that the Software infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Customer's actions) (" Claim Against Customer"), and will indemnify Customer for the resulting costs and damages finally awarded against Customer to such third party by a court of competent jurisdiction or agreed to in settlement. To the extent permitted by law, Lemmino will have no liability to Customer under this Section 12.1 for any Claim Against Customer that arises out of: (a) any unauthorized use, reproduction, or distribution of the Sofware by Customer; (b) use of the Software in combination with any other software or equipment not supported by Lemmino; or (c) any modification or alteration of the Software by anyone other than Lemmino without the written approval of Lemmino. In the event of a Claim Against Customer pursuant to this Section, Lemmino may, at Lemmino's option and expense: (i) obtain for Customer the right to continue using the Software; (ii) modify the Software to make it non‐infringing; or (iii) if subsections (i) and (ii) are not commercially viable (as determined by Lemmino in its sole discretion), terminate this Agreement and refund Customer on a pro‐rated basis any Fees pre‐paid to Lemmino for the corresponding unused period of the Software.
9.4 Indemnification by Customer
Customer will defend, indemnify, and hold harmless Lemmino against any claims, losses, fines, or damages arising from or relating to: (a) Content; (b) any infringement or misappropriation of any intellectual property rights by Customer, Customer's Users, customers, or suppliers; (c) violation of law by Customer, including but not limited to any law or regulation relating to the privacy and/or security of Customer's Users or Devices; or (d) any activities under Customer's account and any use by Customer's employees, personnel or end users in violation of this Agreement. Lemmino will provide Customer with notice of the claim within a reasonable period of time after learning of the claim; and reasonably cooperate in response to Customer's requests for assistance. Customer may not settle or compromise any indemnified claim without Lemmino's prior written consent.
10. TERM AND TERMINATION
10.1 Term and Renewal
This Agreement will commence on the date on which Customer accepts or is deemed to accept this Agreement as provided herein, or if physically executed, the date of last signature and will continue for so long as a valid Order is in place or until Customer ceases use of all offerings hereunder, whichever is later; unless the Agreement is earlier terminated as provided herein.
10.2 Customer Termination
Customer may terminate this Agreement for cause: (i) in the event of a material breach by Lemmino of this Agreement that is unremedied for a period of thirty (30) days after receipt of written notice by Lemmino, (ii) immediately with concurrent notice in the event of a breach by Lemmino which, by its nature, cannot be cured, or (iii) as otherwise expressly provided herein. With respect to terminations for cause, Customer shall receive a refund of any related prepaid unused fees for Subscription Licenses. Except as otherwise expressly and specifically stated in this Agreement, no refunds or payments of any kind shall be due Customer.
10.3 Lemmino Termination
Lemmino may terminate the Agreement and the relevant Software License under this Agreement: (i) if Customer ceases or is delinquent in making payments of any applicable fees owed for a period of thirty (30) days after notification of such delinquency; (ii) in the event of a material breach of this Agreement by Customer that is unremedied for a period of thirty (30) days after receipt of written notice by Customer; (iii) as otherwise expressly provided; (iv) immediately with concurrent notice in the event of a breach by Customer which, by its nature, cannot be cured.
10.4 Customer Obligations upon Termination
Upon the termination or expiration of this Agreement and the related Software Licenses for any reason whatsoever (i) any Software License will automatically and immediately terminate, (ii) Customer will immediately cease and desist from all use of the Software in any way, and (iii) within ten (10) days after the effective date of the termination or expiration of this Agreement and any related Software License, Customer is required to uninstall and either return or destroy the applicable Software and provide a written certification executed by an officer of Customer certifying such action. Except for Customer terminations for cause, upon termination, Customer shall pay any fees then owing under this Agreement as of the date of termination within thirty (30) days. Terminations are effective upon Customer's compliance with this Section.
10.5 Lemmino Obligations upon Termination
Upon termination or expiration of this Agreement and the related Software License for any reason whatsoever, Lemmino will provide Customer with instructions to enable Customer to use the the Software to export all Device information from the Software and cancel its account.
The provisions of this Agreement that by their sense and context are intended to survive termination of this Agreement, shall so survive termination.
11. MODIFICATION OF THE SOFTWARE
Lemmino reserves the right to modify the content, organization or structure of the Software, and may change, suspend, or discontinue any aspect of the Software at any time either at no cost or subject to additional fees, in Lemmino's sole discretion. Lemmino shall have complete discretion over the features, functions, and other terms and conditions on which the Website is offered. Notwithstanding anything else contained in this Agreement, Lemmino will have no obligation to continue making the Website available or to produce or release new versions of the Website or any updates thereto, or to continue offering any portion of the Website at a certain price or free of charge.
12. CHANGES TO THIS AGREEMENT
Lemmino reserves the right to add, delete, and/or modify any of the terms and conditions contained in this Agreement at any time and in its sole discretion by posting a change notice on the Software. In the event of any material change to the Agreement, in Lemmino's sole discretion, you may be notified by email of such change. If any change is unacceptable to you, you should immediately cease use of the Software. Your continued use of the Software following a notice of a change in the Agreement via the Software will constitute your binding acceptance of the changes.
13.1 Governing Law; Dispute Resolution
This Agreement will be governed by and construed in accordance with the laws of the State of Washington, USA, excluding its principles of conflicts of law and the private international law rules. Any dispute, controversy or claim arising out of or relating to this Agreement, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules by a single arbitrator who is fluent in written and spoken English and skilled and experienced with cloud or internet services. The place of such arbitration will be in Seattle, Washington, U.S.A. The judgment of the arbitrator will be final, nonappealable (to the extent not inconsistent with applicable law) and binding upon the Parties, and may be entered in any court of competent jurisdiction. The foregoing does not limit or restrict either Party from seeking injunctive or other equitable relief from a court of competent jurisdiction. No action arising out of this Agreement, regardless of form, may be brought more than one (1) year after the claiming party knew or should have known of the cause of action.
13.2 Class Action Waiver
Any dispute resolution proceedings, whether in arbitration or court, will be conducted only on an individual basis and not in a class or representative action or as a named or unnamed member in a class, consolidated, representative or private attorney general action, unless both you and Lemmino specifically agree to do so in writing following initiation of arbitration. This provision is not applicable to the extent such waiver is prohibited by law. IF YOU DO NOT WISH TO BE BOUND BY THE CLASS ACTION WAIVER OR INDIVIDUAL ARBITRATION PROVISIONS IN THIS SECTION 13, YOU MUST NOTIFY LEMMINO IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THIS AGREEMENT UNLESS A LONGER PERIOD IS REQUIRED BY LAW. YOUR WRITTEN NOTIFICATION MUST BE SENT VIA MAIL OR ELECTRONIC MAIL TO USING THE INFORMATION PROVIDED IN SECTION 14 (NOTICES), AND MUST INCLUDE YOUR NAME, YOUR ADDRESS, YOUR LEMMINO USERNAME, IF YOU HAVE ONE, AND A CLEAR STATEMENT THAT YOU DO NOT WISH TO RESOLVE DISPUTES WITH LEMMINO THROUGH INDIVIDUAL ARBITRATION.
13.2 Independent Contractors
The Parties are entering into this Agreement as independent contracting parties. Neither Party will have, or hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. This Agreement will not be construed to create an association, joint venture or partnership between the Parties or to impose any partnership liability upon any Party.
Where Customer is an entity, Lemmino may use the name and/or logo of Customer in a list of customers used in marketing materials until requested to cease this use by Customer. Within forty-five (45) days of signing this Agreement Lemmino may publish a press release announcing the acquisition of Customer as a customer, provided Customer has an opportunity to review and approve the press release.
If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this Agreement. This Agreement may only be amended or modified in writing and any modification or amendment to this Agreement will be effective only upon execution by an officer of each party.
This Agreement, including any rights, licenses or obligations under this Agreement, may not be assigned or otherwise transferred (whether by operation of law, merger, reorganization, or otherwise) by Customer to any non-Affiliate party without the prior written consent of Lemmino and any attempt to do so in violation of the terms hereof shall be null and void.
13.6 Export Laws
The Software is subject to United States export control laws and regulations and may be subject to export or import regulations in other countries. These laws and regulations include licensing requirements and restrictions on destinations, end users, and end use. Customer shall comply with all domestic and international export and import laws and regulations that apply to the Software and acknowledges that Customer has the responsibility to obtain any and all necessary licenses to export, re-export, or import the Software and covenants that it shall not, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Software, source code, or technology (including derivative products) received from Lemmino under this Agreement to any other party or destination prohibited by the laws or regulations of the United States, without obtaining prior governmental authorization as required by those laws and regulations.
13.7 Force Majeure
In the event that either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond the reasonable control of the Party invoking this provision (including, without limitation, for causes due to war, fire, earthquake, flood, hurricane, riots, acts of God, internet service provider failures or delays, denial of service attacks, or other similar causes) the affected Party's performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided that the affected Party (a) provides the other Party with prompt notice of the nature and expected duration of the event, (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, (c) provides periodic notice of relevant developments, and (d) provides prompt notice of the end of such event. This Section does not operate to relieve Customer of its obligation to make payments then owing.
13.8 No Third Party Beneficiaries
This Agreement is for the benefit of Customer and Lemmino and does not provide any third party the right to enforce it or to bring an action for any remedy, claim, liability, reimbursement or cause of action or any other right or privilege.
The failure of either party to require the performance by the other party of any provision hereof will not constitute a waiver of that provision or the required performance. The waiver by either party of any breach of any provision of this Agreement will only be valid if given in an executed written instrument and any such waiver will not constitute a waiver as to any subsequent breach or continuation of the same breach.
Headings are used in this Agreement for convenience only and shall not affect any construction or interpretation of this Agreement.
13.11 Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement and any related Order supersede and replace all prior understandings, negotiations, commitments, representations, and agreements of the parties relating to the Software and the subject matter hereof. Lemmino's agreement to provide the Software to Customer is expressly conditioned upon the unequivocal application of all terms and conditions included in this Agreement to such transaction and any additional or different terms or conditions proposed by Customer (whether by purchase order, counter-offer, acknowledgement, electronic data interchange, vendor enrollment, or otherwise) are hereby expressly objected to and will not be in any way binding upon Lemmino. Although any related Order or SOW is incorporated by reference herein, it is the express agreement of the parties that the terms of this Agreement shall supersede any conflicting terms in any related Order or SOW, unless the conflicting terms in such related Order or SOW clearly express an intent to supersede this Agreement by directly and specifically referring to the section or sections of this Agreement to be superseded and such Order or SOW is executed by an officer of each party.
Except as otherwise provided herein, all notices, consents, requests, instructions, approvals, and other communications made, required, or permitted under this Agreement will be given to the parties at the addresses listed on the Order by: (i) personal service or recognized international or overnight courier, deemed effective on reported delivery date; or (ii) email transmission, deemed effective 24 hours after the message was sent, if no "system error" or other non-delivery notice is generated. If applicable law requires that a given communication be "in writing," Customer agrees that email communication will satisfy the requirement. Duplicate notices are required to be provided to Lemmino, Inc., 6520 29th Avenue S.W., Seattle, WA 98126, or via email at email@example.com.