Access License Agreement####1. Introduction and Acceptance. This Access License Agreement (the “Agreement”) is a legal agreement between you (either an individual or an entity) (“You” or “Customer”) and Gimbal Logic LLC (“Gimbal Logic”) setting forth the terms and conditions under which Gimbal Logic will grant You the right to access and use Gimbal Inventory software (“Software”). BEFORE YOU AGREE TO THE TERMS AND CONDITIONS, CAREFULLY READ THIS AGREEMENT. IF YOU ARE A CORPORATION, PARTNERSHIP LIMITED LIABILITY COMPANY OR OTHER ENTITY, THEN THE PERSON SIGNING THIS AGREEMENT ON THE ENTITY’S BEHALF REPRESENTS THAT HE OR SHE IS AUTHORIZED TO SIGN FOR AND BIND THE ENTITY. IF YOU ARE NOT AUTHORIZED TO SIGN FOR AND BIND THE ENTITY, THEN DO NOT AGREE TO THE TERMS AND CONDITIONS AND DO NOT ACCESS OR USE THE SOFTWARE. BY CLICKING “I ACCEPT” BELOW, YOU ARE SIGNING THIS AGREEMENT, AND ARE AGREEING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT.####2. Software. Subject to the restrictions set forth below and the payment of all applicable fees, Gimbal Logic grants Customer a limited, non-exclusive, non-transferable, non-sublicenseable right to download the Software for installation in Your salesforce.com instance (“SFDC Instance”) for use by You in connection with Your SFDC Instance for the number of users for which you have paid applicable subscription fees for Your internal business purposes. Notwithstanding the foregoing and subject to the terms of this Agreement, Customer may access and use the Software on a trial basis and free of charge for a period not to exceed seven (7) calendar days (“Trial Period”). Customer’s access to the Software will automatically terminate following such Trial Period, unless Customer has paid in full all applicable fees in accordance with this Agreement.####3. Software Availability. You acknowledge that access to and use of the Software is dependent on the availability and proper functioning of Your SFDC Instance and that Gimbal Logic has no control over your SFDC Instance or the salesforce.com service. Gimbal Logic disclaims responsibility and liability for any inability to access or use the Software, or degradation of the performance of the Software, to the extent caused by issues, problems, or malfunctions of, or inaccessibility to, Your SFDC Instance or other third party owned or controlled technology. You are solely responsible for the configuration of Your SDFC Instance and all technology and services necessary to access and use the Internet and Your SFDC Instance.####4. Ownership.####4.1 The rights granted hereunder do not constitute a transfer or sale of Gimbal Logic’s or its licensors’ ownership rights in or to the Software, including, without limitation: (a) the Software and the applicable documentation; (b) Gimbal Logic name, logo, domain name, Gimbal Logic product names and other trademarks; and (c) hardware, processes, algorithms, user interfaces, know-how and other trade secrets or technology (collectively, “Gimbal Logic Technology”). The Gimbal Logic Technology is protected by applicable intellectual property laws, including, but without limitation, United States copyright laws and international treaties. Except for the rights granted above, Gimbal Logic and its licensors retain all right, title and interest in and to Gimbal Logic Technology, including all intellectual property rights therein.####4.2 As between Gimbal Logic and You, You own the information in Your SFDC Instance and Gimbal Logic makes no claim of ownership to any information in Your SFDC Instance.####5. Restrictions; Responsibilities.####5.1 YOU MAY NOT (AND MAY NOT ALLOW A THIRD PARTY TO) RENT, LEASE, SUBLICENSE, SELL, CHARGE, ASSIGN, LOAN, USE FOR TIMESHARING OR SERVICE BUREAU PURPOSES OR OTHERWISE TRANSFER THE SOFTWARE OR ANY OF YOUR RIGHTS AND OBLIGATIONS UNDER THIS AGREEMENT. You may not (and may not allow a third party to): (a) reverse engineer, decompile, disassemble or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Software by any means whatsoever, except to the extent the foregoing restrictions are expressly prohibited by applicable law; (b) remove or destroy any copyright notices or other proprietary markings; (c) attempt to circumvent any use restrictions or gain unauthorized access to the Software, computer systems or networks related to the Software; (d) modify or create derivative works based on the Software; (e) copy or distribute the Software; (f) allow use of the Software by anyone other than user(s) authorized and paid for by You; (g) knowingly transmit through the Software unlawful, libelous, tortious, defamatory, threatening, vulgar, or obscene material or material containing viruses or other harmful code; or (h) otherwise use the Software other than as permitted in Section 2. You acknowledge that Gimbal Logic may utilize technological license control features that can limit Your access to or use of Software to ensure Your compliance with this Agreement.####5.2 You are responsible for all activity occurring under your user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Software, including those related to data privacy, international communications and the transmission of technical or personal data. You shall: (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Software, and will notify Gimbal Logic promptly of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to Gimbal Logic immediately and use reasonable efforts to stop immediately any unauthorized copying or distribution of content that is known or suspected by you or your users; and (iii) not impersonate another Gimbal Logic user or provide false identity information to gain access to or use the Software. You will not attempt to or use your access to the Software to knowingly interfere with or disrupt the integrity or performance of the Software or the data contained therein.####6. Fees and Payment.##6.1 Customer shall pay in advance an annual fee to access and use the Software. Fees are described in the applicable Software listing on the Salesforce AppExchange. Gimbal Logic will invoice You annually, and You will not be given access to the Software until You have paid the applicable fees. The first annual fee shall start to accrue as of the first day immediately following the Trial Period. The fees do not include any taxes or duties of any kind, which may be imposed by any governmental entity on the transactions contemplated by this Agreement, and Customer shall be solely responsible for all such taxes other than taxes based solely on Gimbal Logic’s income. All amounts paid are non-refundable. Customer may purchase additional user licenses at any time on a pro-rata basis so that all licenses will have the same expiration date. All amounts are quoted in and must be paid in US dollars. In addition to any other rights granted to Gimbal Logic herein, Gimbal Logic reserves the right to suspend your access to and use of the Software if you fail to pay any undisputed amount owed on or before its due date.####7. Term.##7.1 The initial term of this Agreement shall be 1 year from the first day immediately following the Trial Period. This contract may be renewed by You for additional successive 1 year terms, by paying a renewal fee prior to the expiration of the then-current term.####8. Termination. Either party shall have the right to terminate this Agreement in the event of a breach by the other party, which breach has not been cured within 30 days of the receipt of written notice thereof, except in the case of Customer’s failure to pay any fees when due hereunder, which must be cured within 5 days after receipt of written notice from Gimbal Logic. Either party may terminate this Agreement if the other party becomes the subject of an involuntary petition in bankruptcy or other proceeding relating to insolvency, receivership, or liquidation, if such petition is not dismissed within 60 days of filing. Upon termination of this Agreement for any reason, the rights granted to Customer hereunder will immediately terminate and Customer shall immediately discontinue any use of the Software. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to Gimbal Logic prior to the effective date of termination.####9. Support; Updates. Gimbal Logic will provide email and telephone support to Customer for current versions of the Software. Gimbal Logic will investigate all of Customer’s questions and problems promptly. Customer agrees to provide adequate information to Gimbal Logic to assist in the investigation and to confirm that any problems have been resolved. Gimbal Logic targets a support case response time of twenty-four (24) hours or less during weekdays, excluding holidays.####Gimbal Logic may, in its sole discretion, from time to time update the Software and may include such updates, free of charge, in the Software, provided Customer has paid all applicable fees then due hereunder.####10. Confidentiality. “Confidential Information” means information disclosed by either party to the other, whether orally, electronically or in writing, which is designated as confidential or would reasonably be considered to be confidential under the circumstances by a reasonable person. Gimbal Logic’s “Confidential Information” shall include, but not be limited to, Software, documentation, technology and technical information, product designs and business processes. Each party agrees to use Confidential Information solely to perform obligations and exercise rights under this Agreement and not to disclose, or permit to be disclosed, either directly or indirectly, Confidential Information to any third party without the other’s prior written consent. Each party shall safeguard the Confidential Information of the other party using the same measures it uses to protect its own confidential information, but in no event less than reasonable care. Notwithstanding the foregoing, neither party bears responsibility for safeguarding information that is publicly available without breach of an obligation owed to the disclosing party hereunder, obtained from third parties not under confidentiality restrictions, independently developed or known to the recipient without breach of an obligation owed to the disclosing party, or required to be disclosed by order of court or other governmental entity. If either party breaches, or threatens to breach the provisions of this Section 10, each party agrees that the non-breaching party will have no adequate remedy at law and is therefore entitled to immediate injunctive and other equitable relief.####11. Customer Warranties. Customer shall be solely responsible for all activities in connection with the Software that occur under Customer’s username(s). Without limiting the generality of the foregoing, Customer shall: (i) comply with all applicable laws and regulations; and (ii) be solely responsible for the accuracy, reliability, and quality of any information or data submitted by Customer to Gimbal Logic or processed using the Software. Customer warrants that any data, content, or materials used, stored or created by Customer using the Software will not infringe the copyright, trade secret, patent, privacy, publicity, or other proprietary or intellectual property right of any third party.####12. Breach of Customer Warranties. In the event of any breach, or reasonably anticipated breach, of any of Customer’s warranties or obligations, or Customer infringes or misappropriates Gimbal Logic’s intellectual property rights, in addition to any other remedies available at law or in equity, Gimbal Logic will have the right to immediately, in Gimbal Logic’s sole discretion, suspend Customer’s access to or use of the Software and/or terminate this Agreement, if deemed reasonably necessary by Gimbal Logic to prevent any harm to Gimbal Logic or its business.####13. Indemnity.####13.1 Customer shall indemnify and hold Gimbal Logic and its subsidiaries, affiliates, officers, agents, and employees harmless from any claims by third parties, and any related damages, losses or costs (including reasonable attorneys’ fees and costs), arising out of a claim or demand alleging that any data or content submitted by Customer to Gimbal Logic infringes, misappropriates, or violates any rights of a third party including any third party intellectual property rights.####13.2 If any action is instituted by a third party against You based upon a claim that the Software, as provided, infringes a United States patent, copyright or trademark, then Gimbal Logic will defend such action at its own expense on behalf of You and will pay all damages attributable to such claim which are finally awarded against You or paid in settlement of such claim. Gimbal Logic may, at its option and expense, and as Your exclusive remedy hereunder: (a) procure for You the right to continue using the Software; (b) replace or modify the Software so that it is no longer infringing but continues to provide comparable functionality; or (c) terminate this Agreement and Your access to the Software and refund any amounts previously paid for the Software attributable to the remainder of the then-current term of this Agreement. Gimbal Logic will have no liability to You for any infringement action that arises out of a breach of the terms and conditions of this Agreement by You or of the use of the Software (i) after it has been modified by You or a third party without Gimbal Logic’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by Gimbal Logic where the combination is the basis for the infringing activity. This Section sets forth the entire obligation of Gimbal Logic and Your exclusive remedy against Gimbal Logic or any of its suppliers for any infringement claim.####14. WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED ON AN “AS IS” BASIS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR SELECTION OF THE SOFTWARE TO ACHIEVE ITS INTENDED RESULTS AND FOR THE USE OF AND RESULTS OBTAINED FROM THE SOFTWARE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, GIMBAL LOGIC DISCLAIMS ALL WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE. GIMBAL LOGIC DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, BE UNINTERRUPTED, OR ERROR-FREE.####15. LIMITATION OF LIABILITY. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 13 OR A PARTY’S BREACH OF SECTION 2 OR 10, UNDER NO CIRCUMSTANCES WILL A PARTY BE LIABLE FOR LOSS OF PROFITS, BUSINESS OR DATA (EVEN IF THE SAME WERE JUDGED BY A COURT TO BE DIRECT LOSSES) OR FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION OR OTHER SUCH PECUNIARY LOSS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY OR OTHERWISE, ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A PARTY’S OBLIGATIONS UNDER SECTION 13.2, A PARTY’S PAYMENT OBLIGATIONS, OR A PARTY’S BREACH OF SECTION 2 OR 10, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER FOR THE SOFTWARE FOR THE IMMEDIATELY PRECEDING 12 MONTH PERIOD. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THEIR ESSENTIAL PURPOSE.####16. Survival. The following provisions will survive any expiration or termination of this Agreement: Sections 4 (Ownership), 5 (Restrictions), 6 (Fees and Payment), 8 (Termination), 10 (Confidentiality), 11 (Customer Warranties), 13 (Indemnity), 14 (Warranty Disclaimer), 15 (Limitation of Liability), 16 (Survival), 17 (General).####17. General. This Agreement shall be governed by Texas law without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in Dallas, Texas USA. This Agreement may not be assigned by either party without the prior written approval of the other party, (such approval not to be unreasonably withheld) except in connection with (i) a merger, consolidation, or similar transaction involving (directly or indirectly) a party, (ii) a sale or other disposition of all substantially all of the assets of a party, or (iii) any other form of combination or reorganization involving (directly or indirectly) such party. Any purported assignment in violation of this section shall be void. No text or information set forth on any other purchase order, preprinted form or document (other than an associated Gimbal Logic’s quote or invoice, if applicable) shall modify the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. The parties are independent contractors and this Agreement does not create any joint venture, partnership, employment, or agency relationship between you and Gimbal Logic. The failure of Gimbal Logic to enforce any right or provision in this Agreement shall not constitute a waiver of that or any future right or provision unless acknowledged and agreed to by Gimbal Logic in writing. This Agreement, together with any associated Gimbal Logic’s quote or invoice, comprises the entire agreement between you and Gimbal Logic and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein. All notices, required or permitted under this Agreement must be delivered in writing by courier, facsimile, or by certified or registered mail (postage prepaid and return receipt requested) to the other party at its address set forth in this Agreement. Notice hereunder will be effective (a) upon receipt or 3 days after being deposited in the mail as required above with the postal authority of the receiving party’s country, whichever occurs sooner, or (b) if delivered by email, upon receipt of email if delivered by email with a fax confirmation sent on the same day. Any notice to Gimbal Logic will be delivered to Gimbal Logic LLC 11816 Inwood Road #3027, Dallas, TX 75244-8011 USA. Any delay in or failure of performance by either party under this Agreement will not be considered a breach of this Agreement and will be excused to the extent caused by any Force Majeure.
