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App Terms and Conditions
Application Services Agreement
THIS APPLICATION SERVICES AGREEMENT (the "Agreement") by and between ("Customer") and LINEN Software Inc.. ("LINEN") is effective on the date of the download (“Effective Date”).
1.1 General. This Agreement states the terms and conditions by which LINEN will deliver, and Customer will receive, application services (“Services”) provided by LINEN. The specific Services to be provided hereunder are identified in Exhibit(s) attached hereto and incorporated herein as part of this Agreement. Exhibits shall be executed by both parties and may only be amended in writing and executed by both parties.
(a) “LINEN Technology” means LINEN’s proprietary technology, including the Services, software tools, algorithms, software (in source and object forms), user interface designs, architecture, class libraries, objects and documentation (both printed and electronic), network designs, know-how, trade secrets and any related intellectual property rights throughout the world (whether owned by LINEN or licensed to LINEN from a third party) and also including any derivatives, improvements, enhancements or extensions of LINEN Technology conceived, reduced to practice, or developed during the term of this Agreement by either party that are not uniquely applicable to Customer or that have general applicability in LINEN’s business.
(b) “Initial Term” means the minimum term for which LINEN will provide the Service(s) to Customer, indicated as the Service Period in each Exhibit. Except as otherwise expressly provided in this Agreement, LINEN is obligated to provide, and Customer is obligated to pay for, each Service through its Initial Term and any Renewal Term.
(c) “Service Commencement Date” means the date LINEN will begin providing the Service(s) to Customer, indicated as the start of the Service Period in an Exhibit.
(d) “Service Period” means each Service Period specified in an Exhibit, including any additional Service Period pursuant to Section 2.2(b) below.
(e) “Affiliate” means any entity directly or indirectly controlling or controlled by or in common control with Customer, where “control” is defined as (i) the ownership of at least fifty percent (50%) of the equity or beneficial interests of such entity; or (ii) the right to vote for or appoint a majority of the board of directors or other governing body of such entity; or (iii) the power to exercise a controlling influence over the management or policies of the entity. Affiliates shall be permitted to purchase additional licenses under the terms of this Agreement at the specified pricing within this Agreement.
2. Delivery of Services; Terms; Fees.
2.1 Delivery of Services.
(a) General. By executing an Exhibit, Customer agrees to take and pay for, and LINEN agrees to provide, the Service(s) during the Initial Term and for any Renewal Term, as specified in paragraph 2.2(b) below.
(a) Term Commencement. The term for each Service shall commence on the Service Commencement Date.
(b) Renewal Term(s). Each Service will be provided for the Service Period as indicated in an Exhibit. LINEN will provide Customer with a renewal quote at least sixty (60) days prior to expiration of the current term. Customer will notify LINEN of its intent to continue or terminate service prior to expiration of the current term. Customer’s continuance of service shall include issuance of a Purchase Order to LINEN. Customer is responsible for payment for Services up to the date of termination unless such termination is a result of LINEN’s breach or default. In the event of LINEN’s default or breach of this Agreement, LINEN agrees to refund to Customer service fees on a prorated basis effective on the date of LINEN’s breach or default.
Customer may terminate this Agreement for convenience by providing LINEN with a thirty (30) day written notice. In the event of termination for convenience by the Customer, Customer is not entitled to a refund for Customer service fees previously paid for the then current term.
3. Fees and payment terms.
3.1 Fees and Expenses. Customer shall pay all fees due according to the prices and terms listed in the applicable Exhibit.
3.2 Payment Terms. Customer will be billed an amount equal to all charges as indicated in the Exhibit(s). Payment for all fees is due forty-five (45) days from date of invoice. All payments will be made in U.S. dollars.
3.3 Interest and Further Costs. Customer will be responsible for all costs incurred by LINEN in connection with any undisputed claim made by LINEN in order to recover payment of Customer’s account, including any reasonable professional fees or legal costs. If Customer is delinquent in its payments, LINEN may, upon written notice to Customer, modify the payment terms to require full payment before the provision of Services or require other assurances to secure Customer’s payment obligations hereunder.
4. Confidential Information; Intellectual Property Ownership; Right to use technology.
LINEN grants Customer the non-exclusive right to use the LINEN Technology in accordance with the terms of this Agreement and applicable Exhibit(s) for the sole purpose of accessing and using the Services during the Service Period. Customer is granted a worldwide, royalty-free, non-exclusive and non-transferable license (“License”) for the use of the software products or components of LINEN’s software identified in the applicable Exhibit for the Service Period. Additional licenses (Exhibits) will be required in order to use additional software products or additional components or functionality of a software product or extend a Service Period.
4.1 Confidential Information.
(a) Nondisclosure of Confidential Information. Each party acknowledges that it will have access to certain confidential information of the other party concerning the other party's business, plans, customers (including but not limited to customer lists and customer information), technology, products, and other information held in confidence by the other party (“Confidential Information”). Confidential Information will include all of the above information disclosed. For clarity, all client sales, and pricing information shall be deemed Confidential Information of Customer. Confidential Information will also include, but not be limited to, LINEN Technology and the terms and conditions of this Agreement. Each party agrees that it will not use in any way, for its own account or the account of any third party, except as expressly permitted by, or required to achieve the purposes of, this Agreement, nor disclose to any third party (except as required by law or to that party’s attorneys, accountants and other advisors as reasonably necessary), any of the other party's Confidential Information and will take reasonable precautions to protect the confidentiality of such information, at least as stringent as it takes to protect its own Confidential Information. In the event of actual or threatened breach of the provisions of this Section 4.1, the non-breaching party will be entitled to immediate injunctive or other equitable relief.
(b) Exceptions. Information will not be deemed Confidential Information hereunder if such information: (i) is rightfully known to the receiving party prior to receipt from the disclosing party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party. The receiving party may disclose Confidential Information pursuant to the requirements of a governmental agency or by operation of law, provided that it gives the disclosing party reasonable prior written notice sufficient to permit the disclosing party to contest such disclosure.
4.2 Intellectual Property.
(a) Ownership. Except for the rights expressly granted herein, this Agreement does not transfer from LINEN to Customer any LINEN Technology, and all right, title and interest in and to LINEN Technology will remain solely with LINEN. This Agreement does not transfer from Customer to LINEN any rights or interest in Customer’s proprietary information, Confidential Information, products or services and all right, title and interest in and to Customer’s proprietary information, Confidential Information, products and services will remain solely with Customer. LINEN and Customer each agrees that it will not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the other party.
(b) General Skills and Knowledge. Notwithstanding anything to the contrary in this Agreement, LINEN will not be prohibited or enjoined at any time by Customer from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including, without limitation, information publicly known or available or that could reasonably be acquired in similar work performed for another customer of LINEN.
5. LINEN Representations and Warranties.
(a) Authority and Performance of LINEN. LINEN represents and warrants that (i) it has the legal right to enter into this Agreement and perform its obligations hereunder, and (ii) the performance of its obligations and delivery of the Services to Customer will not violate any applicable U.S. laws or regulations, including OSHA requirements, or cause a breach of any agreements with any third parties.
(b) Compliance of LINEN with EU-U.S. Privacy Shield. LINEN represents and warrants that it is fully compliant with the requirements contained in the EU-U.S. Privacy Shield.
5.2 Service Performance Warranty.
(a) LINEN shall provide telephone support to Customer during the Service Period. Support staff at LINEN shall be available by telephone during the Service Period during normal business hours.
5.3 No Other Warranty. LINEN does not make, and hereby disclaims, any and all other Express and/or implied warranties, including, but not limited to, warranties of merchantability and fitness for a particular purpose. LINEN does not warrant that the Services or software will be uninterrupted or error-free.
5.4 Disclaimer of Actions Caused by and/or Under the Control of Third Parties. LINEN does not and cannot control the flow of data to or from the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt customer’s use of LINEN’s SERVICE (s). Accordingly, LINEN disclaims any and all liability resulting from or related to such events.
6. Customer Obligations.
6.1 Restrictions on Use of Services. Customer shall not resell the Services or LINEN Technology to any third parties.
6.2 Customer Content. Customer acknowledges that LINEN exercises no control whatsoever over the content of the information needed by LINEN’s in connection with providing the Service(s) and that it is the sole responsibility of Customer to ensure that the information it and its users transmit and receive complies with all applicable laws, regulations and the Customer’s obligations in this Section 6. Customer shall use the Services only for lawful purposes in compliance with all applicable laws. Customer shall be responsible for its use of the Services specified in Exhibit(s) whether such use is known to or authorized by Customer.
6.3 CUSTOMER WARRANTY. Customer warrants that it shall not provide or distribute any content that: (a) infringes on the intellectual property rights or any rights of publicity or privacy of any third party (b) violates any law, statute, ordinance or regulation in the countries in which Customer uses Services (c) is defamatory, libelous, unlawfully threatening or harassing (d) is obscene, child pornographic or harmful to minors or (e) contains any viruses, Trojan Horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, interfere with, surreptitiously intercept or expropriate any system, data or personal information.
Violations of this Section 6 shall be a material breach of this Agreement.
7. Limitations of Liability.
7.1 Consequential Damages Waiver. Except in the case of gross negligence, willful misconduct, or a breach of confidentiality, in no event will either party be liable or responsible to the other for any type of incidental, punitive, indirect or consequential damages, including, but not limited to, lost revenue, lost profits, replacement goods, loss of technology, rights or services, loss of data, or interruption or loss of use of service or equipment, even if advised of the possibility of such damages, whether arising under theory of contract, tort (including negligence), strict liability or otherwise.
7.2 Basis of the Bargain; Failure of Essential Purpose. The parties acknowledge that LINEN has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties.
7.3 SERVICES ARE PROVIDED “AS IS”; NEITHER LINEN NOR ITS EMPLOYEES WARRANT THAT SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE.
7.4 EXCEPT DUE TO THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LINEN, IN NO EVENT SHALL LINEN’S LIABILITY FOR ACTUAL OR DIRECT DAMAGES RESULTING FROM CLAIMS ARISING UNDER THIS AGREEMENT EXCEED THE FEES CUSTOMER PAID TO LINEN IN THE PREVIOUS TWELVE MONTH PERIOD FOR SERVICES PURSUANT TO THIS AGREEMENT.
For LINEN. Customer shall indemnify and hold LINEN harmless against all claims by third parties, to the extent that such claims are solely due to Customers-provided content or Customers gross negligence, willful misconduct or failure to comply with any applicable law including the terms of this Agreement. Customer will indemnify LINEN from reasonable costs, damages and fees incurred by LINEN that are attributable to such claim. Customer’s indemnification obligations hereunder are expressly conditioned on LINEN (a) giving prompt written notice of the claim to Customer (but any delay by LINEN in giving such notice shall not be deemed a breach of this Agreement and shall not excuse Customer’s obligations under this Section except to the extent, if any, that Customer is materially prejudiced by such delay), (b) giving Customer sole control of the defense and settlement of the claim (provided that Customer may not settle or defend any claim unless it unconditionally releases LINEN of all liability) and (c) providing to Customer, at Customer’s cost, all reasonable assistance.
For Customer. LINEN will defend, indemnify, and hold Customer harmless against any action and all claims brought against Customer by a third party to the extent that such action is based on a claim that (i) the use of the LINEN Technology within the scope of this Agreement infringes such third party’s patent, trade secret, copyright or any other intellectual property right, or (ii) LINEN’s gross negligence, willful misconduct or failure to comply with any applicable law including the terms of this Agreement. LINEN will indemnify Customer from any costs, damages and fees incurred by Customer that are attributable to such claim. LINEN’s indemnification obligations hereunder are expressly conditioned on Customer (a) giving prompt written notice of the claim to LINEN (but any delay by Customer in giving such notice shall not be deemed a breach of this Agreement and shall not excuse LINEN’s obligations under this section except to the extent, if any, that LINEN is materially prejudiced by such delay), (b) giving LINEN sole control of the defense and settlement of the claim (provided that LINEN may not settle or defend any claim unless it unconditionally releases Customer of all liability) and (c) providing to LINEN, at LINEN’s cost, all reasonable assistance. If as the result of any such suit Customer shall be enjoined from the use of LINEN Technology or any portion thereof, LINEN will promptly, either (1) use commercially reasonable efforts to procure for Customer, at LINEN’s expense, the right to use the same or substitute non-infringing equivalent products or (2) refund any fees due for the remainder of the Service Period.
9.1 Termination for Cause. Either party may terminate this Agreement if: (i) the other party breaches any material term or condition of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice detailing the breach from the terminating party; (ii) the other party becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (iii) the other party becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within ninety (90) days of filing. In the event of LINEN’s default or breach of this Agreement, LINEN agrees to refund to service fees on a prorated basis effective on the date of LINEN’s breach or default.
9.2 Termination for Convenience. Without limiting any rights which Customer may have for reason for any default by LINEN, Customer reserves the right to terminate this Agreement in whole or in part at its convenience by written notice. Such termination shall be effective in the manner and upon the date specified in said notice and shall be without prejudice to any claims which Customer may have against LINEN. In the event of termination for convenience by Customer, Customer is not entitled to a refund for Customer service fees previously paid for the then current term.
9.3 Effect of Termination. Upon the effective date of termination or expiration of this Agreement:
(a) LINEN will immediately cease providing the Service(s);
(b) Any and all payment obligations of Customer under this Agreement for Service(s) provided through the date of termination will immediately become due;
(c) Customer shall return all LINEN Technology in its possession and cease all use of LINEN Technology; and
(d) Within thirty (30) days of such termination, each party will return or destroy all Confidential Information of the other party in its possession and will not make or retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
9.4 Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 3, 4.1, 4.2, 7, 8, 9 and 10 (excluding 10.2).
10. Miscellaneous Provisions.
10.1 Force Majeure. Neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war, acts of God, earthquake, flood, embargo, riot, sabotage, governmental act or failure of the Internet, provided that the delayed party: (a) gives the other party prompt notice of such cause, and (b) uses its reasonable commercial efforts to promptly correct such failure or delay in performance. If LINEN is unable to provide Service(s) for a period of thirty (30) consecutive days as a result of a continuing force majeure event, Customer may cancel the Service(s). In such event, Customer shall be relieved of its obligation to pay for any unused portion of the Initial Term or Renewal Term.
10.2 Government Regulations. Customer will not export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all export control laws and regulations which may be imposed by the U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business. Customer shall fully indemnify and hold harmless LINEN for all claims, regulatory actions and damages, including fines, exemplary, punitive, special or consequential damages, arising from Customer’s failure to comply with such laws or cooperate with LINEN in connection with such laws.
10.3 No Third Party Beneficiaries. LINEN and Customer agree that, except as otherwise expressly provided in this Agreement, there shall be no third-party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or the customers of Customer.
10.4 Governing Law; Dispute Resolution. This Agreement is made under and will be governed by and construed in accordance with the laws of the State of Delaware (except that body of law controlling conflicts of law) and specifically excluding from application to this Agreement that law known as the United Nations Convention on the International Sale of Goods. The parties will endeavor to settle amicably by mutual discussions any disputes, differences, or claims whatsoever related to this Agreement. In the event of a dispute under this Agreement, the disputing Party must submit to the other party a written notice detailing the dispute. Upon receipt of such notice, both Parties shall make reasonable, good faith efforts to resolve the dispute within thirty (30) days following the date of such notice.
10.5 Severability; Waiver. In the event, any provision of this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of this Agreement will remain in full force and effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving party.
10.6 Assignment. Neither party shall transfer, assign or delegate this Agreement or any rights or obligations hereunder, in whole or in part, whether voluntarily, by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party shall have the right to assign this Agreement to any successor to substantially all of its business or assets to which this Agreement relates, whether by merger, sale of assets, sales of stock, reorganization or otherwise, provided that the party to which the Agreement is assigned agrees in writing to assume performance under this Agreement from the effective date of such assignment. LINEN may delegate the performance of certain Services to third parties, including LINEN’s wholly owned subsidiaries, provided LINEN controls the delivery of such Services to Customer and remains responsible to Customer for the delivery of such Services. This Agreement will bind and inure to the benefit of each party's successors and permitted assigns.
10.7 Notice. Any notice or communication required or permitted to be given hereunder may be delivered by hand, deposited with an overnight courier, confirmed e-mail, or mailed by registered or certified mail, return receipt requested, postage prepaid, in each case to the address of the receiving party as listed below or at such other address as may hereafter be furnished in writing by either party to the other party. Such notice will be deemed to have been given on the earliest of (a) the day of delivery by hand or overnight courier, (b) the day of transmission if sent by e-mail, (c) three days after mailing if sent by mail in the manner set forth above or (d) upon receipt.
10.8 Relationship of Parties. LINEN and Customer are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between LINEN and Customer. Neither LINEN nor Customer will have the power to bind the other or incur obligations on the other’s behalf.
10.9 Non-Publicity. LINEN shall not use or allow to be used any aspect of this Agreement, Customer logos or other Customer-specific data/information for publicity or advertisement purposes without the prior written consent of Customer.
10.10 Entire Agreement. This Agreement, including the Exhibit(s) hereto, incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. Any additional or different terms in any purchase order or other response by Customer shall be deemed objected to by LINEN without need of further notice of objection, and shall be of no effect or in any way binding upon LINEN. This Agreement may be changed only by a written document signed by authorized representatives of LINEN and Customer. For purposes of this Agreement, the term “written” means anything reduced to a tangible form by a party, including a printed or hand written document, e-mail or any other electronic format.
10.11 Interpretation of Conflicting Terms. In the event of a conflict between or among the terms in this Agreement and the Exhibit(s), the documents shall control in the following order: The Agreement as last amended, then the applicable Exhibit. The English version of this Agreement controls, regardless of whether a translation into any other language is made.
10.12 This Agreement may be executed in two or more counterparts each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. This Agreement may be executed by facsimile transmission or pdf signatures, which shall be accepted as original executions.
Authorized representatives of Customer and LINEN have read the foregoing and all documents incorporated therein and agree and accept such terms effective as of the latest date indicated below.
Customer LINEN Software Inc.