By using this the Software, clicking “I Agree,” or otherwise manifesting assent, the Licensee forms a binding contract with Ex Nihilo Software, LLC (the “Licensor”) and agrees to be bound by these terms of use (the “Agreement”).
A. DEFINITION OF THE LICENSED SOFTWARE AND DATA
“Software” means the AutoLytx program as hosted in its most current version. The Software will be modified and updated from time to time by the Licensor. “Data” refers to the data supplied to the Licensor by the Licensee for processing, hosting and display through the Software.
B. LICENSE GRANT
As of the Effective Date, Licensor hereby grants to Licensee a non-exclusive, nontransferable, non-sub-licensable, worldwide, royalty-free license to use the Software for the length of time set forth in the Term & Termination section of this Agreement. Licensor retains title and ownership over the Software. The Software is the intellectual property of the Licensor, and Licensee agrees not to modify, copy, or reverse-engineer the Software or any portion of it.
C. LICENSE SCOPE
By payment under this contract, Licensee shall be entitled to all standard features and functions of the Software provided on a general basis to all of Licensor’s customers. Any custom modifications, improvements, or services that Licensor may provide to Licensee, which are unique to Licensee, may be invoiced at Licensor’s discretion at reasonable rates.
D. HOSTING
Licensor will host all Data provided by the Licensee.
E. TRAINING & SERVICE LEVELS
The Licensor shall provide a one-time explanation of how to use the software, and shall be reasonably available during business hours to respond to reports of errors, bugs, or defects in the Software. The Licensor will keep Licensee appraised of the progress of fixes to any such reported errors, and will make its best efforts to resolve such errors quickly and to maintain functionality.
Beyond the services described above, the Licensor has no obligation to provide any training, maintenance, or other special requests, and if it does provide such services, it may at its discretion invoice them at reasonable rates.
A. PRICE
The price of all licensing and services included in the scope of this Agreement shall be at Licensor’s standard rate. Licensor may adjust this rate at any time by providing Licensee written notice (including by email) at least 30 days in advance.
B. PAYMENT
Licensee shall make payments monthly in advance. Payments are due on the first day of every month. Payments shall be non-refundable. Payments shall be made through an online third-party vendor specified by the Licensee.
C. LATE PAYMENT & NON-PAYMENT
If all or any part of a payment is not submitted by Licensee the day it is due, Licensor shall have the right to immediately and completely suspend Licensee’s service and access under this Agreement, until such payment is submitted by Licensee.
A. TERM & TERMINATION WITHOUT CAUSE
The term of this Agreement is month-to month. Either party may cancel the Agreement at any time by providing written notice at least 30 days in advance. In case of termination by Licensee, there shall be no refund of fees.
B. TERMINATION FOR CAUSE
If either party breaches a material term of this Agreement, the other party shall give notice of such breach, and provide the breaching party with 30 days in which to cure the breach. If the breach is not cured in the 30-day period, the non-breaching party shall be entitled to suspend performance of any or all of its obligations under this Agreement, and to terminate the Agreement. Failure to make payments when due shall be a material breach.
A. DATA QUALITY
Data provided by the Licensee to the Licensor for entry into the Software shall be the sole responsibility of Licensee. The Licensor processes, hosts and displays the Data provided by the Licensee as is. Licensor accepts no responsibility for the quality of the Data or for how the Licensee enters, uses, accesses, or distributes the Data. Licensor is not responsible for any errors or other results whatsoever due to defective, inaccurate, imprecise, or irrelevant Data.
B. PRIVACY & ACCESS
To protect hosted Data, Licensor shall implement appropriate physical, administrative, and technical safeguards, commensurate to the amount and type of Data stored. Licensor shall provide notice to Licensee if it becomes aware of any unauthorized acquisition of unencrypted hosted Data.
A. CURE
Neither party shall file any legal action against the other without first providing written notification of its grievance to the other party, and allowing 30 days for the other party to cure the alleged breach.
B. LAW & VENUE
The parties agree that proper venue and jurisdiction for all disputes, whether by court action, arbitration, mediation, or other dispute resolution procedure, shall be in the courts located in Denver, Colorado. The parties hereby waive any objection to such venue. The parties further agree that this Agreement shall be governed by the laws of the United States and the State of Colorado.
C. LIMIT OF LIABILITY
Neither party shall be liable under for any special, incidental, indirect, or consequential damages, or lost profits arising out of this agreement. The Software is sold as is, and Licensee chooses to use it at Licensee’s own risk. Licensee makes no representations or guarantees whatsoever about the Software’s performance.
A. DISCLAIMER
EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS AGREEMENT, LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
B. OWNERSHIP & AUTHORITY
Licensor hereby warrants that it is the owner of all intellectual property licensed by this Agreement. Both parties hereby warrant that they have full legal authority to enter into this Agreement, and that the agents signing this Agreement are duly authorized to do so.
This Agreement shall not be assigned by either party without express written permission of the other party.
This Agreement does not create a partnership or joint venture between the parties.
This Agreement, along with any amendments or statements of work by the parties hereto, constitutes the whole Agreement between the parties on the subject matter hereof, and this Agreement supersedes all prior written or oral discussions or agreements of the same.
This Agreement may be amended, modified, or supplemented by the Licensor at any time and in any way by providing Licensee written notice (including by email) at least 30 days in advance. Continued use of the Software by the Licensee beyond 30 days after receiving the written notice (or any other manifestation of assent) will be deemed to constitute acceptance of any and all such Additional Terms by the Licensee. All Additional Terms are hereby incorporated into this Agreement by this reference.
No rights shall be waived under this Agreement except in a signed writing, and waiver of any one right shall not constitute waiver of other rights or of the same right in future instances.
Notices due under this Agreement shall be sufficient when sent to the addresses of the parties above by US Postal Service or any other reliable means of mail delivery. The phrase “in writing” shall include all writings by email, but emails shall be effective as notice only when received by their intended recipient.
I have read and understand the terms and conditions above, and agree to be bound thereby. If the Licensee is a Company rather than an individual, then by clicking “I Agree,” I represent and warrant that I am fully authorized to sign on behalf of the Licensee.