LINK LABS RESELLER CUSTOMER
SOFTWARE AS A SERVICE AND END USER LICENSE AGREEMENT
TERMS AND CONDITIONS
These terms apply to the following Services offered by Link Labs, Inc.:
User Interface, Connectivity, and Data Management software-as-a-service accessible via the Internet, supporting one or more of: (i) AirFinder enabled BLE tags and devices, (ii) AirFinder enabled SuperTags and devices, (iii) AirFinder enabled Symphony Link LoRa tags and devices, (iv) AirFinder-enabled BLE Access Points and Reference Points, (v) Symphony Link LoRa Gateways and Access Points, and (vi) Conductor and AirFinder APIs (the “Services).
1 DEFINITIONS
Definitions are provided when first introduced in these Terms and Conditions (“Terms”)
2 SERVICES AND RIGHT TO USE
2.1 In consideration of the fees paid by Customer for use of the Services, Company agrees to provide Customer access to some or all of the Services, as applicable.
2.2 Subject to the terms and conditions of these terms, Link Labs, Inc. (“Company”) will provide Customer the Services during the applicable term for use of the Services (the “Term”), and hereby grants Customer a non-exclusive, non-sublicensable, non-transferable right to access and use the Services solely for Customer’s and its affiliates’ own internal business operations (provided that such internal business operations shall not include commercial time-sharing, rental, outsourcing, service bureau or similar usages) during the Term. The rights granted herein are expressly limited to use by Authorized Users to: (i) access the features and functions of the Services via the Internet ordered solely for Customer’s internal business purposes and the integration with a third-party cloud service for purposes of offering Customer’s end users a web interface; and (ii) view and use the Services content made available to Customer through the Services solely for Customer’s internal business purposes. “Authorized Users” means Customer’s and its affiliates’ employees and contractors who are authorized by Customer and its affiliates to use the Services. Customer will be responsible for ensuring that all Authorized Users comply with the terms and conditions of this EULA.
3 RESTRICTIONS AND RESPONSIBILITIES
3.1 Customer will not, and will not permit any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services (except to the extent such restrictions are contrary to applicable law); (b) modify, translate, or create derivative works based on the Services; (c) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party; (d) enable any device for use with the Services which is not properly covered under an applicable recurring per device fee; (e) remove any proprietary notices or labels; (f) use the Services to build a similar or competitive product or service; (g) without Company’s express written permission, introduce software or automated agents or scripts to the Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Services; (h) perform or publish any performance or benchmark tests or analyses relating to the Services or the use thereof or (i) otherwise use the Services in a manner inconsistent with these Terms.
3.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies and documentation then in effect and all applicable laws and regulations (including export laws). Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be in violation of these Terms.
3.3 Customer will be responsible for maintaining the security of the Customer accounts, passwords (including but not limited to administrative and user passwords) and files, and for all uses of accounts linked to Customer’s login credentials.
3.4 Company will comply with the Hosted Data Obligations set forth in Appendix 1.
3.5 Company reserves the right to modify software, firmware and Services functionality, at any time as long as such modification is made across Company’s customer base and will have no liability for any such modification. Company shall provide Customer with sixty (60) days’ notice of any proposed changes to an API that impacts the functionality of the Services. In the event that Company adds additional functionality to the Services that it generally does not make available to similar users of the Service (e.g., with similar restrictions and subscription levels), Company may condition the implementation of such modifications on Customer’s payment of additional fees, and Customer will not be entitled to such new functionality unless Customer pays such fees, provided Customer may continue to use the version of the Services that Company makes generally available (without such features) without paying additional fees.
3.6 Customer agrees to comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the Services, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data. Customer will ensure that any use of the Service by the Authorized Users is in accordance with the terms contained herein. Customer agrees to notify Company immediately of any unauthorized use of any password or account or any other known or suspected breach of security. Customer acknowledges and agrees that the Services may be subject to the U.S. Export Administration Laws and Regulations. Customer agrees that no part of the Services or information obtained through use of the Services, is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor be used for nuclear activities, chemical biological weapons, or missile projects unless authorized by the U.S. Government. Proscribed countries are set forth in the U.S. Export Administration Regulations and are subject to change without notice, and Customer must comply with the list as it exists in fact. Any unauthorized use of the Service may violate copyright laws, trademark laws, the laws of privacy and publicity, and communications regulations and statutes.
4 PROPRIETARY RIGHTS
4.1 As between the parties, Company will own and retain all right, title and interest in and to (a) the Services, and all improvements, enhancements or modifications thereto, whether or not developed based on Customer’s suggestions or other feedback, (b) any software, applications, inventions or other technology developed in connection with the Services, and (c) all intellectual property rights related to any of the foregoing.
4.2 Customer hereby grants to Company a non-exclusive, worldwide, royalty-free, fully paid up, sublicensable (directly and indirectly through multiple tiers), nontransferable, perpetual, irrevocable right and license during and after the Term to collect, use and analyze data and other information relating to the Services and related systems and technologies and Company will be free to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
4.3 Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Company with respect to the Services. Company will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants Company a royalty-free, fully paid up, worldwide, transferable, sublicensable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback; and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
5 PAYMENT OF FEES
Use of the Services is expressly conditioned upon payment of all applicable fees to Company and/or its authorized reseller, as applicable.
6 TERMINATION
6.1 Termination for Breach. Company may terminate Customer’s access to the Services immediately upon written notice in the event that Customer and/or any Authorized User materially breaches any of the Terms contained herein and thereafter: (i) in the case of material breach resulting from non-payment of amounts due, has failed to pay such amounts within thirty (30) days after receiving written notice thereof; or (ii) has failed to cure any other material breach (or to commence diligent efforts to cure such breach that are reasonably acceptable to Company) within thirty (30) days after receiving written notice thereof.
6.2 Company may at any time terminate access to the Services if Company is required to do so by law (for example, where the provision of the Service to Customer is, or becomes, unlawful).
6.3 Upon termination of the Services by Company as permitted hereunder, all rights granted by Company hereunder and all obligations of Company to provide the Services will immediately terminate and Customer will cease use of the Services.
7 WARRANTY AND DISCLAIMER7.1 Limited Warranty. Company warrants that the Services will conform to the Company’s then current Documentation in all material respects for the Services under normal use and circumstances. If Customer notifies Company of a breach of the foregoing warranty and Company can validate such breach, Company will use best efforts to remedy any such non-conforming Services. The foregoing constitutes Customer’s sole and exclusive remedy for any breach of warranty.
7.2 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. THE SERVICES ARE PROVIDED ON AN AS-IS BASIS. Company does not warrant that the Services will be uninterrupted or error free.
7.3 Internet Delays. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. COMPANY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS WITH THE INTERNET AND ELECTRONIC COMMUNICATIONS OR ANY OTHER FORCE MAJEURE EVENT.
8 LIMITATION OF LIABILITY
8.1 IN NO EVENT WILL COMPANY BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOSS OF USE, DATA, PROFITS, OR GOODWILL, ARISING FROM OR RELATING TO THE SERVICES, OR ANY OTHER SERVICES OR CONTENT PROVIDED HEREUNDER, WHETHER IN CONTRACT OR TORT OR OTHERWISE, EVEN IF COMPANY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. COMPANY WILL NOT BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
8.2 THE TOTAL CUMULATIVE LIABILITY OF COMPANY ARISING FROM OR RELATING TO THE SERVICES, AND ANY OTHER SERVICES OR CONTENT PROVIDED HEREUNDER, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO COMPANY (OR TO COMPANY’S AUTHORIZED RESELLER, AS APPLICABLE) BY CUSTOMER IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE FIRST CLAIM AT ISSUE. THIS LIMITATION IS CUMULATIVE AND WILL NOT BE INCREASED BY THE EXISTENCE OF MORE THAN ONE INCIDENT OR CLAIM. CUSTOMER AGREES THAT COMPANY’S SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND UNDER OR AS A RESULT OF THE USE OF THE SERVICES OR OTHERWISE IN CONNECTION WITH THESE TERMS.
9 MISCELLANEOUS
9.1 Customer may not assign its right to use the Services or assign or delegate its rights or obligations under these Terms without Company’s prior, written permission. Any assignment or attempted assignment by either party otherwise than in accordance with this Section shall be null and void.
9.2 If any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that these Terms will otherwise remain in full force and effect and enforceable. Both parties agree that these Terms are the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
9.3 No agency, partnership, joint venture, or employment is created as a result of these Terms and a party does not have any authority of any kind to bind the other party in any respect whatsoever.
9.4 Each party shall be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a “Force Majeure Event”). Delays in performing obligations due to a Force Majeure Event shall automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event.
9.5 These Terms shall be governed by the laws of the State of Maryland without regard to its conflict of laws provisions. For all disputes relating to these Terms, each party submits to the exclusive jurisdiction of the state and federal courts located in Annapolis, Maryland and waives any jurisdictional, venue, or inconvenient forum objections to such courts.
9.6 Customer acknowledges that any unauthorized use of the Services may cause irreparable harm and injury to Company for which there is no adequate remedy at law. In addition to all other remedies available under these Terms, at law or in equity, Customer agrees that Company may be entitled to injunctive relief in the event Customer uses the Services in any way not expressly permitted by these Terms.
9.7 No change, alteration, modification, waiver, or addition to these Terms shall be effective unless in writing and properly executed by the parties hereto.
APPENDIX 1
HOSTED DATA OBLIGATIONS
Hosted Data shall NOT include any of the following types of information:
END USER LICENSE AGREEMENT
1 Applicability
1.1 These software end user license terms (the "Agreement") govern the use of accompanying software and firmware (and/or the software and firmware provided to you by Link Labs, Inc. in connection with Products that you have purchased directly from Link Labs or an authorized reseller), (collectively herein, the “Software”) unless it is subject to a separate agreement between you and Link Labs. By downloading, copying, or using the Software you agree to the terms set forth herein.
2 Incorporation of Terms
2.1 This Agreement may incorporate additional terms and conditions accompanying the Software or referenced by Link Labs at: https://www.link-labs.com/3rd-party-terms. The Software may also be subject to additional license terms dictated by third party licensors and/or in connection with the incorporation of open source software into the Software.
3 Authorization
3.1 If you agree to this Agreement on behalf of another person or entity, you warrant you have authority to do so.
4 Consumer Rights
4.1 If you obtained software as a consumer, nothing in this Agreement affects your statutory rights.
5 Electronic Delivery
5.1 Link Labs may elect to deliver Software and related Software product or license information by electronic transmission or download.
6 License Grant
6.1 For so long as you comply with the terms in this Agreement, Link Labs grants you a non-exclusive, non-transferable license to use the Software for your internal purposes only.
7 Restrictions on Usage
7.1 Your use of the Software is subject to the following restrictions:
(a) You may not use the Software to provide services to third parties unless specifically authorized by Link Labs.
(b) You may not make copies and distribute, resell or sublicense the Software to third parties.
(c) You may not download and use patches, enhancements, bug fixes, or similar updates unless you have a license to the underlying Software. However, such license doesn't automatically give you a right to receive such updates and Link Labs reserves the right to make such updates only available to customers with support contracts.
(d) You may not copy the Software or make it available on a public or external distributed network.
(e) You may not allow access to the Software on any internal network unless it is restricted to authorized users of the Software.
(f) You may make one copy of the Software for archival purposes or when it is an essential step in authorized use.
(g) You may not modify, reverse engineer, disassemble, decrypt, decompile or make derivative works of the Software.
8 Remote Monitoring
8.1 Some Software may require keys or other technical protection measures and Link Labs may monitor your compliance with the Agreement, remotely or otherwise.
9 Ownership
9.1 No transfer of ownership of any intellectual property will occur under this Agreement.
10 Copyright Notices
10.1 You must reproduce copyright notices on the Software and documentation to the extent that you make any authorized copies.
11 Applicable Environments
11.1 The Software may only be used on Link Labs approved hardware and in connection with approved configurations of the same.
12 Limited Warranty for Software
12.1 The Software materially conforms to its specifications, if any, and is free of malware at the time of delivery; if you notify Link Labs (or your authorized reseller, as applicable) within ninety (90) days of delivery of non-conformance to this warranty, Link Labs will replace your copy. This Agreement states all remedies for warranty claims. Link Labs does not warrant that the operation of Software will be uninterrupted or error free, or that Software will operate in hardware and software combinations other than as authorized by Link Labs. To the extent permitted by law, Link Labs disclaims all other warranties, express and implied.
13 Limitation of Liability
13.1 Link Labs’ liability to you under this Agreement is limited to the amount actually paid by you to Link Labs (or to its authorized reseller, as applicable) for the relevant Software. Neither you nor Link Labs will be liable for lost revenues or profits, downtime costs, loss or damage to data or indirect, special or consequential costs or damages. This provision does not limit either party's liability for any liability that may not be excluded or limited by applicable law.
14 Termination
14.1 This Agreement is effective until terminated or in the case of a limited-term license, upon expiration; however, your rights under this Agreement terminate if you fail to comply with it.
15 General
15.1 Assignment. You may not assign this Agreement without prior written consent of Link Labs. Unauthorized assignments will terminate the license to the Software provided hereunder. You may only transfer firmware if you transfer associated hardware.
15.2 U.S. Government. If the software is licensed to you for use in the performance of a U.S. Government prime contract or subcontract, you agree that, consistent with FAR 12.211 and 12.212, commercial computer software, computer software documentation and technical data for commercial items are licensed under Link Labs' standard commercial license.
15.3 Export. You agree to comply with the trade-related laws and regulations of the U.S. and other national governments. If you export, import or otherwise transfer products provided under this Agreement, you will be responsible for obtaining any required export or import authorizations.
15.4 Open Source. To the extent the Software includes components subject to open source licenses, such licenses shall control over this Agreement with respect to the particular open source component. Current open source licenses included in Link Labs Software can be found at: https://www.link-labs.com/open-source-software.
15.5 Governing Law. This Agreement will be governed by the laws of the state of Maryland, excluding rules as to choice and conflict of law. You and Link Labs agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.
15.6 Force Majeure. Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.
15.7 Entire Agreement. This Agreement represents our entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist. Modifications to the Agreement will be made only through a written amendment signed by both parties.