IMPORTANT – PLEASE REVIEW CAREFULLY THE TERMS OF THIS END USER LICENSE AGREEMENT. BY CREATING AN ACCOUNT AND ACCESSING THE SERVICES AND SOFTWARE, CUSTOMER ACCEPTS AND AGREES TO THESE TERMS AND CONDITIONS.
This End User License Agreement (“Agreement”) between Lockwell, Inc., a Delaware corporation (“Lockwell”), and the organization and/or individual, (“Customer”), is effective on the date set forth in the referencing Order Form. Customer’s use, and Lockwell’s provision, of the Software or Other Offerings (defined hereinafter) is governed by the terms and conditions of this Agreement.
In the event of a conflict between the terms of this Agreement, and/or any applicable Order Form, the order of precedence shall be: (i) this Agreement, then (ii) the applicable Order Form, unless such Order Form expressly states otherwise or clearly intends to override the related provision in this Agreement.
DEFINITIONS
“Affiliate(s)” means, with respect to any entity, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, such entity or one or more of the other affiliates of that entity (or a combination thereof), as of the Effective Date or thereafter; provided, however, such entity shall be considered an Affiliate only for the time during which such control exists. Solely for the purposes of this definition, an entity shall “control” another entity if the first entity: (a) owns, beneficially or of record, more than fifty percent (50%) of the voting securities of the other entity, or (b) has the ability to elect a majority of the directors of the other entity. Each Party shall at all times be primarily responsible for the acts or omissions of its Affiliates.
“Customer Data” means all graphic user interface, text, content, images, video, designs, products, computer programs, drawings, documentation, and other materials of any kind posted, submitted, provided or otherwise made available to Lockwell by Customer in connection with the Software and Other Offerings.
“Documentation” means the documents, help files, and other textual matter, in any form or media, that are included with the Software and describe its specifications, functionality, and limitations.
“Effective Date” means the earlier of the following: (i) acceptance of this Agreement, (ii) the effective date of the first Order Form, or (iii) the date the Software is first made available to Customer.
“Fee(s)” means the fee(s) charged by Lockwell for each Software or Other Offering based on the number of devices in which Customer installs the Software.
“On-Premise” means on computers owned or managed by Customer.
“Order Form” means an ordering document executed by Customer and Lockwell, or on Lockwell’s standard order form, referencing this Agreement and calling for provision of one or more Software or Other Offerings.
“Personnel” means individual employees, contractors, and agents of Customer or its entity.
“Software” means the applicable Lockwell On-Premise software purchased by Customer, whether or not in an Order Form.
“Other Offering(s)” means: (a) Software and Documentation, in each case whether provided as or with On-Premise Software, (b) deliverables provided through Professional Services (as defined herein); or (c) the professional and support services (if any).
“Subscription” means the purchase by Customer of an On-Premise Software.
ACCESS AND USE
License. For On-Premise Software that is licensed to Customer on a Subscription basis, subject to the terms and conditions of this Agreement and Customer’s payment of all applicable Fees, Lockwell hereby grants to Customer a limited, non-exclusive, non-transferable, non-assignable, revocable, right and license to install and use the Software solely for internal commercial or business use (the “Permitted Use”), in accordance with the terms and conditions of this Agreement and as applicable and as specified on each Order Form, and limited to the number of deployed devices and, in all cases, to use the Documentation provided in connection with such Software solely for the purpose specified in Section 2.3 below.
Restrictions. All rights to Software or Other Offerings not expressly granted under this Agreement are hereby reserved to Lockwell, and no rights are granted by implication or otherwise. Without limiting the generality of the foregoing, Customer shall not (and Customer shall also ensure that Customer’s Personnel and Affiliates shall not):
modify, create derivative works from, distribute, publicly display, publicly perform, or sublicense any Software or Other Offering, including without limitation through any loan, encumbrance, or lease;
use the Software and/or Other Offerings for any purpose other than as provided in this Agreement;
attempt in any way to: a) tamper with the underlying code of the Software or b) reverse engineer, decompile, decrypt, disassemble, or otherwise reduce the Software to human-readable form;
remove any proprietary notices, labels, or marks on or in any copy or version of the Software or Documentation;
claim any rights in the Software other than its right to use the Software;
export or use the Software for any illegal activity, in violation of US or other applicable laws and regulations, or that may damage or hamper the reputation and/or goodwill of Lockwell;
intentionally interfere or disrupt Lockwell servers or networks, or disobey any network access or security requirements, policies, procedures or regulations of Lockwell;
create programs competing with, materially similar or identical to the Software based on the use or reference to Lockwell’s Confidential Information disclosed under this Agreement; or
use any Software or Other Offering to gain unauthorized access to computer systems or devices.
Documentation. Customer may access and use the Documentation solely in connection with the Permitted Use and to support use of the Software or Other Offerings as expressly authorized in this Agreement. Customer may reproduce all Documentation for its internal use only pursuant to this Agreement and incorporate it, in whole or in part, into its own training materials relating to the Permitted Use provided such is removed in the event Documentation is returned.
Client Obligations.
Customer is responsible for obtaining Internet access or other services necessary to use the Software and Other Offerings. Lockwell shall have no responsibility for any Customer-procured third-party software or hardware nor for any errors caused thereby.
Customer is responsible for the downloading and implementation of the Software on its own devices.
Customer will be responsible for maintaining and updating its list of users. Customer will promptly inform Lockwell of any changes in users which would necessitate the need for Lockwell to disable such user’s access to the Services.
Customer will use reasonable measures to prevent unauthorized access to or use of the Software or Other Offerings and notify Lockwell promptly upon Customer becoming aware of any such unauthorized access or use.
Customer will use the Software and Other Offerings only in accordance with the Documentation and applicable laws and government regulations
General. For clarification, Customer’s Affiliates and Personnel may access and use the Software subject to such Affiliates’ or Personnel’s strict adherence to and compliance with the terms and conditions of this Agreement. Customer shall be solely responsible for any breach of this Agreement by any of Customer’s Personnel or Affiliates and will ensure that it has the necessary agreements in place to ensure all Affiliates and Personnel comply with the obligations herein. Customer is solely responsible and liable for (1) preserving the secrecy of its usernames and passwords, and (2) any and all activity that occurs under Customer’s, or its Personnel’s, account. Lockwell’s Software and Other Offerings may include integrations with third-party products and services. Lockwell is not responsible for the functionality or availability of these third-party integrations, and Customer’s use of them is at Customer’s own risk. Customer acknowledges and agrees that any issues or disputes arising from the use of third-party integrations are solely between Customer and the applicable third-party provider.
OTHER OFFERINGS.
Support Services. Lockwell may provide support services as a part of the Software. If provided, support services shall begin on the date that, as applicable, Lockwell (i) delivers the Software to Customer, or (ii) makes the Software available for download by Customer. Lockwell strives to respond to support requests within a reasonable timeframe, but Lockwell does not make any guarantees regarding response times or service levels.
Professional Services.
Lockwell shall provide such professional services that Lockwell has agreed to provide or makes available to Customer (“Professional Services”) or as may be specified in an Order Form. The professional services performed shall be of professional quality and consistent with generally accepted industry standards for services of a similar nature.
Customer will reasonably cooperate and use good faith efforts with Lockwell to facilitate the performance of the Professional Services.
Each party will retain all rights, title and interest in their Pre-Existing Works. Except as explicitly set forth herein, each party reserves all intellectual property rights not expressly granted to the other party, and no right, title or interest in a party’s Pre-Existing Works are transferred to the other party. To the extent applicable, Customer hereby grants Lockwell a non-transferable, non-exclusive, world-wide and royalty free license to use Customer’s Pre-Existing Works necessary to provide the Professional Services. To the extent Lockwell Pre-Existing Works are incorporated into the Professional Services, such Lockwell Pre-Existing Works are provided to Customer in a non-transferable, non-exclusive, world-wide and royalty free license to use solely for Customer’s internal business purposes subject to the Agreement, and expressly conditioned on Customer’s compliance with the terms of the Agreement. “Pre-Existing Work” means all rights, title and interest in and to a party’s technology, materials, or data, and Confidential Information, including all intellectual property rights imbued to a party as of the Effective Date.
WITH REGARD TO PROFESSIONAL SERVICES, LOCKWELL DOES NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LOCKWELL SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
INTELLECTUAL PROPERTY.
OWNERSHIP IN GENERAL. The Software offered pursuant to this Agreement, and all copies thereof, are licensed (or otherwise made available and accessible as the case may be), not sold, and Customer receives no title to or ownership of the Software itself or any copies thereof. Lockwell retains exclusive ownership of the Software or Other Offerings, including any media on which they are provided to Customer. Customer receives no intellectual property license: (a) to any Software or Documentation; or (b) to any other Software or Other Offering. Customer shall not (i) make any assertion contrary to the preceding sentence, (ii) jeopardize Lockwell's proprietary rights in the Software or Other Offerings, or (iii) attempt to acquire any rights to the Software or Other Offerings, other than the limited rights which are expressly provided by Lockwell in this Agreement. Customer hereby acknowledges that the Software and Documentation are works copyrighted under United States federal copyright law and protected by other intellectual property rights and embody valuable confidential and secret information of Lockwell and its third-party licensors. Lockwell shall own all rights in any copy, translation, modification, adaptation, or derivation of the Software or Other Offerings or other items of Lockwell’s Confidential Information, including any improvement or development thereof, and Customer shall, and hereby agrees to, execute such assignment documents as Lockwell reasonably requests to perfect, confirm, or transfer all such ownership rights.
CUSTOMER DATA. Lockwell acknowledges that Customer owns all right, title, and interest, including all intellectual property rights, in and to Customer Data. Customer hereby grants to Lockwell a non-exclusive, royalty-free, worldwide license to transmit and store Customer Data and perform all acts with respect to Customer Data as may be necessary for Lockwell to provide the Software or Other Offerings to Customer. Lockwell shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the provision of Software and Other Offerings, and maintaining and supporting the Software and Other Offerings. Notwithstanding the foregoing, Lockwell may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Lockwell shall give Customer prompt notice of any such legal or governmental demand and reasonably cooperate with Customer in any effort to seek a protective order or otherwise to contest such required disclosure, at Customer’s expense, unless such action or notice is prohibited by applicable law or by proper legal or governmental authority. In any event, Lockwell will not use Customer Data or derive information from it for any advertising or other marketing purposes without Customer’s express written consent. Lockwell will host, utilizing a third party hosting provider, Customer Data at the hosting location selected by Customer from the available hosting locations.
FEES AND PAYMENTS; AUTO-RENEWAL.
Fees. Customer shall pay all fees associated with the Software and Other Offerings, including support services or Professional Services, in accordance with Lockwell’s then current rates, including such reasonable extra fees as Lockwell may charge for credit card payments. Fees and rates shall be based on the number of users and/or devices the Software is downloaded onto by Customer or its Personnel. Lockwell reserves the right to increase the fees and rates in their sole discretion at any time. Lockwell will notify Customer if the rates or fees increases before the next billing cycle is processed.
Subscription. The price for a Subscription will be displayed on the landing page when registering for an account. The total cost charged to Customer’s payment method for each Subscription will be the cost on the billing date for Customer’s Subscription, plus any applicable sales tax and fees.
Payments. The fees for each Subscription will be charged to the payment method Customer selected at the time of signing up for a Subscription, or as may be modified by Customer from time to time. Customer agrees to pay for the Software applicable to the Subscription on the billing date using the selected payment method and Customer authorizes Lockwell, or a third-party payment processor, to charge the selected payment method for each Subscription. To avoid being charged, skip, or cancel this Agreement before the billing date as outlined below.
Refunds. PAYMENT OBLIGATIONS ARE NON-CANCELABLE, AND FEES PAID ARE NON-REFUNDABLE AND THERE ARE NO CREDITS FOR PARTIALLY USED SUBSCRIPTION PERIODS.
Third Party Payment Processor. Customer agrees to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of using the Software with Stripe, Customer agrees to provide Lockwell accurate and complete information about Customer and Customer’s business, and Customer authorizes Lockwell to share it and transaction information related to the use of the payment processing services provided by Stripe. Customer also authorize Lockwell to pass on information provided by Customer to Stripe so that Stripe may use it to protect the integrity of Customer’s account.
CUSTOMER MUST PROVIDE CURRENT, COMPLETE AND ACCURATE INFORMATION FOR CUSTOMER’S BILLING ACCOUNT. CUSTOMER MUST PROMPTLY UPDATE ALL INFORMATION TO KEEP CUSTOMER’S BILLING ACCOUNT CURRENT, COMPLETE AND ACCURATE (SUCH AS A CHANGE IN BILLING ADDRESS, CREDIT CARD NUMBER, OR CREDIT CARD EXPIRATION DATE), AND CUSTOMER MUST PROMPTLY NOTIFY LOCKWELL OR PAYMENT PROCESSOR IF CUSTOMER’S PAYMENT METHOD IS CANCELED (E.G., FOR LOSS OR THEFT) OR IF CUSTOMER BECOMES AWARE OF A POTENTIAL BREACH OF SECURITY, SUCH AS THE UNAUTHORIZED DISCLOSURE OR USE OF ANY USER NAME OR PASSWORD. CHANGES TO SUCH INFORMATION CAN BE MADE AT ACCOUNT SETTINGS, IF APPLICABLE, OR ON CUSTOMER’S STRIPE ACCOUNT SETTINGS. IF CUSTOMER FAILS TO PROVIDE ANY OF THE FOREGOING INFORMATION, CUSTOMER AGREES THAT LOCKWELL MAY CONTINUE CHARGING CUSTOMER FOR ANY USE OF THE SOFTWARE UNDER CUSTOMER’S BILLING ACCOUNT UNLESS CUSTOMER HAS TERMINATED THIS AGREEMENT AS SET FORTH HEREIN. LOCKWELL EXPRESSLY DISCLAIM ANY LIABILITY FOR ANY DAMAGE THAT MAY RESULT SHOULD ANY INFORMATION BE RELEASED TO ANY THIRD PARTIES, AND CUSTOMER AGREES TO HOLD US HARMLESS FOR ANY DAMAGES THAT MAY RESULT THEREFROM.
Withdrawals. Customer authorizes Lockwell or the third-party payment processor to initiate electronic withdrawals from the designated checking or savings accounts at Customer’s identified financial institution for the Fees or other authorized charges. This authorization will remain effective until this Agreement is terminated, allowing reasonable time for Company and the financial institution to act on Customer’s request.
Auto-Renewal. Customer agrees that at the end of each billing cycle, the Subscription will automatically renew and the payment method for such Subscription will automatically be charged at the start of each new Subscription period for the fees and taxes applicable to that billing cycle, under the same conditions as the prior billing cycle unless Customer terminated this Agreement prior to the renewal date.
TERM.
Term. This Agreement is effective on the Effective Date and continues until terminated as provided herein (the “Term”). No Subscription, term for Other Offerings, or other rights to any Lockwell’s product or services, will continue after any termination of this Agreement. In addition, any license for the Software shall also terminate upon any termination of this Agreement.
Termination for Convenience. Either party may terminate this Agreement at any times with or without cause. Customer may terminate by accessing Customer’s Account settings or contacting Lockwell’s support team. Lockwell may terminate at any time upon prior notice to Customer.
Effects of Termination. Upon termination of this Agreement, Customer shall immediately cease all use of all Software which is subject to such termination and any related Documentation and, within five (5) days of the effective date of such termination, return to Lockwell all such Software and Documentation, or if Lockwell so requests, destroy the same and certify the manner, date, and time of destruction in writing. In the event of any such termination, Customer remains responsible for the payment of any Fees and other amounts incurred as of the effective date of such termination. All Documentation and other materials provided to, or created for, Customer shall no longer be accessible by Customer and may be deleted in its entirety by Lockwell immediately as of the effective date of termination.
REPRESENTATIONS AND WARRANTIES.
Representations and Warranties. Lockwell represents and warrants that the Software and Other Offerings shall materially conform to any Documentation. To submit a warranty claim under this Section, Customer shall submit a support request to resolve the non-conformity. If the non-conformity persists without relief more than thirty (30) days after written notice of a warranty claim provided to Lockwell under this Section, then Customer may terminate the affected Software. THIS SECTION SETS FORTH CUSTOMER’S EXCLUSIVE RIGHTS AND REMEDIES (AND LOCKWELL’S SOLE LIABILITY) IN CONNECTION WITH THIS WARRANTY.
Disclaimer. LOCKWELL HEREBY EXPRESSLY AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT IN ANY WAY LIMITING THE GENERALITY OF THE FOREGOING, LOCKWELL DOES NOT WARRANT OR REPRESENT THAT: (a) THE OPERATION OF THE SOFTWARE OR OTHER OFFERINGS WILL BE REASONABLY UNINTERRUPTED OR ERROR-FREE; (b) THAT THE SOFTWARE OR OTHER OFFERINGS WILL OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR SERVICE; OR (c) THAT THE SOFTWARE OR OTHER OFFERINGS ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION. SOFTWARE AND OTHER OFFERINGS ARE PROVIDED “AS IS,” AND LOCKWELL MAKES NO PROMISES, REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESSED OR IMPLIED, REGARDING THE SOFTWARE OR OTHER OFFERINGS. CUSTOMER HEREBY ACKNOWLEDGES THAT THE RECORDING FEATURES OF CERTAIN SOFTWARE MAY SUBJECT CUSTOMER TO LAWS AND/OR REGULATIONS REGARDING THE RECORDING OF COMMUNICATIONS, AND CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH SUCH LAWS AND/OR REGULATIONS.
ARTIFICIAL INTELLIGENCE.
Usage. Lockwell may use generative artificial intelligence software and technologies (collectively, “AI Technology”) to develop and provide content.
WHILE LOCKWELL WILL USE COMMERCIALLY REASONABLE EFFORTS TO REVIEW AI TECHNOLOGY GENERATED CONTENT FOR ACCURACY, CUSTOMER ACKNOWLEDGES THAT CONTENT CREATED BY SUCH AI TECHNOLOGY MAY NOT BE ACCURATE OR UP TO DATE. CUSTOMER ACKNOWLEDGES THAT THE AI TECHNOLOGY IS NOT DESIGNED OR INTENDED TO MEET CUSTOMER’S NEEDS, EXPECTATIONS, OR LEGAL, REGULATORY, OR COMPLIANCE OBLIGATIONS. CONTENT CREATED BY AI TECHNOLOGY MAY NOT BE CONSIDERED PROPRIETARY UNDER APPLICABLE INTELLECTUAL PROPERTY LAW.
INDEMNIFICATION.
Lockwell. Lockwell shall indemnify, defend, and hold harmless, at its own expense any third party action, claim, suit or proceeding against Customer to the extent based on a claim or allegation that: (i) the Software or Other Offerings, as made available to Customer by Lockwell and used in accordance with the terms and conditions of this Agreement, actually or allegedly infringes a United States registered patent, copyright or trademark, and Lockwell shall pay the costs and damages finally awarded against Customer that are specifically attributable to such claim or those costs and damages agreed to by Lockwell in a monetary settlement of such action. Notwithstanding the foregoing, Lockwell has no responsibility pursuant to the preceding sentence for any claim, and Customer shall indemnify, defend, and hold harmless, at its own expense any third party action, claim, suit or proceeding against Lockwell, its officers, employees, agents, or Affiliates, to the extent arising out of or related to: (a) any modification to a Software or Other Offering not made by Lockwell; (b) compliance with Customer’s designs, specifications, or instructions; (c) any combination or use of the applicable Software or Other Offering with or in any third party software, hardware, process, firmware, or data, to the extent that such claim is based on such combination or use and not authorized by Lockwell; (d) Customer failure to use the Software or Other Offerings in accordance with the applicable Documentation and/or outside the scope of the rights granted under this Agreement; (e) Customer’s continued use of the allegedly infringing Software or Other Offering after being notified of the alleged infringement claim or after being provided a modified version of the Software or Other Offering by Lockwell at no additional cost that is intended to address such alleged infringement; (f) or Customer’s material breach of this Agreement.
IP. If any Software becomes or, in Lockwell’s opinion, is likely to become the subject of an injunction preventing its use as contemplated herein, Lockwell may, at its option: (a) procure for Customer the right to continue using such Software; (b) replace or modify such Software so that it becomes non-infringing without substantially compromising its functionality; or if (a) and (b) are not commercially practical in Lockwell’s reasonable opinion, (c) terminate Customer’s rights to the allegedly infringing Software. In case of termination pursuant to this Section, Lockwell shall refund: (i) the license Fees paid by Customer for the allegedly infringing Software, less depreciation at the rate of 1/3 of such license Fees per year, or, if licensed at the time by Customer for less than one (1) year, a pro rata portion of the license Fees for that part of the year from the date of payment by Customer to the date of termination of the perpetual license for such allegedly infringing Software; or (ii) the prepaid and unused pro-rata portion of the Fees for the Subscription for the allegedly infringing Software. If Lockwell selects the option 8.2(b) or 8.2(c) herein, Customer shall immediately cease use of the allegedly infringing Software. THIS SECTIONS SETS FORTH LOCKWELL’S ENTIRE OBLIGATION AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ALLEGED OR ACTUAL INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION BY SOFTWARE OR OTHER OFFERINGS.
Customer. Customer shall defend and indemnify Lockwell against any claim made or brought against Lockwell by a third party arising from Customer’s provision, monitoring or collection of Customer Data in violation of applicable laws or third party rights.
Procedure. The indemnified party shall provide the indemnifying party with prompt notice of any claim for which indemnification shall be sought hereunder and shall cooperate in all reasonable respects with the indemnifying party in connection with any such claim, at the indemnifying party’s expense. The indemnifying party shall be entitled to control the handling of any such claim and to defend or settle any such claim, in its sole discretion, with counsel of its own choosing.
CONFIDENTIALITY.
Disclosure of Confidential Information. The parties acknowledge that, in the course of performance of this Agreement, one party (the “Disclosing Party”) may find it necessary to disclose or permit access to its Confidential Information to the other party (the “Receiving Party”). The Disclosing Party's disclosure of, or provision of access to, its Confidential Information to the Receiving Party is solely in furtherance of this Agreement.
Confidential Treatment. The Receiving Party shall (a) only use the Confidential Information for the purpose of performing its obligations under this Agreement; (b) hold the Confidential Information in confidence and secure, protect and maintain the confidentiality of the Confidential Information, using the same degree of care as it uses to protect its own information of like nature, but in no circumstances less than reasonable care; and (c) not disclose the Confidential Information to others except as expressly permitted under this Agreement or as expressly authorized in writing by the Disclosing Party.
Permitted Disclosure. Notwithstanding anything to the contrary in this Section titled “Confidentiality,” the Receiving Party may disclose the Confidential Information: (a) to its or its Affiliates’ employees, agents, and consultants who require it on a need-to-know basis in connection with their duties in performing the Receiving Party’s obligations under this Agreement and; (b) to the Receiving Party’s auditors, outside counsel, accountants and other similar business advisors; in each case, who are contractually or legally obligated to hold such Confidential Information in confidence and restrict its use consistent with the Receiving Party’s obligations under this Agreement, provided that, in each case, the Receiving Party shall remain responsible for all acts and omissions of such persons regarding the Confidential Information.
Compelled Disclosure. To the extent the Receiving Party is required to disclose Confidential Information under Law or pursuant to a duly authorized subpoena, court order or government authority (collectively, “Legal Process”), the Receiving Party shall (a) unless prohibited by Legal Process, provide the Disclosing Party with advance notice of such disclosure requirement or obligation and permit Disclosing Party to seek a protective order or other appropriate remedy protecting its Confidential Information from disclosure; and (b) limit the release of the Confidential Information to the greatest extent possible under the circumstances.
Exceptions. Obligations under this Section titled “Confidentiality” shall not apply to information which: (a) was in the public domain or generally available to the public prior to receipt thereof by the Receiving Party from the Disclosing Party, or which subsequently becomes part of the public domain or generally available to the public before any wrongful act of the Receiving Party; (b) was in the possession of the Receiving Party without breach of any obligation hereunder to the Disclosing Party prior to receipt from the Disclosing Party or on behalf of the Disclosing Party; (c) is later received by the Receiving Party from a third party, unless the Receiving Party knows or has reason to know of an obligation of secrecy of the third party to the Disclosing Party with respect to such information; or (d) is developed by the Receiving Party independent of the Confidential Information received from the Disclosing Party.
Remedies. If the Receiving Party has disclosed, or is threatening to disclose, any Confidential Information in breach of this Agreement, the Disclosing Party is entitled to seek an injunction or other equitable relief to prevent the Receiving Party from disclosing Confidential Information. The Disclosing Party is not prohibited by this provision from pursuing other remedies, including a claim for losses or damages.
LIMITATION OF LIABILITY.
Exclusions. NEITHER PARTY WILL HAVE LIABILITY FOR ANY LOSS OF DATA, LOSS OF PROFITS, OR INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, RESULTING FROM OR RELATED TO THIS AGREEMENT, ORDER FORM, OR THE SOFTWARE OR OTHER OFFERINGS.
Liability Cap. NEITHER PARTY’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING OUT OF, RESULTING FROM OR RELATED TO THIS AGREEMENT, ORDER FORM, OR THE SOFTWARE OR OTHER OFFERINGS WILL EXCEED THE FEES PAID AND PAYABLE BY CUSTOMER FOR THE APPLICABLE SOFTWARE OR OTHER OFFERING GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
COMPLIANCE.
Usage. Customer acknowledges and agrees that Lockwell may verify Customer’s compliance with this Agreement through verification procedures, including without limitation by gathering product utilization information. Upon request, Customer shall provide Lockwell with a report detailing Customer’s installation and usage of the Software with sufficient specificity to establish Customer’s compliance (or non-compliance) with the access and use limitations set forth in the applicable Order Form or this Agreement.
Compensation. If Customer has exceeded the rights granted under this Agreement or increase the usage of the Software or downloads, Customer shall pay additional fees to Lockwell for the excess usage at Lockwell’s then-current rates. Customer acknowledges and agrees that Lockwell may sell Subscription rights to Software or Other Offerings in unit multiples, and Customer shall pay the applicable Fees for the number of units that cover at least Customer’s usage.
SECURITY. Lockwell shall: (i) have in place administrative, physical and technical measures designed to ensure the protection of the security and confidentiality of Customer Data against any accidental or illicit destruction, alteration or unauthorized access or disclosure to third parties; and (ii) have commercially reasonable measures in place designed to protect the security and confidentiality of Customer Data. Lockwell’s privacy policy can be found here: https://www.lockwell.co/privacy
GENERAL.
Independent Contractors. The parties acknowledge that each party is an independent contractor of the other party, and each party may engage in other business activities at its sole discretion. This Agreement does not in any way create or constitute a relationship of employment, partnership, or a joint venture between the parties.
Assignment. Neither party may assign or transfer any of its rights under this Agreement or delegate any of its duties or obligations under this Agreement to any third party, other than to its Affiliates, without the other party’s prior written consent, except that an assigning party may, upon written notice, so assign, transfer or delegate without the other party’s consent pursuant to a transfer of all or substantially all of the assigning party’s business and assets, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment or transfer in violation of the foregoing will be void.
Force Majeure. Each party will be excused from performance of any of its obligations under this Agreement for any period during which, and to the extent that, it is prevented from performing such obligation as a result of causes beyond its reasonable control, and without its fault or negligence, including without limitation, due to acts or omissions of government or military authority, acts of God, strikes, lockouts, riots, acts of war, epidemics, pandemics, internet or other telecommunication delays, communication line failure and power failures.
Notices. All notices given pursuant to this Agreement shall be in writing and delivered by hand, by registered or certified mail with proper postage, by third party delivery service (e.g., FedEx, UPS) or by email (with confirmation copy sent by certified mail). Notices shall be delivered to the recipient party and addressed to the signatory for such Party at the address for such Party that is set forth on the applicable Order Form, or to such other person and address as may be designated in writing by the recipient Party. All such notices will be deemed received upon the earlier of actual receipt or actual delivery to the notice address.
Amendment. This Agreement may only be amended if the amendment is made in a tangible writing and is signed by both parties.
Construction. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable but that by limiting such provision it would become valid and enforceable, then such provisions shall be deemed to be written, construed, and enforced as so limited.
Governing Law. This Agreement shall be governed by and interpreted in accordance with Laws of the State of New York, without regard to its conflict of law provisions or rules. Company and Supplier agree that all actions and proceedings arising out of or related to this Agreement shall be brought only in a state or federal court located in New York County, New York, and Company and Supplier hereby consent to such venue and to the jurisdiction of such courts over the subject matter of such proceeding and themselves.
Representations. Customer represents and acknowledges that: (a) it has read and understands this Agreement; and (b) it has had an opportunity to have its legal counsel review this Agreement. In addition, the individual accepting this Agreement on Customer’s behalf personally represents that he or she is duly authorized to accept this Agreement on behalf of Customer and that this Agreement is binding upon Customer.
Survival. These obligations which by their nature should survive termination or expiration of the Agreement shall survive termination or expiration of this Agreement.
Counterparts. This Agreement may be executed in counterparts (including via digital signature technology), each of which is deemed an original and all of which, when taken together, constitute a single instrument.
