This Software End User License Agreement ("Agreement") is a binding agreement between you ("End User" or "you") and 360Converge, Inc. ("360Converge"). This Agreement governs your use of the 360Converge Software. The 360Converge Software is licensed, not sold, to you. This License is granted because there is an existing valid and active agreement for the provision and use of the 360Converge Software between your employer and 360Converge (“360ConvergeAgreement").
BY CLICKING THE "ACCEPT" BUTTON, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NO ACCESS THE 360CONVERGE SOFTWARE.
1. LICENSE GRANT. Subject to the terms of this Agreement, 360Converge grants you a single use, limited, non-exclusive, and non-transferable license to:
2. LICENSE RESTRICTIONS. Licensee shall not:
3. RESERVATION OF RIGHTS. You acknowledge and agree that the 360Converge Software is provided under license, and not sold to you. You do not acquire any ownership interest in the 360Converge Software under this Agreement, or any other rights thereto other than to use the 360Converge Software in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. 360Converge reserves and shall retain its entire right, title and interest in and to the 360Converge Software, including all copyrights, trademarks, and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
4. TERMINATION. This License is effective until terminated. Your rights under this License will terminate automatically without notice from 360Converge if: (a) you fail to comply with any term(s) of this License, or (b) the 360Converge Agreement creating the right for this License is terminated. Termination of this Agreement will not limit any of 360Converge's rights or remedies at law or in equity.
5. UPDATES, UPGRADES AND SUPPLEMENTS. From time to time, 360Converge may, in its sole discretion develop and provide updates, which may include upgrades, bug fixes, patches other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also (i) contain materially new features not included in the 360Converge Agreement (ii) may be priced and offered separately as optional additions to the 360Converge Software and (iii) are not a part of this License unless there is a 360Converge Agreement or Addendum to an existing, valid 360Converge Agreement which covers the new or additional features.
6. THIRD-PARTY MATERIALS. The 360Converge Software may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) ("Third-Party Materials"). You acknowledge and agree that 360Converge is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. 360Converge does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.
7. DISCLAIMER OF WARRANTIES.
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE 360CONVERGE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE 360CONVERGE SOFTWARE IS PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND 360CONVERGE HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE 360CONVERGE SOFTWARE, EITHER EXPRESS, IMPLIED, STATUTORY , OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS , AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. 360CONVERGE DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE 360CONVERGE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN THE 360CONVERGE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE 360CONVERGE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS IN THE 360CONVERGE SOFTWARE WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY 360CONVERGE OR A 360CONVERGE AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE 360CONVERGE SOFTWARE PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.
8. LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL 360CONVERGEBE LIABLE FOR PERSONAL INJURY, PROPERTY DAMAGE OR AN INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE 360CONVERGE SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF 360CONVERGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATIONS OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall 360Converge's total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The forgoing limitations will apply even if the above stated remedy fails of its essential purpose.
9. INDEMNIFICATION. You agree to indemnify, defend, and hold harmless 360Converge and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, action, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney's fees, arising from or relating to your use or misuse of the 360Converge Software or your breach of this Agreement, including but not limited to the content you submit or make available through the 360Converge Software.
10. EXPORT LAW ASSURANCES. The 360Converge Software may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly use or otherwise export or reexport the 360Converge Software except as authorized by United States law and the laws of the juris diction in which the 360Converge Software was obtained. In particular, but without limitation, the 360Converge Software may not be exported or re-exported (a) into (or to a national or resident of) any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the 360Converge Software, you represent and warrant that you are not located in, under control of, or a national resident of any such country or on any such list.
11. U.S. GOVERNMENT END USERS. The 360Converge Software is a “commercial item” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R.12.212 and 48 C.F.R.227.7202-1 through 227.729204, the 360Converge Software is licensed to U.S. Government End Users only as “commercial items” and with only those rights as are granted to all other End Users pursuant to the terms and conditions of this Agreement.
12. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Any dispute, claim or controversy arising out of or relating to this Agreement or the existence, breach, termination, enforcement, interpretation or validity of the Agreement, including the determination of the scope or applicability of this agreement to arbitrate, (each, a “Dispute”) shall be referred to and finally resolved by arbitration in accordance with the rules set forth by the American Arbitration Association and held in Orlando, Orange County, Florida. The arbitral panel shall consist of three (3) arbitrators, selected as follows: each party shall appoint one (1) arbitrator; and those two (2) arbitrators shall discuss and select third arbitrator. If the two party-appointed arbitrators are unable to agree on a third arbitrator, the third arbitrator shall be selected in accordance with the applicable rules of the arbitration body. Each arbitrator shall be independent of each of the parties and shall have suitable experience and knowledge in the subject matter of the Dispute. The arbitrators shall have the authority to grant specific performance and to allocate between the parties the costs of arbitration (including service fees, arbitrator fees and all other fees related to the arbitration) in such equitable manner as the arbitrators may determine. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, either party shall have the right to institute an action in a court of proper jurisdiction for preliminary injunctive relief pending a final decision by the arbitrator, provided that a permanent injunction and damages shall only be awarded by the arbitrator. The language to be used in the arbitral proceedings shall be English.
13.SEVERABILITY. If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue if full force and effect.
14. COMPLETE AGREEMENT; GOVERNING LANGUAGE; MISCELLANEOUS. This License constitutes the entire agreement between you and 360Converge with respect to the use of the 360Converge Software licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this License will be binding unless in writing and signed by an officer of 360Converge. You agree not to use or permit use of the 360Converge Software for any purpose that may (i) menace or harass any person or cause damage or injury to any person or property, (ii) involved the publication of any material that is false, defamatory, harassing or obscene, (iii) violate privacy rights or promote bigotry, racism, hatred or harm, (iv) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters, (v) constitute an infringement of intellectual property or other proprietary rights, or (vi) otherwise violate applicable laws, ordinances or regulations. You agreed to defend and indemnify 360Converge against any claims arising out of your obligations under this provision. 360Converge may compile statistical information related to the performance of the services, and may make such information publicly available, provided that such information does not identify your confidential information or include your company’s name.