This agreement sets out the terms and conditions pursuant to which Leum Technologies, Inc. ("Provider") will provide services to your business (“Customer”).
The LinkEdge Retail Network (“LinkEdge”) consists of software applications, websites, web services, databases, and servers that allow retail and wholesale businesses to manage their purchases, sales, inventory, customers, vendors, and employees. The LinkEdge Browser App (LEBA) is a Windows application and the LinkEdge Website (LEW) is a website application that provides Point-of-Sale (POS), Inventory, Selling, Invoicing, Customer Relationship Management (CRM), Buying, Purchase Orders, and Vendor Management functionality. Throughout this document, the term “LinkEdge” will collectively refer to the software applications, websites, web services, databases, and servers necessary for Customer to create, read, update, and view their business data, including any custom software applications or websites designed specifically for Customer to access their business data.
At its sole option, Provider shall be entitled to prepare new versions of LinkEdge that Provider generally makes available to Customers (“Software Updates”). Provider exclusively shall determine whether Software Updates shall be included in LinkEdge. At any time, Provider may install any Software Updates. Provider may, from time to time, in its sole discretion, change some or all of the functionality or any component of LinkEdge or make any modification for the purpose of improving the performance, service quality, error correction or to maintain the competitiveness of LinkEdge.
Provider shall provide and Customer shall be entitled to receive technical support services for LinkEdge only. Provider shall not be required to provide technical support services to any person other than Customer and for any software other than LinkEdge. Customer receives technical assistance by calling Provider’s telephone number at 608-638-2030 or by sending an email to firstname.lastname@example.org. Support services are available to customers Monday through Friday, 8am – 5pm, with the exception of holidays.
Nothing in this Agreement shall create or vest in Customer any right, title, or interest in LinkEdge other than the limited right to use LinkEdge under the terms and conditions of this Agreement. Customer acknowledges and agrees that Provider shall retain and own all right, title and interest and all intellectual property rights (including copyrights, trade secrets, trademarks and patent rights) in and to LinkEdge, and that nothing herein transfers or conveys to Customer any ownership right, title or interest in or to LinkEdge or any license right with respect to same not expressly granted herein. Customer agrees that it will not, either during or after the termination of this Agreement, contest or challenge the ownership of the intellectual property rights in LinkEdge by Provider. This includes any source code developed by Provider specifically for Customer to meet their unique business requirements.
Subject to the provisions of this Agreement, Provider hereby grants to Customer a non-exclusive, non-sub licensable, non-transferable, revocable license (“License”) to use LinkEdge only in accordance with the applicable end user documentation related thereto, if any, during the term of this Agreement. The License allows for Customer to use the object code version of LinkEdge software applications, websites, and web services for Customer’s use only and otherwise in accordance with this Agreement.
Customer will not directly or indirectly:
A. reverse assemble, reverse engineer, decompile or otherwise attempt to derive source code or underlying ideas or algorithms from LinkEdge;
B. copy, reproduce, modify, translate, or create derivative works of LinkEdge, except for making copies of the Documentation as needed for Customer’s exclusive use;
C. sell, lease, sublicense, market, distribute, assign or otherwise transfer rights to or commercially exploit in any way LinkEdge.
D. use, or permit the use of, LinkEdge to perform information processing or any other function whatsoever for any other person, business, or entity including providing information processing for a third party in any service bureau, time sharing, lease, distribution, resale, rental, application service provider agreement or any other arrangement;
E. remove any copyright, patent, trademark, trade secret, or any other proprietary rights legends from LinkEdge;
F. disclose or grant access to the Access Code (as defined herein), LinkEdge or any component thereof to any third party other than one to whom Provider has consented in writing;
G. use LinkEdge
1. for any unlawful, unsafe, malicious or abusive purpose,
2. for interfering with others' use of LinkEdge,
3. in such a way as to defraud Provider or any third party or,
4. to create damage or risk to Provider’s business, network or facilities or to third parties.
Access and Security
To use LinkEdge, Customer must provide Provider with current, complete and accurate information as requested by Provider. Inaccurate details may result in suspension or termination of LinkEdge services. Customer will also choose a password and a user name will be assigned. Together, the user name and password constitute the “Access Code”. Customer is entirely responsible for maintaining confidentiality with regard to its Access Code. Furthermore, Customer is entirely responsible for any and all activities that occur under its account. Provider will not be held liable for any third-party claims and/or actions taken with respect to services offered.
To the extent deemed necessary by Customer, Customer shall implement security procedures necessary to limit access to LinkEdge by Customer only. Customer shall notify Provider immediately if there is a security breach or unauthorized use of LinkEdge.
Customer shall access LinkEdge by using equipment obtained by Customer, by entering the Access Code. In all cases, Customer shall assign, record, and control the use of the Access Code and will be solely responsible for any use thereof. For greater certainty, Provider will not be responsible for the use or misuse of any Access Code.
Customer is responsible for obtaining all hardware, software and services which are necessary to use the LinkEdge Software including all computers, web browsers, and services provided by an Internet service provider. All such facilities and services shall comply with Provider’s interface specifications for LinkEdge described in the Documentation or as otherwise required by Provider. In addition, Customer is responsible for paying all access charges (e.g., ISP, telecommunications) incurred while using LinkEdge.
Upon Customer’s acceptance of this Agreement, Provider will provide Customer with login access to LinkEdge for the term of the Agreement.
Term and Termination
The term of this Agreement and the License granted herein shall be for one (1) month from the Effective Date and shall automatically renew monthly, or one (1) year from the Effective Date and shall automatically renew annually, depending on which option you've chosen.
This Agreement may be terminated by either party as follows:
A. by Provider if Customer fails to make any payment when due or any interest thereon to Provider, or immediately, without notice or liability to Provider, in the event of a breach by Customer of any of Customer’s obligations under this Agreement.
B. by either party, providing the other party with thirty (30) days advance written notice of its intent to terminate;
C. in the event the other party materially breaches any of its duties, obligations or responsibilities under this Agreement, and fails to cure such breach or provide the other party with an acceptable plan for curing such breach within thirty (30) days after receipt by the breaching party of written notice specifying the breach; or in the event (i) a receiver, trustee, administrator, or administrative receiver is appointed for the other party or its property; (ii) the other party makes an assignment for the benefit of creditors; (iii) any proceedings should be commenced against the other party under any bankruptcy, insolvency, or debtor’s relief law, and such proceedings shall not be vacated or set aside within thirty (30) days from the date of commencement thereof; or (iv) The other party is liquidated or dissolved.
Upon the termination of this Agreement:
A. Customer shall immediately and permanently cease to use LinkEdge.
B. Provider shall be entitled to immediately cease providing LinkEdge to the Customer.
C. The License granted will automatically terminate.
D. Customer shall pay Provider any and all remaining amounts due under this Agreement as of the date of termination, as indicated within the Fees and Payments section of this Agreement;
E. If Agreement is terminated due to a material breach by Provider, then Provider shall refund to Customer any advance payments for Services not yet provided.
Fees and Payments
Customer agrees to pay Provider initial and ongoing fees to use LinkEdge, as outlined and agreed upon within the Sales Agreement, which was provided separately to Customer.
Fees are exclusive of all taxes and Customer shall pay (and Provider shall have no liability for), any taxes, tariffs, duties and other charges or assessments imposed or levied by any government or governmental agency in connection with this Agreement, including, without limitation, any federal, provincial, state and local sales, use, goods and services, value-added and personal property taxes on any payments due Provider in connection with Services provided hereunder.
If Customer defaults in payment of any amount when due or any interest thereon, then Provider may, in addition to any other rights or remedies at law or under this Agreement, and in its sole discretion, (i) suspend or deny Customer’s access to or use of Services or the performance of any of its obligations under this Agreement until such failure is remedied, subject to such conditions as Provider may require; and/or (ii) terminate this Agreement.
If payment will be made by credit card, Customer’s card issuer agreement governs Customer’s use of his or her designated card, and Customer must refer to that agreement and not this Agreement to determine Customer’s rights and liabilities as a cardholder. CUSTOMER, AND NOT PROVIDER, IS RESPONSIBLE FOR PAYING ANY UNAUTHORIZED AMOUNTS BILLED TO CUSTOMER’S CREDIT CARD BY A THIRD PARTY. Customer agrees to pay all fees and charges incurred in connection with Customer’s purchases (including any applicable taxes) at the rates in effect when the charges were incurred. Unless Customer notifies Provider of any discrepancies within sixty (60) days after they first appear on Customer’s credit card statement, Customer agrees that such charges shall be deemed accepted by Customer for all purposes. If Provider does not receive payment from Customer’s credit card issuer or its agent, Customer agrees to pay all amounts due upon demand by Provider. Customer is responsible for paying any governmental taxes imposed on Customer’s purchases, including, but not limited to, sales, use or value-added taxes.
Customer authorizes Provider to charge Customer’s credit card or initiate ACH debits from Customer’s bank account, depending on the payment method chosen by Customer, as may be required for Customer to pay Provider all amounts that may be due to Provider under this Agreement. All sales are final and all charges from those sales are non-refundable.
Customer Data and Privacy
Provider acknowledges that all Customer data, including data transmitted by Customer to Provider for processing, and Customer systems used by Customer to access LinkEdge shall be and remain the property of Customer. Provider will not be responsible or liable for any loss or damage to Customer’s Data or any inconvenience suffered by Customer or by any third person arising out of the use of LinkEdge by Customer.
It is Provider’s policy to respect Customer’s privacy. Provider will not monitor, edit, or disclose any personal information about Customer or Customer’s account, including its contents, without Customer’s prior permission, with the following exceptions:
1. The Customer has linked to another LinkEdge Customer. By doing so, both businesses agree to share data with each other.
2. Provider has a good faith belief that such action is necessary to:
A. conform to legal requirements or comply with legal process;
B. protect and defend the rights or property of Provider;
C. enforce this Agreement or protect Provider 's business or reputation, including upon termination, cancellation or suspension of this Agreement by Provider;
D. respond to request for identification in connection with claim of copyright or trademark infringement by Customer or a claim by a third party that Customer is using the Service in connection with an infringing, illegal or improper activity; or
E. act to protect the interests of Customer or others.
Customer agrees that Provider may access its account, including its contents, as stated above or to respond to service or technical issues.
CUSTOMER HEREBY GRANTS PROVIDER THE RIGHT TO SEND CUSTOMER COMMUNICATIONS VIA EMAIL OF ANY UPDATES, UPGRADES, NOTICES, OR OTHER INFORMATION RELATING TO THE SERVICE THAT PROVIDER DEEMS IMPORTANT FOR CUSTOMER TO KNOW.
Electronic Commerce Laws
The Customer agrees that the Customer is solely responsible for complying with any laws, taxes, and tariffs applicable in any way to LinkEdge or any other services contemplated herein, and will hold harmless, protect, and defend Provider and its subcontractors from any claim, suit, penalty, tax, fine, penalty, or tariff arising from the Customer's exercise of Internet electronic commerce and/or any failure to comply with any such laws, taxes, and tariffs.
For any failure of Provider to provide LinkEdge as required herein (a “Deficiency”), Customer's sole and exclusive remedies and Provider's entire obligations to Customer shall be, at Provider’s election, for Provider to provide the Services that are the subject of the Deficiency or refund to Customer the fees paid to Provider for LinkEdge during the period of Deficiency.
The remedies in this section are Customer’s sole and exclusive remedy for any breach or alleged breach of any warranty to Customer and are expressly in lieu of any or all other remedies which may be available to Customer resulting from the furnishing, the failure to furnish or the quality of any Service. Provider does not warrant the accuracy of any data or information furnished to Customer that is created from Customer Data, Customer systems or software supplied by Customer.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, Provider EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, PERFORMANCE, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USE OF TRADE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE LICENSORS AND SUPPLIERS OF Provider MAKE NO DIRECT WARRANTY OF ANY KIND TO CUSTOMER UNDER THIS AGREEMENT.
Provider DOES NOT REPRESENT OR WARRANT THAT:
1. THE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS;
2. THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT THE RESULTS OBTAINED FROM THEIR USE WILL BE ACCURATE OR RELIABLE; OR
3. ALL DEFICIENCIES IN THE SERVICES CAN BE FOUND OR CORRECTED. FURTHER, THE SERVICE MAY BE INTERRUPTED OR UNAVAILABLE FOR THE PURPOSES OF PERFORMING MAINTENANCE OR UPGRADES. Provider WILL NOT BE RESPONSIBLE FOR:
A. SERVICE IMPAIRMENTS CAUSED BY ACTS WITHIN THE CONTROL OF CUSTOMER OR ANY USER;
B. INTEROPERABILITY OF SPECIFIC CUSTOMER APPLICATIONS OR EQUIPMENT;
C. INABILITY OF CUSTOMER TO ACCESS OR INTERACT WITH ANY OTHER SERVICE Provider THROUGH THE INTERNET, OTHER NETWORKS OR USERS THAT COMPRISE THE INTERNET OR THE INFORMATIONAL OR COMPUTING RESOURCES AVAILABLE THROUGH THE INTERNET;
D. INTERACTION WITH OTHER SERVICE PROVIDERS, NETWORKS, USERS OR INFORMATIONAL OR COMPUTING RESOURCES THROUGH THE INTERNET;
E. SERVICE PROVIDED BY OTHER SERVICE PROVIDERS; OR
F. PERFORMANCE IMPAIRMENTS CAUSED ELSEWHERE ON THE INTERNET.
Limitation of Liability
FOR ANY BREACH OR DEFAULT BY PROVIDER OF ANY OF THE PROVISIONS OF THIS AGREEMENT, OR WITH RESPECT TO ANY CLAIM ARISING HEREFROM OR RELATED HERETO, PROVIDER’S ENTIRE LIABILITY SHALL IN NO EVENT EXCEED THE LESSER OF THE FOLLOWING:
1. THE FEES PAID TO PROVIDER BY CUSTOMER PURSUANT TO THIS AGREEMENT IN THE CALENDAR YEAR IN RESPECT OF WHICH THE CAUSE OF ACTION FIRST AROSE EVEN IF THE CAUSE OF ACTION IS A CONTINUING ONE, OR
2. IN THE AGGREGATE WITH RESPECT TO ALL CLAIMS MADE UNDER OR RELATED TO THIS AGREEMENT, THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT.
IN NO EVENT WILL PROVIDER BE LIABLE FOR DIRECT, SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE, LOST BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF DATA, LOSS OF COVER, DAMAGES FOR DELAY, PUNITIVE OR EXEMPLARY DAMAGES, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS OR ANY CLAIM AGAINST CUSTOMER BY ANY OTHER PERSON, EVEN IF Provider HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES.
PROVIDER SHALL NOT BE LIABLE FOR UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS OR DESTRUCTION OF ANY DATA, EQUIPMENT OR THE SERVICES, INCLUDING THROUGH ACCIDENT, FRAUDULENT MEANS OR DEVICES, OR ANY OTHER METHOD.
PROVIDER SHALL BE LIABLE TO CUSTOMER ONLY AS EXPRESSLY PROVIDED IN THIS AGREEMENT BUT SHALL HAVE NO OTHER OBLIGATION, DUTY, OR LIABILITY WHATSOEVER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE TO CUSTOMER. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND, OR ACTION BY CUSTOMER, INCLUDING BREACH OF CONTRACT, NEGLIGENCE, TORT, OR ANY OTHER LEGAL THEORY AND SHALL SURVIVE A FUNDAMENTAL BREACH OR BREACHES OR THE FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR OF ANY REMEDY CONTAINED HEREIN. SOME STATES AND JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE ADDITIONAL RIGHTS NOT STATED IN THIS DOCUMENT.
Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement.
Neither party may bring an action, regardless of form, arising out of or related to this Agreement (other than to recover fees or expenses due to Provider) more than one year after the cause of action has arisen or the date of discovery of such cause, whichever is later.
Customer agrees to indemnify and hold Provider, its affiliates, employees, officers, directors and shareholders harmless from and against any claims, suits, actions or proceedings (“Claims”) brought and damages, costs (including attorney’s fees) or judgments awarded against Provider that arise from or in connection with:
1. claims by any person or entity to the extent that such Claims are based upon or arise out of Customer’s use of the Services or Customer’s actions;
2. breach by Customer of this Agreement; or
3. Customer’s failure to comply with all applicable laws. Provider shall give Customer prompt written notice of such Claims, permit Customer to defend (with counsel reasonably acceptable to Provider) and/or settle such Claims (upon terms reasonably acceptable to Provider), and give Customer all information and assistance reasonably requested by Customer in connection with such Claims.
The parties agree that the provisions hereof requiring performance or fulfillment after the expiry or earlier termination of this Agreement shall survive such expiry or earlier termination. The provisions of this Agreement that by their nature are intended to survive the expiration or earlier termination, including, without limitation, those provisions relating to ownership, confidential information, warranty disclaimer, and limits of liability shall survive the expiration or earlier termination of this Agreement.
Provider may give notice by means of a general notice through electronic mail to Customer’s e-mail address on record in Provider's account information, or by written communication sent by first class mail to Customer’s address on record in Provider's account information.
Customer may give notice to Provider at any time by any of the following:
1. Electronic mail to email@example.com
2. Letter delivered by nationally recognized delivery service to Provider at the following address:
Leum Technologies, Inc.
117 E. Terhune St.
Viroqua, WI 54665
If the performance of this Agreement, or any obligation thereunder except the making of payments hereunder is prevented, restricted, or interfered with by reason of: fire, flood, earthquake, explosion or other casualty or accident or act of God; strikes or labor disputes; inability to procure or obtain delivery of parts, supplies, power, telecommunication services, equipment or software from suppliers; war or other violence; any law, order proclamation, regulation, ordinance, demand or requirement of any governmental authority; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take reasonable steps to avoid or remove such cause of non-performance and shall promptly resume performance hereunder whenever such causes are removed.
To the extent that any provision, portion or extent of this Agreement is deemed to be invalid, illegal or unenforceable, such provision, portion or extent shall be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and the remainder of this Agreement, as the case may be, shall remain binding upon the parties.
Customer may not, without Provider's prior written consent, assign or transfer this Agreement or any of its rights or obligations under this Agreement to any third person (an “Assignee”). Provider may assign this Agreement to any person, business, or entity without the consent of Customer. Provider may delegate to affiliates of Provider and to agents, suppliers and contractors of Provider any of the obligations herein imposed upon Provider and Provider may disclose to any such persons any information required by them to perform the duties so delegated to them.
The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) references to one gender include all genders, (iii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iv) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (v) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole.
Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party or that ambiguities shall not be interpreted against the drafting party.
Governing Law; Venue
This Agreement shall be governed by and construed in accordance with the laws of the State of Wisconsin without reference to conflict or choice of law rules or principles. The parties irrevocably and unconditionally submit to the exclusive jurisdiction of the court of the State of Wisconsin located in Vernon County for the purposes of any suit, action or other proceeding arising out of this Agreement or the subject matter hereof brought by any party hereto; and hereby waive and agree not to assert as a defense or otherwise, in any such suit action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced by such court.
If any legal action is undertaken by Provider in order to enforce any of the terms of this agreement, Provider shall be entitled to recover its reasonable attorney’s fees and costs from Customer.
This Agreement sets forth the entire understanding and supersedes prior agreements between the parties relating to the subject matter contained herein and merges all prior discussions between them, and neither party shall be bound by any definition, condition, provision, representation, warranty, covenant or promise other than as expressly stated in this Agreement or as it contemporaneously or subsequently set forth in writing and executed by a duly authorized officer or representative of the party to be bound thereby.
BY USING THE APPLICATION SERVICE, CUSTOMER AGREES TO BE BOUND TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.