BY CLICKING “I AGREE” OR BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THIS SOFTWARE, “YOU” ARE AGREEING TO THE TERMS OF THIS LICENSE AGREEMENT (THE “AGREEMENT”). IF YOU ARE AGREEING ON BEHALF OF A COMPANY OR LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE FULL AUTHORITY TO BIND THAT COMPANY OR LEGAL ENTITY TO THIS AGREEMENT, AND IN SUCH CASE, “YOU” AND “YOUR” REFER TO THAT COMPANY OR LEGAL ENTITY THROUGHOUT THIS AGREEMENT. IF YOU DO NOT AGREE TO THIS AGREEMENT IN ITS ENTIRETY, DO NOT CLICK “I AGREE” AND DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE SOFTWARE.
GRANT. Subject to your full compliance with this Agreement, Flux Software LLC (the “Company”) hereby grants you a nonexclusive, non-transferrable license to use the Software solely for your own internal business purposes for the limited functionality that the Software has been designed and in accordance with the Company documentation that accompanies it. You are authorized only to install or use the Software on the total number of devices set forth in the confirmation notice sent to you by the Company following your purchase, except that you may make additional copies solely for backup purposes. Once a copy of the Software is installed on a device, you may not transfer that copy to, or operate it from, a different device, other than to make a backup as set forth in the preceding sentence. You are responsible for your personnel’s use of the Software and ensuring that such use complies with this Agreement. The term “Software” means the Company’s software program in object code form that is licensed from the Company to you, including any upgrades and updates, and any related features or functionality that the Company provides to you through cloud-based services. All cloud-based services are also subject to the Company’s Terms of Service. The Company exclusively owns all title, copyright, and other intellectual property rights in the Software and reserves all rights that are not expressly granted by this Agreement.
GENERAL RESTRICTIONS. You shall not (and shall not authorize or enable others to) directly or indirectly: (a) sell, market, license, sublicense, distribute, or grant to any person or entity any right to use the Software, except as expressly permitted by this Agreement; lease, lend, mirror, or use the Software for timesharing or service bureau purposes; (b) disassemble, decompile, or reverse engineer the Software or create or recreate the Software’s source code (except to the extent applicable law prohibits restrictions on reverse engineering); (c) remove, obscure, tamper with, or fail to preserve any product identification or proprietary notices in or on the Software; (d) bundle the Software with any third-party software, product, or service; (e) modify, adapt, tamper with, or create derivative works of the Software; or (f) attempt to do any of the foregoing.
SUPPORT, UPGRADES, AND DISCONTINUATION. The Company is not obligated to provide you with any support, upgrades, patches, enhancements, or fixes for the Software (collectively, the “Support”). Nonetheless, from time to time, the Company may cause the Software to automatically download and install Support on the device(s) that you have installed the Software on, unless you expressly opt out by disabling automatic downloads. In the event you disable automatic downloads, the Company may send you email notifications informing you that such Support is available and you can decide at that time whether to download the Support. Unless you opt out, you agree to receive such Support automatically. All Support, regardless of how obtained, is part of the Software and subject to this Agreement. The Company reserves the right in its discretion: (a) to cease providing Support for older versions of the Software and (b) to modify or discontinue offering the Software or any Software feature at any time.
INDEMNITY. You hereby indemnify and hold harmless the Company from any liability, loss, damage, or expense (including, without limitation, attorneys fees) arising out of or related to a third-party claim, suit, action, or proceeding arising from your use of the Software or your failure to comply with this Agreement.
- GENERAL. YOUR USE OF THE SOFTWARE IS SOLELY AT YOUR OWN RISK. THE COMPANY PROVIDES THE SOFTWARE “AS IS” AND WITHOUT WARRANTY OF ANY KIND. THE COMPANY, FOR ITSELF AND ITS LICENSORS, HEREBY DISCLAIMS: (i) ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, ACCURACY, RELIABILITY, TITLE, NON-INFRINGEMENT, AND SYSTEM INTEGRATION; (ii) THE USE OF THE SOFTWARE FOR ANY MEDICAL PURPOSE (INCLUDING, WITHOUT LIMITATION, THE DIAGNOSIS, EXAMINATION, OR TREATMENT OF ANY MEDICAL CONDITIONS); AND (iii) ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SOFTWARE MADE BY YOU OR ANY THIRD PARTY. THE COMPANY DOES NOT GUARANTEE THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, PROVIDE SPECIFIC RESULTS, OR NOT DAMAGE OTHER SOFTWARE OR HARDWARE, OR THAT ITS OPERATION WILL BE FAILSAFE, UNINTERRUPTED, OR FREE FROM ERRORS OR DEFECTS.
- HIGH-RISK SYSTEMS. THE SOFTWARE MAY FAIL AND IS NOT DESIGNED, DEVELOPED, TESTED, OR INTENDED TO BE RELIABLE IN THE CONTEXT OF HIGH-RISK SYSTEMS OR HAZARDOUS ENVIRONMENTS, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATIONS SYSTEMS, LIFE SUPPORT MACHINES, OR OTHER DEVICES IN WHICH A MALFUNCTION OF THE SOFTWARE WOULD RESULT IN FORESEEABLE RISK TO PROPERTY OR OF INJURY OR DEATH TO THE OPERATOR OF THE DEVICE OR SYSTEM OR TO OTHERS. THE COMPANY HAS NO RESPONSIBILITY FOR, AND YOU SHALL INDEMNIFY AND HOLD HARMLESS THE COMPANY FROM, ALL LIABILITY, LOSS, DAMAGE, AND EXPENSE ARISING OUT OF OR RELATED TO THIRD-PARTY CLAIMS, SUITS, ACTIONS, OR PROCEEDINGS ARISING FROM OR RELATED TO YOUR USE OF THE SOFTWARE ON OR IN A HIGH-RISK SYSTEM OR HAZARDOUS ENVIRONMENT.
LIMITATION OF LIABILITY.
- DEFINITIONS. IN THIS SECTION, THE TERM “LIABILITY” MEANS ANY LIABILITY, WHETHER UNDER CONTRACT, TORT, OR OTHERWISE, INCLUDING FOR NEGLIGENCE, AND THE TERM “PARTY” REFERS TO YOU OR THE COMPANY, AS APPLICABLE.
- LIMITATIONS. SUBJECT TO SUBPARAGRAPH C BELOW:
- NEITHER PARTY WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SOFTWARE FOR: (1) THE OTHER PARTY’S LOST REVENUES; DAMAGES RELATED TO LOSS OF DATA, WORK STOPPAGE, OR COMPUTER MALFUNCTION OR FAILURE; OR COSTS OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES; (2) INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL LOSSES (WHETHER OR NOT FORESEEABLE); OR (3) EXEMPLARY OR PUNITIVE DAMAGES; AND
- EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF RELATING TO THIS AGREEMENT OR THE USE OF THE SOFTWARE WILL NOT EXCEED THE AMOUNT YOU PAID TO THE COMPANY FOR THE LICENSE GRANTED HEREIN DURING THE 12 MONTHS PRECEDING THE SUBJECT CLAIM.
- EXCEPTIONS. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS EITHER PARTY’S LIABILITY FOR: (i) DEATH OR PERSONAL INJURY RESULTING FROM THAT PARTY’S NEGLIGENCE OR THE NEGLIGENCE OF ITS PERSONNEL; (ii) BREACH OF THE LICENSE GRANTED IN SECTION 1; (iii) ITS OBLIGATIONS UNDER SECTION 4 (INDEMNITY); OR (iv) MATTERS FOR WHICH LIABILITY CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
TERMINATION. You may terminate this Agreement and the license granted herein at any time by destroying or removing from all computers, networks, and storage media all copies of the Software. The Company may terminate this Agreement and the license granted herein immediately if you breach any provision of this Agreement or at any time for any or no reason. Upon receiving notice of termination from the Company, you shall destroy or remove from all computers, networks, and storage media all copies of the Software. Sections 2, 4, 5, 6, 8, 9, and 10 survive termination of this Agreement.
FEEDBACK. The Company requests that you do not submit any ideas to it. This is to avoid potential misunderstandings or disputes that may arise if the Software were to appear similar to an idea submitted by you. However, if, despite this request, you submit to the Company an idea, suggestion, recommendation, or other feedback regarding the Software or services related to the Software (collectively, the “Feedback”), you agree that the Company has the right to use, disclose, reproduce, license, distribute, and exploit such Feedback as it sees fit, without obligation or restriction of any kind. By providing Feedback, you grant the Company a worldwide, perpetual, irrevocable, sublicenseable, fully-paid, and royalty-free license to use and exploit such Feedback in any manner and without compensation to you.
- Export. You shall comply with all applicable export laws, restrictions, and regulations in connection with the Software and your use of the Software and you shall not export or re-export the Software in violation thereof.
- U.S. Government Restricted Rights. As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(5) or otherwise, all Software and accompanying documentation provided by the Company are “commercial items,” “commercial computer software,” or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure, or distribution thereof by or for the U.S. Government is governed solely by these terms and is prohibited except to the extent expressly permitted by these terms.
- Assignment. You shall not assign or transfer this Agreement or any rights granted hereunder to any third party. The Company has the right to assign or transfer this Agreement without your consent.
- Entire Agreement. This Agreement and the documents referenced in this Agreement represent the complete and exclusive agreement concerning the subject matter herein between you and the Company and supersede all prior agreements and representations between you and the Company related to such subject matter.
- Amendments. The Company has the right to amend this Agreement from time to time, without prior notice or liability to you. Any such amendment will be posted at [insert url – e.g., www.justgetflux.com/licensenotices] and will apply as soon as posted. Your continued use of the Software after such amendment has been posted indicates your acceptance of such amendment.
- Waiver; Severability. The Company’s failure to enforce any right or provision in this Agreement is not a waiver of that right or provision. In the event that any provision of this Agreement (in whole or in part) is held to be invalid or unenforceable, that provision will be limited or eliminated to the minimum extent necessary and the remaining provisions of this Agreement will remain in effect.
- Notices. All notices permitted or required under this Agreement must be in writing and delivered by email. Notice is deemed given on the next business date after it was sent (with confirmation of transmission). Notice to the Company must be sent to [insert email address] and notice to you will be sent to the email address you provided to the Company when you initially purchased the license to the Software.
- Controlling Law. This Agreement is governed by and construed under California law without regard to any conflicts of law provisions thereof.
- Arbitration. YOU AGREE THAT, AS THE EXCLUSIVE MEANS OF INITIATING PROCEEDINGS TO RESOLVE ANY DISPUTE BETWEEN YOU AND THE COMPANY ARISING OUT OF OR RELATED TO YOUR USE OF THE SOFTWARE OR AS TO THE CONSTRUCTION, INTERPRETATION, OR EFFECT OF THIS AGREEMENT, SUCH DISPUTE MUST BE SUBMITTED TO ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION, IN ACCORDANCE WITH ITS APPLICABLE RULES, IN LOS ANGELES, CALIFORNIA. AN AWARD OF ARBITRATION MAY BE CONFIRMED IN A COURT OF COMPETENT JURISDICTION. You and the Company are each waiving the right to a trial by jury and to participate in a class action or class arbitration. The following is a list of exceptions to the foregoing dispute resolution requirements:
- Either you or the Company may assert claims, if they qualify, in small claims court in Los Angeles, California without first engaging in arbitration;
- The Company may bring a lawsuit against you in any court of competent jurisdiction solely for injunctive relief to stop any unauthorized use or abuse of the Software without first engaging in arbitration;
- The Company may bring a lawsuit against you in any court of competent jurisdiction solely for injunctive relief to stop any intellectual property infringement without first engaging in arbitration; and
- If the agreement to arbitrate is found to be unenforceable, then you agree that any resulting judicial proceedings will be brought in the federal or state courts of Los Angeles, California.