I. PREAMBLE
IMPORTANT — READ CAREFULLY: By clicking on “Yes”, the user(s) (“You”) agree(s) to be bound by the terms of this Licensing Agreement (“Agreement”). If You do not agree to the terms of this Agreement, You must not access WG Live Chat Software® (“the Software”) and You must return all activation codes and associated documentation to LiveAdmins LLC (“LIVEADMINS LLC”) at the address on the invoice (“Ordering Document”) to receive a refund or credit. The terms and conditions and those on any Ordering Document between You and LIVEADMINS LLC form the Agreement. Terms not otherwise defined have the meanings given to them in the Ordering Document.
A. PARTIES OF AGREEMENT
The Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. You will not assign or sublicense, in whole or in part, any of its rights or obligations under this Agreement without the prior written consent of LIVEADMINS LLC, which consent will not be unreasonably withheld or delayed. Any prohibited assignment or sublicense of this Agreement is void.
II. LICENSES, WARRANTIES, AND INDEMNIFICATION
A. GRANT OF LICENSE
LIVEADMINS LLC grants You a non-exclusive, non-transferable license to access the Software during the period for which the license is given (“the License Term”). You may use the Software in machine-readable, object-code form only, solely for Your internal use and the benefit of Your customers as a portion of the software and services transaction assisted by LIVEADMINS LLC services and software. If You wish to use the Software for evaluation or demonstration use, such use shall be for non-commercial use only and You must not use the Software after the end of the License Term unless you purchase a commercial use license. You may make a reasonable number of copies of the documentation as necessary to use the Software as licensed. Except as expressly authorized herein, and to the extent permitted by law, You will not copy, translate, rent, lease, sublicense or otherwise transfer the Software or documentation or any password, user ID, or other authorization code that permits access to the Software; You will not cause or permit reverse compilation or reverse assembly of all or any portion of the Software, provided that upon Your written request, LIVEADMINS LLC will provide necessary interface information to achieve interoperability of the Software with independently created computer programs; you will not provide information processing, computer service bureau, computer time sharing or similar services to any party other than a party with whom you typically do business and such services are required for the conducting of this business (“Trading Partner”). No license, right or interest in any LIVEADMINS LLC (or LIVEADMINS LLC licensor’s) trademark, trade name, or service mark is granted hereunder. Any rights not explicitly granted herein are expressly reserved by and to LIVEADMINS LLC.
B. LIMITED WARRANTY
The Software is provided “as is” without any warranty of any kind, either express or implied. LIVEADMINS LLC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. LIVEADMINS LLC MAKES NO EXPRESSED OR IMPLIED WARRANTIES WHATSOEVER. LIVEADMINS LLC DISCLAIMS ANY WARRANTY AND DOES NOT REPRESENT THAT USE OF the Software WILL BE UNINTERRUPTED OR ERROR FREE OR THAT the Software WILL MEET ALL OF YOUR REQUIREMENTS. IN THE EVENT THAT the Software PROVES TO BE DEFECTIVE DURING THE TIME THE USER (LICENSEE OR SUB-LICENSEE) IS PAYING FOR IT, AND UPON PRESENTATION TO LIVEADMINS LLC THE PROOF OF PURCHASE AND DEFFECT, LIVEADMINS LLC WILL AT ITS OPTION: (A) CORRECT ANY DEFFECT, (B) PROVIDE A SIMILAR PRODUCT OF SIMILAR VALUE, OR (C) REFUND THE PARTICULAR LICENSEE OR SUB-LICENSEE’S MONEY. THE FOREGOING IS THE SOLE AND EXCLUSIVE REMEDY FOR THE EXPRESS WARRANTY SET FORTH IN THIS SECTION.
C. LIMITATION OF LIABILITY, INDEMNITY
NEITHER LIVEADMINS LLC NOR ITS SUBSIDIARIES OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING OUT OF the Software OR ANY USE OF IT, INCLUDING, BUT NOT LIMITED TO, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER DAMAGES OR LOSSES. NEITHER LIVEADMINS LLC NOR ITS SUBSIDIARIES OR AFFILIATES SHALL BE LIABLE IN ANY WAY FOR ANY LOSS OR DAMAGE DUE TO INTERRUPTIONS OF SERVICE DUE TO ISP DISRUPTIONS, SOFTWARE OR HARDWARE FAILURES, OR ANY OTHER EVENT WHICH MAY RESULT IN A LOSS OF DATA OR DISRUPTION OF SERVICE. IN NO EVENT WILL LIVEADMINS LLC BE LIABLE TO A LICENSEE OR SUB-LICENSEE OF THE RESELLER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL LIVEADMINS LLC’S LIABILITY, WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED (IN THE AGGREGATE) THE TOTAL FEES PAID BY THE PARTICULAR LICENSEE OR SUB-LICENSEE OF THE RESELLER TO LIVEADMINS LLC DURING THE SIX (6) MONTHS IMMEDIATELY PRIOR TO THE TIME SUCH CLAIM AROSE. RESELLER HEREBY AGREES TO DEFEND, INDEMNIFY AND HOLD LIVEADMINS LLC HARMLESS FROM AND AGAINST ANY CLAIM, LIABILITY, LOSS, INJURY, DAMAGE, COST OR EXPENSE FROM USING the Software BY THE RESELLER AND ITS SUB-LICENSEES.
D. USE OF THIRD-PARTY SOFTWARE
You may use certain third-party software or equipment in conjunction with the Software at Your own risk. LIVEADMINS LLC MAKES NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE OR SUITABILITY OF THE THIRD-PARTY SOFTWARE OR EQUIPMENT, INCLUDING THE ABILITY TO INTEGRATE the SAME WITH the Software. THE QUALITY, CAPABILITIES, OPERATIONS, PERFORMANCE AND SUITABILITY OF THE THIRD-PARTY SOFTWARE OR EQUIPMENT LIE SOLELY WITH YOU AND THE VENDOR OR SUPPLIER OF SUCH THIRD-PARTY SOFTWARE OR EQUIPMENT, AS THE CASE MAY BE.
III. TERMINATION
A. TERMINATION OF CONTRACT & STATUTE OF LIMITATIONS
Upon the termination of this Agreement, You will discontinue using the Software and any access codes and deliver to LIVEADMINS LLC all LIVEADMINS LLC materials then in Your possession or control, including, but not limited to, all copies and duplicates in whatever form, and certify that all materials required to be delivered to LIVEADMINS LLC have been delivered to LIVEADMINS LLC. Termination of this Agreement will be without prejudice to any rights of either party against the other and such termination will not relieve either party of any of its obligations to the other existing at the time of termination. Provisions concerning the parties’ rights and obligations which by the content of the provision operate after termination or which are necessary to enforce any right will survive termination of this Agreement. Without limiting the foregoing, all obligations of confidentiality and limitations on liability will survive termination of this Agreement for the duration of LIVEADMINS LLC’s copyright in the Software.
B. BREACH OF CONTRACT THE AMOUNTS TO BE PAID TO LIVEADMINS LLC UNDER THIS AGREEMENT DO NOT INCLUDE ANY ASSUMPTION OF RISK AND LIVEADMINS LLC WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE FOR (i) ECONOMIC, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, WHETHER CLAIMED UNDER CONTRACT, TORT, BREACH, FAILURE OF WARRANTY OR ANY OTHER LEGAL THEORY OR (ii) LOSS OF OR DAMAGE TO YOUR DATA OR PROGRAMMING. If either party breaches its obligations under this Agreement, including the obligation to make payments when due, which breach is not cured within 10 days of receipt of written notice, the non-breaching party will have the right, without waiving any right or remedy otherwise available, to cease performance until such failure is remedied; this means that if You are in breach, LIVEADMINS LLC may suspend Your right to access the software, and may use the installed software to remove same from any and all systems where it is located, if You do not cure the breach within 10 days after written notice, which shall include email sent to the email provided on registration, whether or not the same has changed and therefore bounces.
IV. CONFIDENTIALITY
The Software pricing, along with any other information clearly marked “confidential” provided under this Agreement are confidential and will not be disclosed, orally or in writing by You to any third party without LIVEADMINS LLC’s prior written consent. LIVEADMINS LLC represents that the Software contains valuable proprietary information, is confidential, and You will protect the Software with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which You use for Your information that You do not wish disclosed to the public. You may provide access to and use of the Software only to those third parties that provide services to You concerning Your use of the Software; have a need to use and access the Software for the exercise or performance of the rights and obligations granted or imposed under this Agreement; and have agreed to substantially similar nondisclosure obligations imposed by You as those contained herein. Neither party will have any obligation of confidentiality with regard to information which is or becomes a part of the public domain through no act or omission of such party, was in such party’s lawful possession prior to the disclosure thereto and had not been obtained by such party either directly or indirectly from the disclosing party, is lawfully disclosed to such party by a third party without restriction on disclosure, is independently developed by such party, or is required to be disclosed by applicable law. Both parties agree that if either party breaches any of its obligations of confidentiality, the other party may be irreparably harmed and in addition to all other remedies which such party may have, it is entitled to relief in equity without the necessity of proof of actual damage.
V. FORCE MAJEURE
If the performance of either party is delayed or prevented at any time due to circumstances beyond its control, including, without limitation, those resulting from labor disputes, fire, floods, riots, civil disturbances, weather conditions, control exercised by a governmental entity, unavoidable casualties or acts of God or a public enemy, performance will be excused until such condition no longer exists, except that this paragraph does not excuse either party from its confidentiality obligations.
VI. THE AGREEMENT
A. GOVERNANCE
This Agreement will be governed by the laws of the State of Illinois, without reference to its choice of law rules, excluding the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA). 1. Export Policy The Software and all related technical information, documents and materials are subject to export controls under the U.S. Export Administration Regulations and the applicable export controls of the State of Illinois. You will comply strictly with all legal requirements established under these controls, cooperate fully with LIVEADMINS LLC in any official or unofficial audit or inspection that relates to these controls and not export, re-export, divert or transfer, directly or indirectly, any such item or direct products thereof to any country that is embargoed by executive order, unless You have obtained the prior written authorization of LIVEADMINS LLC and the U.S. Commerce Department and the applicable regulatory body in the State of Illinois. You must affix all copyright and proprietary information notices affixed to the original to each full or partial copy of the Software or documentation You make.
B. ARBITRATION
Either party may apply to a court of competent jurisdiction for equitable or injunctive relief. Otherwise, any controversy or claim arising out of or related to this Agreement or in connection with a breach of this Agreement (“Claim”) will be settled by binding arbitration in Illinois at any location which LIVEADMINS LLC shall select before a single arbitrator under the rules of the International Arbitration Rules of the American Arbitration Association in effect at the time such Claim is submitted to arbitration. The arbitrator will have experience with and knowledge of the computer software business. The arbitrator will not have authority to make any ruling, finding or award that does not conform to this Agreement. The arbitral award may be entered as a judgment and enforceable by any court of competent jurisdiction. LIVEADMINS LLC shall, in any arbitration or litigation, whatever the final result of the same, be entitled to recover its costs and expenses including, without limitation, attorneys’ and witness’ fees.
C. HEADINGS
The descriptive headings of the articles, sections and subsections of this Agreement are for convenience only, do not constitute a part of this Agreement, and do not affect this Agreement’s construction or interpretation.
D. SEVERABILITY
All terms and conditions of this Agreement shall be deemed enforceable to the fullest extent permissible under the applicable law. If a provision of this Agreement is held invalid under any applicable law, such invalidity will not affect any other provision of this Agreement and the invalid provision shall be deemed modified to the extent necessary to make it valid and enforceable, and if such provision cannot be so modified, it shall be deemed deleted from this Agreement.
E. OTHER LEGISLATION
References to any other legislation in this Agreement shall include any statutory reenactment or modification thereof (whether before or after the date of this Agreement).
F. OTHER AGREEMENTS & MODIFICATION OF THIS AGREEMENT
This Agreement and the Ordering Document(s) constitute the true will of the parties and our entire agreement concerning the Software, the license to use the Software, and the rights and obligations of the parties concerning the Software and supersede all previous proposals (both oral and written), negotiations, representations, commitments, writings, agreements, and all other communications between the parties concerning the subject matter hereof. This Agreement may only be altered or modified by written instrument duly executed by both parties. Any different or additional terms in Your purchase order are expressly rejected and excluded from our agreement.
G. WAIVERS
The failure of either party to enforce the other party’s strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement.
