LYCONIC END USER LICENSE AGREEMENT
This End User License Agreement ("Agreement") is a binding agreement between you ("End User" or "you") and Lyconic, LLC ("Company"). The Lyconic Terms of Service are incorporated herein by reference and any capitalized terms not specifically defined herein shall have the meaning ascribed to them in the Terms of Service. Lyconic is the developer and designer of lnteliguide™, a schedule management and reporting software ("lnteliguide"), and Patrolguide™, an asset tracking and route management software ("Patrolguide"), (together, the “Software”). This Agreement governs your use of the Services (as defined in the Terms of Service), including the Software and any related desktop and mobile applications, (together with all related materials, the "Application"). The Application is licensed, not sold, to you.
BY SUBSCRIBING TO THE SERVICE AND DOWNLOADING AND USING THE APPLICATION YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE APPLICATION AND DELETE IT FROM YOUR DESKTOP AND/OR MOBILE DEVICE.
- License Grant. Subject to the terms of this Agreement, Company grants you a limited, non-exclusive and nontransferable license to:
- download, install and use the Application for your personal use in accordance with the terms of your Subscription and the number of desktop and/or mobile devices (“Device(s)”) or Active Users permitted thereby, and strictly in accordance with the Application's documentation; and
- access, use and transmit on such Devices the Website Content and Services (as defined in Section 6) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and the Terms of Service applicable to such Content.
- License Restrictions. You shall not:
- copy the Application, except as expressly permitted by this license;
- modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Application;
- reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;
- remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices from the Application, including any copy thereof;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Application or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by any unauthorized user; or
- remove, disable, circumvent or otherwise create or implement any workaround to any copy protection, rights management or security features in or protecting the Application.
- Reservation of Rights. You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Company reserves and shall retain its entire right, title and interest in and to the Application, including all copyrights, trademarks and other intellectual property rights therein or relating thereto, except as expressly granted to you in this Agreement.
- Location Data. The Application includes a feature that connects your User Content to a real world location and/or address. In order to provide this service, Company relies upon location information, and may transmit, collect, maintain, process and use your “Location Data”, including the real-time geographic location of your Device, location search queries and address entries. Location Data may be used by Company and its affiliates to provide and improve the Application and Service. By accessing the Application, you agree and consent to Company's and its affiliates’ transmission, collection, maintenance, processing and use of your Location Data to provide and improve the Software and Service. If you do not agree and consent you must not activate or opt-in to the location-based features of the Application.
- User Content. Company does not claim any ownership rights in the text, files, images, graphics, photos, video, sounds, works of authorship, or any other field data or materials that you post or upload through the Application and/or Website (collectively, “User Content”). You retain all ownership rights in any such User Content you upload or post through the Application. You are solely responsible for any Third Party Materials (as defined in Section 12, below) in any User Content you post or upload through the Application and/or Website. You understand and agree that by default, any User Content you upload or post may be viewable by other users of the Application and/or Website and that Admin Users (as defined in the Terms of Service) are responsible for setting permissions.
- User Content License. You hereby grant Company and any Admin User that has purchased a subscription for such End User, and their officers, directors, employees, agents, independent contractors, affiliates, successors, assigns and other authorized users a perpetual, non-exclusive, irrevocable, royalty-free, sub-licensable and transferable (in whole or part) worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights you own or control to use, reproduce, transmit, display, exhibit, distribute, index, comment on, modify, create derivative works based upon, perform and otherwise exploit such User Content, in whole or in part, in all media formats and channels now known or hereafter devised for purposes of providing the Software, Service and Application, all without further notice to you, with or without attribution, and without the requirement of any permission from or payment to you or to any other person or entity (the “Content License”). You appoint Company as your agent with full power to enter into and execute any document and/or do any act we may consider appropriate to confirm, fully utilize, or enforce the grant of rights, consents, agreements, assignments and waivers set forth in this Agreement.
You represent to Company that:
(i) you own the User Content posted by you or otherwise have the legal right to post the User Content; and
(ii) the posting of your User Content through the Application does not violate the privacy rights, publicity rights, intellectual property rights (copyrights, patents, trademarks), contract rights or any other rights of any person or entity.
- Use outside of the United States. The owner of the Service is based in the State of Nebraska in the United States. This Service was designed for use by persons located in the United States. We make no claims that the Service or any of its content is accessible or appropriate outside of the United States. Access to the Service may not be legal by certain persons or in certain countries. If you access the Service from outside the United States, you do so on your own initiative and are responsible for compliance with local laws..
- Payment Terms.
- Free Trial Period. After an Admin User or Active User (generally, “End User”) installs the Application and/or accesses their account on the Web Application, the first thirty (30) days of service may be offered as a trial period that would be free for new End Users. We will notify you in advance that your trial period is coming to an end, at which point you will have the option to discontinue service up until the trial expiration. Your continued usage past the trial expiration date will be billed according to the monthly subscription fee for the service package level you originally selected when initiating services, and any surcharges due for usage overages. You will receive an invoice when your free trial period expires. Company reserves the right to discontinue the free trial period at any time and is not obligated to offer it outside of product promotions offered by Company at their sole discretion.
- Monthly Subscription. If you agree to the stated monthly subscription fee for your selected package, you will be charged monthly in advance on the day your free trial, if any, ends, which will constitute the first monthly payment (“Subscription”). Payment must be made by a valid credit card, check in the mail, or ACH/wire transfer, accepted by us as invoiced. Fees are payable in U.S. Dollars ($) by the due date specified in accordance with your monthly billing cycle, and your Subscription will renew automatically on a monthly basis. If we are for any reason unable to effect automatic payment by credit card, we will attempt to notify you via the contact information provided upon registration and your account and/or access to the Application may be suspended until payment is received. Late payments are subject to a finance charge of one and one-half percent (1.5%) per month. On termination, your service will remain active for the duration of the billing cycle during which it was cancelled and no partial refunds will be issued. Company reserves the right to cancel your Subscription and terminate this Agreement if payment is not timely received. Notwithstanding the foregoing, Admin Users may obtain Subscriptions for all of their related Active Users through separate agreement with the Company, and the subscription terms of any such agreement shall supersede the subscription terms provided herein.
- Updates. Company may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches and other error corrections and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality (unless otherwise agreed to in a separate written agreement between the Company and an Admin User). Based on your Device settings, when your Device is connected to the internet either:
- the Application will automatically download and install all available Updates; or
- you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of this Agreement.
- Third Party Materials. The Application may display, include or make available third-party content (including data, information, applications and other products services and/or materials) or provide links to third-party websites or services, including through third-party advertising (collectively "Third Party Materials"). You acknowledge and agree that Company is not responsible for Third Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect thereof. Company 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 at entirely at your own risk and subject to such third parties' terms and conditions.
- Term and Termination.
- The term of Agreement commences when you download the Application and/or accesses your account on the Web Application and will continue in effect until terminated by you or Company as set forth in this Section 13.
- You may terminate this Agreement by deleting the Application and all copies thereof from your Device and cancelling your Subscription in accordance with payment terms in Section 10.
- Company may terminate this Agreement at any time, for any reason without notice. In addition, this Agreement may terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement, including the payment terms.
- Upon termination:
- all rights granted to you under this Agreement will also terminate;
- you must cease all use of the Application and delete your account and all copies of the Application from your Devices; and
- Company may, but is under no obligation to provide you with a temporary link to download and collect your User Content (unless otherwise agreed to in a separate written agreement between the Company and an Admin User). In the event you are provided with such a link, you understand and acknowledge that post-termination access to your User Content may be limited to a ninety (90) day (or shorter) period at the sole discretion of Company, after which time any User Content you have posted or uploaded may be permanently deleted; provided that the Company may retain copies of such information for its own purposes.
- Termination will not limit any of Company's rights or remedies at law or in equity.
- Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
- Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE SERVICE FOR:
- PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES
- DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.
THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.
- Indemnification. You agree to indemnify, defend and hold harmless Company and its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement. Furthermore, you agree that Company assumes no responsibility for the content you submit or make available through this Application.
- Export Regulation. The Application may be subject to US export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Application to, or make the Application accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Application available outside the US.
- US Government Rights. The Application is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the US Government or any contractor therefor, you receive only those rights with respect to the Application as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
- 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 in full force and effect.
- Governing Law. This Agreement is governed by and construed in accordance with the internal laws of the State of Nebraska without giving effect to any choice or conflict of law provision or rule. Any legal suit, action or proceeding arising out of or related to this Agreement or the Application shall be instituted exclusively in the District Courts of the State of Nebraska in Lancaster County or the Federal District Court of the District of Nebraska (as permitted by law). You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
- Limitation of Time to File Claims. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE APPLICATION MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
- Waiver. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder.