LUCID GREEN, INC.
END USER LICENSE AGREEMENT
FOR
LucidRetail App and LucidSource App
IMPORTANT: READ THIS CAREFULLY BEFORE DOWNLOADING, INSTALLING, USING OR ELECTRONICALLY ACCESSING THIS PROPRIETARY PRODUCT!
THIS LUCID GREEN, INC. END USER LICENSE AGREEMENT (THE “EULA”) CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU, ACTING ON BEHALF OF YOUR BUSINESS ENTITY (“YOU” OR “LICENSEE”), AS THE END USER, AND LUCID GREEN, INC. (“LUCID GREEN”) FOR THE SOFTWARE PRODUCT IDENTIFIED ABOVE THAT YOU WILL BE DOWNLOADING (THE DESCRIPTIONS OF WHICH CAN BE FOUND IN THE EXHIBIT ANNEXED HERETO), WHICH INCLUDES THE OBJECT CODE VERSION OF THE SOFTWARE, AND MAY INCLUDE ASSOCIATED MEDIA, PRINTED MATERIALS, DATA AND DOCUMENTATION (COLLECTIVELY, THE “SOFTWARE”). THE SOFTWARE ALSO INCLUDES ANY UPDATES OR UPGRADES TO OR NEW VERSIONS OF THE ORIGINAL SOFTWARE, IF AND WHEN MADE AVAILABLE TO YOU BY LUCID GREEN.
BY INSTALLING, DOWNLOADING, ACCESSING, OR OTHERWISE USING THE SOFTWARE, INCLUDING ANY UPDATES, UPGRADES, OR NEWER VERSIONS, YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA.
IF YOU ARE ACCESSING THE SOFTWARE ELECTRONICALLY AND YOU AGREE TO THE TERMS OF THIS EULA, SELECT THE “I ACCEPT” OR “YES” BUTTON OR CHECK MARK AT SIGN UP TO INSTALL THE SOFTWARE. IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, DO NOT INSTALL, DOWNLOAD, ACCESS OR OTHERWISE USE THE SOFTWARE, AND, IF YOU ARE ACCESSING THE SOFTWARE ELECTRONICALLY, SELECT THE “I DO NOT ACCEPT” OR “NO” BUTTON BENEATH THIS EULA.
1. License Grant. Subject to the terms and conditions of this EULA and to Licensee’s payment of the applicable license fees, LUCID GREEN grants Licensee a non-transferable, non-exclusive, revocable, limited license to install and use the Software in object code form solely for its internal business purposes and in compliance with the published specifications for the Software. For certain Software licensed hereunder, the foregoing license is limited to the equipment that the Software was installed on when received by you. The license is limited to one server instance for which the corresponding license fee has been paid. LUCID GREEN must pre-approve in writing any additional copies. This license grant is contingent upon Your compliance with the licensing restrictions set forth herein..
2. License Restrictions. Except as expressly authorized herein, Licensee is prohibited from and shall not cause or permit any: (1) copying or modification of the Software; (2) use of any outputs or data or other information generated by or derived from the Software (“Outputs”) for any purpose other than as specifically approved under this EULA; (3) creating derivative works based on all or any portion of the Software or Outputs; (4) removal or modification of any notice of any patent, copyright, trademark or other proprietary rights that appear on or in the Software or Outputs; (5) reverse engineering, decompilation, translation, disassembly or discovery of the source code of all or any portion of the Software; (6) distribution, disclosure, marketing, leasing, reselling, assigning, loaning, sublicensing, renting, pledging, offering as security or transferring to any third party, including Licensee’s end user customers, of the Software, or use of the Software for any dial-up, third party data or third party network management services, remote access, interactive or other service; (7) merging of the Software into another product; (8) disclosure to any third party of the results of any testing or performance benchmarks of the Software, Outputs, or other LUCID GREEN product without LUCID GREEN’s prior written consent; or (9) use of the Software, any updates or any upgrades, or Outputs beyond the Term or after expiration or termination of this EULA.
3. License Term and Termination. The license term shall be one (1) year from the earlier of the date (i) that you first access, (iii) that you first download, or that you first install the Software, except as otherwise authorized by LUCID GREEN, and shall automatically renew for additional one (1) year periods upon expiration of the initial term or any renewal term, unless either party notifies the other party not less than thirty (30) days prior to the end of the initial term or a renewal term that it does not wish to renew. LUCID GREEN may terminate this EULA immediately upon a breach of this EULA by Licensee, including a failure by Licensee to timely make any required payments. This EULA shall automatically terminate upon breach by Licensee of any of the provisions of Sections 2, 8, 9, 12, 14.4, 14.8, and 15. Upon any termination or expiration of this EULA, Licensee must destroy all copies of the Software in its possession or control and certify in writing to LUCID GREEN that all copies have been destroyed.
4. Ownership. The Software, Documentation and Outputs and all of the intellectual property rights therein shall at all times remain the exclusive property of LUCID GREEN, and Licensee’s interest therein is only that of having possession of and/or the right to use the Software, Documentation and Outputs pursuant to Sections 1 and 2 herein. Licensee agrees that it owns no right, title or interest in or to the Software, Documentation or Outputs or any of the intellectual property rights therein. Licensee shall have no rights hereunder other than the license as provided for above in Section 1. LUCID GREEN retains all title, ownership, interests and intellectual property rights in and to the Software and deems the Software to be confidential information. To the extent the Software contains any materials licensed from third parties, third party suppliers may own such licensed materials. This EULA does not confer on Licensee any right or license to use any of LUCID GREEN’s trademarks or other intellectual property or any rights therein, other than as provided by the LUCID GREEN as part of the Outputs or as specifically set forth herein. LUCID GREEN retains all rights not expressly granted to Licensee in this EULA. Licensee further acknowledges that Licensee is acquiring only a limited license to use the Software and not any title to or ownership of the Software or any part thereof and that the Software is proprietary to and copyrighted by LUCID GREEN. LUCID GREEN SOFTWARE IS COPYRIGHTED AND LICENSED, NOT SOLD.
5. Limited Warranty and Disclaimer. OTHER THAN AS SPECIFICALLY SET FORTH HEREIN, THE SOFTWARE AND OUTPUTS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT WARRANTY OF ANY KIND. LICENSEE AGREES THAT THE USE OF THE SOFTWARE, DOCUMENTATION AND OUTPUTS IS AT LICENSEE’S RISK. THE COMPANY MAKES NO WARRANTY OF ANY KIND TO LICENSEE OR ANY THIRD PARTY, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SOFTWARE, DOCUMENTATION, OUTPUTS, OR OPERATION OF THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OPERABILITY OR NON-INFRINGEMENT AND ALL SUCH WARRANTIES ARE HEREBY EXCLUDED BY THE COMPANY AND WAIVED BY LICENSEE
6. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LUCID GREEN BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, COVER, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOST DATA, LOST PROFITS, LOSS OF USE, LOSS OF BUSINESS OPPORTUNITY, HOWEVER ARISING, WHETHER BASED IN CONTRACT, TORT, OR ANY LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO CLAIMS FOR BODILY INJURY OR DEATH OR DAMAGE TO REAL OR TANGIBLE PROPERTY DIRECTLY CAUSED BY LUCID GREEN’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN ANY CASE, LUCID GREEN’S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE GREATER OF (A) THE AMOUNT ACTUALLY PAID BY LICENSEE FOR THE LICENSE TO THE SOFTWARE DURING THE TWELVE MONTH PERIOD PRECEDING SUCH CLAIM OR (B) U.S. $100. THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE LIMITATIONS SET FORTH IN THIS EULA MAY NOT APPLY TO LICENSEE.
7. Third Party Components. Software provided under this EULA may be distributed with certain freeware, open source (“Open Source Software”) or other third party components which, if included, are provided pursuant to the terms of the applicable Open Source License governing its use and distribution. Please see http://www.lucidgreen.com/ for such Open Source License terms. LUCID GREEN THEREFORE PROVIDES SUCH OPEN SOURCE SOFTWARE ON AN “AS IS” AND “WITH ALL FAULTS” BASIS WITHOUT ANY WARRANTY WHATSOEVER OTHER THAN ANY WARRANTIES PROVIDED BY THE LICENSORS OF SUCH OPEN SOURCE SOFTWARE.
8. Indemnification. Licensee shall indemnify, defend and hold LUCID GREEN, and its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns, harmless from and against any and all actual or threatened losses, liabilities, expenses, damages, claims, demands, judgments, awards, costs, fees, proceedings and causes of action (including without limitation reasonable attorneys’ fees and expenses) (“Claims”) based on, arising out of, concerning, resulting from or relating to (a) a breach by Licensee of any of the terms or provisions of this EULA, or (b) unauthorized use of the Software or Outputs by Licensee. LUCID GREEN shall provide prompt notification to Licensee of any such Claims and shall assist Licensee, at licensee’s sole cost and expense, as reasonably requested by Licensee.
9. Confidentiality. Licensee acknowledges that the Software and the Documentation provided to Licensee contain confidential and proprietary information and are trade secrets of the COMPANY. Licensee agrees to hold the Software and the Documentation in strict confidence and shall not disclose, allow access to or otherwise make available the Software or Documentation, or any part thereof, to any other party without the prior written consent of the COMPANY. Licensee agrees to protect and maintain the confidentiality of the Software, and not to disclose the Software to any third parties except as expressly permitted in this EULA. Licensee shall use reasonable means, but not less than that used to protect its own confidential and proprietary information, to safeguard the Software and Documentation. Licensee shall be responsible for any unauthorized use or disclosure of the On-line Services and Documentation, and agrees to indemnify the Company for all fees, costs and expenses (including reasonable attorneys’ fees) incurred by the COMPANY as a result of any breach of this EULA by Licensee.
10. Injunctive Relief. Licensee acknowledges that LUCID GREEN will be irreparably harmed if Licensee’s obligations under this EULA are not specifically enforced and that LUCID GREEN would not have an adequate remedy at law in the event of an actual or threatened violation by Licensee of its obligations despite the availability of monetary damages. Therefore, Licensee agrees that LUCID GREEN shall be entitled to seek an injunction or any appropriate decree of specific performance for any actual or threatened violations or breaches by Licensee without the necessity of LUCID GREEN showing actual damages or that monetary damages would not afford an adequate remedy, and without the necessity of posting a bond even if otherwise normally required. The confidentiality obligations hereunder shall survive the termination or expiration of this EULA.
11. Support. LUCID GREEN may, but is not required to, provide technical support for the Software. Depending on the plan pursuant to which Licensee is receiving access to the Software, Technical Support may be provided free, on a time and material basis, or under the terms of a separate maintenance and support agreement. If you have previously purchased maintenance and support from LUCID GREEN for this specific LUCID GREEN Software and are currently under contract, the support terms under that agreement will remain in full force and effect through the respective termination date.
12. Fees; Payments; Taxes. Depending on the plan pursuant to which Licensee is receiving access to the Software, Licensee may be required to pay license fees excluding all sales, use, VAT and other transaction taxes, personal property taxes and other taxes. Licensee will be responsible for payment of all such taxes (other than those based on LUCID GREEN’s net income), including any related penalties and interest, arising from the payment of license fees or the delivery or license of the Software to Licensee, unless Licensee furnishes satisfactory proof of exemption. Licensee will make all payments of license fees to LUCID GREEN free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of license fees to LUCID GREEN will be Licensee’s sole responsibility.
13. U.S. Government Restricted Rights. The Software and the related documentation provided are a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202-1 through 227.7202¬4 (June 1995), all U.S. Government End Users acquire the Software and the related documentation with only those rights set forth in this EULA.
14. General.
14.1 The terms and conditions of this EULA constitute the entire agreement between LUCID GREEN and You with respect to the subject matter hereof, and supersede all prior or contemporaneous oral or written representations, proposals or agreements concerning the subject matter herein. The terms and conditions herein take precedence over any additional or different terms, from whatever source. This EULA shall be binding upon and inure to the benefit of the parties’ successors, legal representatives, and authorized assigns.
14.2 The failure of either party to enforce any term or condition of this EULA shall not constitute a waiver of either party’s right to enforce each and every term and condition of this EULA. No breach under this EULA shall be deemed waived or excused by either party unless such waiver or consent is in writing signed by the party granting such waiver or consent. The waiver by or consent of a party to a breach of any provision of this EULA shall not operate or be construed as a waiver of or consent to any other or subsequent breach by such other party.
14.3 Should any provision of this EULA be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and the legality, validity and enforceability of the remaining provisions of this EULA shall not be affected or impaired thereby.
14.4 This EULA may not be assigned or transferred (including by merger, operation of law or otherwise) by Licensee without LUCID GREEN’s prior written consent. LUCID GREEN may assign this EULA at its discretion. Any attempted assignment or transfer in violation of the foregoing will be null and void.
14.5 All notices, demands, requests, consents or other communications required or permitted by this EULA (“Notices”) shall be in writing and sent to the parties at their current known addresses, including email addresses, or to such other address as either party may specify in writing. Notices shall be deemed duly served on or delivered (1) when delivered personally, (2) three days after notice is sent to the other party by certified mail, return receipt requested, (3) one day after notice is sent by hand or by recognized overnight courier (with acknowledgement received by the courier), or (4) upon receipt of confirmation of delivery by email.
14.6 This EULA is governed by the laws of the State of New York, without reference to its conflict of law principles. The UN Convention on Contracts for the International Sale of Goods (CISG) is specifically excluded and shall not be applicable to this EULA. The parties hereby opt out of the Uniform Computer Information Transaction Act to the fullest extent permitted by law. Except for equitable proceedings commenced by LUCID GREEN pursuant to Section 10 of this EULA, which may be commenced in any court of competent jurisdiction, any and all disputes arising under this EULA shall only be resolved by courts located in the State of New York in Manhattan, and the parties hereto consent to venue therein, the exclusive personal jurisdiction thereof, and to the sufficiency of service of process by certified or registered mail in connection with any dispute arising out of or in connection with this EULA. THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS EULA.
14.7 In the event of a dispute arising out of or relating to this EULA, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs.
14.8 You agree to comply with all U.S. and foreign export control laws and regulations, including but not limited to the U.S. Export Administration Act of 1979, as amended, and successor legislation, and the Export Administration Regulations passed by the Department of Commerce. You expressly agree that You shall not export, directly or indirectly, re-export, divert, or transfer the Software or any direct product thereof to any destination, company or person restricted or prohibited by U.S. export controls.
14.9 The provisions of Sections 2, 4, 5, 6, 7, 8, 9, 10, 12 (to the extent any amounts remain unpaid), 14, 15 and 16 shall survive any termination or expiration of this EULA.
15. Acknowledgment. By installing, downloading, accessing or otherwise using the Software, You acknowledge and agree that You have read this EULA and agreed to its terms. Furthermore, You agree this EULA is the complete and exclusive statement of the agreement between LUCID GREEN and You respecting the Software, Maintenance and Support and related documentation, and it supersedes any proposal or prior agreement - oral or written - and any other communication between LUCID GREEN and You relating to the subject matter of this EULA. This EULA cannot be modified by any purchase order or other document submitted by You.