Terms and Conditions of License Agreement
These license terms are an agreement ("Agreement") between Cintric, LLC. and its affiliated companies (collectively, "Cintric," "we," "us," or "our") and you. Please read them. They apply to the Cintric SDK software ("Software") as well as any updates, supplements, documentation, and support services for the Software, unless other terms accompany those items. If so, those terms apply. "You" or "your," as applicable, means the individual who downloads, installs, accesses, or uses the Software (and, if you represent a legal entity, it also means that entity, and you represent and warrant that you are authorized to enter into this Agreement for that entity). The Agreement is effective as of the date you accept these terms (the "Effective Date"). If you accept the terms and conditions of this Agreement, please click on the "Accept" button below. If you do not agree to the terms and conditions of this Agreement, you may not use or access the Software. Cintric reserves its right, at any time and from time to time, to change or modify the terms of this Agreement by posting new or revised terms and conditions to the Website, or by providing such terms and conditions to you in writing, including via email. If you do not agree to the new or modified terms and conditions of this Agreement, you must discontinue your use of the Software and the Website. USING OR ACCESSING ANY PART OF THE SDK OR DEVELOPER WEBSITE INDICATES THAT YOU ACCEPT THESE TERMS AND ANY MODIFICATIONS.
Cintric provides the Cintric SDK subject to the following license. If you comply with the following license terms, you have the limited rights set forth below.
Definitions. In addition to any other terms which are defined in the body of this Agreement, the following terms have the following meanings:
- "API(s)" means any application program interface that is provided to you in the Software or otherwise by Cintric or its Partners.
- "Application" means one or more software application programs that are developed by you using the Software, including bug fixes, updates, upgrades, new releases, and new versions of such software application programs.
- "Derivative Work" means a work that is based upon one or more preexisting works, such as a revision, modification, translation, abridgement, condensation, expansion, or any other form in which such preexisting works may be recast, transformed, or adapted, and that, if prepared without authorization of the owner of the copyright in such preexisting work, would constitute a copyright infringement under the United States Copyright Act.
- " Website" means the website provided by Cintric to you and other developers in order to facilitate use of the SDK.
- "Cintric Proprietary Software" means any software or software components, tools, libraries, modules, or packages included within the Software that are not Open Source Software, and all documentation related to the Software.
- "Intellectual Property Rights" means all worldwide current or future copyright rights (including, without limitation, the exclusive right to use, reproduce, modify, create derivative works of, distribute, publicly display and publicly perform the copyrighted work), trademark rights (including, without limitation, trade names, trademarks, service marks, and trade dress), patent rights (including, without limitation, the exclusive right to make, have made, use, sell and offer to sell, import and export), trade secrets, moral rights, right of publicity, goodwill, and all other intellectual property rights as may exist now and/or hereafter come into existence, and all renewals, continuations, continuations in part, and extensions thereof, regardless of whether such rights arise under the law of the United States or any other state, country, or jurisdiction.
- "Open Source Software" means any software or software component, module, or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) GNU's General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e) the Sun Community Source License (SCSL); (f) the Sun Industry Standards License (SISL); (g) the BSD License; or (h) the Apache License.
- "Personally Identifiable Information" means information which can be used to distinguish or trace an individual's identity, such as their name, social security number, biometric records, etc. alone, or when combined with other personal or identifying information which is linked or linkable to a specific individual, such as date and place of birth, mother's maiden name, etc.
- 1 The Software is Licensed Solely for Approved Uses. The Software may be used solely in accordance with the terms of this Agreement, and you may not provide the Software or access to the Developer Website to any other individual or third party. The Software is licensed to you for the purpose of developing and publishing mobile device Applications that include location-based services.
2 License for Software.
- (a) The software is licensed, not sold. This Agreement only gives you some rights to use the software. Except as expressly provided herein, no other right or license is granted by Cintric under this Agreement. All rights not expressly granted hereunder are expressly reserved to Cintric and our licensors. Unless applicable law gives you more rights despite this limitation, you may use the Software only as expressly permitted in this Agreement. In doing so, you must comply with any technical limitations in the Software that only allow you to use it in certain ways.
- (b) License to Employees. If the Software is going to be used by you in your capacity as an employee of a company, you must (i) agree to this Agreement on behalf of your company, (ii) represent and warrant that you have the authority to bind your company to the terms and conditions of this Agreement, and (iii) use the Software solely on behalf of and for purposes of your company. In addition, if you accept this Agreement on behalf of a company, you may share the Software with other employees and individuals doing work for your company, provided such individuals have a need to know the information to facilitate your company's development of Applications using the Software.
- (c) Personal and Limited Commercial Use. Subject to the terms and conditions of this Agreement, Cintric hereby grants to you a non-exclusive, non-transferable, non-sublicensable personal license and limited commercial license to use the Software (excluding any Open Source Software that may be included in the Software, which software is licensed in accordance with Section 2.3) solely for the purpose of developing, testing, and commercializing Applications, and not for purposes of any distribution, except as otherwise expressly provided in a separate agreement between you and us or one of our authorized distributors, preferred developers, or value-added reseller partners (each a "Partner" and collectively "Partners"). EXCEPT AS EXPRESSLY PERMITTED BY SEPARATE AGREEMENT, YOU MAY NOT SUBLICENSE, PROVIDE, OR REDISTRIBUTE ANY PORTION OF THE SOFTWARE TO ANY THIRD PARTY. Prior to redistributing any portion of the Software, it is your responsibility to confirm whether such redistribution is permitted. To confirm whether a Partner has the authority to grant redistribution rights, contact us directly at email@example.com.
3 Open Source Software. You hereby acknowledge that the Software may contain Open Source Software. You agree to review any documentation that accompanies the Software or is identified in a link provided in the documentation for the Software in order to determine which portions of the Software are Open Source Software and are licensed under an Open Source Software license. To the extent any such license requires that Cintric provide you the rights to copy, modify, distribute or otherwise use any Open Source Software that are inconsistent with the limited rights granted to you in this Agreement, then such rights in the applicable Open Source Software license shall take precedence over the rights and restrictions granted in this Agreement, but solely with respect to such Open Source Software. You acknowledge that the Open Source Software license is solely between you and the applicable licensor of the Open Source Software. You shall comply with the terms of all applicable Open Source Software licenses, if any.
4 Cintric Proprietary Software. At no time shall you distribute any Cintric Proprietary Software as Open Source Software, or do anything (including but not limited to the development of the Application) that in any way would cause such Cintric Proprietary Software to be subject to any Open Source Software or similar license.
5 Endorsement. You are permitted but not required to endorse Cintric in your Applications. If you elect to endorse us, you may only include the following text: "Powered by Cintric®". Without prior written consent, you may not use any image or likeness (e.g., photograph, drawing, etc.) protected by Cintric Intellectual Property Rights for any purpose (including, without limitation, in any advertisements, on your website, or on the packaging, marketing materials, or collateral for any Applications).
6 Third-Party APIs and Content. Certain portions of Software, including APIs and content provided through use of the SDK, may be provided by third parties. These third parties may require separate or different terms for use of their materials. Either Cintric or the applicable third party will provide you with the applicable terms and conditions either through an email notification, a conspicuous posting on the Developer Website, or via a click-through agreement.
7 General Restrictions. Except as expressly provided herein, you shall not (and shall not allow or enable any third party, including end users of its Application(s) to):
- (a) copy, modify, create a derivative work of, sublicense, rent, sell, lease, or otherwise transfer or distribute the Software or any portion thereof to any person or entity, except as expressly permitted by separate agreement executed by a duly authorized officer of Cintric, or a duly authorized officer of one of our Partners;
- (b) decompile, disassemble, or otherwise reverse engineer or attempt to reconstruct or discover any source code or underlying ideas or algorithms of Software by any means whatsoever;
- (c) remove any product identification, legal, copyright, trademark, or other proprietary rights notices contained in the Software;
- (d) engage in any activity with the Software, including development and distribution of an Application, that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of Cintric or any third party including, but not limited to, any mobile communications carrier;
- (e) use the Software for any fraudulent, unlawful, or illegal activity, including developing an Application that would commit or facilitate the commission of a crime, or other tortious, unlawful, or illegal act;
- (f) use the Software to defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights (such as intellectual property rights and rights of privacy and publicity) of others, including developing an Application that would facilitate any such activities;
- (g) directly or indirectly, disparage, criticize, defame, slander or otherwise make any negative statements or communications regarding Cintric or the Software, or any of our Partners or affiliates.
- (h) sell, lease, share, transfer, sublicense, or derive income from the direct provision of the APIs without integration into an Application, whether for direct commercial or monetary gain or otherwise, except as expressly permitted by separate agreement executed by a duly authorized officer of Cintric, or a duly authorized officer of one of our Partners;
- (i) use the APIs in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage, or otherwise fails to comply or is inconsistent with any part of the API documentation as determined by us in our sole discretion or our Partners in their sole discretion.
8 Additional Restrictions; No High Risk Use. WARNING: The Software and geo-tracking functions are not fault-tolerant. The Software is not designed or intended for use with any program where failure or fault of any kind of the Software could lead to death or serious bodily injury of any person, or to severe physical or environmental damage ("High Risk Use"). You are not licensed to, and you agree not to, use, distribute, or sublicense the use of the Software in, or in conjunction with, High Risk Use. High Risk Use is STRICTLY PROHIBITED. High Risk Use includes, for example, the following: automatic or autonomous control of vehicles, aircraft, or other mechanical devices; dispatch, fleet management, or similar applications; or emergency or life-saving purposes. Cintric, LLC. has the capability to provide you with fault-tolerant software for such commercial applications. If you are interested in using the Software to develop Applications for High Risk Use, please contact us for additional information.
Ownership of Applications. You will retain all rights, title, and interest in and to Applications and all Intellectual Property Rights therein. Subject to excepts contained herein, Cintric obtains no right, title, or interest from you under this Agreement in or to any Applications that you develop. Notwithstanding the foregoing, you acknowledge and agree that we may develop, license, or otherwise acquire the rights to distribute products that compete with your Applications.
Mandatory Opt-In. You shall provide all end users of your Application(s) the option to opt-in. That is, all end users must expressly consent to being tracked by the Software before any tracking capabilities are initialized. Because end-user safety and privacy rights are a serious concern to us, this covenant should be construed as material to this Agreement and as with all other material terms contained herein, your breach of the covenant will trigger your obligation to indemnify us, pursuant to Section 14 below, against any claims resulting from such breach.
Developer Community, Tools, and Hosted Services.
3 No Warranty. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF DCI AND THE HOSTED SERVICES IS AT YOUR SOLE RISK. EXCEPT AS EXPRESSLY PROVIDED HEREUNDER, DCI AND ACCESS TO THE HOSTED SERVICES ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND AND CINTRIC AND ITS AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT OF THIRD PARTY RIGHTS, AND SATISFACTORY QUALITY. NEITHER CINTRIC NOR ITS PARTNERS WARRANT THAT THE DCI OR HOSTED SERVICES ARE SUITABLE FOR YOUR USE OR THAT DEFECTS OR ERRORS IN THE DCI OR THE HOSTED SERVICES WILL BE CORRECTED. FURTHERMORE, NEITHER CINTRIC NOR ITS PARTNERS WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE DCI OR THE HOSTED SERVICES OR THEIR CORRECTNESS, ACCURACY, OR RELIABILITY. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CINTRIC SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF ANY WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE AGREEMENT.
Your Licenses to Cintric.
- 1 Limited License to Application. If you choose to submit any Application to us for any type of review, analysis, or assistance, you hereby grant to Cintric a worldwide, non-exclusive, royalty-free license to use, reproduce, display, perform, and distribute the Application in executable object code form in order to evaluate, test, and analyze the Application, including but not limited to providing the Application to our personnel and third-party distribution partners. This Section 7.1 only grants a limited license and is not a sale of the Application or any portion or copy thereof.
- 2 License to Your Data. You acknowledge and agree that certain Applications may access APIs that require us to pass information generated by your Application ("Your Data") to our Partners as required by such Partners to enable the functionality of the APIs. You hereby grant Cintric a worldwide, non-exclusive, royalty-free license to use, reproduce, display, perform, and distribute Your Data (including providing Your Data to our Partners which require such data) for the purposes of (i) enabling an Application or any service used by an Application; (ii) monitoring the performance, quality, and security of the APIs and Applications; or (iii) improving the SDK, or our products or services.
Our Billing Policies.
- 1 Billing Overview. Your rate and usage allowances are determined by the pricing platform or plan you select from us or one of our Partners. Regardless of your usage, this plan will not change without your prior authorization. Your billing cycle begins on the day you first register to use the Software and continues thereafter on a monthly basis, with the beginning of each billing cycle falling on the monthly anniversary of the date the account was first activated. We do not provide invoices or statements unless specifically requested. Rates and usage allowances are subject to change with notice. If you upgrade to a more expensive plan or downgrade to a less expensive plan, the increase or decrease in cost for the month in which you make the change will be prorated against the following month's charge.
- 2 Automatic Billing. THE CREDIT CARD YOU PROVIDE WILL BE BILLED AUTOMATICALLY ON A MONTHLY, RECURRING BASIS, AS DESCRIBED IN THIS SECTION 8. YOU MAY CANCEL AT ANY TIME BY PROVIDING NOTICE IN WRITING TO US AT firstname.lastname@example.org.
- 3 Payment Method. We accept payment by credit card only, which includes any US-issued card and most non-US issued cards with a Visa, MasterCard, Discover, or American Express logo, including credit, debit, pre-paid, or gift cards. You are responsible for maintaining current credit card information in regards to billing address changes, credit card number changes, or credit card expiration date changes.
- 4 Overusage of Geotrigger Events. If you exceed your usage allowance of Geotrigger Events in a billing cycle, you will receive an automatic email alerting you that you have reached your limit. If you continue to remain above your limit, we may contact you again by email or phone to follow up and work with you to either optimize your usage or switch you to a higher-tier plan. We will never automatically charge you for a higher plan. We will never automatically block your access to the API for exceeding the usage limits.
- 5 Effect of Nonpayment and Credit Card Disputes. If we or one of our Partners are unable to charge the credit card account you provided, in the amount of the plan for which you subscribed, for whatever reason, you agree that we may suspend or terminate your account, in our discretion. In the event of a credit card billing dispute or chargeback, we will attempt to work with you to resolve the issue, but we reserve the right to suspend or terminate your account. A reactivation charge may be imposed for accounts that are suspended or terminated.
- 6 Refunds and Credits. Refunds and credits are issued, if ever, on a case-by-case basis, and in our sole discretion. If a refund is issued, it will be issued in the form of a credit to the credit card associated with your account. You are not entitled to a refund or partial refund for the month in which in you cancel your account or your account is otherwise terminated.
Term and Termination.
- 1 Term and Termination. The Term of this Agreement shall commence upon the Effective Date and shall continue in perpetuity until terminated: (a) by either party upon written notice to the other party; (b) automatically, if you fail to comply with any term of the Agreement; (c) automatically pursuant to Section 8 above, or (d) in whole or in part by Cintric, if any third party providing materials (such as APIs) contained in the Software, has terminated its relationship with Cintric or ceased to offer such materials.
- 2 Survival. Those provisions that by their nature are intended to survive the expiration or termination of this Agreement shall survive any termination or expiration of this Agreement for any reason.
- 3 Effect of Termination. Upon any expiration or termination of this Agreement or upon our written request, you shall immediately cease all use of the Software and return the Software (excluding any Open Source Software therein), or have an officer of your company certify, in writing, the destruction of the Software.
- 1 Each party agrees to hold the Confidential Information of the other party in confidence, and not to use or disclose such Confidential Information, except as permitted hereunder. "Confidential Information" means any and all technical and non-technical information disclosed by one party ("Disclosing Party") to the other ("Receiving Party") under this Agreement and related to the past, present, or future business or technology of the Disclosing Party, including without limitation information constituting or concerning processes and methodologies; product architecture, designs and specifications; software, whether human-readable or machine-readable; product, marketing, sales and business development plans and strategies; competitive analyses; financial analyses and forecasts; customers and prospects; licensing and distribution arrangements; the identity, skills, and compensation of employees, contractors, and consultants; and third-party information that the Disclosing Party is obligated to maintain in confidence. Any information that the Receiving Party knew or should have known was considered confidential or proprietary by the Disclosing Party should be considered Confidential Information of the Disclosing Party. Notwithstanding anything to the contrary herein, the Software is Confidential Information of Cintric.
- 2 Exclusions. Notwithstanding the foregoing, neither party shall have any obligation under Section 10.1 with respect to any information that it can prove is: (a) now or hereafter, through no unauthorized act or failure to act on the Receiving Party's part, in the public domain; (b) known to the Receiving Party without an obligation of confidentiality effective at the time the Receiving Party received the Confidential Information, as evidenced by written records; (c) hereafter furnished to the Receiving Party by a third party as a matter of right and without restriction on disclosure; or (d) independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall: (i) assert the confidential nature of the information to the agency; (ii) immediately notify the Disclosing Party in writing of the agency's order or request to disclose; and (iii) cooperate fully with the Disclosing Party in protecting against any such disclosure and/or obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
Ownership and Trademarks.
- 1 Ownership of Software. This Agreement only grants a license and is not a sale of the Software or any portion or copy thereof, except as expressly provided herein. As between the parties, Cintric owns all right, title, and interest in and to Software, including but not limited to the Cintric Proprietary Software, any updates thereof and all Intellectual Property Rights therein. Cintric reserves all right, title, and interest in and to the Software not expressly granted to you under this Agreement, and except for the licenses granted by Cintric to you under this Agreement, no right, title, ownership, interest, or license in or to the Software, whether by implication, estoppel, or otherwise, is granted, assigned, or transferred to you under or in connection with this Agreement.
- 2 Cintric Trademarks. You acknowledge that Cintric or its Partners or affiliates are the sole owners of all trademark rights in the marks used by Cintric to designate the company itself, its products and/or services. You agree to do nothing inconsistent with such ownership. Subject to Section 2.5 hereof, you acknowledge that this Agreement does not grant any rights to use any of the foregoing trademarks or any other trademark of Cintric or any of its Partners, even if such marks are included in any of the Software. If you receives notice that a third party claims an intellectual property right in particular functionality or code contained in the Software (or their utilization under this Agreement), you must promptly notify us of the same in writing in reasonable detail.
Support and Maintenance.
- 1 Development Support. We have no obligation pursuant to this Agreement to provide you with any support or updates regarding the Software or maintenance or support for the Applications.
- 2 End User Support. You are solely responsible for providing support to end users of your Applications.
Warranties and Disclaimers.
- 1 General Warranties. Each party represents and warrants that: it has all right, power, and authority to enter into this Agreement and to grant the licenses hereunder. You further represent and warrant that both you and the Applications developed hereunder will comply with all applicable laws, regulations, and rules of any government body or agency or other competent authority, including all applicable privacy, privacy-related, data security, and data security-related laws and regulations (including, in each case, any applicable foreign laws and regulations).
- 2 Software. YOU AGREE THAT YOUR USE OF THE SOFTWARE AND THE DEVELOPER WEBSITE WILL BE AT YOUR SOLE DISCRETION AND RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, CINTRIC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE SOFTWARE AND THE DEVELOPER WEBSITE AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT IN THE SOFTWARE OR ON THE DEVELOPER WEBSITE AND ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (A) LOSS OR DAMAGE OF ANY KIND RESULTING FROM ERRORS, MISTAKES, OMISSIONS, OR INACCURACIES OF CONTENT AND MATERIALS, INCLUDING WITHOUT LIMITATION USER INFORMATION, LOCATION DATA, PROXIMITY INFORMATION, NAVIGATIONAL INSTRUCTIONS, OR THE AVAILABITY OF GOODS OR SERVICES; (B) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF, OR INABILITY TO ACCESS AND USE, OUR SOFTWARE; (C) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (D) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SOFTWARE OR ANY API; (E) ANY CORRUPTION OR LOSS OF DATA TRANSMITTED VIA THE SOFTWARE OR API; (F) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SOFTWARE OR API. CINTRIC DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY OR ANY HYPERLINKED SOFTWARE OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND WE WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND OUR PARTNERS OR OTHER THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. AS WITH THE PURCHASE OF ANY PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CINTRIC SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT AND NO USE OF ANY PORTION OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.
Indemnification. You shall, at your expense: (a) indemnify and defend or settle any claim, suit or proceeding that is instituted by a third party against Cintric and its officers, directors, employees, agents, suppliers, or customers (the "Cintric Indemnified Parties") to the extent such claim, suit, or proceeding arises out of or is in relation to (i) any breach or claim of breach of any of your covenants under this Agreement or (ii) by reason of any claims in respect of the distribution or sale of Applications, including, but not limited to, products liability and intellectual property infringement claims; and (b) pay all damages finally awarded therein against the Cintric Indemnified Parties or agreed upon in settlement by you (including other reasonable costs incurred by us, including reasonable attorneys' fees, in connection with enforcing this Section). We agree to notify you of, render reasonable assistance (at your sole expense), and permit you to direct the defense or settlement of, such action or claim, except that you may not enter into a settlement arrangement which would result in any liability to Cintric without our prior written consent.
Limitation of Liability; Damages. IN NO EVENT SHALL CINTRIC OR ITS DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF THE SOFTWARE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, CINTRIC'S LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO $50. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
Press Releases; Marketing. Unless otherwise required by law, you shall not make any formal public announcements relating to this Agreement (e.g., a press release), without our prior written approval.
No Assignment. You may not assign or otherwise transfer this Agreement or the rights or obligations hereunder, either in whole or in part, whether voluntarily or by operation of law, without our prior written consent, which consent may be withheld in our sole discretion; and any attempted transfer or assignment is null and void and shall be deemed a material breach of this Agreement.
Injunctive Relief. You acknowledge and agree that the copying, disclosure, or use of the Software or Confidential Information in a manner inconsistent with any provision of this Agreement may cause irreparable injury to Cintric for which we will not have an adequate remedy at law. Accordingly, we are entitled to seek equitable relief in court, including but not limited to temporary restraining orders, preliminary injunctions and permanent injunctions, and you hereby waive any related statutory rights that would require posting of a bond.
U.S. Government Legend. The Software licensed under this Agreement is "commercial computer software" as the term is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 48 C.F.R. 12.211 (Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement and its successors.
Relationship of the Parties. Each of the parties shall at all times during the term of this Agreement act as, and shall represent itself to be, an independent contractor, and not an agent or employee of the other. Nothing stated in this Agreement will be construed as creating the relationships of joint venturers, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent. You will be solely responsible for all costs, expenses, and losses associated with your use of the Software.
Notices. All notices shall be deemed received upon the earlier of receipt or one (1) day after dispatch or in the case of certified mail or overnight courier, the earlier of receipt or five (5) days after deposit in the mail. Notices sent to Cintric shall be sent to our then-current corporate headquarters address. Such address is available at https://cintric.com/contact. Notices sent to you shall be sent to the e-mail address provided by you at the time of registering to use the Software or such other address or e-mail address you may designate to us in writing from time to time.
Changes to Terms of this Agreement; Software. We reserve the right, at any time, to change and otherwise modify the terms of this Agreement upon written notice to you. You acknowledge and agree that the form and nature of the Software that Cintric provides may change without prior notice to you and that future versions of the Software may be incompatible with Applications developed on previous versions of the Software. You acknowledge and agree that Cintric may stop (either permanently or temporarily) providing the Software (or any features within the Software, or any functionality that is enabled by the APIs included in the Software) to you or end users of Applications, at our sole discretion, without prior notice to you.
Miscellaneous Legal Provisions. This Agreement contains the entire agreement of the parties, and supersedes any and all previous agreements with respect to the subject matter hereof, whether oral or written. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. A waiver of any default hereunder or of any of the terms and conditions of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or of any other term or condition, but shall apply solely to the instance to which such waiver is directed. The exercise of any right or remedy provided in this Agreement shall be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement. In the event any provision of this Agreement is found to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of any of the remaining provisions shall not in any way be affected or impaired. This Agreement shall be governed by and construed under the laws of the State of Ohio and the United States without regard to conflicts of laws provisions thereof. The sole and exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts having within their jurisdiction, Hamilton County, Ohio. The parties consent to the exclusive jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by Ohio or federal law. Neither party shall export, directly or indirectly, any information acquired under this Agreement or any products utilizing any such information to any country or to any individual or entity for which the U.S. Government or any agency thereof at the time of export requires an export license or other government approval without first obtaining such license or approval. With respect to any export transactions under this Agreement, the parties will cooperate in any reasonable manner to effect compliance with all applicable export regulations. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof.
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