Terms and Conditions
These Terms and Conditions ("Terms") are between Lincoln Loop, LLC, a Colorado limited liability company ("Lincoln Loop") and the individual or entity identified in the Order Form ("Customer"). These Terms will govern the use and provision of any Services purchased or used by Customer. Any terms not defined herein have the meaning given to them in the applicable Order Form. The "Agreement" shall refer to any Order Form, these Terms, any additional Order Forms and all Appendixes and any other attachments to the Order Form. The Agreement is effective as of the date Customer first logs into, accesses or uses the Services ("Effective Date").
Any individual agreeing to be bound by these Terms on behalf of an organization or other legal entity represents that such individual has the authority to bind such entity to the Terms.
- "Access Credentials" means login information, passwords, security protocols, and policies through which Users access the Services.
- "Documentation" means Lincoln Loop's documentation, user manuals, help files and videos, and other materials that describe the features, functions and operation of the Services.
- "Interface" means Lincoln Loop's terminal interface software code.
- "Order Form" means Lincoln Loop's ordering process for Services that was completed by Customer, which may include an online process or a document signed by an authorized representative of each party.
- "Services" means Lincoln Loop's software-as-a-service application identified in the Order Form. References to any Services include the Documentation. Services expressly exclude the Interface.
- "User" means each of Customer's employees and independent contractors who are provided Access Credentials by Customer or Lincoln Loop.
2. Access, Rights, Restrictions
Access Grant to Services. Subject to Customer's compliance with the terms and conditions contained in the Agreement, including the restrictions or limitations set forth in any Order Form, Lincoln Loop grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right to allow the number of Users set forth in the applicable Order Form to access and use the Services during the Term (as defined below) for Customer's internal business purposes.
Interface. Subject to Customer's compliance with the terms and conditions contained in the Agreement, including the restrictions or limitations set forth in any Order Form, Lincoln Loop grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable right to install and execute the Interface solely in association with the Services in order to use the Services during the Term (as defined below) for Customer's internal business purposes.
Access Credentials. Customer will safeguard, and ensure that all Users safeguard the Access Credentials. Customer will be responsible for all acts and omissions of Users.
Customer Restrictions. During the Term (as defined in Section 6) and thereafter, Customer shall not, and shall not permit any of its employees, contractors or Users to, directly or indirectly: (a) act as a reseller or distributor of, or a service bureau for, the Services (provided Customer may use Services for the benefit of Customer's customer)s; (b) reverse engineer, disassemble or decompile the Services or attempt to derive the source code or underlying ideas or algorithms of any part of the Services (except to the limited extent applicable laws specifically prohibit such restriction); (c) remove any notice of proprietary rights from the Services; (d) copy, modify, translate or otherwise create derivative works of any part of the Services; (e) use the Services in a manner that interferes or attempt to interfere with the proper working of the Services or any activities conducted on the Services, including bypassing or attempting to bypass any privacy settings or measures used to prevent or restrict access to the Services; (f) use automated software to access or use the Services, or otherwise overburden the Services with requests, or (g) use the Services to share or store inappropriate materials, including (i) materials containing viruses or other harmful or malicious code; (ii) unsolicited mail (spam); (iii) copyrighted materials to which Customer does not have sufficient rights; (iv) harassing, tortious, or defamatory materials; or (v) other materials prohibited by applicable international, federal, state, or local laws and regulations.
Customer Obligations. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Lincoln Loop promptly of any such unauthorized use known to Customer.
- Services. Except for the limited access grant provided to Customer in the Agreement, Lincoln Loop reserves all right, title and interest in its intellectual property and business, including the Services, Documentation, and Lincoln Loop trademarks. Unless otherwise expressly set forth in an Order Form, all work product or services provided or developed pursuant to the Agreement or any Order Form (including any modifications and improvements to any Services pursuant to subsection (d) or any intellectual property developed pursuant to subsection (e) below), and all intellectual property and other proprietary rights derived therefrom, will be the sole and exclusive property of Lincoln Loop.
- Continuous Development. Customer acknowledges that Lincoln Loop may continually develop, deliver and provide to Customer on-going innovation to the Services in the form of new features, functionality, and efficiencies. Accordingly, Lincoln Loop reserves the right to modify the Services, from time to time. Some modifications will be provided to Customer at no additional charge. In the event Lincoln Loop adds additional functionality to a particular Service, Lincoln Loop may condition the implementation of such modifications on Customer's payment of additional fees provided Customer may continue to use the version of the Services that Lincoln Loop makes generally available (without such features) without paying additional fees.
- Third Party Services. Customer acknowledges that the Services are dependent on interoperability with certain third-party services also used by Customer, such as AWS cloud services ("Third Party Services"). By using the Services, Customer expressly consents to the Services interacting with and receiving metadata from the Third Party Services, and returning metadata to the Third Party Services. Lincoln Loop is not liable or responsible for Third Party Services. Customer is responsible for configuring the Services to achieve its desired goals.
- Fees. Customer will pay Lincoln Loop the then applicable fees described at https://apppack.io for each User that accesses the Services in a calendar month in accordance with the terms therein (the "Fees"), along with any applicable sales and use taxes. Customer shall be billed for actual usage by Users and Customer shall pay the additional fees in the manner provided herein. Lincoln Loop reserves the right to change the Fees or applicable charges and to institute new charges and Fees for any renewal term by providing at least sixty (60) days' notice to Customer prior to the beginning of such Renewal Term (which may be sent by email). If Customer believes that Lincoln Loop has billed Customer incorrectly, Customer must contact Lincoln Loop no later than sixty (60) days after the invoice date on the invoice in which the error or problem appeared, in order to receive an adjustment or credit (if applicable).
- Payment. Customer shall maintain complete and accurate credit card information on file with Lincoln Loop at all times. Unless otherwise agreed by the parties in writing, Lincoln Loop will charge Customer's credit card on file on or before the 15th of each month for all usage of the Services in the preceding month. Invoices shall be for the fees and applicable taxes. Unpaid undisputed amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with the Services other than taxes based on Lincoln Loop's net income.
4. Warranties; Disclaimers; Limitations on liability
- General Representations. Each party represents and warrants that: (a) as of the Effective Date and throughout the Term, it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that the execution and performance of the Agreement, or use of the Services, will not conflict with or violate any provision of any law having applicability to such party; and (c) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
- Lincoln Loop Warranties. Lincoln Loop shall use reasonable efforts consistent with industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Lincoln Loop or by third-party providers, or because of other causes beyond Lincoln Loop's reasonable control, but Lincoln Loop shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Lincoln Loop does not warrant that the Platform will be completely error-free or uninterrupted. If Customer notifies Lincoln Loop of a reproducible error in the Services that indicates a breach of the foregoing warranty (each, an "Error") within 30 days after Customer experiences such Error, Lincoln Loop shall, at its own expense and as its sole obligation and Customer's exclusive remedy use commercially reasonable efforts to correct or provide a workaround for such Error.
- Compliance with Laws and Policies. Customer will use the Services in accordance with all applicable laws, rules and regulations; as well as any of Lincoln Loop's standard published policies, if any, in effect as of the date Customer and Lincoln Loop execute an Order Form and as may be amended by Lincoln Loop, in its sole discretion, from time to time. Although Lincoln Loop has no obligation to monitor Customer's use of Services, Lincoln Loop may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. Lincoln Loop will comply with all applicable laws, rules and regulations in the performance of this Agreement.
- Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, LINCOLN LOOP DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL WARRANTIES OF ANY KIND REGARDING THE AGREEMENT, THE SERVICES, OR INTERFACE, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. LINCOLN LOOP DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES OR INTERFACE WILL BE ACCURATE, WITHOUT INTERRUPTION, OR ERROR-FREE.
- Disclaimer of Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, OR ANY LOSS OF PROFITS, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL LINCOLN LOOP BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.
- Limitations on Liability. EXCEPT FOR DAMAGES, LIABILITIES, OR OBLIGATIONS ARISING FROM SECTION 5 (INDEMNIFICATION), EACH PARTY'S MAXIMUM AGGREGATE LIABILITY UNDER THE AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY LINCOLN LOOP UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE.
- Exceptions. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITY, IN SUCH JURISDICTIONS THE LIABILITY OF LINCOLN LOOP WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE PROVISIONS OF THIS SECTION 4 WILL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE AGREEMENT HAVE BEEN BREACHED, ANY LIMITED REMEDY HEREIN IS HELD TO FAIL OF ITS ESSENTIAL PURPOSE OR THE FORM OF THE CLAIM OR CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE).
- Lincoln Loop Indemnity. Lincoln Loop will indemnify, defend and hold Customer, its directors, officers, and employees harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys' fees and court costs (collectively "Losses") arising out of any third party claim against Customer to the extent alleging that the Services infringe any U.S. or foreign patent, copyright, trademark or trade secret.
- Customer Indemnity. Customer will indemnify, defend and hold harmless Lincoln Loop, its directors, officers, and employees from and against any and all Losses arising out of any third party claim (a) alleging a Customer breach of any Customer representation or warranty in Section 5, and (b) arising out of any Customer Indemnity Responsibility.
- Exclusions. Section 5.1 will not apply if the alleged claim arises, in whole or in part, from: (a) a use or modification of the Services by Customer or any User in breach of the Agreement, (b) a combination, operation or use of the Services with other software, hardware or technology not provided by Lincoln Loop if the claim would not have arisen but for the combination, operation or use, (c) made in whole or in part in accordance with Customer specifications if the claim would not have arisen but for such specifications, or (d) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (any of the foregoing circumstances under clauses (a), (b), (c), or (d) will be collectively referred to as a "Customer Indemnity Responsibility").
- Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
- Infringement. If the Services are, or in Lincoln Loop's opinion, are likely to become, the subject of any infringement-related claim, then Lincoln Loop will, at its expense and in its discretion: (a) procure for Customer the right to continue using the Services; (b) replace or modify the infringing technology or material so that the Services become non-infringing and remain materially functionally equivalent; or (c) terminate the Order Form pursuant to which the Services are provided and give Customer a refund for any pre-paid but unused Fees.
- THE PROVISIONS OF THIS SECTION 5 STATE LINCOLN LOOP'S ENTIRE LIABILITY AND CUSTOMER'S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHT.
6. Term and Termination
- Term. Subject to earlier termination as provided below, the term of the Agreement will commence on the Effective Date and extend for one month, and thereafter shall automatically extend on a month-to-month basis unless either party terminates the Agreement by delivering at least thirty (30) days prior written notice to the other party. Additionally, Customer may terminate the Agreement and use of the Services by contacting Lincoln Loop or deleting all of the Services from its AWS account.
- Termination. Either party may terminate the Agreement or any Order Form, at its discretion, effective immediately upon written notice to the other if the other party materially breaches any provision of the Agreement and does not substantially cure the breach within fifteen (15) days after receiving written notice.
- Suspension of Service(s). At any time during the Term, Lincoln Loop may, immediately upon notice to Customer, suspend access to any Service for the following reasons: (a) a threat to the technical security or technical integrity of the Services; (b) any undisputed amount due under the Agreement is not received by Lincoln Loop within five (5) days after it was due, (c) breach or violation by Customer of any laws, rules, or regulations in connection with Customer's acts or omissions related to this Agreement, or (d) use of the Services in a manner that overburdens the Services or otherwise impacts the integrity or quality of the Services.
- Effects of Termination. Upon termination or expiration of the Agreement for any reason, (a) any amounts owed to Lincoln Loop prior to such termination or expiration will be immediately due and payable, (b) all licensed and access rights granted will immediately cease to exist, (c) Customer shall discontinue all access and use of the Services, and Lincoln Loop may disable access to the Services. Sections 1, 2.5, 2.7, 3, 4, 5, 6.4, and 7 will survive any expiration or termination of the Agreement.
- Independent Contractor. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent, or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.
- Force Majeure. Except for payment obligations, neither party will be liable for any breach of this Agreement, or for any delay or failure of performance, resulting from any cause beyond that party's reasonable control.
- Assignment. The Agreement may not be assigned by Customer without the prior written consent of Lincoln Loop. Any attempted assignment or delegation in violation of this Section 7.1 will be null, void and of no effect.
- Publicity. During the Term and thereafter, Lincoln Loop may refer to Customer as a Lincoln Loop customer, orally and in writing (including in promotion or marketing materials and on Lincoln Loop's website and social media postings).
- Relationship. No agency, partnership, joint venture, or employment is created as a result of the Agreement and Customer does not have any authority of any kind to bind Lincoln Loop in any respect whatsoever.
- Notices. All notices, consents, and approvals under the Agreement must be delivered via email or in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in the Order Form and will be effective upon receipt. Either party may change its address by giving notice of the new address to the other party.
- Governing Law; Disputes. The Agreement will be governed by the laws of the State of Colorado without reference to its conflicts of law principles. The United Nations Convention for the International Sale of Goods will not apply to the Agreement. Any dispute, controversy or claim arising out of or relating to the Agreement, will be made exclusively in the state or federal courts located in Routt County, Colorado and both parties submit to the jurisdiction and venue of such courts.
- Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
- Severability. If any provision of the Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
- No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in the Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity (including any User or any employee) other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of the Agreement.
- Counterparts. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.
- Entire Agreement. This Agreement, including the Order Form and any exhibits or attachments thereto, constitute the final and entire agreement between the parties regarding the subject hereof and supersedes all other agreements, whether written or oral, between the parties concerning such subject matter. No terms and conditions proposed by either party shall be binding on the other party unless accepted in writing by both parties, and each party hereby objects to and rejects all terms and conditions not so accepted. To the extent of any conflict between the provisions of this Agreement and the provisions of any Order Form, the provisions of the Agreement shall govern unless the Order Form specifically overrides this Agreement. No amendment to this Agreement will be effective unless in writing and signed by the party to be charged.