LINGO TERMS AND CONDITIONS
PLEASE READ THE FOLLOWING AGREEMENT CAREFULLY.
This Web Site Terms of Use Agreement (the “Agreement”) is between you (the user) and eZCom Software Inc. (“Licensor”). Your use of the Licensor web site known as LINGO (the “Web Site”) is conditioned on your acceptance of the terms and conditions contained in this Agreement. You will be requested at the end of this Agreement to indicate your acceptance of these terms and conditions. By clicking on the “ACCEPT TERMS & CONDITIONS” checkbox, you will have accepted and agreed to be bound by these terms and conditions for yourself and your company, and you will also have confirmed that you have authority on behalf of your company to agree to be so bound.
IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT OR DO NOT HAVE AUTHORITY TO SO AGREE, YOU MUST IMMEDIATELY LOG OFF THE WEB SITE.
- License.
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1.1 Use.
Licensor hereby grants you a nonexclusive, nontransferable license to access and use the Web Site (including services pertaining to processing of data contained therein) via the Internet and to view and download a copy of the text and images expressly designated to you by Licensor (the “Content”) for your internal business purposes. You may use the Web Site only for services pertaining to the processing of data and for the retrieval of the Content and you shall comply with all applicable laws and regulations with respect to use of the Web Site and the Content hereunder. This license only grants to you the right to use the Web Site and Content. You do not acquire any right of ownership or title in the Web Site or Content. All right, title and interest in and to the Web Site and Content will at all times remain the property of Licensor and its licensor(s) and service providers.
1.2 Restrictions.
Your right to use the Web Site and Content is personal to you. You may not transfer or make available your account identification and password to others. Any distribution by you of your account identification or password may result in termination of this Agreement in Licensor’s sole discretion. You may not: (i) use, copy, disseminate, or disclose the Web Site or the Content except as permitted by this Agreement; (ii) use the Web Site or the Content for time-sharing, rental or service bureau purposes; (iii) sell, sublicense, resell, or otherwise transfer your right to use the Web Site or the Content; (iv) modify, reverse engineer, decompile or disassemble any part or all of the Web Site or Content; or (v) create or attempt to create derivative works based on or of the Web Site or the Content, in whole or in part.
- Confidential Information.
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The Web Site contains confidential and proprietary information of Licensor and its customers. You agree not to make available the Web Site or the Content to any person, except to your employees or contractors whose access is necessary to enable you to exercise your license and who are bound by an appropriate agreement ensuring compliance with all applicable provisions of this Agreement. You shall take all reasonable precautions to safeguard the Web Site and the Content, exercising at least a reasonable degree of care, and agree to promptly notify Licensor of any unauthorized use or disclosure of the Web Site or the Content, and to take all reasonable action to prevent use of the Web Site or the Content in breach of this Agreement. Your obligations to keep confidential the Web Site, the Content, and Licensor’s other confidential and proprietary information shall survive termination of the Agreement.
- Indemnification.
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You shall indemnify Licensor, its officers, directors, employees, agents, subsidiaries, affiliates, and licensors against, and hold them harmless from, any and all lawsuits, demands, claims, expenses (including reasonable attorneys’ fees), settlements, damages, judgments and the like arising from any action or inaction taking by you with respect to this Agreement, including, without limitation, your use of the Web Site and/or the Content and violation of this Agreement. We hereby reserve the right, which you hereby grant to us, the right to assume exclusive defense and control of any matter otherwise subject to indemnification by you. This section shall survive termination of this Agreement.
- Injunctive Relief.
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You agree that, if you breach or threaten to breach this Agreement in any manner, Licensor may suffer irreparable damage, and that monetary damages will be inadequate to compensate Licensor therefore. Licensor shall be entitled to a preliminary or other injunctive relief from any court of competent jurisdiction to prevent or stop any such breach or threatened breach, without the requirement of waiting to cure any such breach and without the requirement of posting a bond or other security. Such injunctive relief shall be in addition to, and in no way in limitation of, any and all other remedies Licensor may have at law or in equity, or otherwise available to Licensor, for the enforcement of this Agreement.
- Warranties and Disclaimers of Warranties.
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LICENSOR AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE WEB SITE, RELATED SERVICES PERTAINING TO PROCESSING OF DATA, OR THE CONTENT, INCLUDING WITHOUT LIMITATION THE SUITABILITY OF THE CONTENT AND OTHER INFORMATION CONTAINED ON THIS WEB SITE FOR ANY PURPOSE. YOUR ACCESS TO AND USE OF THE WEB SITE, SUCH CONTENT AND OTHER INFORMATION ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. LICENSOR AND/OR ITS LICENSORS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH REGARD TO THE WEB SITE, RELATED SERVICES PERTAINING TO PROCESSING OF DATA, CONTENT AND OTHER INFORMATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NONINFRINGEMENT, AND AVAILABILITY. LICENSOR AND ITS LICENSORS DO NOT WARRANT THE ACCURACY OF THE CONTENT OR OTHER INFORMATION CONTAINED ON THE WEB SITE AND RELATED SERVICES PERTAINING TO PROCESSING OF DATA. FURTHER, LICENSOR DOES NOT WARRANT THAT: THE WEB SITE, RELATED SERVICES PERTAINING TO PROCESSING OF DATA, AND ITS CONTENT WILL MEET YOUR REQUIREMENTS; THE WEB SITE, RELATED SERVICES PERTAINING TO PROCESSING, AND THE CONTENT, INCLUDING WITHOUT LIMITATION ITS OPERATION, OR THE SERVICES WILL BE ERROR-FREE; OR ALL DEFECTS WILL BE CORRECTED. LICENSOR ALSO DOES NOT WARRANT THAT THE WEB SITE AND THE CONTENT WILL FUNCTION PROPERLY IN COMBINATION WITH YOUR EQUIPMENT. LICENSOR DOES NOT WARRANT THAT THE FILES AVAILABLE FOR DOWNLOADING WILL BE FREE OF INFECTION BY VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES.
- Limitation of Liabilities.
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6.1 ACTIONS OR INACTIONS OF THIRD PARTIES MAY RESULT IN SITUATIONS IN WHICH YOUR INTERNET CONNECTION, USE OF THE WEB SITE, THE CONTENT OR OTHER INFORMATION MAY BE IMPAIRED, DISRUPTED OR DAMAGED. LICENSOR DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM THE INTERNET, AND DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH ACTIONS OR INACTIONS.
6.2 IN NO EVENT SHALL LICENSOR OR ITS LICENSORS BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS RESULTING FROM BUSINESS DISRUPTION, LOSS OF DATA, LOST PROFITS, LOST GOODWILL, OR DAMAGE TO SYSTEMS OR DATA, WHETHER IN AN ACTION FOR CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF LICENSOR OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY DAMAGES THAT LICENSOR IS REQUIRED TO PAY FOR ANY PURPOSE WHATSOEVER SHALL BE LIMITED TO THE LICENSE AND SUBSCRIPTION FEES PAID FOR USE OF THE WEBSITE. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU UNDER THE LAWS OF THOSE STATES. No action, regardless of form, arising out of any transaction under this Agreement, may be brought by you more than one year after you have knowledge of the occurrence which gives rise to the cause of such action.
6.3 LICENSOR AND ITS LICENSORS ARE NOT LIABLE FOR ANY LOSS, DAMAGES, COSTS, OR OTHER LIABILITY ARISING FROM CAUSES BEYOND THE CONTROL OF LICENSOR, INCLUDING, WITHOUT LIMITATION, ACTS OF GOD AND INTENTIONAL ACTIONS OR INACTIONS OF THIRD PARTIES.
- Fees, Billing and Updates.
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7.1 Initial License Fees.
You shall pay Licensor’s then-current Start-up License and Subscription Fees for the use of the Web Site. The initial start-up fees are to be paid in advance and prior to the beginning of the month you begin use of the Web Site.
7.2 On-Going Fees.
You shall pay monthly License Fees on a per transaction basis in accordance with the transaction fees set forth by Licensor. Monthly fees will be invoiced at the end of the each month, and you are to pay each invoice upon receipt.
7.3 Additional Partners.
You may add new partners to your service offering by delivery of a written request to Licensor. Such request shall be made not later than ten business days prior to the date service is expected to commence with such new partner. A “rush” set-up is also available for an additional fee. Fees for new partner set-up will be in accordance with the fees set forth by Licensor as of the date your written request is received by Licensor. Billing for such new partner shall commence on such request date, and may not be cancelled or withdrawn. Set-up of new partners requires contact from such partner; Licensor shall work in a commercially reasonable manner to expedite the new partner set-up, however, if such partner fails to respond within sixty days from Licensor’s initial request to new partner, the new partner implementation shall be put on hold until you contact Licensor with the required partner contact person and information. No set-up fees will be refunded for partner implementations that are failed or cancelled by you.
7.4 Subject to Modification.
Licensor reserves the right to change its monthly License and Subscription Fees, however, that whenever possible, Licensor will give you reasonable notice of such change. Furthermore, from time to time, Licensor may add or modify certain services relating to the Web Site, and Licensor reserves the right to charge you additional or different fees in consideration for providing such new or modified services.
7.5 Billing and Collection.
Any questions or discrepancies with respect to your bill from Licensor shall be directed to the management of Licensor within thirty days of the invoice date. Questions concerning the bill do not provide an extension of the time for paying such invoice.
If your account becomes past due it will be placed into our collection system. The action taken shall depend upon the number of days the account is past due. For accounts thirty days past due, there will be a finance charge of 1.5% of the outstanding amount charged for each month, or portion of a month, the account remains unpaid. For accounts sixty days past due, activity on the account shall be suspended until the entire outstanding balance is paid. Accounts ninety days past due shall be terminated without further warning or notification and will not be reactivated until all unpaid amounts are paid and new set-up fees are paid.
You may pay by check or credit card. If you wish to pay by check, you shall also provide, as security for the payments required hereunder, a valid credit card account number. Furthermore, you hereby authorize Licensor to charge up to two months service fees to such credit card account upon your account becoming more than sixty days delinquent. If such account is paid via the credit card, your account shall remain active. If such payment is denied, your account shall be immediately suspended in accordance with this paragraph, and you shall have five business days to bring the account current or have such account terminated.
If your account becomes suspended or terminated, you are liable for all outstanding monies and payment is expected immediately.
- Term and Termination.
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This Agreement is effective immediately upon your acceptance of the license terms for the Web Site and shall continue until terminated as described in this section. Licensor may suspend or terminate this Agreement immediately if you: (i) breach this Agreement and fail to cure such breach within 10 days after receipt of notice; (ii) terminate or suspend your business; or (iii) become subject to any federal or state bankruptcy or insolvency proceeding. In addition, you may terminate this Agreement upon no less than 30 day written notice to Licensor but you will remain liable for all charges accrued until your password has been deactivated, including full monthly charges for the month during which the termination date has occurred. Licensor may modify, suspend or terminate the services provided under the Web Site at any time and for any reason without prior notice to you and without refunding any fees you have paid to Licensor. Termination will not limit a party from pursuing any other remedies available to it. All rights and obligations that should by their nature survive will survive any termination of this Agreement, including the terms of Sections 2-9. Upon termination, you will make no further use of the Web Site, and, within 10 days thereafter, you will return to Licensor all materials provided to you by Licensor related to the Web Site.
- General.
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9.1 No right or license under this Agreement may be assigned or transferred by you nor may any duty be delegated by you without Licensor’s prior written consent and this Agreement does not confer any rights or benefits upon any party other than you and Licensor. Any assignment, transfer or delegation in contradiction of this provision shall be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and assigns of you and Licensor.
9.2 Waiver of a breach of or right hereunder will not constitute a waiver of any other or subsequent breach or right. If any provision herein is held, by any court of competent jurisdiction, to be contrary to law, that provision shall be amended and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions herein will remain in full force and effect. This Agreement may be amended only in a document signed by authorized representatives of you and Licensor.
9.3 This Agreement shall be governed by New Jersey law excluding its conflicts of laws principles. Venue for any action between the parties shall be Bergen County, State of New Jersey.
9.4 This Agreement is the complete and exclusive agreement between the parties and supersedes all previous and contemporaneous agreements, proposals and communications with respect to this subject matter.
9.5 By accepting the terms and conditions contained herein, you also acknowledge that you are in compliance with the Fair Labor Standards Act, and that Licensor can act on your behalf, as need be, to convey this message to any of your Partners that require such information.
