These Terms of Service are part of the User Agreement between Leap and Licensee. Leap and Licensee may hereinafter be referred to individually as a “Party” or collectively as the “Parties.”
1. Grant of License. License of the Licensed Product granted to Licensee herein is non-exclusive and non-transferable. Such license grants Licensee the limited right to use the Licensed Product during the term of this Agreement solely for its internal business purposes and in strict accordance with this Agreement.
2. Licensee Covenants. Licensee shall not reverse engineer, decompile, disassemble, modify, or create derivative works of the Licensed Product or attempt to reconstruct or discover any source code, underlying algorithms, file formats or programming interfaces of the Licensed Product. Licensee shall not directly or indirectly copy, distribute or archive the Licensed Product, except to the extent that copying is necessary to use the Licensed Product for the limited purpose set forth herein. Licensee shall not assign, sublicense, rent, sell, timeshare, loan, lease, or otherwise transfer the Licensed Product without the prior written consent of Leap. Licensee shall use the Licensed Product in compliance with all applicable foreign, federal, state and local laws, rules and regulations.
3. Fees and Payment Terms. Upon full execution of this Agreement, Licensee shall pay Leap the Setup Fee and the Subscription Fee for the first calendar month hereunder by check or credit card payment. The Licensed Product will not be delivered to Licensee until such fees are received by Leap. The Setup Fee is a one-time payment. The Subscription Fee is a monthly payment due each calendar month during the term of the license granted hereunder payable on or before the billing date. Leap may increase the Subscription Fee upon thirty (30) days’ prior written notice to Licensee. In the event Licensee fails to make any payment when due, or if any check or charge is returned, Licensee shall pay as a late fee an additional amount of ten percent (10%) of the unpaid amount. In addition, in the event of Licensee’s failure to make any payment when due, Leap shall have the right, in its sole discretion, to refuse performance, suspend performance, and/or terminate this Agreement without incurring any liability. Further, Leap shall be entitled to recover all costs and expenses, including reasonable attorneys’ fees, incurred in collecting or attempting to collect any amount due hereunder.
4. Updates and Enhancements. For so long as the license granted herein is in effect, Leap may from time to time provide Updates to the Licensed Product. “Updates” shall mean new versions of and/or additions to the Licensed Product. Updates shall include patches, bug fixes, enhancements, or modifications made by Leap to the Licensed Product.
5. Support Services. For so long as the license granted herein is in effect, Leap shall provide Licensee basic support services relating to the Licensed Product as determined by Leap and as may be requested from time to time by Licensee such as answering questions about the use or operation of the Licensed Product and analyzing and resolving problems or issues relating to Licensee’s use of the Licensed Product. In the event Leap determines that Licensee’s request for services exceeds the scope of the basic support services provided hereunder, Leap shall advise Licensee of such and the Parties may agree on the additional fees to be paid to Leap for such services.
6. Term and Termination. The license granted herein shall commence on the later of full execution of this Agreement or payment in full of the Setup Fee and Subscription Fee for the first calendar month hereunder, and shall continue for twelve (12) months. Following this term, this Agreement will renew until terminated by either Party upon at least thirty (30) days’ prior written notice to the other or by Leap immediately upon written notice to Licensee upon Licensee’s breach of this Agreement. Upon the termination of the license for any reason, (i) Licensee shall not be discharged from any liability or obligation that has arisen hereunder, including without limitation, payment in full of all amounts due hereunder, (ii) after the lapse of the notice period required to terminate this Agreement, if applicable, all rights granted to Licensee shall terminate and revert to Leap and Licensee shall be blocked and restricted from any further use of the Licensed Product, and (iii) Licensee shall return to Leap all Licensed Product and any other property belonging to Leap in Licensee’s possession. Further, Licensee agrees upon such termination to destroy all copies of the Licensed Product (and provide Leap with a sworn certificate of destruction signed by an officer of Licensee, if requested) or return the Licensed Product and all copies to Leap.
7. Confidentiality. Leap acknowledges and agrees that Licensee has a legitimate business interest in maintaining confidentiality with respect to non-public information concerning Licensee, its clients and/or potential clients (“Licensee Confidential Information”) and that Licensee may disclose or make such information available to Leap through Licensee’s use of the Licensed Product. Leap agrees that it shall not disclose to any person or entity any Licensee Confidential Information or use Licensee Confidential Information other than in the course of providing Licensee services hereunder. Leap acknowledges and agrees that the Licensee Confidential Information is unique, that money damages would not be a sufficient remedy for breach of this Section, and that the Licensee is entitled to seek equitable relief including an injunction and specific performance, in addition to any other remedies available to it, to enforce this Section 7 of this Agreement and, provided Licensee substantially prevails in such action, recovery of reasonable expenses and attorneys’ fees in connection with such proceedings.
8. Ownership of the Licensed Product. Licensee agrees that it will not claim ownership rights to the Licensed Product or any Updates. Licensee agrees that nothing in this Agreement shall give Licensee any right, title, or interest in the Licensed Product other than the limited right to use the same in strict accordance with the terms of this Agreement. Unless the prior written approval of Leap is obtained, Licensee may not modify or change the Licensed Product in any manner. Licensee admits the validity of all copyrights, patents, trade mark, trade secrets and other intellectual property rights of Leap to the Licensed Product and all associated intellectual property registrations.
9. NO WARRANTY. THE LICENSED PRODUCT IS PROVIDED “AS IS,” “WHERE IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTY OF ANY KIND. LEAP DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE LICENSED PRODUCT, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES REGARDING QUIET ENJOYMENT, QUALITY OF INFORMATION, SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY AND PERFORMANCE OF THE LICENSED PRODUCT. LEAP DOES NOT WARRANT THAT THE LICENSED PRODUCT WILL MEET LICENESEE’S REQUIREMENTS, OR THAT THE OPERATION OF THE LICENSED PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE. LICENSEE UNDERSTANDS AND AGREES THAT ITS INSTALLATION, USE AND ACCESS TO THE LICENSED PRODUCT IS AT ITS SOLE DISCRETION AND RISK AND THAT LICENSEE IS SOLELY RESPONSIBLE FOR ANY DAMAGES TO ITS COMPUTER, SOFTWARE AND THE LOSS OF DATA THAT RESULTS FROM THE USE THEREOF. LEAP ASSUMES NO RESPONSIBILITY FOR PROPER COLLECTION, VERIFICATION OR STORAGE OF DATA OR IMAGES. LICENSEE IS SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF ITS DATA AND SYSTEMS.
10. LIMITATION OF LIABILITY AND DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LEAP BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR ANY OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOSS OF DATA AND BACKED-UP DATA, BUSINESS INTERRUPTION OR LOST REVENUES, ARISING OUT OF LICENSEE’S USE OR INABILITY TO USE THE LICENSED PRODUCT, EVEN IF LEAP HAS BEEN ADVISED ABOUT THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE). IN NO EVENT SHALL LEAP’S CUMULATIVE LIABILITY, FOR DAMAGES OF ANY TYPE TO LICENSEE OR ANY THIRD PARTY EXCEED THE AMOUNT PAID BY LICENSEE TO LEAP PURSUANT TO THIS AGREEMENT WITHIN THE THREE (3) CALENDAR MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY.
11. Indemnification. Licensee shall indemnify and hold harmless Leap and its members, employees, and agents from and against any and all claims, causes of action, proceedings, damages, liabilities, losses, costs and expenses, including attorneys’ fees and costs, by a third party arising from Licensee’s use or misuse of the Licensed Product.
12. Governing Law, Jurisdiction, and Costs of Enforcement. This Agreement shall be governed in all respects by the laws of the State of Maryland without regard to its conflict of laws provisions. The Parties agree that the exclusive venue and jurisdiction for all disputes arising out of or relating to this Agreement shall be in the District or Circuit Courts for Montgomery County, Maryland. The Parties hereby consent to the exclusive venue and jurisdiction of such Courts and agree to accept service of process pursuant to Maryland Rules and procedures. The parties further agree that this Agreement shall be deemed to have been entered into in the State the Maryland for purposes of jurisdiction. Leap shall be entitled to recover all costs and expenses, including attorneys’ fees and costs, incurred in enforcing, attempting to enforce, or defending any of the terms, covenants or conditions of this Agreement, including costs incurred prior to commencement of legal action and in any appeal.
13. Severability and Modification by Court. If any term or provision of this Agreement shall, for any reason, be adjudged by a court of competent jurisdiction to be invalid or unenforceable, such judgment shall not affect, impair or invalidate the remainder of this Agreement, but shall be confined in its operation to the provisions of this Agreement directly involved in the controversy in which such judgment shall have been rendered. Notwithstanding the above, it is the intent and desire of the Parties that this Agreement and all of its terms be enforceable and in the event any provision as presently set forth is determined to be invalid by a court of competent jurisdiction, the Parties hereto agree that this Agreement shall be appropriately modified by the court so that each and every provision hereof is enforceable to the maximum extent permitted by law.
14. Entire Agreement. This Agreement constitutes the entire agreement between Leap and Licensee with respect to the subject matter hereof and there are no representations, understandings or agreements that are not fully expressed in this Agreement. This Agreement shall supersede all other agreements between the Parties, whether written or oral. No amendment, change, waiver, or discharge hereof shall be valid unless in writing and signed by the Party against which such amendment, change, waiver, or discharge is sought to be enforced. This Agreement may not be assigned by Licensee without the prior written consent of Leap. This Agreement shall be binding upon the Parties and their respective successors and permitted assigns. The failure of Leap to enforce any provision of this Agreement shall not in any way be construed as a waiver of any such provision, nor prevent Leap from thereafter enforcing each and every other provision of this Agreement. The rights granted herein are cumulative and shall not constitute a waiver of Leap’s right to assert all other legal remedies available to it under the circumstances.
16. Notices. Any notices required or permitted hereunder shall be in writing and hand delivered or sent by United States registered, certified or express mail, postage prepaid, return receipt requested, or by a recognized national overnight shipping company such as FedEx or UPS addressed to the Party at its address listed in this Agreement, or to such other address as said Party may designate in writing from time to time. Notice shall be deemed given when received (as indicated by the return receipt or otherwise) or on the date such notice is first refused, if that be the case.
17. Headings. The heading of each section is inserted for convenience of reference only, and is not intended to be a part of or to affect the meaning or interpretation of this Agreement.
18. Counterparts. This Agreement may be executed in any number of counterparts and/or by facsimile or electronic signature, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument.
19. WAIVER OF JURY TRIAL. THE PARTIES HEREBY EXPRESSLY WAIVE ANY RIGHT TO A TRIAL BY JURY FOR ANY DISPUTES ARISING OUT OF THIS AGREEMENT.