LICENSOR LXRGUIDE LICENSE AGREEMENT
IMPORTANT - READ CAREFULLY:
This License Agreement (hereinafter “Agreement”) is a legal contract between you (either an individual or a single business entity, hereinafter referred to as “You” or “Your”) and NetElixir, Inc., a Delaware corporation (“Licensor”) for Licensor’s LXRGUIDE software used to manage your Google AdWords pay per click account (the “Software”) in object code only. The term “Software” also includes any corrections, bug fixes, enhancements, updates or other modifications created and supplied by Licensor and any manuals or other documentation supplied by Licensor in conjunction with the Software.
BY CLICKING THE “ACCEPT” BUTTON BELOW, OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE.
1. LICENSE TERMS
a. Registration Data. To use the Software, You must complete an online registration form whereby You agree to (i) provide complete and correct registration data and (ii) maintain and update this information to keep it complete and correct. You may be required to provide credit card or other payment information but no charges will be imposed unless you are obtaining a paid subscription or converting from a free trial or promotional offer to a paid subscription. You may not register for the Software if you are under 18 years of age. If Licensor discovers that your registration data is inaccurate, incomplete or no current, Licensor may immediately terminate your license to the Software. Your registration information will be used only to provide you the Software and information regarding our services and will not be shared with third parties. We may adopt further privacy policies from time to time regarding our website and the Software and any such policies shall be posted on our website.
b. Grant of License. Provided that You are in material compliance with the terms and conditions of this Agreement, Licensor hereby grants to You, pursuant to the terms and conditions of this Agreement, a nonexclusive, nontransferable license (hereinafter “License”) to use the Software for your internal business purposes. The Software is owned by Licensor and is provided to you on a subscription basis only. In order to use the Software, you must have an active Google Adwords account obtained directly from Google. All terms of You use of Google Adwords is strictly between you and Google.
c. Restrictions on Use. You agree to use the Software only for your own internal business purposes. You are solely responsible for Your account with Licensor and any transmissions made using the Software. Your use of the Software is subject to this Agreement and all applicable laws, rules and regulations, local, state, national and international. You are solely responsible for all activities under Your account and for maintaining the confidentiality of your user name and password. You agree to immediately notify Licensor of any known or suspected unauthorized use of your account.
d. Modifications; Reverse Engineering. You agree that only Licensor shall have the right to alter, maintain, enhance or otherwise modify the Software and Licensor is under no obligation to notify you of any such modifications. You shall not disassemble, decompile or reverse engineer the Software or attempt to do the same. You shall not permit or assist any third party to disassemble, decompile or reverse engineer the Software.
e. Reservation of Rights. Licensor hereby reserves any and all rights not expressly and explicitly granted in this Agreement, including, but not limited to, Licensor’s right to license the Software to any third party.
f. Data. The Software is provided to you on a downloadable basis. Licensor does not collect data resulting from your use of the Software (including ad campaign information, metrics and other inputs or results generated from the Software).
g. Representations by Licensee. By accepting this Agreement and/or by using the Software, You hereby represent and warrant that all information provided by You to Licensor during the registration process for the Software is true and accurate in all material respects. You further represent and warrant that You have been duly authorized to enter into this Agreement for and on behalf of any person, company, or other entity specified during the initial registration process for the Software. Should either of these representations prove false at any time, Licensor may, in Licensor’s sole discretion, immediately discontinue You access to and disable You use of the Software without notice and without recourse by You.
2. INTELLECTUAL PROPERTY RIGHTS
a. Title. You agree that Licensor owns all proprietary rights, including patent, copyright, trade secret, trademark and other proprietary rights, in and to the Software and any corrections, bug fixes, enhancements, updates or other modifications, whether made by Licensor or any third party. No title to the Software is transferred to You and Your rights are strictly limited as set forth in this Agreement.
b. Transfers. Under no circumstances shall You sell, license, publish, display, distribute, or otherwise transfer to a third party the Software or any copy thereof, in whole or in part, without Licensor’s prior written consent.
3. FREE TRIAL AND PAID SUBSCRIPTIONS.
a. In order to use the Software for either a paid or free subscription, You must provide current and valid subscriber and credit card or other accepted payment method information. Use of the Software during a free trial period does not require a payment of a subscription fee however you will be required to provide a valid preauthorized credit card, PayPal® charge or direct debit card. A subscription fee will not be charged unless you elect or convert to a paid subscription. Licensor reserves the right in its sole and absolute discretion to restrict or limit the features of free or trial version of the Software and the number of free or trial versions that may be used by any individual, entity or group of entities.
b. In the event that You elect to subscribe to the Software after expiration of any free or trial period, your subscription will be on a monthly basis. Payment of the subscription fee must be by preauthorized credit card charge, PayPal® charge or direct debt only. You subscription will automatically renew each month unless you provide Licensor with written notice of non-renewal prior to the commencement of the next monthly renewal period. Payment of all fees are due and payable to Licensor without demand, invoicing or notice before commencement of the subscription period to which those fees apply.
c. Notwithstanding any provisions of this Agreement or any course of dealing between the parties, You may not cancel, terminate or rescind a subscription during its monthly term. Any and all payments by use to Licensor for access to the Software are final.
d. In the event that You cancel the credit card provided to Licensor or the card expires or is terminated, you must immediately provide Licensor with new valid credit card or payment information. You authorize Licensor to take steps to determine whether your payment information is valid.
e. Sales, promotions and other special discounted pricing offers are temporary and may expire upon renewal of your subscription. Licensor reserves the right to discontinue or modify any promotional offers in its sole discretion.
4. DISCLAIMER OF WARRANTIES
YOU AGREE TO ACCEPT THE SOFTWARE WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO TITLE OR INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SOFTWARE, DOCUMENTATION AND OTHER FILES ARE PROVIDED “AS IS.” LICENSOR AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to You. This warranty gives You specific legal rights, and You may also have other legal rights, which vary from jurisdiction to jurisdiction.
5. LIMITATION OF LIABILITY
IN NO EVENT WILL LICENSOIR BE LIABLE TO YOU OR ANY THIRD PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, ARISING FROM THE USE OF OR INABILITY TO USE THE SOFTWARE OR FROM ANY BREACH OF WARRANTY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU EXPRESSLY AGREE THAT USE OF THE SOFTWARE IS AT YOUR OWN RISK. IN NO EVENT SHALL LICENSOR’S TOTAL LIABILITY FROM ALL DAMAGES, LOSSES OR COSTS OF ANY KIND OR NATURE (WHETHER IN CONTRACT, TORT OR OTHERWISE) EXCEED THE AMOUNT YOU HAVE HAS PAID TO LICENSOR DURING THE 12 MONTHS IMMEDIATELY BEFORE THE CLAIM AROSE.
6. GENERAL PROVISIONS
a. Modifications. Licensor may amend, alter or revise the terms of this Agreement at may time by (i) posting a revised Agreement on or accessible through Licensor’s web site; and/or (ii) sending information regarding the Agreement amendment to the email address you have provided to Licensor. You are responsible for regularly reviewing the Licensor web site to obtain timely notice of such amendments. If You do not agree to accept the changes, Your sole remedy shall be to discontinue Your use of the Software.
b. Governing Law/Venue/Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of New Jersey, without regard to choice of law provisions. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Venue and jurisdiction shall be proper only in the state of New Jersey and each party hereby consents to such exclusive and personal jurisdiction and venue.
c. Termination. Without prejudice to any other rights, Licensor may terminate this Agreement if You fail to comply with the terms and conditions of this Agreement. In such event, Licensor may deny access to the Software and You must discontinue use of the Software.
d. Severability. The provisions of this Agreement are severable, and if any one or more such provisions shall be determined to be invalid, illegal or unenforceable, in whole or in part, the validity, legality and enforceability of any of the remaining provisions or portions thereof shall not in any way be affected thereby and shall nevertheless be binding between the parties hereto. Any such invalid, illegal or unenforceable provision or portion thereof shall be changed and interpreted so as to best accomplish the objectives of such provision or portion thereof within the limits of applicable law.
e. Complete Agreement. The parties agree that this Agreement is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings and all other agreements, oral or written, between the parties relating to the subject matter.
f. Waiver. Any waiver, either expressed or implied, by either party of any default by the other in the observance and performance of any of the conditions and/or covenants of duties set forth herein shall not constitute or be construed as a waiver of any subsequent or other default.
g. Read and Understood. Licensee hereby acknowledges that it has read and understands this Agreement and agrees to be bound by its terms.