This End-User License Agreement (this "Agreement") is a legal agreement between you (either an individual or an entity) ("Licensee") and SubItUp, Inc. ("SubItUp") for Licensee's use of the SubItUp's schedule management and shift swapping software product (the "Licensed Software") through SubItUp's internet site which is accessible, as of the date hereof, at: www.subitup.com (the "Site"), and the related associated media, printed materials, and "online" or electronic documentation (collectively, the "Documentation"). The Licensed Software also includes any updates, upgrades and supplements to the original Licensed Software provided to Licensee by SubItUp, if any.
YOU AGREE THAT LICENSEE'S USE OF THE LICENSED SOFTWARE CONSTITUTES AN ACKNOWLEDGMENT THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND THAT LICENSEE SHALL BE BOUND BY ITS TERMS AND CONDITIONS.
THE LICENSED SOFTWARE IS PROTECTED BY COPYRIGHT LAWS OF THE UNITED STATES AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES.
THE LICENSED SOFTWARE IS LICENSED, NOT SOLD.
By clicking on the "I accept the terms of the Licensee Agreement" button, "Accept" button, or similar button, or by, accessing, or otherwise using the Licensed Software, Licensee agrees to be bound by the terms and conditions of this Agreement, and you represent and warrant that, if acting on behalf of an entity, you are authorized to legally bind Licensee to this Agreement. IF YOU DO NOT OR CANNOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN CLICK ON THE "I DO NOT ACCEPT THE TERMS OF THE LICENSE AGREEMENT" BUTTON, "DO NOT ACCEPT" BUTTON, OR SIMILAR BUTTON, AND/OR DO NOT INSTALL OR USE THE LICENSED SOFTWARE.
1.1 License Type
The Licensed Software is licensed to Licensee, pursuant to the terms of this Agreement, on a Subscription License (as defined below) basis or an Evaluation License (as defined below) basis. In no event shall this Agreement be interpreted to provide Licensee with more than one type of license.
1.2 Evaluation License
(a) Subject to the terms and conditions of this Agreement, SubItUp hereby grants to Licensee and Licensee hereby accepts a limited, temporary non-exclusive, non-transferable right and license (the "Evaluation License") to use, through the Site only, the Licensed Software on an evaluation basis free of charge, until the earlier of (a) the ten (10) day after Licensee agrees to be bound by the terms and conditions of this Agreement or (b) the date Licensee purchases the Subscription License (the "Evaluation License Period")
(b) If Licensee wishes to use the Licensed Software after expiration of the Evaluation License Period, then Licensee must purchase a Subscription License and pay the applicable subscription fees (the "Subscription Fees"). Upon Licensee's payment of the applicable Subscription Fees, Licensee's license shall thereafter be deemed to be a Subscription License.
(c) The following provisions of this Agreement shall be deemed to be modified as follows during the Evaluation License Period:
(i) During the Evaluation License Period, SubItUp shall provide the Support Services (as defined in Article 7.0) only on a limited, as-available basis.
1.3 Subscription License
If, upon expiration of the Evaluation License Period, Licensee wishes to continue to use the Licensed Software, then subject to payment of the applicable Subscription Fees and the terms and conditions of this Agreement, SubItUp hereby grants to Licensee and Licensee hereby accepts a limited, non-exclusive, non-transferable right and license (the "Subscription License" and together with the Evaluation License, the "License") to use, through the Site only, the Licensed Software and the Documentation during the Initial Term (as defined in Section 2.1(a)) and any Renewal Term (as defined in Section 2.1(b)), for its internal business use only.
2.1 Term; Initial Term and Renewal Term
(a) If Licensee purchases a Subscription License, then the initial term of the Subscription License (the "Initial Term") shall, unless earlier terminated in accordance with the provisions of this Agreement, be the one (1) year period commencing on day on which the Evaluation License Period expires (the "Effective Date")
(b) If Licensee purchases a Subscription License, then, on the first anniversary of the Effective Date and on each anniversary of the Effective Date thereafter, the term of the Subscription License shall automatically renew for additional one (1) year periods (each, a "Renewal Term") unless either party gives written notice of non-renewal to the other party not less than thirty (30) days prior to the expiration of the then current Initial Term or Renewal Term. The Subscription Fees payable for any Renewal Term shall be at SubItUp's subscription rates then in effect on the date of the expiration of the then current Initial Term or Renewal Term. The Initial Term and Renewal Terms are collectively referred to herein as the "Term".
(c) If the Licensee doesn't purchase a Subscription License prior to the expiration of the Evaluation License Period, then this Agreement shall terminate upon expiration of the Evaluation License Period unless earlier terminated in accordance with the provisions of this Agreement.
(d) The Term of this Agreement shall commence on the Effective Date and shall continue thereafter until terminated in accordance with the provisions of this Agreement.
2.2 Termination By Either Party
(a) Licensee may terminate this Agreement at any time by providing SubItUp thirty (30) days advanced written of termination. Upon termination of this Agreement by Licensee, the License shall also automatically terminate.
(b) Without prejudice to any other rights, SubItUp may terminate this Agreement or the License by providing written notice of termination to Licensee if Licensee breaches or otherwise fails to comply with the terms and conditions of this Agreement. Upon any such termination of this Agreement by SubItUp, the License shall also automatically terminate.
2.3 Effect of Termination
(a) Upon termination of the License, Licensee's use of the Licensed Software shall immediately and automatically be discontinued.
(b) No termination of the License or this Agreement shall (i) relieve Licensee from its obligation to pay any charges or fees for Subscription Fees accrued by Licensee prior to the termination date (including, without limitation, any remaining monthly Subscription Fees for the balance of the then current Initial Term or Renewal Term), or (ii) obligate SubItUp to refund or otherwise return any payments made by Licensee pursuant to this Agreement. ALL FEES FOR USE OF THE LICENSED SOFTWARE PAID TO SUBITUP ARE NON-REFUNDABLE.
(c) The provisions of Sections 2.3, 3.0(a), 4.4, 4.5, 8.1, 8.2, 9.1, 9.2, 10.1, 10.2, 10.3, 10.4, and of Article 11.0 shall survive termination of this Agreement.
(a) SubItUp does not own any information, data, text, logos, software, music, sound, photographs, graphics, video, messages or other materials ("Licensee Content") uploaded, posted or stored through Licensee's, and Licensee's user(s)', use of the Licensed Software Licensee, not SubItUp, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Licensee Content, and SubItUp shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Licensee Content. Upon termination of this Agreement, Licensee's right to access or use Licensee Content provided to SubItUp immediately ceases, and SubItUp shall have no obligation to maintain or return to Licensee any Licensee Content. Licensee and Licensee's user(s) hereby grant SubItUp a worldwide, royalty-free, non-exclusive license to host and use the Licensee Content in any way, including, in future modifications of the Licensed Software, other products or services, advertising or marketing materials, and in order to provide Licensee and Licensee's user(s) with the Licensed Software.
(b) Licensee acknowledges and agrees that SubItUp (i) may, but has no obligation to, monitor Licensee Content, and (ii) may disclose any Licensee Content necessary or appropriate to satisfy SubItUp's legal obligations, to protect SubItUp or its customers or members, or to operate the Licensed Software properly. SubItUp, in its sole discretion, may refuse to post, remove, or refuse to remove, any Licensee Content, in whole or in part, alleged to be unacceptable, undesirable, inappropriate, or in violation of this Agreement.
4.1 Limitations on Reverse Engineering, Decompilation, and Disassembly
Licensee shall not reverse engineer, decompile, or disassemble the technology and the software underlying the Site or the Licensed Software, except to the extent that this restriction is expressly prohibited by law.
4.2 Limitations on Access
The Licensed Software shall not be installed on any computer, server or other device of Licensee, and Licensee has no claim to being provided with the Licensed Software or Documentation in physical form. Licensee's access and use of the Licensed Software and Documentation shall only be through the Site.
4.3 Restrictions on Transfer, Modification, and Copying
(a) Licensee shall not copy, modify, rent, lease, transfer, sell, sublicense, distribute, grant a security interest in, or otherwise transfer rights to the Licensed Software, Documentation, or the technology and the software underlying the Site, or permit any third party to use the Licensed Software or Documentation, unless Licensee obtains SubItUp's prior, express written consent.
(b) Licensee shall not modify, or attempt to modify, the software underlying the Site in any manner or form or to use modified versions of such software, including (without limitation) for the purpose of obtaining unauthorized access to the Site.
4.4 Intellectual Property Rights
(a) The technology and the software underlying the Site, the Licensed Software and the Documentation, as well as all patents, copyrights, trademarks, service marks, trade secrets, and other intellectual property and proprietary rights in or related to the Licensed Software and the Documentation (collectively, the "IP Rights"), are and will remain the exclusive property of SubItUp or its licensors, whether or not specifically recognized or perfected under the laws of the jurisdiction in which the Licensed Software is used or licensed. Licensee shall not take any action that jeopardizes any of the IP Rights. Except for the specific license rights granted to Licensee under this Agreement, Licensee shall not have or acquire under this Agreement any right, title, or interest in or to the Licensed Software or the Documentation.
(b) Without limiting the generality of the provisions in subsection (a) above, this Agreement does not grant Licensee any rights in connection with any trademarks or service marks of SubItUp.
4.5 Geographical Limitations
Licensee shall be responsible, at its expense, for complying with all applicable laws and regulations of each jurisdiction where there is a user of the Licensed Software (including, without limitation, laws and regulations pertaining to (i) exports or imports of software and related property, (ii) use or remote use of software and related property, and (iii) registration of this Agreement). Licensee shall indemnify and hold harmless SubItUp and its affiliates from and against all actions, claims, and proceedings brought or asserted against, and all damages, losses, liabilities, costs, and expenses (including reasonable attorneys' fees) suffered or incurred, by SubItUp and its affiliates arising out of any violation or alleged violation by Licensee of any such laws or regulations.
4.6 Export Compliance
The Licensed Software and the technology and the software underlying the Site may contain encryption technology that is subject to United States export controls. Licensee acknowledges that the Licensed Software and the technology and the software underlying the Site may be subject to the export control laws and regulations of the United States, and any amendments thereof. Licensee shall not export, re-export, or otherwise transfer the Licensed Software or any of the technology and the software underlying the Site, directly or indirectly, to:
(a) any countries that are subject to United States export restrictions (currently including, but not necessarily limited to, Cuba, Iran, Libya, North Korea, Sudan, and Syria);
(b) any end-user who Licensee knows or reasonably should know will utilize them in the design, development or production of nuclear, chemical or biological weapons; or
(c) any end-user who has been prohibited from participating in the United States export transactions by any federal agency of the United States government; Licensee further acknowledges that the Licensed Software and the technology and the software underlying the Site may include technical data subject to export and re-export restrictions imposed by United States law, and Licensee shall comply with all such applicable United States laws.
5.1 Conduct on Site and Other Restrictions
(a) If SubItUp requests registration information from Licensee, Licensee will provide SubItUp with true, accurate, current, and complete information. Licensee will promptly update Licensee's registration to keep it accurate, current, and complete. If SubItUp issues Licensee a password, Licensee may not reveal it to any other party. Licensee may not use a password belonging to any third party. Licensee is responsible for maintaining the confidentiality of Licensee's accounts and passwords. Licensee agrees to immediately notify SubItUp of any unauthorized use of Licensee's passwords or accounts or any other breach of security. Licensee also agrees to exit from Licensee's accounts at the end of each session. SubItUp will not be responsible for any loss or damage (including unauthorized usage of the Licensed Software) that may result if Licensee fails to comply with these requirements.
(b) If SubItUp provides Licensee with an administrator user ID and password for accessing the Licensed Software or Documentation, Licensee will assign them to Licensee's administrator. Licensee will be responsible, through Licensee's administrator, for setting and modifying Licensee's and Licensee's users' profile and preferences for the Licensed Software and Documentation, authorizing and terminating individual user ID's and passwords and specifying the access rights of those individuals to the Licensed Software and Documentation. The administrator will notify SubItUp if the administrator needs to change the administrator's or any user's ID, and the administrator may do so only by contacting SubItUp at the email address for technical support specified by SubItUp from time to time.
(c) Without limiting the provisions of Section 4.3, Licensee agrees that Licensee will not use the Site to take any of the following actions:
1. Defame, abuse, harass, stalk, threaten, or otherwise violate the legal right of others;
2. Publish, post, upload, e-mail, distribute, or disseminate (collectively, "Transmit") any inappropriate, profane, defamatory, misleading, infringing, obscene, indecent, or unlawful content;
3. Transmit files or data that contain viruses, corrupted files, or any other similar software or programs that may damage or adversely affect the operation of another person's computer, SubItUp's sites, any software or hardware, or telecommunications equipment;
4. Advertise or offer to sell any goods or services for any commercial purpose unless Licensee have SubItUp's written consent to do so;
5. Transmit surveys, contests, pyramid schemes, spam, unsolicited advertising or promotional materials, chain letters or other unsolicited messages;
6. Download any file that Licensee know or reasonably should know cannot be legally obtained in such manner;
7. Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or the source of software or other material;
8. Restrict or inhibit any other user from using and enjoying any area within the Site;
9. Interfere with or disrupt SubItUp's sites, servers, or networks;
10. Probe, scan or test the vulnerability of the Site or circumvent any security mechanism used by the Site;
11. Impersonate any person or entity, including, but not limited to, any SubItUp representative, or falsely state or otherwise misrepresent Licensee's affiliation with a person or entity;
12. Forge headers or manipulate identifiers or other data in order to disguise the origin of any content transmitted through the Site or to manipulate Licensee's presence on the Site;
13. Take any action that imposes an unreasonably or disproportionately large load on SubItUp's infrastructure;
14. Engage in any illegal activities; or
15. Collect, store or transmit personal information about individuals or any information that is subject to applicable privacy laws or regulations, including but not limited to, any Protected Health Information as defined by the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations.
(d) If offered as part of the Licensed Software, Licensee agree to use SubItUp's bulletin board services, chat areas, news groups, forums, communities and/or message or communication facilities (collectively, the "Forums") only to send and receive messages and material that are proper and related to that particular Forum.
(e) If Licensee choose a username that, in SubItUp's sole discretion, is obscene, indecent, abusive or that might otherwise subject SubItUp to public disparagement or scorn, SubItUp reserve the right, without prior notice to Licensee, to automatically change Licensee's username, delete Licensee's posts from SubItUp's sites, deny Licensee access to SubItUp's sites, or any combination of these options.
(f) Unauthorized access to the Site is a breach of this Agreement and a violation of the law. Licensee agrees not to access the Site by any means other than through the interface that is provided by SubItUp for use in accessing the Site. Licensee agree not to use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor, or copy any part of the Site, except those automated means that SubItUp has approved in advance in writing.
(g) Licensee may not access the Licensed Software for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
(h) Use of the Site is subject to existing laws and legal process. Nothing contained in this Agreement will limit SubItUp's right to comply with governmental, court, and law-enforcement requests or requirements relating to Licensee's use of the Site, which may include disclosing Licensee's Content to the applicable authorities.
5.2 Equipment, Services and Facilities
Licensee is solely responsible for providing, installing and maintaining at Licensee's own expense all equipment, facilities, third party software and services necessary to access and use the Site and the Licensed Software, including, without limitation, all computer hardware and software, modems, printers, telephone service and internet access.
6.1 Subscription Fees
Licensee shall pay to SubItUp the following Subscription Fees for use of the Licensed Software:
(a) an annual license fee (the "Annual Fee"), which Annual Fee shall be due and payable on the Effective Date and on each anniversary of the Effective Date thereafter during the Term (each, an "Annual Payment Date"); and
(b) a monthly subscription fee (the "Monthly Fee") commencing on the Effective Date and continuing on the same day of each month thereafter during the Term (each, a "Monthly Payment Date").
The initial rates of the Annual Fee and the Monthly Fee shall be the rates in effect on the Effective Date. Thereafter, the rates of the Annual Fee and the Monthly Fee shall adjust in accordance with Section 2.1(b).
6.2 Payment Information
As a condition to the purchase of the Subscription License, Licensee shall provide SubItUp with a valid debit card, credit card, or purchase order number with available credit sufficient to pay the applicable Subscription Fees, and other information as required by SubItUp (the "Payment Information"). All Payment Information provided by or on behalf of Licensee shall be true, accurate, current and complete, and Licensee is solely responsible for updating such Payment Information as necessary. Licensee hereby authorizes SubItUp, from time to time, to take steps to determine whether the Payment Information is valid. SubItUp reserves the right to terminate this Agreement immediately in the event any Payment Information is found to be inaccurate, incomplete or not current at any time. SubItUp shall not be responsible for any overdraft charge or other fees that may be incurred by SubItUp's use of Licensee's debit card or credit card.
6.3 Payment Authorization
Licensee hereby authorizes SubItUp to charge such credit card, debit card, or purchase order provided by Licensee for all Subscription Fees. Such charges shall be made in advance on the Annual Payment Date or Monthly Payment Date, as applicable.
SubItUp shall provide Licensee with maintenance services for the Licensed Software ("Support Services") in accordance with the terms of this Agreement. Such Support Services shall include (a) all new releases, corrections, enhancements, updates, and other changes (but generally excluding new software modules) to the Licensed Software as SubItUp generally releases to its other customers who have purchased a Subscription License, (b) email support by sending an email message to email@example.com, and (c) in the event that a particular matter is not resolved by email support, telephone support from 8:30 a.m. until 5:30 p.m. (Eastern Time) each business day.
8.1 Disclaimer of Warranties
THE LICENSED SOFTWARE, DOCUMENTATION, AND SITE, INCLUDING ALL CONTENT, SOFTWARE AND INFORMATION MADE AVAILABLE THEREON OR ACCESSED BY MEANS THEREOF, IS DISTRIBUTED ON AN "AS IS" BASIS. THERE ARE NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE, COMPATIBILITY, SECURITY, ACCURACY OR NON-INFRINGEMENT. IN ADDITION, THERE ARE NO WARRANTIES (A) THAT THE FUNCTIONS CONTAINED IN SUBITUP'S SITE OR THE LICENSED SOFTWARE SHALL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, (B) THAT THE LICENSED SOFTWARE OR SITE WILL MEET LICENSEE'S REQUIREMENTS, (C) THAT THE LICENSED SOFTWARE DEFECTS SHALL BE CORRECTED, (D) THAT SUBITUP'S SITE OR THE LICENSED SOFTWARE SHALL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY, OR (E) THAT SUBITUP'S SITE OR LICENSED SOFTWARE, INCLUDING (FORUMS OR) THE SERVERS ON WHICH SUBITUP'S SITE IS OPERATED, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
8.2 Additional Limitation
LICENSEE ACKNOWLEDGES AND AGREES THAT THE LICENSED SOFTWARE IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN BUSINESS CRITICAL APPLICATIONS OR ANY PRODUCTION USE ON WHICH LICENSEE'S BUSINESS IS DEPENDENT.
9.1 Consequential Damages Limitation
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SUBITUP OR ITS AFFILIATES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL LOSSES OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, COMPUTER FAILURE OR MALFUNCTION OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF OR RESULTING FROM THE USE OF OR INABILITY TO USE THE LICENSED SOFTWARE, DOCUMENTATION OR SITE, EVEN IF SUBITUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO A CLAIM FOR PERSONAL INJURY OR PROPERTY DAMAGE (EXCLUDING, HOWEVER, ANY SUCH CLAIM AGAINST SUBITUP RELATING TO THE PERFORMANCE OR NON-PERFORMANCE OF THE LICENSED SOFTWARE OR ANY OF SUBITUP'S SERVICES).
9.2 Direct Damages Limitation
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUBITUP'S, AND SUBITUP'S AFFILIATES', LIABILITY ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, THE LICENSED SOFTWARE, DOCUMENTATION, OR SITE SHALL BE LIMITED TO THE AMOUNT OF LICENSEE'S DIRECT DAMAGES RESULTING FROM SUCH BREACH OR DEFAULT, NOT TO EXCEED THE AMOUNTS ACTUALLY RECEIVED BY SUBITUP WITH RESPECT TO THE USE OF THE LICENSED SOFTWARE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE OF THE ACT OR OMISSION GIVING RISE TO SUCH BREACH OR DEFAULT (TAKING INTO CONSIDERATION THAT ANY SUBSCRIPTION FEES PAID FOR A PERIOD OF TIME LONGER THAN TWELVE (12) MONTHS ARE ALLOCATED PRO RATA TO EACH MONTH DURING THE PERIOD FOR WHICH SUCH FEES PERTAIN). THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO AMOUNTS PAYABLE BY SUBITUP TO A THIRD PARTY CLAIMANT FOR PERSONAL INJURY OR PROPERTY DAMAGE (EXCLUDING, HOWEVER, ANY CLAIM AGAINST SUBITUP RELATING TO THE PERFORMANCE OR NON-PERFORMANCE OF THE LICENSED SOFTWARE OR ANY OF SUBITUP'S SERVICES).
10.1 Binding Arbitration
Licensee and SubItUp agree that the exclusive remedy for all disputes and claims relating in any way to, or arising out of, this Agreement (including the arbitrability of any claim or dispute and the enforceability of this paragraph), or to any other alleged act or omission by either party toward the other (excepting only any cause of action giving rise to a claim for equitable relief), shall be arbitration. Any such claim shall be submitted to arbitration before a single arbitrator selected by mutual agreement of SubItUp and Licensee; provided that if Licensee and SubItUp are unable to agree to an arbitrator, the arbitrator(s) shall be selected in accordance with the then-prevailing Rules of Commercial Arbitration of the American Arbitration Association ("AAA"), and the arbitration proceedings shall be conducted in Manchester, New Hampshire.
10.2 Authority of the Arbitrators
The arbitrator(s) shall not contravene or vary in any respect any of the terms or provisions of this Agreement. The award of the arbitrator(s) shall be final and binding upon SubItUp and Licensee, and judgment upon any award rendered therein may be entered and enforced in any court of competent jurisdiction, including the New Hampshire Superior Court.
10.3 Injunctive Relief
Neither this arbitration provision nor a pending arbitration shall prevent either party from obtaining injunctive relief for any matter at any time.
10.4 Choice of Law
This Agreement shall be governed by the laws of the State of New Hampshire, without regard to conflicts of law provisions.
11.1 Entire Agreement
This Agreement shall constitute the complete and exclusive agreement between SubItUp and Licensee with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications, proposals, understandings, or other agreements, whether oral, electronic, or written, between them regarding the subject matter hereof.
(a) To the Agreement. The terms and conditions contained in this Agreement may not be modified by Licensee except in a writing duly signed by Licensee and an authorized representative of SubItUp. SubItUp reserves the right, it its sole discretion, to modify and revise this Agreement and any policies affecting the Site. Any modification or revision is effective immediately upon posting to the Site or distribution to Licensee via electronic mail or conventional mail. Licensee's continued use of the Licensed Software and the Site following any modification(s) or revision(s) to this Agreement or any policies shall be conclusively deemed an acceptance of all such modification(s) or revision(s). Licensee's only right with respect to any dissatisfaction with any modifications or revisions made pursuant to this provision, or any policies or practices of SubItUp in providing the Licensed Software, is to terminate this Agreement in accordance with the provisions of this Agreement.
(b) To Site or Licensed Software. SubItUp has the right to modify, suspend or discontinue the Licensed Software and the Site or any portion thereof at any time, including the availability of any area of the Site, including, but not limited to, the availability of the Licensed Software. SubItUp may also impose limits on certain features and services or restrict Licensee's access to parts or all of the Site or Licensed Software without notice or liability.
Any notice required to be given to a party under this Agreement shall be in writing and shall be (a) given by personal delivery to such party, (b) mailed by registered or certified mail, return receipt requested, postage prepaid, or (c) shipped by a nationally-recognized overnight carrier, shipping prepaid. Any such notice shall be sent to SubItUp at the address set forth below in Article 12.0, or Licensee at the address in SubItUp's records. Either party may at any time change the address to which written notices are to be sent to such party, by notifying the other party of the new address by written notice.
(a) This Agreement shall be binding upon and for the benefit of the parties hereto and their respective successors and permitted assigns. SubItUp may assign this Agreement at its discretion. Except as set forth in subsection (b) below, Licensee may not assign, sublicense or otherwise transfer any rights (including as the result of a merger, acquisition of assets, stock sale, or other transaction resulting in a change of control) under this Agreement, any license granted hereunder, or any of Licensee's rights hereunder, in whole or in part.
(b) Licensee may assign or transfer this Agreement in its entirety to a purchaser of all or substantially all of Licensee's assets, but if and only if, (i) no later than thirty (30) days following such purchase, Licensee and such purchaser provide SubItUp with written notice thereof, including the unconditional written agreement by such purchaser to be bound by all of the provisions of this Agreement, and (ii) SubItUp consents to such assignment, which consent shall not be unreasonably withheld.
Each term, condition, and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law. If there is any conflict between any term, condition, or provision of this Agreement and any statute, law, ordinance, order, rule, or regulation, the latter shall prevail; provided, that any such conflicting term, condition, or provision shall be curtailed and limited only to the extent necessary to bring it within the legal requirements and the remainder of this Agreement shall not be affected thereby.
11.6 U.N. Convention
This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.
Any United States (whether federal, state, or local) or foreign sales, use, or other taxes (excluding only any tax based on SubItUp's net income), assessments, or other governmental fees or charges arising from any payments made or to be made by Licensee to SubItUp for the Licensed Software or with respect to its use, or otherwise related to or arising out of this Agreement, are the responsibility of and shall be paid by Licensee or, if SubItUp is required to pay the same, shall be reimbursed by Licensee to SubItUp upon demand.
No failure or delay by either party to exercise any right or remedy specified herein shall be construed as a current or future waiver of such remedy or right, unless said waiver is in writing signed by a duly authorized representative of the party issuing such waiver.
11.9 Internet Delays
THE LICENSED SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SUBITUP IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS OR LIMITATIONS.
If Licensee has any questions concerning this Agreement, or if Licensee wishes to contact SubItUp for any reason, please contact SubItUp at the street address or email address below: