LICENSE TERMS AND CONDITIONS
THESE LICENSE TERMS AND CONDITIONS (THE “AGREEMENT”) GOVERNS THE USE OF CROSSOVER MARKETS, INC.’S (“CROSSOVER”) PROPRIETARY WORKSMART TECHNOLOGY (“WORKSMART SYSTEM”). THIS IS A LEGAL AND BINDING AGREEMENT BETWEEN LICENSEE (EITHER AN INDIVIDUAL OR A LEGAL ENTITY) AND CROSSOVER. PLEASE READ THESE LICENSE TERMS CAREFULLY BEFORE DOWNLOADING, INSTALLING, COPYING, OR USING THE WORKSMART SYSTEM.
BY CLICKING ON THE "NEXT" BUTTON, DOWNLOADING, INSTALLING, COPYING, OR USING THE WORKSMART SYSTEM, LICENSEE IS CONSENTING TO BE LEGALLY BOUND BY THESE LICENSE TERMS. IF LICENSEE DOES NOT AGREE TO THESE LICENSE TERMS, LICENSEE MUST IMMEDIATELY (I) STOP THE DOWNLOAD OR INSTALLATION OF THE WORKSMART SYSTEM; (II) DO NOT COPY OR USE THE WORKSMART SYSTEM (III); DELETE ANY AUTHORIZATION/LOGIN CREDENTIALS; (IV) NOTIFY CROSSOVER AND (V) DELETE ANY COMPONENTS OF THE WORKSMART SYSTEM THAT ARE IN LICENSEE’S POSSESSION.
This Agreement is hereby entered into and agreed upon by you, as an individual and (if applicable) as a legal entity ("Licensee") and Crossover and sets forth the terms and conditions under which Licensee is licensed to use the WorkSmart System.
1.1 “Documentation” means technical manuals, training materials, and other enduser
technical documents, in either electronic or printed format, provided with or relating to the WorkSmart System, including all updates or versions thereof.
1.2 "WorkSmart System Update" means any enhancements, modifications, service packs, patch, or new
release issued by Crossover at its discretion. WorkSmart System Updates are subject to the terms and
conditions of the license agreement that accompanies the notification of availability of such WorkSmart System Update or, if not available, the current version of this Agreement in which event the foregoing definition of “WorkSmart System Update” will be deemed to be included within the definition of “WorkSmart System” above.
1.3. “Master Terms” means that online or written service or license agreement between Licensee and
Crossover that provided a reference or link to this Agreement.
2. License Grant
Subject to the terms and conditions of this Agreement, Crossover grants to Licensee a personal,
nonsublicensable, nonexclusive, nontransferable license for the term specified in the Master Terms, solely for its internal use and solely as described in the Documentation. Use of the WorkSmart System is strictly limited to those individuals who are authorized and intended to use the WorkSmart System pursuant to the terms of the Master Terms. Crossover reserves all rights in the WorkSmart System not expressly granted to Licensee in this Agreement. Crossover shall make WorkSmart System Updates available to Licensee if and when such WorkSmart System Updates are made to Crossover’s general customer base.
3. Restricted Use
Licensee shall not (i) access the WorkSmart System to process, or permit to be processed, the data of any other party; or (ii) access the WorkSmart System for service bureau or commercial timesharing
use. Unless otherwise expressly permitted in the Master Terms, Licensee shall not permit any subsidiaries, affiliated entities, or third parties to access the WorkSmart System.
Licensee shall not and shall procure that its third party users shall not: (i) modify, disassemble, decompile, reverse engineer, or otherwise attempt to determine the source code or protocols from the object code of the WorkSmart System; (ii) use the WorkSmart System in any manner to provide service bureau, timesharing or other computer services to third parties; (iii) use the WorkSmart System, or allow the transfer, transmission, export, or reexport of the WorkSmart System or portion thereof in violation of any export control laws or regulations administered by any government agency; (iv) modify or remove any copyright notices, proprietary legends, trademark, service mark attributions, patent markings, confidentiality markings or other indicia of ownership on all copies of the WorkSmart System, Documentation, and any other Crossover materials provided to Licensee. or (v) the Documentation provided in relation to the WorkSmart System, may not be copied or replicated in any form, and may only be utilized in connection with the use of the WorkSmart System.
Crossover may, upon reasonable prior notice, either itself or through an independent third party auditor, enter onto Licensee’s premises during Licensee’s normal business hours to inspect and audit Licensee’s computer systems, network, and records to verify that Licensee’s use of the WorkSmart System is in compliance with the terms of this Agreement.
This license confers no ownership rights on the WorkSmart System to Licensee and is not a sale of any rights in the WorkSmart System or the Documentation. Crossover owns and retains ownership of all right, title, and interest in and to (i) the WorkSmart System and any copies thereof; (ii) the Documentation and any copies thereof; (iii) any ideas, suggestions, or feedback relating to the WorkSmart System and Documentation (“Feedback”); and (iv) all intellectual property rights embodied within the foregoing (i)(iii). Licensee hereby irrevocably assigns and agrees to assign all of Licensee’s right, title, and interest in and to any Feedback to Crossover. To the extent such Feedback cannot be assigned, Licensee hereby grants and agrees to grant to Crossover at no charge a perpetual, irrevocable, royaltyfree, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit the Feedback without restriction.
The WorkSmart System and Documentation contain proprietary and confidential information of Crossover and/or its licensors as well as trade secrets owned by Crossover and/or its licensors. Licensee agrees to hold the WorkSmart System and Documentation in strict confidence and not to use or disclose the WorkSmart System or Documentation in any way except as expressly permitted hereunder. Licensee agrees to protect the WorkSmart System and Documentation at least to the same extent that it protects its similar confidential information, but in no event less than reasonable care.
6. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH HEREIN, CROSSOVER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE WORKSMART SYSTEM, OR ANY OTHER MATERIALS (TANGIBLE OR INTANGIBLE) OR SERVICES SUPPLIED BY CROSSOVER, ITS RESELLERS, OR ITS AGENTS, AND CROSSOVER HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, ACCURACY OF DATA, AND NONINFRINGEMENT.
7. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL CROSSOVER WILL BE LIABLE FOR ANY LOSS OF DATA, INDIRECT, EXEMPLARY, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND (INCLUDING ATTORNEYS FEES AND COSTS) WITHOUT LIMITATION LOST PROFITS, BUSINESS INTERRUPTION, LOST BUSINESS INFORMATION OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES).
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CROSSOVER’S CUMULATIVE LIABILITY TO LICENSEE, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY (INCLUDING ATTORNEY’S FEES AND COSTS), WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES ACTUALLY PAID BY LICENSEE TO CROSSOVER OR ITS AUTHORIZED REPRESENTATIVE FOR USE OF THE WORKSMART SYSTEM.
THE DISCLAIMER OF WARRANTIES AND LIMITATIONS OF LIABILITY CONTAINED IN THIS AGREEMENT ARE FUNDAMENTAL CONDITIONS OF THE BASIS OF CROSSOVER’S BARGAIN HEREUNDER, AND LICENSEE ACKNOWLEDGES THAT CROSSOVER WOULD NOT BE ABLE TO PROVIDE THE WORKSMART SYSTEM TO LICENSEE ABSENT SUCH LIMITATIONS. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN AND EVEN IF A PARTY KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
8. Government Users
If Licensee is a branch or agency of the United States Government or a contractor thereto, the following provision applies. The WorkSmart System and Documentation are comprised of “commercial computer WorkSmart System” and “commercial computer WorkSmart System documentation” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995) and are provided to the Government (i) for acquisition by or on behalf of civilian agencies, consistent with the policies set forth in 48 C.F.R. 12.212; or (ii) for acquisition on behalf of the department of defense consistent with the policies set for the in 48 C.F.R. 227.72021 (Aug. 1995) and 227.72023 (Aug. 1995).
9. Export Compliance
The WorkSmart System, its related technology and services, and Licensee's use of the same are subject to U.S. export control and sanctions laws and regulations, including, but not limited to, the Export Administration Regulations, 15 C.F.R. Parts 730774 (the “EAR”), and sanctions imposed or administered by the Department of the Treasury, Office of Foreign Assets Control (“OFAC”), and the Department of State and may be subject to export or import regulations in other countries. Licensee warrants and certifies that: (i) Licensee is not a citizen, national, permanent resident of, or incorporated or organized to do business in, and is not under the control of the governments of, Cuba, Iran, North Korea, Sudan or Syria, or any country to which the United States embargoes goods; (ii) Licensee is eligible under U.S. law to receive exports of the WorkSmart System, in that it is not included on any list of sanctioned or ineligible parties maintained by the U.S. government, including, but not limited to, OFAC’s lists of Specially Designated Nationals and Blocked Persons (“SDN List”), U.S. Department of Commerce’s Table of Denial Orders, the Entity List, or the Unverified List; (iii) Licensee will not
sell, export, reexport, transfer, use, or enable the use of the WorkSmart System, its related technology and services, or any other items that may be provided by Crossover, directly or indirectly: (a) to or for enduse in or by the countries listed in (i) above or any citizens, nationals or permanent residents of such countries; (b) to or for enduse by any person or entity determined by any U.S. government agency to be ineligible to receive exports, including but not limited to persons and entities designated on the lists described in (ii) above; and (c) to or for enduses prohibited by U.S. export or sanctions laws and regulations, including, but not limited to, activities involving the proliferation of chemical, biological or nuclear weapons, weapons of mass destruction or the missiles capable of delivering such weapons and their related technology.
10. Term and Termination
This Agreement is effective upon installation of the WorkSmart System and remains in effect for the term stated in the Master Terms. This Agreement will automatically terminate upon Licensee’s failure to comply with any term or condition of this Agreement or the Services Agreement. Crossover has the right to immediately terminate this Agreement and/or access to the WorkSmart System as to any user or Licensee who Crossover reasonably believes is not compliant with the terms of this Agreement. Upon termination of the term of license or upon termination of this Agreement or any license hereunder, (i) Licensee shall immediately cease all use of the WorkSmart System; (ii) any and all Licensee’s rights to the WorkSmart System, Documentation and Crossover’s confidential information (collectively, the “Materials”) will cease; (iii) Licensee shall either return to Crossover or destroy both the WorkSmart System and the Documentation together with any copies thereof; (iv) if elected to destroy the WorkSmart System, Licensee must certify that any and all copies of the WorkSmart
System have been destroyed. Any use of the Materials by Licensee following termination or expiration of this Agreement will constitute infringement and/or misappropriation of Crossover’s proprietary rights in the Materials.
11.1 The laws of the State of Texas, USA, govern the interpretation of this Agreement, without regard to any principles of conflict of laws of any state or jurisdiction. All disputes arising under this Agreement shall be brought exclusively in a federal or state court located in Travis County, Texas.
11.2 Each provision of this License Agreement is a separately enforceable provision. If any provision of this Agreement is determined to be or becomes unenforceable or illegal, such provision shall be modified to the minimum extent necessary in order for this Agreement to remain in effect in accordance with its terms as modified by such reformation.
11.3 Failure or delay in enforcing any right or provision of this Agreement will not be deemed a waiver of such right or provision with respect to any subsequent breach.
11.4 No terms, provisions, or conditions of any purchase order, acknowledgement, check, or other business form that Licensee may use in connection with the licensing of the WorkSmart System will have any effect on the rights, duties, or obligations of the parties under this Agreement, regardless of any failure of Crossover to object to such terms, provisions, or conditions.
11.5 Sections 1 (Definitions), 3 (Restricted Use), 4 (Ownership), 5 (Confidentiality), 6 (Disclaimer of Warranties), 7 (Limitation of Liability), 10 (Term and Termination), and 11 (General) will survive termination of this Agreement.
11.6 This Agreement and the applicable Services Agreement constitute the entire agreement between the parties and supersedes all prior or contemporaneous discussions, representations, and proposals, whether in writing or oral, with respect to the subject matter of this Agreement. This Agreement may not be amended or modified in any respect unless approved in writing and signed by an authorized representative of the parties.
11.7 Licensee’s rights under this Agreement may not be transferred or assigned without the prior express written consent of Crossover, and any such attempted assignment will be void. Crossover may assign this Agreement in its discretion.
11.8 All notices and requests in connection with this Agreement to be sent to Crossover shall be given in writing and shall be sent by hand delivery, overnight courier or certified mail with proof of delivery to the following address: