CLICK WRAP TRADING TERMS
June 28, 2022
By clicking on the “I accept the terms and conditions” button, by making or executing an Order or by using the Product or downloading the Software, You are indicating Your acceptance of this Agreement and agree to be legally bound by its terms, to the exclusion of all other terms. Unless and only to the extent expressly identified otherwise in this Agreement, there will be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof. If You are agreeing to these terms on behalf of an organization or entity, You represent and warrant that you are authorized to agree to these terms on that organization’s or entity’s behalf and bind them to these terms (in which case, the references to “You” and “Your” will refer to that organization or entity.
We reserve the right, at Our sole discretion, to modify or replace any of the provisions of this Agreement at any time by posting a notice on Our website or by sending You a written notice. It is Your responsibility to check this Agreement periodically for changes. Your continued use of Our Products or Software following the posting of any changes to this Agreement constitutes acceptance of those changes.
1.1 In this Agreement the following definitions apply:
Agreement means the agreement formed between You and Us for the Order of the Product and/or download of the Software and includes these Trading Terms and, if applicable, an executed Order, the API License Terms and/or the Cloud Platform Terms (in each case which are incorporated into and form a part of this Agreement upon mutual execution or by Your clicking to accept the applicable terms).
Australian Consumer Law means the Competition and Consumer Act 2010 (Cth), Schedule 2.
Claim means any claim, action, demand or proceeding
(a) under, arising out of, or in any way in connection with this Agreement;
(b) arising out of, or in any way in connection with the Product or Software or either party’s conduct before the date of the Order; or
(c) arising otherwise at law including in equity, by statute, tort (whether for negligence or otherwise), contract, for restitution or unjust enrichment.
Consumer has the meaning given to it in the Australian Consumer Law.
Documentation means any documentation made available to You by Us for use with the Product and Software, including any user’s guide or any such documentation available online.
Force Majeure Event means any event beyond the reasonable control of the relevant party.
GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth), or any other similar tax.
Intellectual Property Rights means all intellectual property rights, including all copyright, patents, trade marks, design rights, trade secrets, domain names, know-how and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
Liability means all liabilities, costs, damages, losses, expenses and outgoings of whatever description, including the costs and expenses of defending or settling any Claim.
Order means, as applicable, (i) the order form mutually executed between You and Us for the Product and/or Software which references these Trading Terms, or (ii) the online order placed by You and accepted by Us for the supply of the Product and download of the Software.
Pre-Order Products means select Products available for pre-order prior to their general commercial release.
Prescribed Terms means any terms, conditions and warranties which applicable law expressly provides may not in respect of this Agreement be excluded, restricted or modified, or may be excluded, restricted or modified only to a limited extent.
Product or Products means the hardware devices identified or selected in an applicable Order.
Software means the (i) the software embedded or included with any Product and (ii) any software owned or licensed by Us and downloaded by You, and in each case, any upgrades or updates to the foregoing made available by Us to You that You download.
Support means the services set out in clause 7.1.
Us, We, Our means Liquid Instruments, Inc. and includes its subsidiaries and its and their directors, agents, subcontractors and employees.
You, Your means the person/entity executing or placing an Order, purchasing the Product or downloading the Software and includes its directors, agents, subcontractors and employees.
1.2 Unless the context requires otherwise:
(a) a reference to a person includes a corporation, a trust or any other legal entity;
(b) the singular includes the plural and vice versa;
(c) headings are for convenience and do not form part of this Agreement or otherwise affect the interpretation of this Agreement;
(d) where any word or phrase is given a definite meaning in this Agreement, any part of speech or other grammatical form of that word or phrase has a corresponding meaning;
(e) the term “includes” (or any similar term) means “includes without limitation”; and
(f) a reference to any statute includes references to any subsequently amended, consolidated or re-enacted version of that statute and all delegated legislation or other statutory instruments made under it.
2.1 You may place an Order with Us from time to time for the supply of the Product and/or download of the Software.
2.2 Except for Pre-Order Products, once an Order is placed, it cannot be canceled by You. Upon placing the Order (including for Pre-Order Products), your chosen payment method (e.g. credit card) will be charged in full on check-out. Your placing of an Order for a Product (including a Pre-Order Product) constitutes your express agreement to be charged the full price of such product upon check-out. The release date of a Pre-Order Product is subject to change, and We make no warranty that we will ship the Pre-Order Product or have it available on the date of release stated at the time You placed Your Order. Should the release date of a Pre-Order Product change, We will notify You via e-mail or alternative contact. You may also elect to cancel an Order for a Pre-Order Product at any time up until the time the Pre-Order Product is shipped and We will fully refund You the purchase price. We reserve the right to cancel a Pre-Order Product or its applicable Order at any time, provided We will fully refund You the purchase price.
2.3 The fees for the Products (including Pre-Order Products) and Software are specified in Our pricing schedule (available at www.liquidinstruments.com or by emailing [email protected]) applicable at the date of the relevant Order. We may update the pricing schedule from time to time in our sole discretion, and Your continued use of the Product or Software following such update will constitute Your acceptance of those updates.
2.4 You agree to give Us all relevant information to process Your Order (including credit card information, name, contact person, address for delivery of the Product, and any other information which may affect Our ability to provide the Product) at the time of the Order.
3.1 Except as otherwise expressly set forth in a separate, executed contract between You and Us for the Order of the Products and/or Software, payment for the Products and Software is due at the time of the Order. We may use a third-party payment processor (the “Payment Processor”) to bill you through your chosen payment method. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition the terms of this Agreement. We are not responsible for any error by, or other acts or omissions of, the Payment Processor. By choosing to place an Order, You agree to pay us all applicable fees and charges for such Order using Your chosen payment method (e.g. credit card), and You authorize Us and our Payment Processor to charge Your chosen payment method (e.g. credit card) to effect the payment. At our discretion, We may delay processing of the payment until the time the Product is shipped by Us to You. In the event that We incur a charge in connection with the payment, You must pay Us the amount of that charge as an additional payment.
3.2 You must pay all use, sales, value-added, property and similar taxes (excluding US taxes based on Our net income), shipping, duties, withholdings, backup withholding and the like (collectively, “Taxes”) in connection with the supply of the Product and Software, including but not limited to any GST, as applicable. Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with this Agreement are exclusive of all Taxes.
3.3 At our discretion, We may not deliver the Product or permit You to download the Software until We have received all monies payable by You in connection with the supply of the Product and Software.
4 GRANT OF SOFTWARE LICENSE
4.1 We grant You a personal, non-exclusive, world-wide, non-assignable, non-transferable, non-sublicensable license to use the Software and the Documentation but only for Your internal business purposes in connection with using and operating the Product procured by You pursuant to an Order and only in accordance with the Documentation, subject to and in accordance with the terms and conditions set out in this Agreement. Except for the license granted under this Section, We and Our licensors shall retain all rights, title, and interest in and to the Software, Documentation and all copies thereof.
4.2 You must not (and must not allow any third party to):
(a) use the Software or Documentation for any purpose or in any manner other than as explicitly set out in clause 4.1 or in violation of any applicable laws and regulations;
(b) permit any third party to use the Software or use the Software for the benefit of any third party;
(c) reproduce, make error corrections to or otherwise modify or adapt the Software or the Documentation or create any derivative works based upon the Software or the Documentation;
(d) de-compile, disassemble or otherwise reverse engineer the Software or permit any third party to do so (except to the extent that applicable law prohibits reverse engineering restrictions);
(e) modify or remove any copyright or other proprietary notices on the Products, Software or the Documentation; or
(f) possess or use any Product or Software, or allow the transfer, transmission, export, or re-export of any Product or Software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department’s Office of Foreign Assets Control, or any other government agency.
5.1 You acknowledge and agree that:
(a) We do not warrant that access and use of the Software will be uninterrupted, error-free, or completely secure;
(b) We do not warrant that the Software or the Products will be compatible, or operate in any combination with Your equipment and other software programs or hardware which may be selected for use by You;
(c) We do not guarantee the Software to be free from virus, spyware or malware (as those terms are generally understood in the IT industry); and
(d) You will use the Product and Software in accordance with the Documentation.
5.2 You agree that the Product and Software shall not be used for military, medical or nuclear power purposes.
5.3 As defined in FAR section 2.101, any software and documentation provided by Us are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
6 INTELLECTUAL PROPERTY RIGHTS
6.1 Nothing in this Agreement constitutes a transfer of any of Our Intellectual Property Rights.
6.2 You acknowledge that We own all Intellectual Property Rights in the Product and the Software and the Documentation.
6.3 You must not directly or indirectly do anything that would or might invalidate or put in dispute Our title in the Software, the Product or any of Our registered or unregistered trade marks (“Trade Marks”).
6.4 You must comply with Our usage guidelines and directions with respect to the Software and the Trade Marks as notified to You from time to time.
6.5 We may include Your name and logo in Our customer listings and/or otherwise disclose that You are Our Customer to any third party in our discretion. For the avoidance of doubt, if You are agreeing to these terms on behalf of an organization or entity, “Your” includes such organization or entity’s name and logo.
6.6 You acknowledge that the Software and its components may contain software licensed from third parties. All rights in and to any such third party software are reserved by and remain with the applicable third parties. You agree that such third parties may enforce their rights under this Agreement against You directly in their own name.
6.7 You may from time to time provide suggestions, comments or other feedback to Us with respect to our Products, Software or other products and services (“Feedback,” which term shall include related intellectual property rights). Feedback, even if designated as confidential by You shall not create any confidentiality obligation for Us or our affiliates notwithstanding anything else. You shall, and hereby do, grant to Us and our affiliates a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use, commercialize, exercise, and otherwise exploit the Feedback for any purpose.
7 SOFTWARE SUPPORT SERVICES
7.1 We will use commercially reasonable efforts to provide the following Support in relation to the Software:
(a) resolution of reported defects and errors in the Software in order that the Software will comply in all material respects to any Documentation relating to the Software; and
(b) provision (by download) of enhancements or new releases of the Software which We make generally available to Our customers; provided that We have no obligation under this Agreement or otherwise to provide any such enhancements or new releases.
7.2 Support will be available during normal business hours in California, USA and Canberra, Australia. Support may be requested by email at the address advised from time to time by Us.
7.3 If You choose to purchase Our premium service package (“Premium Service”), we will provide the Premium Service as set forth on and subject to the terms and conditions of https://www.liquidinstruments.com/support/warranty-repairs-and-service/#returns.
7.4 Support does not include:
(a) correction of errors or defects in the Software where the Software has been modified by You or a third party without our consent;
(b) correction of errors or defects in any of Your supplied interfaces to Your own or any third party’s computer systems or services; and
(c) correction of errors or defects in the Software caused by Your failure to install any previously-supplied patches, fixes or updates to the Software.
7.5 All Support will be available and provided remotely via email or download.
8 PRODUCT DELIVERY
8.1 We will use Our reasonable endeavors to meet the delivery time/s and delivery dates specified on an Order but will not be responsible for any loss or damages incurred by You or any other person or entity as a result of early or late delivery of the Product and Software. You acknowledge and agree, however, that for Pre-Order Products, We make no warranty that we will ship the Pre-Order Product or have it available on the date of release stated at the time You placed Your Order.
8.2 Title to the ordered Product will transfer to You at the time of delivery by Us to the freight carrier. Responsibility for any Product loss or damage when the Product is in transit will be in accordance with the relevant Incoterms set forth in Section 8.3 below.
8.3 Unless otherwise expressly set forth in a separate, executed contract between You and Us for the Order of a Product, all shipments of Products are made Delivered at Place – DAP (Incoterms 2020) at the receiving address designated by You at the time of Order. You shall be responsible for all import duties, custom clearance fees, and additional or local taxes or duties and bear all risk of loss after the Product is made available at the receiving address designated by You at the time of Order. Fulfillment of Orders and all terms and conditions related to the shipment and deliveries of Products to You shall be determined solely in accordance with the terms of this Agreement.
9.1 A party may terminate this Agreement immediately by written notice to the other if any of the following events has occurred in respect of the other party:
(a) a material breach of this Agreement by the other party and the other party fails to remedy that breach within 14 days of written notice to do so; or
(b) an Insolvency Event occurs. An “Insolvency Event” means when a party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other party (and not dismissed within 120 days).
9.2 If this Agreement is terminated or expires for any reason, then, in addition and without prejudice to any other rights or remedies available:
(a) each party retains the Claims it has against the other;
(b) Your right to use the Software and the Trade Marks immediately ceases and the licenses granted under this Agreement terminate (provided that if this Agreement is terminated for Our material breach, You may continue to use only the Software as provided when You purchased such Software, subject to the other surviving provisions in this Agreement);
(c) You must immediately remove all of Our Software and Trade Marks from Your electronic devices (provided that if this Agreement is terminated for Our material breach, You may continue to use only the Software as provided when You purchased such Software, subject to the other surviving provisions in this Agreement); and
(d) the following provisions will survive termination of this Agreement: Sections 1, 4.2, 5, 6, 9.2, 10, 12, 13 and 14.
10 LIABILITY; WARRANTY DISCLAIMER; INDEMNIFICATION
10.1 TO THE FULLEST EXTENT PERMITTED BY LAW, WE EXCLUDE ALL LIABILITY IN RESPECT OF YOUR USE OF THE SOFTWARE AND THE PRODUCT, LOSS OF DATA, INTERRUPTION OF BUSINESS, WASTED MANAGEMENT TIME, COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, OR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF WE HAD BEEN ADVISED BY YOU OR SHOULD HAVE REASONABLY BEEN AWARE OF THE POSSIBILITY OF SUCH LOSS.
10.2 TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY SET OUT IN SECTION 11 OF THIS AGREEMENT AND EXCEPT FOR ANY PRESCRIBED TERMS (IF APPLICABLE), ALL CONDITIONS, WARRANTIES, TERMS AND OBLIGATIONS EXPRESSED OR IMPLIED BY LAW OR OTHERWISE RELATING TO THIS AGREEMENT OR THE PERFORMANCE OF THE OBLIGATIONS BY US UNDER THIS AGREEMENT, ARE EXCLUDED, AND WE HEREBY EXPRESSLY DISCLAIM ANY SUCH CONDITIONS, WARRANTIES, TERMS AND OBLIGATIONS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES IMPLIED BY COURSE OF PERFORMANCE, USAGE OF TRADE OR COURSE OF DEALING.
10.3 Subject to clause 10.6, Our total aggregate Liability for all Claims and any other matter relating to the subject matter of this Agreement is limited to the total amount paid by You to Us for the Product and Software.
10.4 Either party’s Liability for any Claim relating to this Agreement will be reduced to the extent to which the other party contributed to the Liability arising from the Claim.
10.5 You warrant that You have satisfied Yourself as to the description and condition of the Product provided and its fitness for the purpose to which it was ordered.
10.6 As applicable, Our liability for the breach of any Prescribed Term, is limited to (at Our election) to:
(a) in the case of a major failure (as defined in the Australian Consumer Law), the extent permitted by the Australian Consumer Law; or
(b) in any other case:
(i) in the case of goods, the replacement of the goods, the supply of equivalent goods, the repair of the goods or payment of the costs of repairing the goods or obtaining equivalent goods.
(ii) in the case of services, the supply of the services again or payment of the cost of having the services supplied again.
10.7 You will indemnify Us and Our affiliates from all Liabilities.
11 LIMITED PRODUCT WARRANTY
11.1 We warrant that for a period of 12 months from supply of our Product it will:
(a) materially comply with the relevant Documentation published by Us; and
(b) meet the relevant minimum performance criteria published by Us.
Any additional Product-specific warranties and information about Our return policies for various Products can be found on Our page at https://www.liquidinstruments.com/support/warranty-repairs-and-service/#returns.
11.2 As applicable, if You consider that Our Product which you have purchased are not of an acceptable quality, have a latent defect, or are otherwise not compliant with a Prescribed Term, you can make a claim for breach of a Prescribed Term.
11.3 If You wish to make a claim for breach of a Prescribed Term or a breach of the defects warranty in clause 11.1 (together, a “Warranty Claim”), You must notify us by contacting Our nominated contact person as set out in clause 11.6 as soon as reasonably possible after the defect becomes evident setting out the nature of the defect.
11.4 We will not be liable for any breach of the defects warranty in clause 11.1 unless You have notified us within 12 months of the supply of the Product.
11.5 As applicable, the benefits to a Consumer given by the express warranty in clause 11.1 are in addition to other rights and remedies of a Consumer under the Prescribed Terms.
11.6 If You wish to make a Warranty Claim you must contact Liquid Instruments by email to: [email protected]. You must describe the fault in the Product at the time of making the Warranty Claim.
11.7 If We determine Your Warranty Claim is valid, in any event, Our liability is limited exclusively to Product replacement or, if replacement is inadequate or impractical in Our opinion, to refund the cost of the Product.
11.8 For Consumers residing in Australia, as applicable, Our goods come with guarantees that cannot be excluded by the Australian Consumer Law. You are entitled to a replacement or refund for a major failure, and compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if goods fail to be of acceptable quality and the failure does not amount to a major failure.
12 FORCE MAJEURE
We will not be liable for any failure to meet any obligations to the extent that such failure is caused by or arises from:
(a) strikes, lockouts or other industrial disputes, shortage of labor or materials, delay in manufacturing by Us, Our associates or suppliers, civil commotion, fire, flood, drought, loss or delay at sea or otherwise, civil breakdown or war, or;
(b) any other cause beyond Our reasonable control whether arising from natural causes or human agency,
and in such event We may (at Our discretion) elect to cancel that Order or extend the time for performance and, unless agreed to between the parties, You will not be relieved of any obligation to accept or pay for goods by reason of any such delay in delivery.
13 APPLE APP STORE TERMS
This Agreement applies to Your use of all the Software, including Our Mac OS and iOS applications (collectively, the “iOS Application”) available via the Apple, Inc. (“Apple”) App Store, but the following additional terms also apply to the iOS Application:
(a) Both You and We acknowledge that this Agreement is concluded between You and We only, and not with Apple, and that Apple is not responsible for the iOS Application or any materials displayed or performed or available on or through the Software;
(b) The Application is licensed to You on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Software for your private, personal, non-commercial use, subject to all the terms and conditions of this Agreement as they are applicable to the Software;
(c) You will only use the iOS Application in connection with an Apple device that You own or control;
(d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iOS Application;
(e) In the event of any failure of the iOS Application to conform to any applicable warranty, including those implied by law, You may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to You will be to refund to You the purchase price, if any, of the iOS Application;
(f) You acknowledge and agree that We, and not Apple, are responsible for addressing any claims You or any third party may have in relation to the iOS Application;
(g) You acknowledge and agree that, in the event of any third-party claim that the iOS Application or Your possession and use of the iOS Application infringes that third party’s intellectual property rights, We, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
(h) You represent and warrant that You are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that You are not listed on any U.S. Government list of prohibited or restricted parties;
(i) Both You and We acknowledge and agree that, in Your use of the iOS Application, You will comply with any applicable third-party terms of agreement which may affect or be affected by such use; and
(j) Both You and We acknowledge and agree that Apple and Apple’s subsidiaries are third-party beneficiaries of this Agreement, and that upon Your acceptance of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement against you as the third-party beneficiary hereof.
14.1 Unless otherwise expressly set forth in a separate, executed contract between You and Us for the Order of the Products and/or Software, the laws of the State of California and the United States shall apply to this Agreement, without regard to conflicts of law provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Any disputes arising from or related to the subject matter of this Agreement shall be subject to and resolved exclusively by binding arbitration in San Francisco, California, USA in the English language in accordance with the JAMS Streamlined Arbitration Rules and Procedures then in effect, provided that (a) any orders and awards of the arbitrator may be enforced in any court of competent jurisdiction and (b) either party may seek injunctive relief in any court of competent jurisdiction. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
14.2 If a provision of this Agreement is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
14.3 Each party must at its own expense do everything reasonably necessary to give full effect to this Agreement and the events contemplated by it.
14.4 This Agreement (and any documents executed in connection with it) is the entire Agreement of the parties about its subject matter and supersedes all other representations, arrangements or agreements.
14.5 This Agreement may be amended only by a document signed by all parties.
14.6 A provision of or a right under this Agreement may not be waived or varied except in writing signed by the person to be bound.
14.7 This Agreement is not assignable, transferable or sublicensable by You except with Our prior written consent. We may freely transfer and assign any of Our rights and obligations under this Agreement without consent.
14.8 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
API LICENSE TERMS
We may also make available application programming interface and related information and documentation on Our website, including but not limited to Our LabVIEW, Python, and Matlab tools (collectively, “APIs”). YOUR DOWNLOAD OR USE OF ANY PORTION OF OUR APIS SHALL ALSO CONSTITUTE ASSENT TO THESE API LICENSE TERMS (“API AGREEMENT”). This API Agreement is in addition to Our Trading Terms for the provision of Our Products and Software. To the extent there is any conflict between the terms of this API Agreement and the Trading Terms, the terms of this API Agreement shall control. Capitalized terms not defined herein shall have the meanings attributed to them in the Trading Terms.
1.1 License Grant. Subject to full compliance with the terms of this API Agreement, We hereby grant You a limited, personal, non-sublicensable, non-transferable, nonexclusive license to use Our APIs for the sole purpose of allowing You to build software applications (each an “App”) that communicate with Our Products and Software, and for other purposes authorized by Us in writing.
1.2 Restrictions; Ownership. You shall not (and shall not authorize or encourage any third party to), directly or indirectly: (i) rent, lease, loan, sell, sublicense, assign, or otherwise transfer any rights in or to the API; (ii) clone the API, or use the API to build an application programming interface, application or product that is competitive with any of Our products or services; (iii) remove any proprietary notices from the API (or any portion thereof); (v) decompile, reverse engineer, disassemble, or derive the source code, underlying ideas, concepts or algorithms of the API (except as and only to the extent the foregoing restrictions are expressly prohibited by applicable statutory law); or (vi) modify or create derivative works of the API. We own all right, title, and interest (and all related moral rights and intellectual property rights) in and to the API, including any copies and derivative works thereof. No rights or licenses are granted except as expressly and unambiguously set forth herein.
1.3 Confidentiality. You agree not to disclose (or allow access to) the API (or any information derived therefrom) to any third party and will limit access to the API (and any derived information) to your employees who are developing the App(s). In support of this obligation, you will apply at least the same security that you use to protect your own most confidential information.
1.4 API Updates. If We provide You with any upgrades, patches, enhancements, or fixes for the API, then all items that are so provided will become part of the API, respectively, and subject to this API Agreement. Notwithstanding the foregoing, We have no obligation to provide any such upgrades, patches, enhancements, fixes or any other support for the API.
1.5 Company Trademarks. Subject to Our express prior written consent, Apps may be branded with Our specified trademarks in accordance with Our trademark usage guidelines; provided that We have the right to perform quality assurance inspections of each App and to withhold and/or suspend rights to use such trademarks if the quality is not satisfactory in Our sole discretion.
1.6 Compatibility. Each App must maintain 100% compatibility with the API and the Product or Software (including changes provided to You by Us, which shall be implemented in each App promptly thereafter). If any App uses or implements an outdated version of the API or the Product or Software, you acknowledge and agree that such App may not be able to communicate with the Product or Software. You agree not to modify, extend, subset or superset the API to any extent. You understand that we may cease support of old versions or releases of the API.
1.7 Other Terms. This API Agreement is otherwise subject to the terms set forth in Sections 3, 9, 10, 12 and 14 of the Trading Terms (and references to Software therein shall be construed to include the APIs).
CLOUD COMPILER TERMS
In addition to our Products, Software and/or APIs, You may also execute or place an Order for Our Moku Cloud Compiler (the “Cloud Services”). By clicking on the “I accept the terms and conditions” button, by placing or executing an Order for the Cloud Services or by accessing or using the Cloud Services, You are indicating Your acceptance of these Cloud Compiler Terms (the “Cloud Services Agreement”) and agree to be legally bound by its terms. This Cloud Services Agreement is in addition to Our Click Wrap Trading Terms (the “Trading Agreement”) for the provision of Our Products and Software, which are hereby incorporated by reference. Unless and only to the extent expressly identified otherwise in this Cloud Services Agreement or the Trading Agreement, there will be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof. If You are agreeing to these terms on behalf of an organization or entity, You represent and warrant that you are authorized to agree to these terms on that organization’s or entity’s behalf and bind them to these terms (in which case, the references to “You” and “Your” will refer to that organization or entity). To the extent there is any conflict between the terms of this Cloud Services Agreement and the Trading Agreement, the terms of this Cloud Services Agreement shall control. Capitalized terms not defined herein shall have the meanings attributed to them in the Trading Agreement.
- License Grant. Subject to full compliance with the terms of this Cloud Services Agreement and the Trading Agreement, We grant You a non-exclusive, non-transferable, non-sublicensable license for the term of this Cloud Services Agreement to access the Cloud Services through the Internet only for Your internal business purposes in connection with Your use of the Products. Our Cloud Services are provided on a “per-seat” basis and the foregoing license grant is personal to the named individual for such seat, and You may not share Your Cloud Services account or account credentials with any other user or allow users to share Cloud Services accounts or account credentials among themselves.
- Requirements. Compilations made using Our Cloud Services are designed to run only on Our Moku:Pro or Moku:Go hardware with compatible firmware, and You acknowledge and agree that the compilations made using Our Cloud Services will not run on any other Products or any third party hardware. In addition, in order to run Your compiled code made from the Cloud Services, You must have “Multi-Instrument Mode” downloaded and available on Your supported Product and an active license to such “Multi-Instrument Mode”.
- Restrictions. Except as expressly set forth in this Cloud Services Agreement, You shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Cloud Services (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Cloud Services; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Cloud Services; (iv) remove or otherwise alter any proprietary notices or labels from the Cloud Services or any portion thereof; (v) interfere or attempt to interfere with the proper working of the Cloud Services or any activities conducted on the Cloud Services; or (vi) bypass any measures We may use to prevent or restrict access to the Cloud Services (or other accounts, computer systems or networks connected to the Cloud Services). You are responsible for all of Your activity in connection with the Cloud Services, including but not limited to uploading Customer Data (as defined below) onto the Cloud Services. You (i) shall use the Cloud Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Your use of the Cloud Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Cloud Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.
- Third Party Products. Access to the Cloud Services may require You to install or use certain third party applications, products or devices. You agree to be bound by any End-User License Agreements that govern the installation and use of such client applications, products or devices. Currently, Our Cloud Services are built upon and utilize the Vivado Design Suite by Xilinx, which may include the Vivado 2020 AMI hosted by Amazon Web Services. For more information on the Vivado 2020 AMI, please refer to the Amazon Web Services page at: https://aws.amazon.com/marketplace/pp/prodview-b7qglwl7qtlx4. By accessing or using our Cloud Services, You agree to be bound by and comply with the Xilinx End User License Agreement linked to on the Amazon Web Services page and also available at: https://d7umqicpi7263.cloudfront.net/eula/product/91643908-9d5b-48e0-983b-1712f3235f16/55bef2bc-7b72-4542-b638-e63a0defc8a7.pdf. You further acknowledge and agree that the Cloud Services operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). We are not responsible for the operation of any Third Party Services nor the availability or operation of the Cloud Services to the extent such availability and operation is dependent upon Third Party Services. We do not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between You and a third party provider is solely between You and such third party provider and is governed by such third party’s terms and conditions.
- Cloud Compiler Updates. From time to time, We may provide upgrades, patches, enhancements, or fixes for the Cloud Services to Our customers generally without additional charge (“Updates”), and such Updates will become part of the Cloud Services and subject to this Cloud Services Agreement; provided that We shall have no obligation under this Cloud Services Agreement or otherwise to provide any such Updates. You understand and agree that We may cease supporting old versions or releases of the Cloud Services at any time in our sole discretion.
- Fees. The fees for the Cloud Services are specified in Our pricing schedule (available at liquidinstruments.com or by emailing [email protected]) applicable at the time of the relevant Order (the “Fees”). We may update the pricing schedule from time to time in our sole discretion, and Your continued use of the Cloud Services following such update will constitute Your acceptance of those updates. You will pay Us the Fees for the Cloud Services at the time of Your Order. Orders are non-cancellable and all Fees paid are non-refundable and not subject to set-off. Fees are exclusive of all taxes, and You shall be responsible for all (a) taxes associated with Services other than taxes based on Our net income, and (b) Our costs of collection in the event of delinquent payment. In the case of any withholding requirements, You will pay any required withholding itself and will not reduce the amount paid to Us on account thereof.
- Term and Termination. When You place an Order for the Cloud Services, the initial term for such Order is one (1) year (the “Initial Term”), and Your license to Our Cloud Services will expire at the end of the Initial Term, unless you choose to renew Your Order prior to the expiration or termination of the Initial Term (the Initial Term, plus any renewals, is the “Term”). Upon any expiration or termination of the Term, the licenses granted to You hereunder will immediately terminate. The following provisions of this Cloud Services Agreement will survive any termination or expiration: Sections 3, 4, 6, 7, 8, 9, and 10. Following any expiration or termination of the Term, We will continue to store Your Customer Data in Your account and make available such Customer Data to You with “read-only” access for thirty (30) days after the Term. During this period, You will only have “read-only” access to download your Customer Data but You will not be able to perform any new or subsequent compiles unless and until You renew Your Order or place another Order for the Cloud Services. You agree and acknowledge that Customer Data (as well as Your account) may be irretrievably deleted after such thirty (30) day period. You further acknowledge and agree that after any expiration or termination of the Term, if You update Your hardware firmware, Your previously compiled code using the Cloud Services (e.g. using an older firmware version) may not run on Your updated hardware system.
- Your Data. For purposes of this Cloud Services Agreement, “Customer Data” shall mean any data, information or other material provided, uploaded, or submitted by You to the Cloud Services in the course of using the Cloud Services. You shall retain all right, title and interest in and to the Customer Data, including all intellectual property rights therein. You, not Us, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data. We are not responsible to You for unauthorized access to Customer Data or the unauthorized use of the Cloud Services unless such access is due to Our gross negligence or willful misconduct. You are responsible for the use of the Cloud Services by any person to whom You have given access to the Cloud Services, even if You did not authorize such use. If We receives any notice or claim that any Customer Data, or activities hereunder with respect to any Customer Data, may infringe or violate rights of a third party (a “Content Claim”), We may (but are not required to) suspend activity hereunder with respect to that Customer Data and You will indemnify Us from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Content Claim, as incurred. Notwithstanding anything to the contrary, You acknowledge and agree that We may (i) internally use and modify Customer Data for the purposes of (A) providing the Services to You (including, without limitation, in connection with any debugging or support requests), (B) generating analytics (including, without limitation, access usage and utilization metrics and data) based on the Customer Data and/or Your use of the Services (the “Analytics”) and (C) generating Anonymous Data (as defined below), (ii) use the Analytics for Our internal business purposes (including, without limitation, for purposes of internally improving and testing the Services) and (iii) freely use and make available Anonymous Data (as defined below) for Our business purposes (including, without limitation, for purposes of improving, testing, operating, promoting and marketing Our products and services). “Anonymous Data” means data submitted to, collected by, or generated by Us in connection with Your use of the Cloud Services, but only in aggregate and/or anonymized form.
- Disclaimers; Limitations of Liability. IN NO EVENT WILL WE NOR OUR DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, OR SUPPLIERS BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS CLOUD SERVICES AGREEMENT FOR (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY YOU TO US HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
- Other Terms. For clarity, this Cloud Services Agreement is otherwise subject to the terms set forth in Sections 3, 4.2, 5, 6, 9, 10, 12 and 14 of the Trading Agreement (and references to Software therein shall be construed to include the Cloud Services).