The Hosted Program (the “Software”) and the user manuals, user documentation, and written materials related to the Software (the “Documentation”) are subject to the EULA contained in electronic format within the Software. The EULA is hereby incorporated into this Agreement in its entirety and Client acknowledges and confirms that it has had an opportunity to review the EULA and agrees to be bound by its terms.
The Company shall provide Client with training in the use of the Software in an amount to be reasonably determined by the Company. Free training will be offered online via video tutorials or hourly paid training by web conferencing software by at least one (1) representative of the Company, unless otherwise agreed by Client and the Company.
Technical support shall be provided by the Company during normal business hours via (i) the Internet at www.lajolladigital.com; (ii) email to firstname.lastname@example.org; (iii) telephone at toll free at (866) 856-6827; or (iv) facsimile to (866) 856-6827. The Company reserves the right to change such modes of contact as necessary, in which case, information regarding the new modes of contact shall be delivered to Client within a reasonable time.
Company will provide Client with error corrections, bug fixes, patches, updates, and other modifications (“Modifications”) to the Software in object code form to the extent available in accordance with Company's release schedule. All Modifications shall be subject to these terms and conditions, including the EULA.
The Company represents and warrants to Client that the Software, when properly used by Client, will perform substantially as described in the Company's then-current documentation (User Guide) for such Software for a period of ninety (90) days from the date of shipment (the “Warranty Period”). The Company must receive written notice of any breach of warranty prior to the expiration of the Warranty Period.
Notwithstanding the warranty provisions set forth above, all of the Company's obligations with respect to such warranties shall be contingent on Client's use of the Software in accordance with this Agreement, including the EULA, and the Documentation, as amended, supplemented, or modified from time to time by the Company. The Company shall have no warranty obligations with respect to any failures of the Software that result from accident, abuse, misapplication, extreme power surge, or exposure to an extreme electromagnetic field.
The Company's entire liability to Client and Client's exclusive remedy against the Company shall be, at the Company's option, either (a) return of the set-up fee, or (b) repair or replace the Software. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT ALL ERRORS IN THE SOFTWARE AND DOCUMENTATION WILL BE CORRECTED. THE WARRANTIES STATED ABOVE ARE THE SOLE AND THE EXCLUSIVE WARRANTIES OFFERED BY THE COMPANY. THERE ARE NO OTHER WARRANTIES RESPECTING THE SOFTWARE AND DOCUMENTATION OR SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, MERCHANTABILITY, RELIABILITY, LACK OF VIRUSES, LACK OF NEGLIGENCE, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF THE COMPANY HAS BEEN INFORMED OF SUCH PURPOSE. NO AGENT OF THE COMPANY IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF THE COMPANY AS SET FORTH HEREIN.
CLIENT ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH THE COMPANY IS CHARGING HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION OF THE RISK OF CLIENT'S CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, PERSONAL INJURY, LOSS OF PRIVACY, WHETHER SUCH DAMAGES ARE CAUSED BY THE COMPANY'S FAILURE TO MEET ANY DUTY, INCLUDING ANY DUTY OF GOOD FAITH OR REASONABLE CARE, WHICH MAY ARISE IN CONNECTION WITH CLIENT'S USE OF THE SOFTWARE AND DOCUMENTATION, AND OR BY THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY BY THE COMPANY AND EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCORDINGLY, CLIENT AGREES THAT THE COMPANY SHALL NOT BE RESPONSIBLE TO CLIENT FOR ANY LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE LICENSING OR USE OF THE SOFTWARE OR DOCUMENTATION. Any provision herein to the contrary notwithstanding, the maximum liability of the Company to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of any Software delivered to Client hereunder, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual price paid to the Company by Client for the Software whose license, use, or other employment gives rise to the liability. The essential purpose of this provision is to limit the potential liability of the Company arising out of this Agreement. The parties acknowledge that the limitations on warranties, remedies, and damages set forth in this Agreement are integral to the amount of consideration levied in connection with the license of the Software and Documentation and any services rendered hereunder and that, were the Company to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher.
This Agreement may be terminated by Client upon thirty 30 days' prior written notice to the Company. Upon such termination, all amounts owed to the Company under this Agreement, or any other agreement to which the Company and Client are parties, for accepted work shall immediately become due and payable and all rights and licenses granted by the Company to Client under this Agreement, including the EULA, shall immediately terminate.
This Agreement may be terminated by the non-defaulting party if any of the following events of default occur: (1) if a party materially fails to perform or comply with any provision of this Agreement or any provision of any other agreement to which the Company and Client are parties; (2) if either party fails to strictly comply with the provisions of the EULA governing the confidentiality and assignment of the Software and Documentation; (3) if a party becomes insolvent or admits in writing its inability to pay its debts as they mature, or makes an assignment for the benefit of creditors; (4) if a petition under any foreign, state, or United States bankruptcy act, receivership statute, or the like, as they now exist, or as they may be amended, is filed by a party; (5) if such a petition is filed by any third party, or an application for a receiver is made by anyone and such petition or application is not resolved favorably within ninety (90) days; or (6) the EULA is terminated.
Termination due to a material breach of the following sections of the EULA shall be effective on notice: Article One (Grant of Rights), Article Two (Copies), Article Three (Protection of Software), and Article Four (Confidentiality). In all other cases, termination shall be effective thirty (30) days after notice of termination to the defaulting party if the defaults have not been cured within such thirty (30) day period.
If the Company terminates this Agreement because of Client's default, all of the following shall apply: (i) Client shall immediately cease use of the Software; (ii) Client shall, within ten (10) days of such termination, deliver to the Company all copies and portions of the Software Documentation in its possession; (iii) all amounts payable or accrued to the Company under this Agreement or any other agreement to which the Company and Client are parties shall become immediately due and payable; and (iv) all rights and licenses granted to Client under this Agreement, including the EULA, shall immediately terminate.
This Agreement shall be governed by and construed in accordance with the law of Texas, without regard to its principles of conflicts of laws. Any judicial proceedings brought by or against any party on any dispute arising out of this Agreement or any matter related hereto shall be brought in the state or federal courts of Dallas County, Texas. Each of the parties consents to and agrees to submit to the jurisdiction of such courts. Each party hereby waives, and agrees not to assert, any claim that (i) such party is not personally subject to the jurisdiction of such courts; (ii) such party and such party's property is immune from any legal process issued by such courts; or (iii) any litigation commenced in such courts is brought in an inconvenient forum.
This Order Form, the EULA, and the documents referenced therein constitute the entire agreement between the parties, and there are no understandings or agreements relative hereto other than those expressed herein, and no change, waiver, or discharge hereof shall be valid unless it is in writing and is executed by the party against whom such change, waiver, or discharge is sought to be enforced.
All notices, requests, demands and other communications required or permitted under this Agreement shall be in writing and shall be deemed to have been duly given, made and received (i) when delivered against receipt; (ii) within twenty-four (24) hours after being transmitted by facsimile with confirmation copy; or (iii) upon actual receipt of certified mail, postage prepaid, return receipt requested, to the respective addresses set forth on page one.