Terms and Conditions
General Terms And Conditions LineupApp, Inc. (FOR PURCHASERS)
These General Terms and Conditions (the “Terms”) govern all persons (“Purchasers”) that purchase or license, directly or indirectly, equipment, software, firmware, and/or services (collectively “Deliverables”) from LineupApp, Inc (“LU”).
Limited Software Use License. All software and firmware (collectively “Software”) is licensed (the “License”) for use only by Purchaser and other expressly authorized or permitted users, including customers of Purchasers. Neither the Software, nor any interest therein, is intended to be sold or conveyed by this License.
Usage Restriction. Paging technology and other technology built into the Deliverables may at times not work due to interference with signal transmission beyond LU’ control. Purchaser therefore agrees not to use any Deliverable for an application in which a signal or connection failure might cause harm to a person, injury to a property, or a business loss. Purchaser also agrees to abide by and strictly adhere to any rules, regulations and guidelines related to the use of any portion of any Deliverable to collect, store or transmit personal data (as defined by Article 4, General Data Protection Regulation) or personally-identifiable information (as defined by relevant federal and state statutes), including without limitation any “protected health information” (as defined by HIPAA), or billing or financial payment data, from any customer, consumer or user (collectively, “Personal Data”).
Data Collection. In connection with the Deliverables, data provided by Purchaser and its customers may be collected in connection with surveys, consultations, and uses of the Deliverables, including email addresses, telephone numbers, locations of users (which may utilize geo-location technology), times of usage, times of paging, times of responses to paging, devices used, configuration preferences, cookies, and social network information. In order to provide LU’s customers with enhanced comparative benchmarking services with respect to customer industries, among other services, Purchaser hereby grants to LU a royalty-free, perpetual, irrevocable license to use and distribute this data and results obtained through Purchaser’s use of the Deliverables for any and all purposes; provided that LU shall not identify any Purchaser, or distribute to third parties any Personal Data or “protected health information” (as defined by HIPAA) or billing or financial payment data of any customer or consumer of Purchaser, without the express prior consent of such Purchaser. Purchaser warrants that Purchaser has the right to disclose, transfer or otherwise make available any Protected Health Information (as defined in 45 C.F.R. § 160.103) or other Personal Data that is made available to LU by Purchaser or by Purchaser’s customers in connection with the Software or other Deliverables. Without limiting the foregoing, Purchaser shall obtain all authorizations, consents or other permissions from Purchaser’s customers (or the customer’s authorized personal representative) for the disclosure of customers’ Personal Data to LU that are required by international, federal, state or local law, including, without limitation, the administrative simplification section of the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations and the European Union General Data Protection Regulation.
Data Processing Addendum. By agreeing to these Terms & Conditions, you acknowledge that you have read and agree to LU’s Data Processing Addendum.
Limited Warranty. Unless expressly agreed to in a separate written instrument, LU warrants to only Purchaser that the Deliverables will perform in accordance with specifications for them that LU has published prior to their delivery for a period of time as specified in the purchase agreement or purchase order relating to such Deliverables. This limited warranty shall be voided if any Deliverable is modified or serviced by someone other than LU or where the defective or non-performance is caused to any extent by accident, misuse, abuse, neglect, fire, water, acts of nature, power surges, improper maintenance, usage not in accordance with instructions or specifications, or usage or storage in unsuitable physical or operating environments.
Disclaimers. LU DISCLAIMS ALL IMPLIED WARRANTIES CONCERNING THE DELIVERABLES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY OF NON-INFRINGEMENT. PURCHASER ACCEPTS THE DELIVERABLES “AS IS,” EXCEPT FOR THE EXPRESS LIMITED WARRANTY MADE HEREIN.
Limitation of Remedies. In the event of any breach of any express warranty made herein, LU may, at its option, either repair or replace any defective Deliverable or refund the money that Purchaser paid for it. LU’s total liability for any defect in any Deliverable or for any other breach of any of its duties and obligations to Purchaser shall be limited to the amount of money that was paid for the defective Deliverable or the other duty or obligation. LU will in no event be liable for any lost profit or any other type of consequential or special damage.
Confidentiality. The Deliverables and all computer systems that deliver any portion of them contain confidential trade secret information. Purchaser shall not attempt to reverse engineer any portion of the Deliverables or such computer systems, such as to disassemble any portion of hardware or decompile any portion of the Software, nor aid or permit anyone else in doing so. Any access by Purchaser not in compliance with these Terms shall be considered “access without authorization” for purposes of applying the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 and similar state or local laws.
Intellectual Property. Except for the License, no portion of any intellectual property right in the Deliverables is being granted, conveyed or transferred to the Purchaser or to Purchaser’s customers or permitted users. Neither Purchaser, nor Purchaser’s customers or permitted users, may copy or modify any portion of the Deliverables, and may not permit or aid anyone else in doing so. Notwithstanding, Purchaser may use the Deliverables as they are intended to be used, as expressed in written materials published by LU from time to time.
Operational Authority and Licensing Requirements. Non-Federal government Purchasers may operate the Deliverables within the United States under the licensing authority issued to LU by the Federal Communications Commission (FCC), provided, however, that such operation is: (a) subject to LU’s control, (b) conducted on a non-profit, cost shared basis with costs apportioned as part of the price for such Deliverable, (c) in accordance method of operation set forth in the manual for the deliverable, available for download at https://www.lineupapplication.com and (d) limited to the term of this or a separate Agreement, the term of LU’s authority, or a term otherwise specified by LU, whichever expires earlier. Notwithstanding the provision below entitled “No Third-Party Beneficiary,” users of any Deliverables acquired from Purchasers or other entities may contact LU to determine if they may be eligible to operate under LU’s authority. Alternatively, Purchasers and users may obtain their own licensing authority; the FCC posts a list of licensing coordinators at http://wireless.fcc.gov/services/index.htm?job=licensing_3&id=industrial_business. Purchasers and eligible users of any Deliverable agree to abide by and strictly adhere to any rules, regulations and guidelines, including the FCC’s rules, governing the operation of the Deliverable. Changes or modifications to any portion of any Deliverable may void the Purchaser’s or user’s authority to operate the Deliverable and should not be made without the express approval of LU. Moreover, use of any portion of any Deliverable outside the United States is subject to the rules and regulations of other countries and may be prohibited. Use of any Deliverable constitutes Purchaser’s and user’s acceptance of and agreement to these Terms, including any revisions to these Terms that may be required to reflect changes in the regulatory or other obligations imposed upon LU or that may otherwise be adopted by LU from time to time.
Governing Law and Venue. These Terms and any agreement relating to them shall be construed in accordance with and governed by the laws of the State of New York (without regard to its conflicts of laws). Any dispute relating to these Terms and any agreement relating to them may only be heard and resolved by a court in the State of New York. Purchaser consents to the personal jurisdiction of such courts over it. If any action at law or in equity is necessary to enforce or interpret any of the rights or obligations of the parties to these Terms, the prevailing party shall be entitled to reasonable attorneys’ fees, costs, and necessary disbursements, in addition to any other relief to which it may be entitled.
No Assignment or Transfer. The rights and benefits provided under these Terms, as well as under any agreement that incorporates them, shall not be assigned without the express written permission of LU. Similarly, the Deliverables may not be transferred to any other person, without the express written permission of LU. Notwithstanding, Purchaser may temporarily loan its customers paging receivers. Purchaser may also transfer the Deliverables, as well as the rights and benefits under these Terms and any agreement that incorporates them, as an ancillary part of a sale of its business or substantially all of its assets. Following any assignment or transfer, Purchaser shall remain bound by all of the duties and obligations that are set forth in these Terms and any agreement that incorporates them.
No Third-Party Beneficiary. Except as otherwise expressly provided in this Agreement, these Terms, as well as any agreement that incorporates them, are solely for the benefit of Purchaser. Neither the customers of Purchaser, nor any other person is an intended beneficiary of these Terms or any agreement that incorporates them, nor shall any such person have the right to any benefit that is provided under these Terms or any agreement that incorporates them.
Merger. Except as otherwise specifically set forth herein, these Terms, and any agreement that incorporates them, supersede any oral or other representation that may have been made about these Terms, any agreement that incorporates them, or any of the Deliverables. These Terms, and any agreement that incorporates them, may not be modified or superseded, except by a written agreement or a written amendment that is signed by both parties. In the event of any inconsistency between these Terms or any agreement that incorporates them and any form or other document supplied by Purchaser, such as a purchase order, the terms of these Terms or any agreement that incorporates will prevail.
Severability. In the event that any portion of these Terms or any agreement that incorporates them is found to be invalid or unenforceable for any reason, the remaining portions shall continue to be in full force and effect.
Fees & Payment. Purchaser agrees to pay all Service and Deliverable fees in US Dollars, and you assume all risks associated with any changing value in the currency compared with other currencies, plus Purchaser agrees to pay any applicable taxes, in accordance with the terms and payment method set forth in this agreement. Purchaser is responsible for providing accurate billing and contact information to LU. LU retains the right to suspend or terminate services if fees become past due. LU reserves the right to change Service rates by providing Customer at least 30 days’ notice prior to billing.
Term & Termination. Purchaser has the option of purchasing Monthly or Annual service plans, which are non-refundable and not available for proration except as required by law. Monthly agreements will auto-renew on a month-to-month basis until such time that a formal termination notice has been received by LU. Prepaid Annual agreements will automatically renew at the end of each annual term unless Purchaser has given cancellation notice 30 days in advance of renewal term. Monthly-billed Annual agreements will auto-renew on a perpetual month-to-month basis upon completion of the initial annual term until cancellation notice is received by LU. In the event that any agreement incorporating these Terms is terminated for any reason, all of the duties and obligations that the agreement and these Terms impose upon Purchaser shall continue in full force and effect, except any obligation to make payment for a Deliverable prior to its delivery.