SOFTWARE AS A SERVICE AGREEMENT
LNB AGREES TO LICENSE CERTAIN SOFTWARE AND PROVIDE RELATED SUPPORT & MAINTENANCE OR SERVICES TO YOU AND TO YOUR BUSINESS OR ORGANIZATION IF YOU ARE PREPARING OR USING THE SOFTWARE FOR THE BENEFIT OF A BUSINESS, YOU MAY DO SO ONLY IF (A) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO LEGALLY BIND THE BUSINESS AND (B) YOU ACCEPT AND AGREE ON BEHALF OF BUSINESS TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT. BOTH YOUR INDVIDUAL ACCEPTANCE AND / OR THAT OF THE BUSINESS, IF APPLICABLE, SHALL BE DEFINITIVELY EVIDENCED BY ANY ONE OF THE FOLLOWING MEANS: YOUR CLICKING THE “ACCEPTANCE”, “AGREE”, “I AGREE”, OR “CONTINUE” BUTTON OR CHECKBOX, AS APPLICABLE; YOUR SIGNATURE ON A TANGIBLE COPY OF THIS AGREEMENT; OR YOUR INSTALLATION OR USE OF THE SOFTWARE, AND SHALL BE EFFECTIVE ON THE DATE ON WHICH YOU INSTALL OR FIRST USE ANY SOFTWARE (INCLUDING ANY UPDATES OR UPGRADES) PROVIDED HEREUNDER (“EFFECTIVE DATE”). IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT COPY, INSTALL OR USE THE SOFTWARE.
“Account” means a unique account created for User to access the Platform.
“Business” means the corporation, limited liability company, partnership, locality, government agency, or other organization for which the User works, or represents and has the authority to bind to the terms of this Agreement, and shall include any entity which benefits from the efforts of the User.
“Commencement Date” is the date upon which the User is first granted use and access to the Platform to register one or more Accounts, or in the case of a renewal of a Subscription Term, upon the date upon which the User’s initial Subscription Term ends and the renewed Subscription Term begins.
“Personally Identifiable Information” or “PII” means information that permits the identity of an individual to be directly or indirectly inferred, including any information that is linked or linkable to that individual, including but not limited to name, date of birth, social security number, driver’s license number, medical records, biometrics, and/or one’s criminal history.
“SaaS Services” means the generally available web-based, on-line, hosted Platform as a services provided by LNB for use with other services provided to the User.
“Separately Licensed Third-Party Technology” refers to third party technology that is licensed under Separate Terms and not under the terms of this Agreement, and which may include, without limitation, open source software.
“Service Request” is an individual request placed by a User through the Platform or other method of notice to LNB, wherein LNB shall respond with the appropriate level of Support Services.
“Software” means the LNB online software application, Kinship, along with any tools, operating systems, utility programs, communications software, computer software languages, interfaces and any other computer programs (i.e., any set of statements or instructions, whether or not in a machine readable medium, to be used directly or indirectly in a computer in order to bring about a certain task or result), and documentation and supporting materials relating thereto, in whatever form or media, together with all corrections, improvements, modifications, updates, updates and new releases thereof.
“Support Services” means the support services available by LNB to the User with regard to the Platform and responding to Service Requests, as described in further detail herein.
“Subscription Term” shall mean that period specified during which User will have online access and use of the Platform and Support Services provide by LNB. The Subscription Term may renew for successive 12- month periods by both parties executing a new purchase order or payment in full to extend this Agreement in writing. The Subscription Term will automatically renew upon the expiration date set forth at the time of purchase if indicated by a checked automatic subscription renewal checkbox titled “Auto-Renew” or “Auto Renew” for the relevant subscription of the LNB Platform. If automatic subscription renewal is not selected by the User at the time of purchase, a successive Subscription Term may be created manually by the User.
“User Content” means certain data, content, or materials provided by the User when using the Platform. The User is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of all User Content. The User shall obtain and maintain any rights, consents, and approvals required to grant LNB and authorized third parties the right to access and use any User Content for the limited purposes described herein.
USE OF THE PLATFORM
Access and Users. Each User is responsible for managing access to their Account and for all information, data, text, or other materials that User uploads, saves, posts or otherwise transmit via the Platform. User hereby represents and warrants that any User Content has not been collected, stored, and transferred to LNB in violation of any law, regulation, or contractual obligation applicable to User. User shall have sole responsibility for the accuracy, quality, and legality of the data and the means by which it acquired the data.
Use Restrictions. Users may use the Platform solely for their own internal business operations. Except as otherwise explicitly provided in this Agreement User will not, and will not permit or authorize third parties to: (a) license, sublicense, sell, rent, lease, or otherwise permit third parties to use the Platform; (b) circumvent or disable any security or other technological features or measures of the Platform; (c) reverse engineer any element of the Platform, or use the SaaS Services or any of LNB’s Confidential Information (as defined below) to compete with the SaaS Services provided by LNB; (d) modify, adapt or hack the Platform to falsely imply any sponsorship or association with LNB, or otherwise attempt to gain unauthorized access to the Platform, or any restricted portion thereof, or its related systems or networks; (e) use the Platform in any manner that interferes with or disrupts the integrity or performance of the Platform or the components of the SaaS Services; (f) use the Platform to knowingly post, upload, link to, send or store any content that is defamatory, libelous, fraudulent, derogatory, abusive, obscene, unlawful, hateful, harassing, violent, threatening, racist, or discriminatory, or that contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (g) use automated scripts to collect information from or otherwise interact with the Platform; (h) deep-link to the Website for any purpose (other than LNB’s home page), unless expressly authorized in writing by LNB; or (j) impersonate any other User(s) of the Platform.
Compliance with Laws. User will utilize Platform in compliance with all applicable local, state, and federal laws and regulations and in a manner that does not infringe on the rights of any third party or violate any third party’s privacy rights.
User Content. User acknowledges and agrees that LNB will not be liable for any damages that may result from User’s use of the Platform in transmitting, uploading, collecting, managing, or otherwise processing any User Content.
Protection Against Unauthorized Use. User will use reasonable efforts to prevent any unauthorized use of the Platform and immediately notify LNB in writing of any unauthorized use that comes to User’s attention. If there is unauthorized use by anyone who obtained access to the Platform directly or indirectly through User, User will take all steps reasonably necessary to terminate the unauthorized use. User will cooperate and assist with any actions taken by LNB to prevent or terminate unauthorized use of the Platform.
Right to Suspend Access to the Software and SaaS Services. LNB may suspend User’s use of the Platform if LNB reasonably, and in good faith, believes that such suspension is necessary to prevent the unauthorized use of the Platform, or to prevent an ongoing violation of any applicable local, state, or federal law or regulation. LNB shall utilize commercially reasonable efforts to notify User as far in advance a practical of the pending suspension and will only suspend the SaaS Services to the extent necessary to prevent such unauthorized use or violation. Moreover, if User fails to timely pay any fees in accordance with the terms of this Agreement, and/or any Service Request, LNB may, without limitation to any other rights or remedies afforded to it, suspend access to the Platform until it receives all outstanding amounts due or terminates this Agreement.
Reservation of Rights. LNB grants to User a limited right to use the Platform under this Agreement. User will not have any rights to the Platform except as expressly granted in this Agreement. LNB reserves to itself and its licensors all rights to the SaaS Services not expressly granted to User in accordance with this Agreement. LNB and its licensors retain all Intellectual Property Rights (as defined below, in this Agreement) in and to the SaaS Services.
Statistical Data. User acknowledges and agrees that LNB shall have the right to utilize data capture, syndication, and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze any non-personally and non-User identifiable data or information resulting from User’s use of the SaaS Services (“Statistical Data”). Statistical Data may be collected by LNB for any lawful business purpose without a duty of accounting to User, provided that the Statistical Data is used only in an anonymized, de-identified, or aggregated form, without specifically identifying the source of the Statistical Data. On creation, LNB shall own all Intellectual Property Rights in the Statistical Data.
Feedback. User hereby agrees to assign to LNB and LNB shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the SaaS Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback LNB receives from User.
Customization. User shall be entitled to up to ten (10) hours of work on the Platform provided by LNB, without charge, to customize the Platform in such a manner that it exhibits the features, functions, and qualities that the User requires to meet its needs. Any proposed work and customization of the Platform shall be conducted by LNB at LNB’s sole discretion on an hourly fee basis, which the Parties shall incorporate in one or more statements of work concerning the work to be completed and terms thereof.
THIRD PARTY SERVICES
External Sites. The Platform may contain links to, or otherwise may allow User to connect to and use, certain third party products, service or software under separate terms and conditions (collectively, “Third-party Services”) in conjunction with the Platform. User acknowledges that any use of the Platform may result in the User’s access and use of such Third-party Services. User acknowledges that its use of said Third-party Services is governed solely by the terms and conditions of such Third-party Services. LNB does not endorse, is not responsible for, and makes no representations as to such Third-party Services, its content or the manner in which such Third-party Services handles User’s data. LNB shall not be liable for any damage or loss, of any kind or nature arising from or in connection with User’s access or use of any such Third-party Services, or User’s reliance on the privacy practices or other policies of such Third-party Services. User acknowledges that LNB does not control the features and functionality of any Third-party Services and that such Third-party Services may change its features and functionality without any notice to LNB. LNB shall not be liable to User for any refunds due to any damage or loss arising from or in connection with any changes made by a Third-party Services or any resulting changes to the Platform.
Fees. User will pay LNB the sum total of all fees specified in the corresponding Order Form to which this Agreement is attached (the “License Fees”), subject to the terms outlined for each class of user license in Table 1, below. If User orders additional SaaS Services or changes the SaaS Services it is receiving, the License Fees for such additional or changed services will be charged at the then-current pricing for such additional or changed services selected by the User as part of such additional services. Any resulting change in the License Fees shall be provided in writing to the User regarding the charges imposed per Account. All amounts payable under this Agreement are denominated in United States dollars, and User will pay all such amounts payable in United States dollars. Except as otherwise provided in this Agreement, License Fees are non-refundable. There are no refunds or credits for License Fees, SaaS Services, or refunds for services if User closes its Account without utilizing the full extent of the services provided by LNB. LNB reserves the right to increase License Fees at any time.
Kinship Enterprise User Licenses
Users of Kinship Enterprise Licenses are assigned Salesforce Platform Plus licenses or Salesforce Platform Administrator Licenses and are subject to the Salesforce Object limit of 100 Objects or as defined by Salesforce. Users of Kinship Enterprise User Licenses may also be assigned a Salesforce Public Sector, Salesforce Service Cloud, or Salesforce Sales Cloud License.
The License Fee for each Subscription Term is due annually from the effective date of this Agreement with regard to the number of Kinship Enterprise User Licenses requested by User. If User intends to increase the number of Kinship Enterprise User Licenses during the Subscription Term, LNB shall prorate the License Fee based on the remaining days in the then current annual subscription term. LNB shall provide a written statement of the amount owed for the additional user licenses, and user shall have thirty (30) days following receipt of LNB’s calculation of the License Fee to pay the total amount due.
Kinship Lite User Licenses
Users of Kinship Lite Licenses are assigned Salesforce Platform Starter licenses and are subject to the Salesforce Object limit of 10 Objects or as defined by Salesforce.
The License Fee for each Subscription Term is due annually from the effective date of this Agreement with regard to the number of Kinship Lite User Licenses requested by User. If User intends to increase the number of Kinship Lite User Licenses during the Subscription Term, LNB shall prorate the licenses based on the remaining days in the then current annual subscription term. LNB shall provide a written statement of the amount owed for the additional user licenses, and user shall have thirty (30) days following receipt of LNB’s calculation of the User License Fee to pay the total amount due.
Kinship Portal User Licenses
Users of Kinship Portal User Licenses are assigned Salesforce Community Plus Licenses, Salesforce Community Plus Member Licenses, or a custom LNB developed app.
The License Fee for each Subscription Term is due annually from the effective date of this Agreement with regard to the number of Kinship Portal User Licenses requested by User. If User intends to increase the number of Kinship Portal User Licenses during the Subscription Term, LNB shall prorate the licenses based on the remaining days in the then current annual Subscription Term. LNB shall provide a written statement of the amount owed for the additional user licenses, and user shall have thirty (30) days following receipt of LNB’s calculation of the License Fee to pay the total amount due.
Payment Terms. User will pre-pay all amounts due, or otherwise, within seven (7) days of the date of the applicable date each year of the Term, except for amounts subject to a good faith dispute, provided that (i) User notifies LNB of any such dispute in writing prior to the date such amounts would otherwise be due; (ii) User pays any undisputed amounts in accordance with this Section; and (iii) User cooperates with LNB in promptly resolving such dispute. Except for any amounts disputed by the User in good faith, any amount not paid when due will be subject to finance charges equal to one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. User will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by LNB to collect any amount that is not paid when due, including reasonable attorney’s fees and costs. Amounts due from User under this Agreement may not be withheld or offset by User against amounts due to User for any reason.
Taxes. Other than net income taxes imposed on LNB, User will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from its purchase or use of the SaaS Services and Software. Taxes will not be deducted from or set off against the fees set forth in the applicable Service Request or invoice.
Support Fee. User shall pay for Support Services rendered by LNB in connection with the Platform at a rate of thirty percent (30%) of the annual License Fees owed to LNB (“Support Fee”). The Support Fee shall be calculated annually and adjusted in accordance with the number of User Accounts registered by the User as described in Section 4(a). The Support Fee is payable annually within thirty (30) days of January 1 of the Term year, or such later date as agreed upon by the Parties, in a signed writing, if necessary to extend the payment date as a result of User increasing the number of Accounts, which in turn changes the total Support Fee.
TERM AND TERMINATION
Term. The initial Subscription Term shall be for a period of five (5) years, beginning on the Effective Date. Unless User provides LNB with at least sixty (60) days prior, written notice, the Subscription Term shall automatically renew for an additional twelve (12) month period. The Parties may, upon a signed writing between them, renew the Subscription Term for any additional period in accordance with these or later amended terms.
Either Party may, for any reason, terminate this Agreement upon sixty (60) days written notice to the non-terminating Party.
LNB may immediately terminate this Agreement upon written notice to User if LNB determines, in its sole discretion, that User has materially breached the terms of this Agreement and such breach is incapable of cure. LNB may also terminate this agreement in less than sixty days if it determines that User breached the terms of this Agreement, that the breach was capable of cure, and that User did not cure such breach within thirty (30) days following notice thereof.
Either Party may terminate this Agreement, effective immediately upon written notice to the non-terminating Party, if the non-terminating Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
User shall be responsible for the compliance of itself and, to the extent applicable, the Business with all applicable laws, regulations, and the terms and conditions of this Agreement. User will use the Platform solely for its own benefit and will limit access to its Accounts to the individual authorized by User to access the specific Account.
The User shall provide LNB with access to all necessary information as may be required by LNB in order to provide the SaaS Services, including User Content, security access information and configuration services.
The User will: (i) ensure that it will use the Platform in accordance with the terms and conditions of this Agreement and that the User and any individual authorized by the User to create an Account shall be jointly and severally responsible for breach of this Agreement caused or contributed to by any acts or omissions on the part of any User or such authorized individuals; (ii) ensure that its network and systems comply with the relevant specifications provided by LNB from time to time; and (iii) as between the Parties, be responsible for responding to all third party requests concerning the use of the Platform by the User.
The User agrees that it will not allow any one Account to be used by more than one authorized individual unless it has been reassigned in its entirety to another individual so authorized, in which case the prior authorized individual shall no longer have any right to access or use the Platform, in which event the User shall immediately notify LNB of such change.
User shall be responsible for the User Content. User shall not, or permit any of its authorized individuals using Account(s) registered to the User to (i) use the Platform to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (ii) use the Platform for illegal purposes, (iii) interfere with or disrupt the integrity or performance of the Platform or third-party data contained therein or any systems or networks or violate the regulations, policies, or procedures of such networks used with the Platform, (iv) attempt to gain unauthorized access to the Platform or its related systems or networks, LNB’s data or the data of any other LNB customers, or (v) harass or knowingly or intentionally interfere with another LNB customer’s use and enjoyment of the Platform. Any conduct by the User that, in LNB’s sole discretion restricts or inhibits any other LNB customer from using or enjoying the Platform, is expressly prohibited. User will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Platform, and notify LNB promptly of any such unauthorized access or use.
The User is solely responsible for maintaining the confidentiality of each username or email address and password used with User Account(s). User is solely responsible for any and all activities that occur under the Account(s). User agrees to notify LNB immediately of any unauthorized use of User’s Account(s) or any other breach of security. LNB will not be liable for any loss or data breach that User may incur as a result of someone else using User’s passwords or accounts, either with or without the User’s knowledge.
LNB reserves the right to modify the Platform and its specifications from time to time as required and without further notice in order to comply with applicable laws, rules, regulations, decisions or orders of any governmental authority.
Support Services. LNB shall provide Support Services to User with regard to the Platform, User’s access to and use of the Platform. Such Support Services shall, at a minimum, include the following:
Provide ongoing maintenance of all software, equipment, servers, hard and soft connections, communication network, and other elements of the Platform;
Provide toll-free live English-speaking customer service telephone support during standard business hours (from 7:00am to 6:00pm Eastern Standard Time from Monday through Friday);
If an issue occurs within standard business hours, the LNB shall address issues that can be fixed through remote internet access within one hour;
Not shut down the Platform during standard business hours. Any maintenance, updates or other work shall be scheduled between 7:00 pm and 6:00 am or during the weekends;
Notify the User of any scheduled maintenance that will inhibit the User’s ability to access or use the Platform at least forty eight (48) hours prior to the scheduled maintenance; and
Upon the User’s request, the LNB may also provide additional, limited integration services with other User systems. Such integration services may be deemed outside the scope of standard Support Services and require the Parties to enter into a separate integration agreement.
User shall be obligated to fully cooperate and assist LNB resolve any Service Request or otherwise perform Support Services as described herein. This includes, but is not limited to: prompt notice of any error requiring a response from LNB; direct access and direction to the error including access to the User’s sites and software systems; sharing of any data, documents, information that may be deemed confidential or proprietary, necessary to resolve the Service Request; and any other reasonable cooperation as deemed necessary by LNB.
Service Levels. LNB shall promptly respond to a Service Request submitted by User as a result of an error (“Error”) affecting the regular use of the Platform. LNB’s response and resolution times will be measured from the time it receives a Service Request until the time it has (a) responded to that Service Request, in the case of response time and (b) Resolved that Service Request, in the case of Resolution time. “Resolve,” “Resolved,” “Resolution,” and correlative capitalized terms mean, with respect to any particular Service Request, that LNB has corrected the Error that prompted that Service Request and that User has confirmed such correction and its acceptance of it in writing. LNB’s response and Resolution of Service Request shall respond to and Resolve all Service Requests within the following times based on User’s designation of the severity of the associated Error, subject to the parties’ written agreement to revise such designation after LNB’s investigation of the reported Error and consultation with User:
Severity Level of Error
Required Service Level Response and Response Time
Required Service Level Resolution Time
Business Critical Failures: An Error that:
(a) materially affects the operations of the User’s operations in a manner such to hinder User’s authorized individuals from accessing necessary materials and information; or
(b) Calculations displaying wrong money totals, set-off file error, billing file upload, hardware lockups, and data corruption or lost data.
LNB shall acknowledge receipt of a Level 3 Service Request within 60 Minutes.
Level 2 Response:
LNB shall work on the problem continuously and:
(a) restore the System to a state that allows the User to continue to use all functions of the System in all material respects within 1 hour after the Level 1 Response time has elapsed; and
(b) exercise best efforts to Resolve the Error until full restoration of function is provided.
LNB shall Resolve the Service Request as soon as practicable and no later than 24 hours after LNB’s receipt of the Service Request, so long as the Service Request is received within Support Hours.
If the LNB Resolves the Service Request by way of a work-around accepted in writing by User, the severity level assessment will be reduced to a Severity Level of Error 2.
System Defect with Work-around:
(a) an Error, that affects tasks of the User’s operations hindering User’s authorized individuals from accessing necessary materials and information. For example, the print or export menu not working.
Level 2 Response:
LNB shall acknowledge receipt of a Level 2 Service Request within 2 hours.
LNB shall Resolve the Service Request as soon as practicable and no later than 3 business days after LNB’s receipt of the Service Request.
If the LNB Resolves the Service Request by way of a work-around accepted in writing by User, the severity level assessment will be reduced to a Severity Level of Error 1.
An isolated or minor Error in the Software that meets each of the following requirements:
(a) does not significantly affect Software functionality;
(b) does not materially affect User’s use of the Software; and
(d) has no or no more than a minuscule effect on the operations of User’s operations and its users access to the Software such as spelling errors, font type, or font size.
Level 1 Response:
LNB shall acknowledge receipt of the Service Request within 24 hours.
LNB shall Resolve the Service Request as soon as practicable and no later than 5 business days after LNB’s receipt of the Service Request.
Escalation to Second Line Support. First Line Support for any Service Requests will be escalated to Second Line Support as follows:
LNB shall immediately escalate any Severity Level 1 Error Service Request to provide Second Line Support if LNB has not Resolved such Service Request within 5 Business Days after the receipt of the Level 1 Service Request.
LNB shall immediately escalate any Severity Level 2 Error Service Request to provide Second Line Support if LNB has not Resolved such Service Request within 3 Business Days after the receipt of the Level 2 Service Request.
LNB shall immediately escalate and Severity Level 3 Error Service Request to provide Second Line Support if LNB has not Resolve Service Request within 24 hours after the receipt of the Level 3 Service Request.
Without limiting the foregoing, LNB shall provide Second Line Support to User upon User’s Request for such Second Line Support if First Line Support, in the Parties’ joint opinion, is insufficient. LNB shall ensure that all Second Line Support is provided by personnel having the appropriate qualifications, skills, and experience to fully and efficiently Resolve the User’s Service Request within the Resolution time specified for such Service Request in the Service Level Table.
Time Extensions. The Parties may, on a case-by-case basis, agree in writing to a reasonable extension of the Service Level response or Resolution times.
Remote Services. LNB shall provide Support Services remotely, including by means of telephone or internet telephony, or over the internet through the use of Remote Access Software that LNB may integrate into the Platform (“Remote Services”) to assist in analyzing and Resolving any Error reported by a Service Request during the Subscription Term. If LNB deems it necessary, User shall give LNB access to the User’s software systems to install and use remote access software necessary for LNB to provide the Remote Services to User (“Remote Access Software”). The Remote Access Software contains technological measures designed to collect and transmit to LNB certain diagnostic, technical, usage, and related information, including information about the User’s software systems. The parties acknowledge and agree that:
LNB and its Representatives may collect, maintain, process, and use (A) only such information as is necessary to assist in analyzing and Resolving a Support Request; and (B) use such information solely to provide the Support Services in accordance with the terms and conditions of this Schedule;
All or portions of the Remote Access Software may remain on the User systems after a Service Request is Resolved solely for the purposes set forth in this Section; and
LNB shall at all times treat any information it collects, maintains, processes, or uses under this Section as User’s Confidential Information and shall comply with all User security and encryption requirements notified to LNB in writing.
LNB DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE FUNCTIONS PERFORMED BY THE PLATFORM WILL MEET THE BUSINESS’ OR THE USER’S REQUIREMENTS, THAT THE OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE PLATFORM WILL BE CORRECTED AS REQUIRED BY BUSINESS’ OR USER’S PURPOSES. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND COMPANY DISCLAIMS ANY AND ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, ORAL, OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT LNB KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, LNB FURTHER DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT. THE PLATFORM IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LNB OR ITS EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF LNB’S OBLIGATIONS HEREUNDER.
No action for breach of the limited warranty set forth in this section may be commenced more than one (1) year following the expiration of the Term of this Agreement. The SaaS Services include all maintenance and upgrades to the Platform. Each LNB update(s) to the Software may incorporate major new features or enhancements that increase or modify the core functionality of the Platform and SaaS Services.
LIMITATION OF LIABILITIES
ANY SERVICE PROVIDED HEREUNDER BY LNB IS PROVIDED “AS IS”. NO WARRANTIES OR COMMITMENTS, EXPRESS OR IMPLIED, ARE MADE WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEMS INTEGRATION, TITLE, SATISFACTORY QUALITY AND NONINFRINGEMENT.
IN NO EVENT WILL LNB BE LIABLE TO YOU OR ANY OF YOUR AFFILIATES FOR ANY DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, INCLUDING DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AN AGREED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS HELD UNENFORCEABLE FOR ANY OTHER REASON.
LNB’s total aggregate liability in any dispute concerning breach of performance of this Agreement, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total License Fees paid for the User’s Subscription Terms that were active as indicated by the activation and termination dates of each Subscription Term, preceding the date on which the claim arose.
INTELLECTUAL PROPERTY AND CONFIDENTIALITY RIGHTS
Ownership of Work Product and Other Intellectual Property. The SaaS Services and Software are protected by copyright laws, international copyright, patents, trade secrets and other intellectual property rights. LNB is the exclusive owner of all software (including the SaaS Services and Software and revisions, modifications and enhancements thereto) and any other specifications, documentation, ideas, know-how, techniques, processes, or inventions (the “Intellectual Property” and all of the rights to such Intellectual Property the “Intellectual Property Rights”) that LNB or its employees, agents, contractors, or partners may develop, conceive or deliver under this Agreement, including all patents, copyrights and other Intellectual Property Rights thereto. The use of such Platform confers no title or ownership in the Software and is not a sale of any rights in the Software and does not grant User any right to any enhancement or update to the Software. LNB reserves any and all rights not expressly granted hereunder. In addition, the Platform may incorporate third party intellectual property. The User agrees and consent to all the terms and conditions of such third-party software as updated from time to time.
Restrictions on Access, Copying and Sublicensing. User shall not cause or permit (a) access (except to its employees, agents and consultants with a “need to know” who are bound in writing by non-disclosure obligations suitable to protect LNB’s interests in the Software but no less restrictive than User’s obligations herein), (b) copying, or (c) sublicensing or other dissemination of the Platform, in whole or in part, to any third party without LNB’s prior written consent.
Third Party and Other Proprietary Software. If the Platform contains or is bundled with third party software or other proprietary LNB Software, then (a) such software is governed by LNB’s standard license agreement for such software or other applicable license agreement under which such software is provided to User, and (b) User may use such third-party software or other proprietary LNB Software solely for the purpose such software is included with the Software.
Confidential Information. As a result of the relationship created by the Parties under this Agreement, the Parties acknowledge that they may from time to time require or gain access to information that is confidential or proprietary to one another. All information disclosed by a party hereunder that (a) is in writing and marked with an appropriately restrictive legend indicating the confidential or proprietary nature of the information, (b) is disclosed orally and reduced to a writing marked with an appropriately restrictive legend promptly after the oral disclosure, or (c) by its nature or under the circumstances of its disclosure should reasonably be understood to be confidential is referred to herein as “Confidential Information.” Other than User’s use of the Platform, as set forth herein, User agrees that it will not provide any additional personally identifiable information to LNB.
Obligations. The receiving party (a) shall hold all Confidential Information in confidence; (b) shall use the Confidential Information only for the purpose of performing its obligations under this Agreement; (c) shall reproduce the Confidential Information only to the extent necessary for such purpose; (d) shall restrict disclosure of the Confidential Information to its employees, consultants, agents and representatives with a need to know and who are bound to protect the confidentiality of such Confidential Information (and shall advise such employees, agents and representatives of the obligations assumed herein); and (e) shall not disclose or cause to be disclosed the Confidential Information to any third party without prior written approval of the disclosing party, except as allowed under (d) above.
Exceptions. The foregoing restrictions do not apply to Confidential Information that (a) is or becomes a part of the public domain through no wrongful act or omission of the receiving party; (b) was in the receiving party’s lawful possession before the disclosure and had not been obtained by the receiving party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party without reference to or in reliance on the Confidential Information; or (e) the disclosing party agrees in writing.
INTELLECTUAL PROPERTY INFRINGEMENT
Defense and Indemnification. LNB will, at its expense, defend User or the Business from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against User alleging that User’s use of the Platform infringes or misappropriates any Intellectual Property Rights of any third party, and indemnify User from all damages, costs, and attorneys’ fees finally awarded in any such Claim or paid to any third party to settle any such Claim. LNB’s obligation under this section is contingent on: (a) User giving LNB prompt written notice of the Claim; (b) User granting LNB full and complete control over the defense and settlement of the Claim; and (c) User providing assistance in connection with the defense and settlement of the Claim as LNB may reasonably request, at LNB’s cost. User will not defend or settle any Claim eligible for indemnification under this section alleging infringement without LNB’s prior written consent.
Infringement Remedy. If User is enjoined or otherwise prohibited from using the Platform or a portion thereof based on an allegation that the Platform violates any third party Intellectual Property rights (including a Claim), or if LNB reasonably determines that such prohibition is likely, then LNB will, at its sole expense and option: (a) obtain for User the right to use the allegedly infringing portions of the Platform; (b) modify the allegedly infringing portions of the Platform so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Platform with non-infringing items of substantially similar functionality. If LNB determines that the foregoing remedies are not commercially reasonable, then LNB may terminate the impacted portions of the license(s) granted under this Agreement, or section thereof, and will promptly provide a prorated refund to User for any prepaid fees received by LNB for any obligations that have not yet been performed at the time of termination.
Exclusions from Obligations. LNB will have no obligation under this Section for any infringement or misappropriation to the extent that it arises out of or is based upon (a) User’s use of the Platform in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) any aspects of the Platform that are provided to comply with designs, requirements, or specifications required by or provided by User, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Platform by User for purposes not intended or outside the scope of the license granted to User; (d) User’s failure to use the Platform in accordance with written instructions provided by LNB, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Platform not made or authorized in writing by LNB where such infringement or misappropriation would not have occurred absent such modification.
LIMITED REMEDY. THIS SECTION 11 STATES LNB’S SOLE AND EXCLUSIVE LIABILITY, AND USER’S SOLE AND EXCLUSIVE REMEDY, FOR THE ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHT BY THE PLATFORM. LNB’S OBLIGATIONS UNDER THIS SECTION 11 ARE SOLELY FOR INFRINGEMENT DAMAGES AND COSTS AWARDED AGAINST YOU. IN NO EVENT SHALL ANY OTHER LIABILITY OF LNB TO YOU EXCEED THE AGGREGATE AMOUNT OF THE APPLICABLE LICENSE FEES RECEIVED BY LNB FOR THE ALLEGEDLY INFRINGING SOFTWARE, OR ANY PART THEREOF. YOU AGREE THAT THE FOREGOING STATES YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED PATENT OR COPYRIGHT INFRINGEMENT OR TRADE SECRET MISAPPROPRIATION.
User will defend LNB and its officers, directors, employees, agents, successors and assigns from any actual or threatened third party Claim arising out of or based upon (a) User’s breach of any of its obligations under this Agreement, (b) User’s use of a Third-party Services, or (c) any of the exclusions stated in Section 11(c), and indemnify LNB from all damages, costs, and attorneys’ fees finally awarded in any such Claim or all amounts that User agrees to pay to any third party to settle any such Claim. User’s obligation under this section is contingent on: (a) LNB giving User prompt written notice of the Claim; and (b) that User agrees it may not settle or defend any Claim unless User unconditionally releases LNB of all liability and such settlement does not affect LNB’s business or Services. LNB will not defend or settle any Claim eligible for indemnification under this section without User’s prior written consent.
PERSONALLY IDENTIFIABLE INFORMATION
LNB recognizes that the purposes of User’s use of the Platform and uploaded User Content is likely to contain certain PII of each Account’s authorized individuals and certain third parties. LNB agrees to take all steps reasonably necessary (including implementing and monitoring compliance with adequate measures with respect to technical and physical security) to ensure that all PII is protected against loss and against unauthorized access, use, modification, disclosure or other misuse. This includes restriction from access to such PII by any LNB employee who does not have a “need to know” such information, such as in the routine maintenance or performance of Support Services under this Agreement.
Non-Exclusive Service. User acknowledges that use and access to the Platform is provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict LNB’s ability to provide access to the Platform or other technology, including any features or functionality first developed for User, to other third parties, following the Effective Date of this Agreement.
Assignment. This Agreement may not be assigned or otherwise transferred in whole or in part by you, including by operation of law, without LNB’s prior written approval.
Notices. Any notice required under this Agreement shall be provided to the other party in writing. If User has a dispute with LNB or if User wishes to provide any other notice under this Agreement, User will promptly send written notice to: LNB Solutions, Inc., a Virginia corporation with an address of 420 N Center Dr, #143, Norfolk, VA 23502 Attention: Linda Brown. LNB may give non-contractual notices applicable to LNB’s Services by means of a general notice on the Website, for the Services and notices specific to User by email to at the User’s email address in LNB’s files or databases or any other User email address on record in LNB’s account information or by written communication sent by first class mail or pre-paid postage. User agrees that it is solely responsible for maintaining accurate and up-to-date contact information on record with LNB.
Force Majeure. Notwithstanding anything to the contrary contained herein, neither party shall be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, acts of war or terrorism, virus outbreak or pandemic, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures, mechanical difficulties, or otherwise with information storage or retrieval systems, labor difficulties or civil unrest.
Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.
Severability. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full force.
Entire Agreement. This Agreement, contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning use of the Platform and all other subject matter set forth in this Agreement. The non-material terms of this Agreement may be amended from time to time, and the User hereby consents to such amendments which will be posted at lnbsolutions.com/saasagreement. Standard or printed terms contained in any purchase order or sales confirmation are deemed rejected and shall be void unless specifically accepted in writing by the party against whom their enforcement is sought; mere commencement of work or payment against such forms shall not be deemed acceptance of the terms.
Survival. Sections 1, 2, 4, 5, and 8 through 14 of this Agreement shall survive the expiration or termination of this Agreement for any reason.
Publicity. LNB may use User’s name and logo to identify User as a customer of LNB. LNB’s use of the name and logo does not create any ownership right therein and all rights not granted to LNB are reserved by User. User may contact LNB and request that the User name be excluded from use.
Export Regulations. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. User agrees that such export laws govern User’s use of the Software provided under this Agreement, and User agrees to comply with all such export laws and regulations including the International Traffic in Arms Regulations, and those of the United States that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses or end users and “deemed export” and “deemed re-export” regulations. User agrees that no data, information, software programs and/or materials resulting from Services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws. You agree to strictly comply with all such laws and regulations and acknowledge your responsibility to obtain licenses for export, re-export or import of the Software, as may be required.
No Third-party Beneficiaries. This Agreement is an agreement between the parties, and confers no rights upon either party’s employees, agents, contractors, partners of customers or upon any other person or entity.
Statistical Information. LNB may anonymously compile statistical information related to the performance of the Services for purposes of improving the Platform or any other purpose, provided that such information does not identify User’s data or include User Content.
Governing Law. This Agreement and the parties’ relationship under it will be interpreted under and governed by the laws of the Commonwealth of Virginia and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction.
Arbitration. Excluding LNB’s right to pursue a collections action for payment, in the event of any dispute between the parties arising under or relating to this Agreement, such dispute shall be submitted to and settled by arbitration in the Commonwealth of Virginia in accordance with the Commercial Arbitration Rules by a single arbitrator of the American Arbitration Association (“AAA”). The arbitrator shall have the right and authority to determine how their award or decision as to each issue and matter in dispute may be implemented or enforced. Any decision or award shall be final and conclusive on the parties; there shall be no appeal therefrom other than for claimed bias, fraud or misconduct by the arbitrator(s); judgment upon any award or decision may be entered in any court of competent jurisdiction in the Commonwealth of Virginia or elsewhere; and the parties hereto consent to the application by any party in interest to any court of competent jurisdiction for confirmation or enforcement of such award. The party against whom a decision or award is made shall pay the fees of the American Arbitration Association. Notwithstanding the foregoing, LNB, at its sole option, shall be entitled to enforce its rights, for injunctive and other equitable relief by arbitration pursuant to this Section or directly in any court of competent jurisdiction.
Compliance with Laws. In performance of this Agreement, the Parties shall comply with all applicable local, state, and national laws, including those laws related to data privacy, international communications, and the transmission of technical or personal data.