By logging in, you agree to the AccuLynx Terms and Conditions
Each section has a short explanation of the terms covered. The "basically" sections are not legally binding.
This license agreement (“Agreement”) is an agreement between You and
EXACTLOGIX, INC., an Illinois corporation doing business as AccuLynx.com (referred
to as “AccuLynx”), governing the use of the AccuLynx web-based software,
and any revisions and updates to such software products (the “Software”).
The term “Software,” as used in this Agreement, includes any software,
data, reports, and other instructional materials provided with the AccuLynx software
or generated by the AccuLynx software. BY SIGNING THIS AGREEMENT AND/OR BY ACCESSING
OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU AGREE TO BE BOUND BY THE TERMS
OF THIS AGREEMENT. THIS AGREEMENT SHALL GOVERN BOTH YOUR 15-DAY TRAINING AND IMPLEMENTATION
TRIAL PERIOD AND ONGOING USE OF THE SOFTWARE.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A CORPORATION OR OTHER LEGAL
ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES
TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR”
SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY,
OR IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT SIGN THE AGREEMENT
AND DO NOT ACCESS OR USE THE SOFTWARE. UNLESS YOU HAVE ANOTHER AGREEMENT DIRECTLY
WITH ACCULYNX THAT CONTROLS AND ALTERS YOUR USE OF THE SOFTWARE, THE TERMS AND CONDITIONS
OF THIS AGREEMENT APPLY TO YOU, EFFECTIVE AS OF YOUR ACCEPTANCE OF THIS AGREEMENT
OR YOUR ACCESS OR USE OF ALL OR ANY PORTION OF THE SOFTWARE.
1. Ownership and License.
1.1 Ownership of Software. The Software is owned by AccuLynx and/or its third-party
licensors (certain features may be derived from third-party open source contributors
and are subject to additional license terms regarding use of open source code).
The Software is protected by U.S. and international copyright law. AccuLynx and
its licensors shall retain all title to and interest in the Software, including
without limitation all related patent, copyright, trademark, and other intellectual
property rights, whether in the source code, the object code, screen displays, logos,
promotional materials, or otherwise. No rights are granted to You hereunder other
than as expressly set forth herein.
1.2 Grant of License. During the Term (as defined herein) of this Agreement,
AccuLynx grants You one nonexclusive, nontransferable, worldwide User license per
subscription purchased by you for a User to connect to and access the Software pursuant
to the terms and conditions of this Agreement.
1.3 User Subscriptions; Prohibition on Sharing of User Licenses. “User”
shall mean an individual who is authorized by You to use the Software, for whom
a subscription to use the Software has been purchased, and who has been supplied
with a user identification and password by You (or by AccuLynx at Your request).
Users may include without limitation Your owners, employees, consultants, contractors
and agents. User licenses are for designated Users and may not be shared or used
by more than one User, but a User may be reassigned to a new User replacing a former
User who no longer requires use of the Software. The license or licenses granted
herein are purchased as User subscriptions and You shall not allow the Software
to be accessed by more than the number of Users for whom subscriptions have been
purchased. Additional User licenses may be added during any 30-day period at the
same pricing as that for the pre-existing subscriptions and the term of the additional
User licenses shall be coterminous with the expiration of the license Term then
1.4 Your responsibilities.
1.4.1 You shall not (and shall not permit any User, owner, employee, independent
contractor, agent, or other third party to) copy, use, analyze, reverse engineer,
decompile, disassemble, translate, convert, or apply any procedure or process to
the Software in order to ascertain, derive, or appropriate for any reason or purpose,
the object code, source code or source listings for the Software or any other trade
secret information or process contained in the Software without the prior express
written consent of AccuLynx. You shall not (and shall not permit any User, owner,
employee, independent contractor, agent, or other third party to) create derivative
works based on the Software; copy, frame or mirror any part or content of the Software,
other than copying or framing on Your own intranets or otherwise for Your own internal
business purposes; access the Software in order to build a competitive product or
service; or copy any features, functions or graphics of the Software without the
prior express written consent of AccuLynx.
1.4.2 You shall not (and shall not permit any User, owner, employee, independent
contractor, agent, or other third party to) alter or remove any notices, graphics
or text contained on or in the Software; or modify the Software in any form, without
the express written consent of AccuLynx. Any modifications you make to the Software
will remain the property of AccuLynx and/or its licensor(s).
1.4.3 You shall not make the Software available to any third party other than Users;
You shall not sell, resell, rent or lease the Software or any right to access or
use the Software; You shall not use the Software to store or transmit infringing,
libelous, or otherwise unlawful or tortious materials, material in violation of
third-party privacy rights, or malicious code of any kind; You shall not interfere
with or disrupt the integrity or performance of the Software or third-party data
contained therein; and You shall not attempt to gain unauthorized access to the
Software or its related systems or networks.
1.4.4 You are responsible for maintaining the security of Your User identifications
and passwords, You agree to prevent sharing of Your User identifications and passwords
and to prevent unauthorized access to or use of the Software, and You further agree
not to post any User identification or password on any Web site or computer accessible
to the public. You agree to assume responsibility for the results of any unauthorized
access or misuse of any of Your User identifications or passwords and to notify
AccuLynx immediately of any such unauthorized access or misuse.
1.4.5 You acknowledge that the Software and all of its components are trade secrets
of AccuLynx and You agree not to (and not to permit any User, owner, employee, independent
contractor, agent, or other third party to) disclose such trade secrets without
AccuLynx’s prior written consent.
1.4.6 You shall be responsible for Users’ compliance with this Agreement,
be solely responsible for the accuracy, quality, integrity, and legality of Your
data and of the means by which you acquired Your data, and use the Software only
in accordance with this Agreement and applicable laws and government regulations.
1.5 Google Services. Software features that interoperate with Google services
depend on the continuing availability of the Google API and program for use with
the Software. If Google Inc. ceases to make the Google API or program available
on reasonable terms for the Software, AccuLynx may cease providing such Software
features without entitling You to any refund, credit, or other compensation.
1.6 Right to Modify or Discontinue Software. AccuLynx reserves the right
at any time and from time to time to modify or discontinue the availability of,
temporarily or permanently, the Software (or any part thereof) with or without notice.
AccuLynx’s rights under this Section 1.6 include, but are not limited to,
the right to temporarily discontinue the availability of the Software on any day
between the hours of midnight and 6:00 a.m. Central Time in order to implement Software
maintenance and upgrades. You agree that AccuLynx shall not be liable to You or
to any third party for any modification, suspension or discontinuance of the availability
of the Software.
1.7 Use and Ownership of Suggestions. AccuLynx shall have the unrestricted
right to use or act upon any suggestion, ideas, enhancement requests, feedback,
recommendations or other information provided by You or any other party relating
to the Software. AccuLynx shall have, and You hereby grant AccuLynx, a royalty-free,
worldwide, transferable, sublicensable, irrevocable, perpetual license to use or
incorporate into the Software any suggestions, enhancement requests, recommendations
or other feedback provided by You, including Users, relating to the operation of
2. Fees, Term and Termination.
2.1 Duration of Term of Agreement. The “Term” of this Agreement
shall commence upon your acceptance of this Agreement and shall continue until all
User licenses granted in accordance with this Agreement have expired or been terminated.
2.2 Duration of Term of User Licenses. The term of each User license shall
begin upon the date that a User Identification is activated for that User. The term
of each User license shall end upon AccuLynx’s receipt of notice of your termination
of any given User license or licenses pursuant to Section 2.11, or upon AccuLynx’s
termination of the User license or this Agreement pursuant to Section 2.12.
2.3 15-Day Training and Implementation Trial Period. AccuLynx will make the
Software available to You for the number of Users you specify prior to the beginning
of Your 15-Day Training and Implementation Trial Period for the flat fee agreed
to in Your Training and Implementation Services Agreement until the 15th
day after the Commencement Date of Your 15-Day Training and Implementation Trial
Period as set forth in Your Training and Implementation Services Agreement. ANY DATA
YOU ENTER USING THE SOFTWARE (“YOUR DATA”), AND ANY
CUSTOMIZATIONS MADE TO THE SOFTWARE BY OR FOR YOU, DURING YOUR 15-DAY TRAINING AND
IMPLEMENTATION TRIAL PERIOD WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION
TO THE SOFTWARE, OR EXPORT SUCH DATA, WITHIN 14 DAYS OF THE END OF THE 15-DAY TRAINING
AND IMPLEMENTATION TRIAL PERIOD. NOTWITHSTANDING ANYTHING STATED TO THE
CONTRARY IN THIS AGREEMENT, DURING THE 15-DAY TRAINING AND IMPLEMENTATION TRIAL
PERIOD THE SOFTWARE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY.
2.4 Billing Information; Automatic Charge on Initial Payment Date. Prior
to the beginning of Your 15-Day Training and Implementation Trial Period, You will
be required to submit credit card and billing information to a third-party vendor
of AccuLynx and your credit card will be billed the flat fee agreed to in Your Training
and Implementation Services Agreement. Unless you inform AccuLynx, prior to the
expiration of Your 15-Day Training and Implementation Trial Period of Your intent
not to order any User subscriptions, on the 31st calendar day immediately
following the last day of Your Training and Implementation Trial Period (this date
referred to as the “Initial Payment Date”), or on the next banking day
immediately following the Initial Payment Date if the Initial Payment Date falls
on a non-banking day, AccuLynx will bill Your credit card for a one-month subscription
for the number of User licenses that you ordered prior to the end of Your 15-Day
Training and Implementation Trial Period. Notwithstanding anything stated in the
foregoing sentence, if You do not provide AccuLynx with any information about how
many User licenses You wish to subscribe prior to the end of Your 15-Day Training
and Implementation Trial Period, and You do not indicate to AccuLynx Your intent
not to order any User subscriptions prior to the end of Your 15-Day Training and
Implementation Trial Period, You will automatically be billed on the Initial Payment
Date for a one-month subscription for the number of User licenses to which you had
access on the date immediately preceding the end of Your 15-Day Training and Implementation
Trial Period. In no event shall You be entitled to more than 15 days’ use
of the Software based on the flat fee paid pursuant to Your Training and Implementation
Services Agreement. If you have previously accepted and terminated a Master Subscription
Agreement with AccuLynx, the 31st day after the date of any subsequent
acceptance of this Agreement shall be the Initial Payment Date.
2.5 Payment of Ongoing License and Subscription Fee. During the Term of this
Agreement You shall pay AccuLynx the monthly license fee per User subscription according
to the following pricing schedule:
2.6 Video File Storage. 5 GB of video file storage are allocated to your account with each active User subscription.
(Example: 10 active users = 50Gb of video file storage for FREE) If the FREE video file storage is exceeded, additional 25 GB blocks of video file storage
will be automatically added to your account as necessary at an additional charge of $25.00 per
25 GB block per month.
AccuLynx reserves the right to change the monthly license fee per User subscription and/or
the fee for additional file storage prospectively upon 30-days’ notice posted on the AccuLynx Web site.
Your credit card will be billed automatically on the Initial Payment Date, as provided in Section 2.4,
and on each 30th day thereafter (each such 30th day is referred to as an “Anniversary Date”),
or on the next banking day immediately following the applicable Anniversary Date if the applicable
Anniversary Date falls on a non-banking day, for the number of User subscriptions and licenses to which
You had access in the 30-day period preceding the applicable Anniversary Date. The fee for any
User subscription to which You had access for less than the full 30-day period will be prorated accordingly.
Each payment shall be made for access to and use of the Software during the 30-day period immediately
preceding the applicable Anniversary Date and shall be nonrefundable. You shall continue to provide AccuLynx,
through its third-party vendor, with valid and updated credit card, billing, and contact information.
If Your payment at any time fails, You will be granted a 5-day grace period, during which period three
additional attempts will be made to bill your credit card. If these additional attempts are unsuccessful,
You will be granted an additional 2 days to provide updated credit card and billing information. If updated
credit card and billing information is not provided within this additional 2-day period, all of your
User licenses will be terminated.
2.7 Retroactive Billing for Unauthorized Users. In the event that AccuLynx
discovers that You have allowed sharing of User accounts or unauthorized access
to User accounts by persons other than the assigned User, or that you have allowed
the Software to be accessed by more than the number of Users for whom subscriptions
have been purchased, then You agree that AccuLynx may automatically charge your
credit card for an amount equal to (a) the number of 30-day periods that have passed
between the later of the end of Your 15-Day Training and Implementation Trial Period
or, if you have previously accepted and terminated a Master Subscription Agreement
with AccuLynx, the date of any subsequent acceptance of this Agreement, and AccuLynx’s
discovery of the unauthorized access or use, multiplied by (b) a number of additional
User subscriptions equal to the number of unauthorized users that You have allowed
to access or use the Software, multiplied by (c) the then-prevailing monthly license
fee per User on the date of AccuLynx’s discovery of the unauthorized access
2.8 Billing Disputes. You acknowledge and agree that You are required to
notify AccuLynx of any dispute with regard to an amount billed under the terms of
this Agreement or Your Training and Implementation Services Agreement by written
notice in accordance with Paragraph 9.6 within ninety (90) days of the date of the
billing. Failure to do so shall constitute an admission of the validity of
the billing, Your liability therefor, and a waiver of any claims You may have related
2.9 Credit Card Authorization. You hereby authorize AccuLynx to charge Your
credit card as provided in this Agreement, including without limitation Sections
2.4, 2.5, 2.6 and 2.7. If You do not authorize AccuLynx to charge Your credit card as
provided in this Agreement, do not sign this agreement or access or use any portion
of the Software.
2.10 Taxes. Unless otherwise stated, the fees charged by AccuLynx do not include
any taxes, levies, duties, or similar governmental assessments of any nature, including
but not limited to value-added, sales, use, or withholding taxes, assessable by
any local, state, provincial, federal or foreign jurisdiction (collectively, “Taxes”).
You are responsible for paying all Taxes associated with Your purchases hereunder.
In the event that AccuLynx incurs the legal obligation to pay or collect Taxes for
which You are responsible under this Section, the appropriate amount shall be invoiced
to and paid by You, unless You provide AccuLynx with a valid tax exemption certificate
authorized by the appropriate taxing authority.
2.11 Termination by You. Upon written notice to AccuLynx, You may terminate
any or all of Your User licenses to access and use the Software at any time with
no cancellation fee.
2.12 Termination by AccuLynx. AccuLynx may terminate this Agreement or any
User licenses granted herein:
2.12.1 Upon notice without right to cure if You use, transfer, or disclose any of
the Software, AccuLynx trade secrets, or other proprietary information of AccuLynx,
or any copy or modification thereof, in violation of this Agreement;
2.12.2 Immediately, without the necessity of notice or demand, if You become the
subject of any bankruptcy or insolvency proceeding which is not stayed or dismissed
within thirty (30) days after the commencement thereof;
2.12.3 Upon Your failure to make payments when due as set forth in Section 2.5, 2.6 and 2.7.
2.12.4 Upon fifteen (15) calendar days written notice or demand (which may by transmitted
by mail, overnight courier, e-mail, or fax) if You have breached any other material
provision of this Agreement and such breach is not fully cured within such 15-day
2.12.5 Upon thirty (30) calendar days written notice, with or without cause.
2.13 Access to Software and Data Upon Termination. Upon termination of any
User license granted herein, Your right to access and use of the Software shall
immediately cease with respect to that User. Upon termination of this Agreement
or all User licenses granted herein, Your right to access and use of the Software
shall immediately cease in its entirety. AccuLynx shall allow You to access and
export Your Data for a period of fourteen (14) calendar days immediately following
the date of such termination. Subsequent to said 14-day period AccuLynx may deny
access to Your Data by any party other than AccuLynx, and AccuLynx shall have no
obligation to maintain or provide any of Your Data.
2.14 Remedies. Termination of this Agreement or any User license granted
herein shall not limit the remedies otherwise available to either party, including
3. DISCLAIMER OF WARRANTIES. BY ACCEPTING THE AGREEMENT, YOU EXPRESSLY
UNDERSTAND AND AGREE TO THE FOLLOWING. IF YOU DO NOT AGREE TO THE FOLLOWING THEN
DO NOT SIGN THE AGREEMENT AND DO NOT ACCESS OR USE ANY PORTION OF THE SOFTWARE:
3.1 YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED ON AN
“AS IS” AND “AS AVAILABLE” BASIS. ACCULYNX EXPRESSLY DISCLAIMS,
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE WARRANTIES SET FORTH
IN THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT, OR ARISING BY STATUTE OR OTHERWISE
IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
3.2 ACCULYNX MAKES NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS;
(ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (iii) THE
RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE;
(iv) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL PURCHASED
OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS; AND (v) ANY
ERRORS IN THE SOFTWARE WILL BE CORRECTED.
3.3 ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE
IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE
FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD
OF ANY SUCH MATERIAL.
3.4 NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ACCULYNX
OR THROUGH OR FROM THE SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN
3.5 A SMALL PERCENTAGE OF USERS MAY EXPERIENCE EPILEPTIC SEIZURES WHEN EXPOSED TO
CERTAIN LIGHT PATTERNS OR BACKGROUNDS ON A COMPUTER SCREEN OR WHILE USING THE SOFTWARE.
CERTAIN CONDITIONS MAY INDUCE PREVIOUSLY UNDETECTED EPILEPTIC SYMPTOMS EVEN IN USERS
WHO HAVE NO HISTORY OF PRIOR SEIZURES OR EPILEPSY. IF YOU, OR ANYONE IN YOUR FAMILY,
HAVE AN EPILEPTIC CONDITION, CONSULT YOUR PHYSICIAN PRIOR TO USING THE SOFTWARE.
IMMEDIATELY DISCONTINUE USE OF THE SOFTWARE AND CONSULT YOUR PHYSICIAN IF YOU EXPERIENCE
ANY OF THE FOLLOWING SYMPTOMS WHILE USING THE SOFTWARE: DIZZINESS, ALTERED VISION,
EYE OR MUSCLE TWITCHES, LOSS OF AWARENESS, DISORIENTATION, ANY INVOLUNTARY MOVEMENT
4. LIMITATION OF LIABILITY AND DAMAGES. BY ACCEPTING THE AGREEMENT,
YOU INDICATE THAT YOU EXPRESSLY UNDERSTAND AND AGREE TO THE FOLLOWING. IF YOU DO
NOT AGREE TO THE FOLLOWING THEN DO NOT SIGN THE AGREEMENT AND DO NOT ACCESS OR USE
ANY PORTION OF THE SOFTWARE:
4.1 ACCULYNX AND ITS THIRD-PARTY LICENSORS SHALL NOT BE LIABLE FOR, NOR SHALL YOU
MAKE ANY CLAIM FOR (WHETHER BASED ON CONTRACT, TORT, STRICT OR STATUTORY LIABILITY,
NEGLIGENCE OR OTHERWISE), ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL,
PUNITIVE, OR EXEMPLARY DAMAGES (EVEN IF ACCULYNX HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES), INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR
SAVINGS; LOSS OF USE OF THE SOFTWARE; LOSS OF GOODWILL, DATA OR OTHER INTANGIBLE
LOSSES; COST OF CAPITAL; COST OF SUBSTITUTE SERVICES OR FACILITIES; DOWNTIME COSTS
OR DAMAGES; AND EXPENSES ARISING OUT OF THIRD-PARTY CLAIMS; ANY OF WHICH RESULT
FROM: (i) THE USE OR THE INABILITY TO USE THE SOFTWARE; (ii) THE COST OF PROCUREMENT
OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR
SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO
THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR
TRANSMISSIONS OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY IN ITS USE
OF THE SOFTWARE; OR (v) ANY OTHER MATTER RELATING TO THE SERVICE.
4.2 IN THE EVENT THAT APPLICABLE LAW DOES NOT ALLOW THE EXCLUSION OF WARRANTIES
STATED HEREIN OR THE LIMITATION OF LIABILITY STATED IN THE PRECEDING SECTION 4.1,
THEN YOU EXPRESSLY AGREE THAT IN NO EVENT WILL ACCULYNX’S LIABILITY FOR ANY
CLAIM OR DAMAGES HEREUNDER EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER TO THE
DATE THAT SUCH CLAIM IS ASSERTED, OR WITH RESPECT TO ANY SINGLE INCIDENT, THE LESSER
OF (a) $500,000 OR (b) THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING
THE INCIDENT. NOTWITHSTANDING ANYTHING STATED TO THE CONTRARY IN THIS AGREEMENT,
YOU AGREE THAT IN NO EVENT SHALL YOU HAVE OR ASSERT A RIGHT OF SETOFF AGAINST ACCULYNX.
4.3 The provisions of this Agreement allocate the risks between You and AccuLynx.
AccuLynx’s pricing reflects this allocation of risk and the limitations of
liability specified herein.
5. Indemnification. You agree to indemnify and hold AccuLynx and its subsidiaries,
affiliates, officers, agents, employees, partners and licensors harmless from any
claim or demand, including reasonable attorneys’ fees, made by any third party
(including without limitation claims for infringement) due to or arising out of
data You submit, post, transmit or otherwise make available through the Software,
Your use of the Software, Your connection to the Software, Your violation of this
Agreement, or Your violation of any rights of another.
6. Right to Audit Compliance. AccuLynx shall have the right to conduct, or
direct an independent accounting firm to conduct, during normal business hours and
no more than once during any calendar year, an audit of Your relevant records to
verify Your compliance with the terms of this Agreement. This provision does not
limit our right to monitor our server logs for accesses made by You or any User,
or access using any User identification or password issued to You or to any User,
to the Software or any other on-line features offered by AccuLynx or its affiliates,
or to investigate any conduct AccuLynx believes may be a breach of the licensing
terms or may be otherwise threatening to the integrity of AccuLynx’s products
7. Trademarks and Servicemarks. The “AccuLynx” and AccuLynx logo
trademarks and service marks and other AccuLynx logos and product and service names
are trademarks of AccuLynx (the “AccuLynx Marks”). Without the prior
written permission of AccuLynx, You agree not to display or use in any manner the
8. Injunctive Relief. Each party acknowledges that any violation by that
party of its covenants in this Agreement (if any) relating to intellectual property
rights, confidential or proprietary information, or trade secrets would result in
damage to the other party that is largely intangible but nonetheless real, and that
is incapable of complete remedy by an award of damages. Accordingly, any such violation
shall give the other party the right to a court-ordered injunction or other appropriate
order to specifically enforce those covenants. The party against whom any such injunction
is entered agrees to pay to the other party any reasonable expenses, including but
not limited to attorneys’ fees, incurred in obtaining such specific enforcement
(in addition to any other relief to which the other party may be entitled).
9. General Provisions.
9.1 Attorney’s Fees. In the event any action is brought to enforce
any provision of this Agreement or to declare a breach of this Agreement, AccuLynx
shall be entitled to recover, in addition to any other amounts awarded, reasonable
legal and other related costs and expenses, including attorneys’ fees, incurred
9.2 Compliance with Export and Import Laws. You shall comply with all then-current
export and import laws and regulations of the United States and such other government
as are applicable to the Software. You hereby certify that You will not directly
or indirectly export, re-export, or transship the Software or related information,
media, or products in violation of United States laws and regulations.
9.3 Assignment; Binding Agreement. You may not assign this Agreement or any
User license granted or created hereunder whether by operation of law, change of
control, or in any other manner, without the prior written consent of AccuLynx.
Subject to the foregoing, this Agreement shall bind and inure to the benefit of
the parties, their affiliates, their respective successors and permitted assigns.
9.4 Relationship of Parties. The parties are independent contractors and
nothing in this Agreement shall be deemed to make either party an agent, employee,
partner or joint venturer of the other party. Neither party shall have the authority
to bind, commit, or otherwise obligate the other party in any manner whatsoever.
AccuLynx may use Your plain text name to list You as a customer of AccuLynx.
9.5 No Third-Party Beneficiaries. The representations, warranties, covenants,
and agreements contained in this Agreement are for the sole benefit of the parties,
their affiliates and their respective successors and permitted assigns, and they
are not to be construed as conferring any rights on other persons.
9.6 Notice. All notices under this Agreement shall be in writing and shall
be delivered to the address notified by the parties to each other by a means evidenced
by a delivery receipt, by facsimile, or by e-mail. Notice shall be deemed to have
been given upon (i) personal delivery; (ii) the second business day after mailing;
(iii) 48 hours after sending by confirmed facsimile; or (iv) 48 hours after sending
by e-mail. Notices to AccuLynx shall be addressed to the attention of its President.
Notices to You will be directed to the most recent contact information that You
have provided to AccuLynx in writing.
9.7 No Waiver. No failure or delay by either party in exercising any right
under this Agreement shall constitute a waiver of that right. Other than as expressly
stated herein, the remedies provided to AccuLynx herein are in addition to, and
not exclusive of, any other remedies of a party at law or in equity.
9.8 Severability; Blue-Penciling. If any provision of this Agreement is held
by a court of competent jurisdiction to be contrary to law, the provision shall
be changed by the court or interpreted so as best to accomplish the objectives of
the original provisions to the fullest extent permitted by law, and the remaining
provisions of this Agreement shall remain in effect, unless the modification or
severance of any provision has a material adverse effect on a party, in which case
such party may terminate this Agreement by notice to the other party.
9.9 Survival. The obligations of the parties under this Agreement that by
their nature would continue beyond the termination, cancellation or expiration of
this Agreement, shall survive termination, cancellation, or expiration of this Agreement.
9.10 Force Majeure. Except for payment defaults, neither party shall be considered
in default in performance of its obligations hereunder if performance of such obligations
is prevented or delayed by force majeure or any cause beyond its reasonable control,
including without limitation labor disputes, strikes, lockouts, shortages of or
inability to obtain labor, energy, raw materials or supplies, utility or transmission
failures, war, riot, or governmental action not the fault of the nonperforming party.
9.11 Federal Government End Use Provisions. If You are the United States
Government or any contractor thereof, all licenses granted hereunder are subject
to the following: (i) for acquisition by or on behalf of civilian agencies, as necessary
to obtain protection as “commercial computer software” and related documentation
in accordance with the terms of this Agreement as specified in 48 C.F.R. 12.212
of the Federal Acquisition Regulations and its successors; (ii) for acquisition
by or on behalf of units of the Department of Defense (“DOD”), as necessary
to obtain protection as “commercial computer software” and related documentation
in accordance with the terms of this commercial computer software license as specified
in 48 C.F.R. 227-7202-1 through 227.7202-4 of the DOD F.A.R. Supplement and its
9.12 Choice of Law. This Agreement shall be governed exclusively by, and
construed exclusively in accordance with, the laws of the State of Illinois in the
United States, without regard to its conflict of laws provisions. This Agreement
will not be governed by the United Nations Convention on Contracts for the International
Sale of Goods, the application of which is expressly excluded.
9.13 Jurisdiction; Venue. The federal courts of the United States in the
Northern District of Illinois, Western Division, and the state courts of the State
of Illinois in Winnebago County, Illinois, shall have exclusive jurisdiction and
venue to enforce this Agreement or to otherwise adjudicate any dispute arising out
of, or relating to, this Agreement. Each party hereby consents to the jurisdiction
of such courts and waives any right it may otherwise have to challenge the appropriateness
of such forums, whether on the basis of the doctrine of forum non conveniens
9.14 Waiver of Jury Trial. Each party hereby waives any right to jury trial
in connection with any action or litigation in any way arising out of or related
to this Agreement.
9.15 Headings. The section headings contained in this Agreement are for reference
purposes only and shall not in any way control the meaning or interpretation of
9.16 Entire Agreement. This Agreement, Your Training and Implementation Services
posted on the AccuLynx Web site, and any AccuLynx Web pages incorporated herein
by reference, constitute the entire agreement between the parties as to its subject
matter, and supersede all previous and contemporaneous agreements, proposals or
representations, written or oral, concerning the subject matter of this agreement.
Except as contemplated to the contrary herein or in any other documents incorporated
herein or referred to herein, no modifications, amendment, or waiver of any provisions
of this Agreement shall be effective unless in writing and executed by the party
against whom the modification, amendment, or waiver is to be asserted. In the event
of any conflict between the provisions in this Agreement and any materials incorporated
herein or referred to herein, the terms of this Agreement shall prevail to the extent
of any inconsistency. Notwithstanding any language to the contrary herein or therein,
no terms or conditions stated in Your purchase order or in any other of Your order
documentation shall be incorporated into or form any part of this Agreement.