MAX Remote Management Customer License Agreement
This agreement is made between (i) you (“Customer”) and (ii) LogicNow Limited with an address at Site 11 & 12, Vision Building, Greenmarket, Dundee, DD1 4QB, UK (“LogicNow”) (the “Agreement”). Subject to these terms and conditions, LogicNow grants Customer a non-exclusive, non-transferable license to download and install the agent component of the MAX Remote Management software (the “ Agent”) and access and use the MAX Remote Management software as a service (including updates and new releases 0.(hereinafter collectively referred to as the “Software) for the purpose of conducting monitoring, reporting and other services (“Services”), only in accordance with the terms of this Agreement and any then-current product documentation issued by LogicNow to Customer, including invoices, price lists and any other written communication regarding the Software designated as such by LogicNow to its Customers or as posted on www.logicnow.com from time to time. The Services cover the Software and either (i) Windows®, or (ii) non – Windows (if ordered) servers, workstations, portable or mobile devices and/or other devices as agreed (“Device(s)”) on which the Agent is installed during the period that this Agreement subsists. By clicking I agree or downloading the Agent, or otherwise using the Software or Services, Customer consents to all of the terms and conditions set out in this Agreement. If Customer does not agree to any of the terms of this Agreement, Customer should immediately stop using the Software or Services, return, delete or destroy any and all copies of the Software or Services Customer may have. This Agreement will commence upon the date that the Software and/or Services are activated by LogicNow or Customer and thereafter continues in effect until the date of termination as set forth hereinafter (the “Subscription Period”).
Use of the Software & Services.
The Software, Services, and any applicable Software documentation (“Documentation”) are licensed to Customer under the terms of this Agreement. The Services, as ordered or activated by Customer, may consist of regular monitoring of Customer’s Devices, reporting of any exceptions to Customer via email, SMS and/or the dashboard, asset tracking, reporting and other services. LogicNow reserves the unfettered right to change the Service offering upon reasonable notice to Customer. The Services to be performed are selected and enabled by Customer during the Software set-up. Services may be changed from time to time by Customer via the Agent or via the Software dashboard. The Software, Services and Documentation are licensed and not sold.
Customer’s rights and obligations with respect to the use of the Software are as follows:
i. make multiple copies of the Agent for the sole purpose of installing the Agent on the number of Devices for which Customer is paying to be monitored; and
ii. make one copy of the Agent for archival and/or back – up purposes.
Customer may not:
i. copy the Documentation, whether in whole or part;
ii. make any copies of all or part of the Software other than as expressly permitted in this Agreement;
iii. sublicense, rent or lease any portion of the Software or host the Product, or permit the same, on Customer’s Devices for others to use;
iv. install the Agent on any Device other than those owned by Customer, or provide access to the Software or dashboard except to Customer’s employees;
v. reverse engineer, decompile, disassemble, modify, translate, or make any attempts to discover the source code of the Software or create derivative works of the Software, except to the minimum extent permitted by applicable law and only if any inter–operability request is first sent to LogicNow who reserves the right to charge a reasonable fee for such service;
vi. use the MAX, LogicNow or Service trademarks independently, or as part of a product name, domain name, trademark or business name, without prior written approval from LogicNow;
vii. create, market or distribute add-ons or enhancements to the Software without prior written consent of LogicNow;
viii. copy (whole or part) the LogicNow graphical user interface for incorporation into any software or for any other use; or
ix. harm, disrupt or otherwise engage in activity that diminishes the LogicNow brands, Software or Services.
Customer acknowledges, agrees and warrants that:
i. it will supply LogicNow with all information and access required to enable LogicNow to provide the Services;
ii. it will comply at all times with any and all applicable local, state, federal international laws and treaties laws;
iii. in order to ensure uninterrupted service, it is the responsibility of Customer to ensure that: (i) there is a constant internet connection and electrical supply, and (ii) the Agent is installed on a supported platform and in accordance with LogicNow’s instructions;
iv. it will use its best endeavours to install the latest version of the Agent on its’ Devices and acknowledges that LogicNow will only provide technical support to Customer for the latest version, as well as the immediately previous version of the Software;
v. it shall not hold itself out to be the owner of any rights in the Software to any third party;
vi. it has obtained any and all consents and authorisations to access any of Customer’s systems or networks and its and its employee’s data as necessary to use the Software or Services;
vii. it will comply with all of the terms and conditions of this Agreement and that it has had a complete opportunity to review and understand this Agreement before using the Software; and
viii. it will maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of the Services and Customer’s and its employees’ data.
Customer acknowledges that third-party software may be incorporated into the Software. LogicNow, its licensors and any applicable third parties, own all title and intellectual property rights in and to the Software, Services and Documentation, which are protected by world-wide, copyright, trademark, patent and other intellectual property laws and treaties.
Data Protection & Confidentiality.
Each party shall comply with its respective obligations under applicable data protection laws (“DPL”). Neither party shall do any act that puts the other party in breach of its obligations as per this Section, nor shall anything in this Agreement be deemed to prevent any party from taking any action it reasonably deems necessary to comply with DPL.
Customer agrees that during the term of this Agreement: (i) in respect of Customer and its employees’ (where applicable) data that it collects, accesses or otherwise uses, subject to the terms of this Agreement, Customer shall determine the purposes for which and the manner in which personal data is, or will be, processed, (ii) it is the data controller in respect of all personal data LogicNow may process, and (iii) it consents and has obtained consent for LogicNow to (a) process Customer’s and its employees’ (where applicable) data and (b) send such data to affiliated companies of LogicNow within the European Union and other locations depending on the location of the Customer.
Customer agrees that during the term of this Agreement: (i) in respect of Customer and Client data that, subject to the terms of this Agreement, Customer shall determine the purposes for which and the manner in which personal data are, or will be, processed, (ii) it is the data controller in respect of all personal data LogicNow may process, and (iii) it consents and has obtained consent from the Client that LogicNow may (a) process Clients data and (b) send such data to affiliated companies of LogicNow within the European Union.
LogicNow agrees that, with Customer’s express consent, LogicNow is the data processor in respect of the personal data processed by LogicNow as provided by Customer, during the term of this Agreement. Customer warrants and undertakes that any instructions given by Customer to LogicNow will at all times be in accordance with the requirements of DPL.
If available, Customer may evaluate the Software, which may have reduced functionality, for up to 30 (thirty) days, at no cost. Customer may evaluate the Software only to determine whether to license the Software. Customer may only evaluate the Software once. At the end of the evaluation period, Customer must either license the Software or cease all use of such Software by disabling the Software via the Software dashboard or the active Agent or providing LogicNow with written notice prior to the expiry of the evaluation period of its intent not to license the Software. Customer’s use of the Software during an evaluation period or for any Software that is offered as freeware shall be without warranty of any kind and is provided “AS IS”. LogicNow has no duty to provide support to Customer during any evaluation period or for any Software offered as freeware. LogicNow may terminate Customer’s access to the Software at the end of the evaluation period if the Customer has not entered into a paid subscription license for the Software.
Additional Service Evaluations
Unless LogicNow notifies Customer otherwise in writing, if additional Services are added during the Subscription Period of a paid subscription license, Customer will have up to 30 (thirty) days to evaluate the additional Service at no cost in accordance with the “Software Evaluations” section above. If the additional Service is still active at the end of the 30 (thirty) day trial period, the then-current Service Fee shall be charged pro - rata for that Service for the remainder of Customer’s ongoing Subscription Period. Any additional Services shall terminate at the end of the current Subscription Period. If Customer does not wish to license the additional Service, Customer is obligated to cancel the additional Service via the Software’s dashboard or via the active Agent or provide 7 (seven) days written notice to LogicNow prior to the expiration of the 30 (thirty) day trial period.
Some Services require, for optimum use and LogicNow may provide to Customer, in a number of formats (feeds, definition files etc.), content that is automatically synchronised or updated from time to time with LogicNow’s servers or systems (“Content”). Such Content may be provided for a limited time, from time to time, in accordance with the applicable Service. Customer consents that the respective Service will automatically contact LogicNow to receive Content and, in particular, but not limited to if and when any of the following events occur: (i) the Service is successfully activated by Customer; (ii) Customer fails to activate the Service successfully; (iii) the Service has been successfully configured and/or (iv) the Service is deactivated. Customer acknowledges and consents that any data collected may be sent to any LogicNow office for processing in locations, depending on location of Customer, in accordance with the provisions of the Data Protection section.
The Services are available on a monthly or annual subscription basis. Customer shall be charged service fees in advance by LogicNow for each Device serviced upon which an actively monitored Agent is present during the Subscription Period and for each component of the Service used on such Device as selected by Customer, in accordance with the then-current Documentation which is hereby incorporated by reference (“Service Fees”). The Service Fees for the Services consist of monthly or annual fees payable in advance for the number of Devices and Services purchased by Customer for the Subscription Period (“Subscription Fees”) and any applicable excess usage- based charges in the event that the Customer exceeds the purchased number of Devices or Services during the Subscription Period (“Excess Usage Fees”). Customer agrees to pay LogicNow all applicable Subscription Fees in full in advance within 30 (thirty) days from the date of invoice. Customer agrees to be responsible for the payment of all Subscription Fees for the entire Subscription Period, regardless of whether the Software or Services are actively used.Except as set forth in this Agreement, all payment obligations are non-cancelable and all amounts paid are non-refundable. In the event of non-payment by Customer, LogicNow may suspend or terminate the provision, in whole or in part, of the Services and this Agreement immediately and without prejudice to its accrued rights or any other remedy available to it.
Excess Usage Fees
In the event that a Device or Service is added during a Subscription Period in excess of the purchased Services, the Excess Usage Fee shall be charged in accordance with the then-current LogicNow pricing pro - rata for that Device or Service for the remainder of the Subscription Period in effect at the time the additional Device or Service was added. Any additional Devices or Services shall terminate at the end of the current Subscription Period. There may be additional one - time charges for additional services as chosen by Customer in accordance with the then-current Documentation. In the event that additional Devices or Services are added during a Subscription Period, the Excess Usage Fees will be invoiced at the time the additional Devices or Services are added. It is Customer’s responsibility to monitor its usage.
Customer shall be provided 30 (thirty) days’ notice of any price change.
Customer may cancel the Software or any or all Services to be performed by disabling them via the Software’s dashboard or via the active Agent. If Customer cancels any Software or Services via the Software dashboard or the active Agent, Customer will remain liable for all Service Fees and Excess Usage Fees (if any) up and until the expiration of the Subscription Period Customer originally subscribed for, unless terminated earlier by LogicNow as set forth below. Customer will be invoiced by LogicNow for any Service Fees and Excess Usage Fees (if any) incurred up and until the effective date of termination of the Subscription Period. In addition to its entitlement to terminate the provision of the Services and this Agreement in accordance with the Service Fee clause above, LogicNow may terminate the provision of the Software or Services and this Agreement immediately if Customer commits a material breach of any term of this Agreement including non-payment of Service Fees or Excess Usage Fees when due, which is either not capable of being remedied or is not remedied within 14 (fourteen) days of a request to remedy the same, this right being without prejudice to LogicNow’s accrued rights or any other remedy available to it.
The Subscription Period shall be as set forth in the Documentation. If, pursuant to the Documentation, Customer agrees to a Subscription Period of 12 (twelve) months or longer, the Subscription Period will automatically renew at the end of the initial Subscription Period and each following Subscription Period for successive 12 (twelve) month periods unless Customer or LogicNow give prior written notice of non-renewal at least 30 (thirty) days prior to the expiration of the then-current Subscription Period. In the event that Customer agrees to monthly Subscription Periods pursuant to the Documentation, the Subscription Period will automatically renew at the end of the initial and each following monthly Subscription Period for successive monthly periods unless Customer or LogicNow give prior written notice of non-renewal at least 5 (five) days prior to the expiration of the then-current monthly Subscription Period.
Any sales, use, value added or other taxes (including applicable withholding taxes), shall be borne by the Customer. Accordingly, Customer shall pay or (if paid by LogicNow) reimburse LogicNow for all such taxes based on this Agreement or any fees payable hereunder (but not any taxes based upon LogicNow’s revenues or income), together with any interest on such taxes if not due to LogicNow’s delay.
THE SOFTWARE, DOCUMENTATION AND SERVICES ARE PROVIDED TO CUSTOMER “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW THIS WARRANTY AND THE REMEDIES HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, WHETHER ORAL, EXPRESS, IMPLIED OR STATUTORY INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, WARRANTIES FOR LATENT OR HIDDEN DEFECTS. LOGICNOW DOES NOT WARRANT THAT THE SPECIFICATIONS OR FUNCTIONS CONTAINED IN THE SOFTWARE, DOCUMENTATION AND SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED. FURTHERMORE, LOGICNOW DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR SERVICES PROVIDED IN RESPECT OF ITS CORRECTNESS, ACCURACY, EFFICIENCY, RELIABILITY, OR OTHERWISE. IF THIS EXCLUSION IS NOT PERMITTED BY LAW, LOGICNOW LIMITS ANY EXPRESS, STATUTORY OR IMPLIED WARRANTIES AS TO DURATION TO THE MAXIMUM EXTENT PERMITTED. SOME COUNTRIES DO NOT ALLOW SUCH LIMITATIONS AND THEREFORE THESE LIMITATIONS MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY:
The limitations of liability set out below will apply regardless of whether Customer accepts or uses the Software or Services. IN NO EVENT SHALL THE TOTAL LIABILITY OF LOGICNOW EXCEED THE SERVICE FEES OR EXCESS USAGE FEES PAID FOR THE USE OF THE SOFTWARE OR SERVICES IN ANY SIX MONTH PERIOD.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL LOGICNOW AND/OR ITS AFFILIATES, SUBSIDIARIES, OR LICENSORS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF OR CORRUPTION OF DATA (INCLUDING THROUGH THE USE OF THE ONLINE BACK UP SERVICE), OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, OR FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE OR SERVICES, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT SERVICES, OR OTHERWISE, UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEEMENT, UNDER ANY THEORY OF LAW OR FAULT OF LOGICNOW OR ITS AFFILIATES, SUBSIDIARIES OR LICENSORS, AND EVEN IF LOGICNOW OR ITS AFFILIATES, SUBSIDIARIES OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL NOT APPLY TO DEATH OR PERSONAL INJURY CLAIMS. LOGICNOW EXCLUDES ANY LIABILITY FOR FAILURE TO REPAIR ANY SOFTWARE. SOME JURISDICTIONS DO NOT ALLOW SUCH LIMITATION AND THEREFORE THIS LIMITATION MAY NOT APPLY TO YOU; IN THESE JURISDICTIONS, LOGICNOW’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW.
Customer agrees to indemnify, defend, and hold LogicNow and its parent companies, shareholders, subsidiaries, or affiliate organizations, officers, agents and employees, harmless from and against any and all claims, losses, liabilities, demands, or damages, including reasonable attorneys' fees, in respect of: (i) claims asserted by any third party due to or arising out of Customer’s breach of any provision of this Agreement, (ii) Customer’s use of the Software or Services, (iii) Customer’s violation of any third party rights, including any intellectual property rights and/or violation of any applicable laws, (iv) any breach of DPL by Customer, and (v) any claim of misuse of the Software or Services.
Customer agrees that the Software and Services will not be used, shipped, transferred or exported into any country or to anyone that the EU, US or UN has embargoed goods; or in any manner prohibited by the EU Common Foreign and Security Policy, the United States Export Administration Act, or any other export laws or regulations. By using the Software or Services, Customer represents that it is not located in, under the control of, or a national or resident of any such country or on any such list and Customer takes full and sole responsibility for such use.
The delay or failure of either party to exercise any right provided in this Agreement shall not be deemed a waiver. This Agreement: (i) and the rights and obligations hereunder may not be assigned, pledged or otherwise transferred, whether in whole or in part, by Customer. Any purported assignment will be null and void, however, LogicNow may freely assign all or any part of this Agreement, without Customer's consent, in connection with a merger, acquisition, corporate reorganization, change of control or sale or disposition of substantially all of its assets (or any substantially similar transaction). Additionally, LogicNow may assign all or any part of this Agreement to a LogicNow Affiliate without Customer's consent. For the purposes of this section, the term "Affiliate" shall mean any entity that now or in the future controls, is controlled by, or is under common control with LogicNow (ii) may not be amended by Customer, but LogicNow may amend this Agreement from time to time upon 30 (thirty) days’ prior written notice and shall post the most up to date version of this Agreement on its website at www.logicnow.com, it is Customer’s responsibility to check and stay informed of any changes. Customer’s continued use of the Software or Services following modification to the Software or Services or this Agreement constitutes Customer’s consent to be bound by the modified Agreement. (iii) the remedies of the parties are cumulative and will not exclude any other remedies to which the party may be lawfully entitled, (iv) constitutes the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes all prior written and oral agreements, representations, negotiations and discussions between the parties relating to it, (v) whether in part (or part of any provision) is found to be illegal, invalid or unenforceable, the provision, or deletion thereof, shall apply with the minimum modification necessary to make it legal, valid and enforceable, (vi) is for the sole benefit of LogicNow and Customer and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement, and (vii) prevails and governs over any conflicting or additional term set out in any invoice, purchase order or any document whatsoever of Customer. Paragraph headings are for convenience and shall have no effect on interpretation. The terms relating to intellectual property, confidentiality, limitation of warranty, limitation of liability and governing law and jurisdiction shall survive the termination, howsoever arising, of this Agreement. If this Agreement is translated into a language other than English and there are conflicts between the translations, the English version shall prevail and control. All notices must be in writing, sent to the other party and shall be sent via registered mail (effective on the third day following the date of mailing), or sent via email (PDF. document) to: firstname.lastname@example.org (with evidence of effective transmission) effective when sent.
Governing Law & Jurisdiction.
This Agreement and any dispute or matter arising from this Agreement shall be governed by, and construed in accordance with the laws of England and Wales. The parties unconditionally and irrevocably consent to the exclusive jurisdiction of the courts located in England and Wales and the parties waive any objection with respect thereto, for the purpose of any action, suit or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
Revised January 2016