Avancir Kit End User License Agreement
THIS IS A BINDING CONTRACT. BY PLACING AN ORDER FOR AN AVANCIR KIT (DEFINED BELOW), YOU AGREE TO THE TERMS AND CONDITIONS SET FORTH IN THIS END USER LICENSE AGREEMENT (THIS “AGREEMENT”).
THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
This Agreement is a binding agreement between Avancir Software Group LLC, a Delaware limited liability company (“Licensor”) and the person or entity identified on the Order Form as the purchaser of the Avancir Kit (“Licensee”).
Licensee acknowledges that certain affiliates of Licensor (“Licensor Affiliates” which term shall include, without limitation, Atlas RFID Solutions Store, LLC, a Delaware limited liability company) may perform services (including, without limitation, sale of the Avancir Kit through atlasRFIDstore.com, logistical services, shipping, back office services, accounting, billing, and invoicing) on behalf of Licensor in connection with this Agreement and Licensee’s use of the Avancir Kit. Notwithstanding anything to the contrary: (i) Licensor Affiliates are not a party to this Agreement, (ii) Licensor Affiliates are not third-party beneficiaries of this Agreement, and (iii) Licensee hereby agrees to indemnify, defend, and hold Licensor Affiliates harmless from and against any Losses (defined below) arising out of or related to Actions (defined below) asserted or threatened by, under, or through Licensee or Licensee’s affiliates (including, without limitation, entities under common control with Licensee, Licensee’s direct or indirect parent entities, and Licensee’s direct or indirect subsidiaries (collectively, “Licensee Affiliates”)) against Licensor Affiliates. To the fullest extent permitted by law, Licensee covenants that it will not pursue or cause or permit any Licensee Affiliate to pursue the prosecution, in any state, federal or foreign court, or before any local, state, federal, or foreign administrative agency or other tribunal, arbitrator, or court of any kind, any charge, claim, judgement, settlement, or action of any kind, nature or character whatsoever (including, without limitation, claims arising under contract, tort (including negligence), strict liability, or otherwise) (collectively, “Actions”) which Licensee or Licensee Affiliates now have, have ever had, or may in the future have against Licensor Affiliates. Without limiting the generality of the foregoing, nothing in this Agreement shall limit, Licensee hereby accepts and agrees to abide by, and this Agreement hereby incorporates the Terms of Service applicable to use of atlasRFIDstore.com.
This Agreement governs: (i) Licensee’s license and use of the Avancir software (“Software”) and (ii) Licensee’s purchase of Hardware (defined below). The purchased Hardware and licensed Software are referred to herein, collectively, as the “Avancir Kit”.
LICENSOR PROVIDES THE AVANCIR KIT SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY [CLICKING THE “ACCEPT” BUTTON/CHECKING THE “ACCEPT” BOX ON THE ORDER FORM/[OTHER MEANS PROVIDED FOR ACCEPTANCE]] YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE AVANCIR KIT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.
“Authorized Users” means Licensee’s employees, agents, and contractors, but shall not include any customers of Licensor.
“Documentation” means Licensor’s user manuals, handbooks, and installation guides relating to the Software provided by Licensor to Licensee either electronically or in hard copy form/end user documentation relating to the Software and further including the description of the Avancir Kit on AtlasRFIDstore.com.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Fees” means the fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.
“Order Form” means the order confirmation provided to Licensee upon purchase of the Avancir Kit.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
“Third Party” means any Person other than Licensee or Licensor.
“Updates” means any updates, bug fixes, patches, or other error corrections to the Software that Licensor develops after purchase of the Avancir Kit.
LICENSEE FURTHER ACKNOWLEDGES THAT THE AVANCIR KIT MAY NOT FUNCTION IF THE HARDWARE IS NOT PROPERLY INSTALLED OR CONFIGURED. RFID EQUIPMENT’S PERFORMANCE VARIES IN THE ENVIRONMENT IN WHICH IT IS USED (INCLUDING, WITHOUT LIMITATION THE MATERIALS ON WHICH RFID TAGS ARE APPLIED, READ RANGES, AND READ ORIENTATIONS). LICENSEE SHALL BE SOLELY RESPONSIBLE FOR INSTALLING AND CONFIGURING RFID EQUIPMENT AND FOR PLACEMENT, APPLICATION, AND THE ENVIRONMENT IN WHICH RFID TAGS WILL BE USED (COLLECTIVELY, “HARDWARE INSTALLATION”). LICENSOR SHALL HAVE NO LIABILITY OF ANY KIND, AND LICENSEE COVENANTS NOT TO BRING AGAINST LICENSOR ANY ACTION ARISING OUT OF OR RELATING TO HARDWARE INSTALLATION.
The remedies set forth in this Section 11(c) are Licensee’s sole remedies and Licensor’s sole liability for any Action alleging the Avancir Kit (or any component thereof) fails to perform in accord with the Documentation or is otherwise defective, non-functioning, or non-operational in any way.