End-User License Agreement for FleetVIP products of Alembx Solutions LLC (Alembx)
IMPORTANT: Please read this software license agreement carefully before using this software. By downloading, copying, installing, accessing, or using this Software, you agree to the terms of this agreement. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. If you do not agree with the terms of this license, promptly delete the Software from your system.
SOFTWARE SUPPLIERS. For purposes of this End-User License Agreement, the SOFTWARE SUPPLIERS are Alembx Solutions LLC and all parties providing Alembx with software components for inclusion in or with Alembx software products. The SOFTWARE SUPPLIERS are owners of copyrights and other proprietary rights in the enclosed licensed Software and Documentation. Title to the Software and Documentation remains with the SOFTWARE SUPPLIERS, and does not pass to the Licensee or other parties.
LICENSEE. This LICENSE AGREEMENT is between Alembx Solutions LLC ("Alembx"), and the Individual or Organization ("Licensee") who has purchased a license to use the software or is accessing and otherwise using this software ("FleetVIP") in source or binary form or its associated documentation.
Nothing in this License Agreement shall be deemed to create any relationship of agency, partnership, or joint venture between Alembx and Licensee. This License Agreement does not grant permission to use Alembx trademarks or trade name in a trademark sense to endorse or promote products or services of Licensee, or any third party.
1. LICENSE.
1.1 The Software is protected by copyright, trade secret, and other intellectual property laws. You are only granted certain limited rights to install and use the Software, and Alembx reserves all other rights in the Software not granted to you in writing herein. As long as you meet any applicable payment obligations and comply with this Agreement, Alembx grants you a personal, limited, nonexclusive, nontransferable, revocable license to use the Software only for the period of use provided in the ordering and activation terms, as set forth in this Agreement, or in accordance with Alembx's then-current product discontinuation policies, as updated from time to time, and only for the purposes described by Alembx for the Software. Alembx reserves the right to discontinue all support for the Software, and/or for any features, online or other services or content accessible through the Software.
1.2 You acknowledge and agree that the Software is licensed, not sold. You agree not to use the Software in a manner that violates any applicable law, regulation or this Agreement. For example, unless authorized by Alembx in writing, you agree you will NOT:
You may use the Software on one individual single computer or use the Software on a single shared folder located on one network-connected computer, provided that one license is obtained for each three concurrent users accessing the Software. The rights and limitations under this Agreement shall transfer to any party in receipt of the Software.
1.3 Mandatory Activation. THERE ARE TECHNOLOGICAL MEASURES IN THIS SOFTWARE THAT ARE DESIGNED TO PREVENT UNLICENSED USE OF THE SOFTWARE. You may not be able to exercise your rights to the Software under this license unless you activate your copy of the Software in the manner described during the installation sequence. You also may need to reactivate the Software for various reasons including if you modify your computer hardware or alter the Software or move the software to a different folder or storage drive or if you attempt to activate the software on more than one computer. Alembx will use those measures to confirm you have a legally licensed copy of the Software. If you are not using a licensed copy of the Software, you are not allowed to install the Software or future Software updates.
2. TERMINATION. The License is in effect until terminated. The License will terminate automatically if you fail to comply with any of the terms described herein. Upon any termination you must immediately stop using and delete or destroy all copies of the Software and any outstanding payments will become due. Any termination of this Agreement shall not affect Alembx's rights to any payments due to it. The LICENSEE will be responsible for all costs of collection including PayPal and credit card processor chargeback fees and reasonable attorney's fees up to and including judgment as well as all reasonable costs incurred to collect the judgment in full.
3. DISCLAIMER OF WARRANTIES.
3.1 YOUR USE OF THE SOFTWARE AND CONTENT ACCESSIBLE THROUGH THE SOFTWARE IS ENTIRELY AT YOUR OWN RISK. EXCEPT AS DESCRIBED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED "AS IS." TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALEMBX, ITS AFFILIATES, AND ITS THIRD PARTY SERVICE OR DATA PROVIDERS, LICENSORS, DISTRIBUTORS OR SUPPLIERS (COLLECTIVELY REFERRED TO AS, "SUPPLIERS") DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY THAT THE SOFTWARE IS FIT FOR A PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, DATA LOSS, NON-INTERFERENCE WITH OR NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, OR THE ACCURACY, RELIABILITY, QUALITY OR CONTENT IN OR LINKED TO THE SOFTWARE. ALEMBX AND ITS AFFILIATES AND SUPPLIERS DO NOT WARRANT THAT THE SOFTWARE IS SECURE, FREE FROM BUGS, VIRUSES, INTERRUPTION, ERRORS, THEFT OR DESTRUCTION. FURTHER, ALEMBX DOES NOT WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE, CONTENT OR DATA TRANSMITTED THROUGH THE SOFTWARE. IF THE EXCLUSIONS FOR IMPLIED WARRANTIES DO NOT APPLY TO YOU, ANY IMPLIED WARRANTIES ARE LIMITED TO 60 DAYS FROM THE DATE OF PURCHASE OR DELIVERY OF THE SERVICES, WHICHEVER IS SOONER.
3.2 ALEMBX AND ITS AFFILIATES AND SUPPLIERS DISCLAIM ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE SOFTWARE WILL SATISFY OR ENSURE COMPLIANCE WITH ANY LEGAL OBLIGATIONS OR LAWS OR REGULATIONS. THIS DISCLAIMER APPLIES TO BUT IS NOT LIMITED TO THE HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT OF 1996 ("HIPAA"), THE GRAMM-LEACH-BLILEY ACT OF 1999, THE SARBANES-OXLEY ACT OF 2002, OR OTHER FEDERAL OR STATE STATUTES OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE SOFTWARE IS IN ACCORDANCE WITH APPLICABLE LAW.
4. LIMITATION OF LIABILITY AND INDEMNITY. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ENTIRE LIABILITY OF ALEMBX, AND ITS AFFILIATES AND SUPPLIERS FOR ALL MATTERS OR CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT YOU PAID FOR THE SOFTWARE DURING THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIM. SUBJECT TO APPLICABLE LAW, ALEMBX AND ITS AFFILIATES AND SUPPLIERS ARE NOT LIABLE FOR ANY OF THE FOLLOWING: (A) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (B) DAMAGES RELATING TO FAILURES OF TELECOMMUNICATIONS, THE INTERNET, ELECTRONIC COMMUNICATIONS, CORRUPTION, SECURITY, LOSS OR THEFT OF DATA, VIRUSES, SPYWARE, LOSS OF BUSINESS, REVENUE, PROFITS OR INVESTMENT, OR USE OF SOFTWARE OR HARDWARE THAT DOES NOT MEET ALEMBX SYSTEMS REQUIREMENTS. THE ABOVE LIMITATIONS APPLY EVEN IF ALEMBX AND ITS AFFILIATES AND SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS AGREEMENT SETS FORTH THE ENTIRE LIABILITY OF ALEMBX, ITS AFFILIATES AND YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE SOFTWARE AND ITS USE.
You agree to indemnify and hold Alembx and its Affiliates and Suppliers harmless from any and all claims, liability and expenses, including reasonable attorneys' fees and costs, arising out of your use of the Software or breach of this Agreement (collectively referred to as "Claims"). Alembx reserves the right, in its sole discretion and at its own expense, to assume the exclusive defense and control of any Claims. You agree to reasonably cooperate as requested by Alembx in the defense of any Claims.
WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
5. DEMO OR EVALUATION VERSIONS. If THE SOFTWARE SUPPLIERS designate the Software as a "Demo", "FREE" or "Evaluation" version, then your license rights under this Agreement may extend solely for an evaluation period not to exceed one year unless otherwise stated on the Alembx.com website, during which your use is restricted solely to allow you to determine whether to purchase an ongoing license to the Software. You may make a reasonable number of copies of the Demo or Evaluation version of this Software, including documentation, for internal distribution, provided that any such copies are unmodified and exact. You shall not charge or request donations for any such copies and distribute Demo or Evaluation versions of the Software to third parties without prior written permission. Unregistered use of the Software, including documentation, beyond the evaluation period violates THE SOFTWARE SUPPLIERS rights, as described above, including but not limited to THE SOFTWARE SUPPLIERS rights under the United States Copyright Act. You acknowledge that any Demo or Evaluation version is merely a technology demonstration that may not be at the level of performance or compatibility generally available form THE SOFTWARE SUPPLIERS products. Demo or Evaluation versions are provided strictly on an "as is" basis and are subject to Section 6, below.
6. MAINTENANCE RELEASES AND UPGRADES. Provided that LICENSEE has paid all applicable license fees and Maintenance and Support Plan fees, LICENSEE will be entitled to receive any Maintenance Releases and/or Upgrades made generally available during the Maintenance Period for those Products licensed from SOFTWARE SUPPLIERS by LICENSEE and covered under a Maintenance and Support Plan. Any Upgrades released during the Maintenance Period shall be made available for electronic download by LICENSEE. Alembx shall provide LICENSEE with instructions regarding registration for such electronic downloads. Use of each Upgrade is subject to the terms of the license agreement for such Upgrade.
7. UPGRADES. If the Software is designated by THE SOFTWARE SUPPLIERS as an "Upgrade" product, then you may only use the Software if you are also currently a licensed user of the base product to which the Upgrade applies. Unless THE SOFTWARE SUPPLIERS documentation for an Upgrade specifically provides, you shall not separate upgrade products from base products, nor transfer them separately. THE SOFTWARE SUPPLIERS reserve the sole and exclusive right to set its policies and prices regarding updates, upgrades and enhancements. All other terms of this Agreement apply with equal force to any such Upgrades.
8.1 Internet-Based Services. You may not use any Alembx Internet-based services associated with the Software in any manner that could damage, disable, overburden, or impair such services or interfere with any other party's use and enjoyment of them. You may not attempt to gain unauthorized access to any service, account, computer systems or networks associated with the Internet-based services.
8.2 ADDITIONAL SOFTWARE/SERVICES. This license applies to updates, supplements, add-on components, or Internet-based services components, of the Software that Alembx may provide to you or make available to you after the date you obtain your initial copy of the Software, unless they are accompanied by separate terms. Alembx reserves the right to discontinue Internet-based services provided to you or made available to you through the use of the Software.
8.3 Alembx may freely use feedback you provide. You agree that Alembx may use your feedback, suggestions, or ideas in any way, including in future modifications of the Software, other products or services, advertising or marketing materials. You grant Alembx a perpetual, worldwide, fully transferable, sub-licensable, irrevocable, fully paid-up, royalty free license to use the feedback you provide to Alembx in any way.
8.4 Marketing Activities. You hereby grant Alembx the right to use, reproduce, publish, perform and display, at its sole discretion your name, and/or logo ("Customer Marks") on the Site. At any time, you may request in writing that Alembx cease to display Customer Marks and Alembx will subsequently remove Customer Marks from the Site.
9. CHANGES TO THIS AGREEMENT OR THE SOFTWARE. We may change this Agreement from time to time, and the changes will be effective when posted on our website for the Software or when we notify you by other means such as during installation of the software. We have the right to change any of the terms of this Agreement upon notice to you during any software installation. We may also change or discontinue the Software, in whole or in part, including but not limited to, any feature or aspect of the Software, Internet based services, pricing, technical support options, and other product-related policies. Your continued use of the Software after Alembx posts or otherwise notifies you of any changes indicates your agreement to the changes.
10. GOVERNING LAW. Colorado state law governs this Agreement without regard to its conflicts of laws provisions.
10.1 Legal Compliance: You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a terrorist-supporting country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
11. GOVERNMENT LICENSE. The Software is a commercial item, as that term is defined at 48 C.F.R. 2.101 (OCT 1995), consisting of commercial computer software and commercial computer software documentation, as such terms are used in 48 C.F.R. 12.212 (SEPT 1995), and is provided to the U.S. Government only as a commercial end item. Government end users acquire the Software and Documentation under the following terms: (I) for acquisition by or on behalf of civilian agencies, consistent with the terms set forth in 48 C.F.R. 12.212 (SEPT 1995); or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with the terms set forth in 48 C.F.R. 227.7202-1 through 227.7202-4 (JUNE 1995).
12. GENERAL. This Agreement is the entire agreement between you and Alembx and replaces all prior understandings, communications and agreements, oral or written, regarding its subject matter. This Agreement may be modified only by a written amendment signed by the parties or as provided in this Agreement above. If any court of law, having the jurisdiction, rules that any part of this Agreement is invalid, that section will be removed without affecting the remainder of the Agreement. The remaining terms will be valid and enforceable. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. You cannot assign or transfer ownership of this Agreement to anyone. However, Alembx may assign or transfer it without your consent to (a) an Affiliate, (b) another company through a sale of assets by Alembx or (c) a successor by merger. Any assignment in violation of this Section shall be void.
AutoVIPŠ and FleetVIPŠ are trademarks of Alembx Solutions LLC
Other product or brand names mentioned are copyrights, trademarks or registered trademarks of their respective holders.
Dated: May 4, 2019