This LRS CloudPrint Agreement ("Agreement") is a binding contract between Customer and Levi, Ray & Shoup, Inc., (“LRS”). This Agreement governs Customer’s access to and use of the Cloud Services. THIS AGREEMENT TAKES EFFECT WHEN CUSTOMER USES ANY OF THE CLOUD SERVICES (the “Effective Date”). BY USING THE CLOUD SERVICES CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS AND AGREES TO BE BOUND BY THIS AGREEMENT AND REPRESENTS AND WARRANTS THAT THE PERSON USING THE CLOUD SERVICES HAS THE RIGHT, POWER AND AUTHORITY TO BIND CUSTOMER. IF CUSTOMER DOES NOT ACCEPT THE TERMS OF THIS AGREEMENT OR DOES NOT HAVE THE AUTHORITY TO BIND CUSTOMER, CUSTOMER MUST NOT USE THE CLOUD SERVICES.
(a) “Affiliate” means in relation to Customer, any company controlling, controlled by or under common control with Customer. Control means the power to direct the management and policies of an entity either directly or indirectly through ownership of fifty percent (50%) or more of the voting securities, contract or otherwise.
(b) "Authorized User" means Customer and Customer's employees, consultants, contractors, and agents who are authorized by Customer to access and use the Cloud Services under the rights granted to Customer pursuant to this Agreement and for whom access to the Cloud Services has been purchased hereunder.
(c) "Cloud Services" means the services provided by LRS to Customer under this Agreement and as reflected in Customer’s Order. LRS reserves the right to modify the Cloud Services at any time. Notice of changes may be provided by posting information concerning the change via email, on LRS’ website, through the Cloud Services or by other industry standard notification methods.
(d) “Customer” means the entity that uses or is the recipient of Cloud Services and who is bound by this Agreement.
(e) "Customer Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any other Authorized User through the Cloud Services.
(f) "Documentation" means LRS' user manuals and technical information relating to the Cloud Services provided to Customer relating to the Cloud Services .
(g) “Order” means an online quote or ordering document which references this Agreement.
(h) "LRS IP" means the Cloud Services, the Documentation, and any and all intellectual property provided to Customer or any other Authorized User in connection with the foregoing. For the avoidance of doubt, LRS IP includes any information, data, or other content derived from LRS' monitoring of access to or use of the Cloud Services.
(i) "Third-Party Products" means any products, content, services, information, websites or other materials that are owned by third parties and are incorporated into or accessible through the Cloud Services.
2. Trial. If Customer is receiving access to the Cloud Services without having paid any Fees, Customer is receiving a non-exclusive, no charge, AS IS, thirty (30) day trial access (“Trial”). The Trial period may be extended by LRS at its sole discretion. The access to the Trial is subject to Customer’s strict compliance with all terms and conditions set forth in this Agreement. Notwithstanding anything stated to the contrary, during the Trial, Customer shall only use the LRS IP for test or trial purposes. At the end of the Trial, or any extension, if Customer does not move to a production access and pay all applicable Fees (defined below), Customer shall immediately discontinue use of the Cloud Services.
3. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer's payment of Fees (as defined below) and compliance with all terms and conditions of this Agreement, LRS hereby grants Customer a revocable, non-exclusive, non-transferable, limited right to access and use the Cloud Services during the Term, solely for Customer’s and its Affiliates’ internal business operations by Authorized Users in accordance with and subject to the terms and conditions herein. LRS shall provide to Customer the necessary access credentials to allow Authorized Users to access the Cloud Services. Subject to the terms and conditions contained in this Agreement, LRS hereby grants Customer a non-exclusive, non-sublicensable, non-transferrable license for Authorized Users to use the Documentation during the Term solely for Customer’s internal business purposes in connection with use of the Cloud Services.
(b) Use Restrictions . Customer shall not, and shall not permit any other Authorized Users to, use the Cloud Services, any software component of the Cloud Services, or Documentation for any purpose beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any other Authorized Users to: (i) copy, modify, or create derivative works of the Cloud Services, any software component of the Cloud Services, or Documentation, in whole or in part; (ii) rent, sell, license, assign, distribute, transfer, or otherwise make available the Cloud Services or Documentation except as expressly permitted under this Agreement; (iii) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to any software component of the Cloud Services, in whole or in part; (iv) remove any proprietary notices from the Cloud Services or Documentation; or (v) use the Cloud Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, regulation or rule.
(c) Aggregated Data. Notwithstanding anything to the contrary in this Agreement, LRS may collect and compile data and information related to use of the Cloud Services to be used by LRS in an aggregated and anonymized manner. Customer agrees that LRS may use anonymized and aggregated data to the extent and in a manner not prohibited by applicable law.
(d) Reservation of Rights . LRS reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the LRS IP.
(e) Suspension . Notwithstanding anything to the contrary in this Agreement, LRS may suspend Customer's and any other Authorized User's access to any portion or all of the Cloud Services if: required by law; LRS reasonably determines that there is a threat, attack on or risk to any of the LRS IP; or in accordance with Section 6(a). LRS will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any other Authorized User may incur as a result of such suspension.
4. Customer Responsibilities .
(a) Acceptable Use Policy . The Cloud Services may not be used for unlawful, fraudulent, offensive or obscene activity, as further described and set forth in LRS’ acceptable use policy (“AUP”) located at [INSERT URL FOR USE POLICY], as may be amended from time to time, which is incorporated herein by reference. Customer will comply with all terms and conditions of this Agreement, all applicable laws, rules and regulations and all guidelines, standards and requirements that may be posed from time to time, including the AUP.
(b) Account Use. Customer is responsible for all uses of the Cloud Services and Documentation resulting from access provided by Customer; maintaining the confidentiality of all passwords and access credentials associated with the Cloud Services; and ensuring compliance with all applicable laws. The Cloud Services shall not be used by anyone located in a U.S. embargoed country or on a restricted or denied parties list. Customer will promptly notify LRS of any unauthorized access or use of the Cloud Services.
(c) Customer Data. Customer hereby grants to LRS a non-exclusive, royalty free, worldwide license to reproduce, distribute and otherwise use and display the Customer Data and perform all acts with respect to Customer Data as may be necessary for LRS to provide the Cloud Services to Customer. Customer will ensure that Customer Data and any Authorized User’s use of Customer Data will not violate any policy or terms referenced in or incorporated into this Agreement or any applicable law. Customer is solely responsible for the development, content, operation, maintenance and use of Customer Data. All Customer Data shall be treated by LRS as the Customer’s proprietary information and shall not be disseminated or disclosed to third parties without Customer’s prior written consent.
(d) Third-Party Products . The Cloud Services may permit access to Third-Party Products. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions presented to Customer for acceptance within the Cloud Services, by website link or otherwise. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install, access or use the Cloud Services and/or such Third-Party Products.
5. Service Levels and Support .
(a) Service Levels . Subject to the terms and conditions of this Agreement, LRS shall use commercially reasonable efforts to make the Cloud Services available in accordance with the service levels available at [URL].
(b) Support . The access rights granted hereunder entitle Customer to the support services described on LRS’ website located at [URL] during the Term of this Agreement subject to Customer’s compliance with all terms and conditions of this Agreement, including payment obligations.
<6. Fees and Payment .
(a) Fees . LRS may offer different categories of paid Cloud Services. Customer shall pay LRS the fees as described on [URL] and as selected by Customer in its Order ("Fees") within the time frame set forth in the Order, without offset or deduction. Customer shall make all payments hereunder in U.S. dollars. Customer is responsible for any fees imposed by its credit card company, if applicable, including exchange rate or foreign transaction fees. If Customer fails to make any payment when due, without limiting LRS' other rights and remedies: (i) LRS may charge interest on the past due amount at the rate of 1.5% per month or, the highest rate permitted under applicable law if lower; (ii) Customer shall reimburse LRS for all costs incurred in collecting any late payments or interest, including attorneys' fees; and (iii) if such failure continues for thirty (30) days or more, LRS may suspend Customer's and any other Authorized Users' access to any portion or all of the Cloud Services until such amounts are paid in full. Fees are exclusive of taxes and similar assessments and Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer.
(b) Auditing Rights and Required Records . Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of one year after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. LRS may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer's records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid LRS with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 6(a). Customer shall pay for the costs of the audit if the audit determines that Customer's underpayment equals or exceeds 15% for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of one year after the termination or expiration of this Agreement.
8. Limited Warranty and Disclaimer .
(a) LRS warrants that it provides the Cloud Services using a commercially reasonable level of care and skill. LRS does not warrant that the Cloud Services will be completely defect or error free. THE FOREGOING WARRANTY DOES NOT APPLY, AND LRS STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY TRIAL PERIOD AND ANY THIRD-PARTY PRODUCTS .
(b) Customer warrants that it owns all right, title and interest, including all intellectual property rights in and to Customer Data and that both the Customer Data and Customer’s use of the Cloud Services are in compliance with the AUP.
(c) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), THE CLOUD SERVICES ARE PROVIDED "AS IS" AND LRS SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LRS SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. LRS MAKES NO WARRANTY OF ANY KIND THAT THE CLOUD SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER ENTITY'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF CUSTOMER’S OR ANY THIRD PARTY’S SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
9. Indemnification .
(a) LRS Indemnification. LRS shall indemnify and defend Customer from and against losses, damages, judgements, or expenses (“Losses”) incurred by Customer resulting from any third-party suit, claim, action or proceeding (“Third Party Claim”) that the Cloud Services or use of the Cloud Services in accordance with this Agreement, infringes or misappropriates such third party’s copyright, patent or trade secrets provided that Customer promptly notifies LRS in writing of the Third-Party Claim, cooperates with LRS and allows LRS authority to control the defense and settlement of such Third Party Claim. This Section will not apply to the extent that any such Third-Party Claim arises from Customer Data or Third-Party Products.
(b) Customer Indemnification. Customer shall indemnify, and, at LRS' option, defend LRS from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Customer's or any other Authorized User's (i) negligence or willful misconduct; (ii) use of the Cloud Services in a manner not authorized by this Agreement; (iii) use of the Cloud Services in combination with data, software, hardware, equipment or technology not provided or authorized by LRS in writing; or (iv) modifications to the Cloud Services not made by LRS, provided that Customer may not settle any Third-Party Claim against LRS unless LRS consents to such settlement.
10. Limitations of Liability . IN NO EVENT WILL LRS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LRS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR SUCH LOSSES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL LRS' AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO LRS UNDER THIS AGREEMENT IN THE ONE YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
11. Term and Termination .
(a) Term . The term of this Agreement begins on the Effective Date and continues until terminated (“Term”). Cloud Services will automatically renew for additional successive terms equal to the initial term of Customer’s Order, unless earlier terminated pursuant to this Agreement or by a party giving the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then current Term.
(b) Termination . In addition to any other express termination rights set forth in this Agreement:
(i) LRS may terminate this Agreement upon written notice to Customer if Customer fails to pay any amount due hereunder, and such failure continues more than thirty (30) days after Customer receives notice thereof; or for any reason upon sixty (60) days advance notice ; or
(ii) either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: is incapable of cure; or being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with notice of such breach .
(c) Effect of Termination . Upon termination of this Agreement, Customer shall immediately discontinue use of all LRS IP. No termination of this Agreement will affect Customer's obligation to pay all Fees that became due before such termination or entitle Customer to any refund. Upon expiration or termination, any content that Customer has not deleted or removed will be retained for at least XXXX days, except for any content from a Trial, which may be deleted immediately. LRS may retain content on backup media for an additional period of up to twelve months, or longer if required by law, subject to the confidentiality obligations under this Agreement.
12. Miscellaneous .
(a) Governing Law; Jurisdiction . This Agreement is governed by and construed in accordance with the internal laws of the State of Illinois, USA, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Illinois. Any legal suit, action, or proceeding arising out of or related to this Agreement or the rights granted hereunder will be instituted in the federal courts of the United States or the courts of the State of Illinois in each case located in the city of Springfield, Illinois and County of Sangamon, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action, or proceeding.
(b) US Government Rights . If the Cloud Services are purchased for use by the U. S. Government, Customer agrees that the Cloud Services and Documentation have been developed entirely at private expense and are delivered as a "commercial item" or are "commercial computer software" and "commercial computer software documentation" (as defined in DFARS 252.227-7013) or as “restricted computer software” (as defined in FAR 52.227-19).
(c) Publicity. LRS may include Customer’s name in a list of LRS customers, whether online or in promotional material.
(d) Geographic Availability. The availability of Cloud Services, including specific features and language versions, may vary from country to country. Information on availability is in the Documentation.
(e) Language . Customer and LRS have expressly required that this Agreement be drawn up in the English language. C’est la voloné expresse des parties que la convention qui s’y rattachent soient rédiges en anglaise.
(f) General . This Agreement constitutes the entire agreement and understanding of the Parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, with respect to such subject matter. Any notices to LRS must be sent to corporate headquarters at 2401 W. Monroe St., Springfield, IL 62704 and must be delivered either in person, by certified or registered mail, return receipt requested and postage prepaid, or by recognized overnight courier service, and are deemed given upon receipt by LRS. Notwithstanding the foregoing, Customer hereby consents to receiving electronic communications from LRS. These electronic communications may include notices about applicable fees and charges, changes to the terms and conditions, transactional information and other information concerning or related to the Cloud Services and may be provided through the Cloud Services. Customer agrees that any notices, agreements, disclosures, or other communications that LRS sends electronically will satisfy any legal communication requirements, including that such communications be in writing. The invalidity, illegality, or unenforceability of any provisions herein does not affect any other provisions herein or the validity, legality or enforceability of such provision in any other jurisdiction. Any failure of LRS to act with respect to a breach of this Agreement by you or others does not constitute a waiver and will not limit LRS’ rights with respect to such breach or any subsequent breaches. This Agreement may not be transferred or assigned to a third party by Customer without the written consent of LRS except as otherwise specifically allowed by law. Any other attempted assignment or transfer shall be invalid and void.