Any access to or use of any Licensed Software (as defined below) by, for or on behalf of Client constitutes Client’s agreement to this agreement (the “Terms of Service”).
Section 1 – Introduction and the Limble Solution
1.1 Limble and its Business – the Limble Solution. Limble is an information technology company that licenses and provides a solution known as the Limble Solution (the “Solution”) that is designed to help clients maintain and manage equipment, vehicles, devices, and other assets and to comply with related best practices. This Solution includes Licensed Software, Know-How, Documentation, and Services.
1.2 Client. Client desires to use the Solution in its business operations.
1.3 Licensed Software. The term “Licensed Software” means the computer programs, tools, and content made available by Limble to Client for Client’s access and use through the SaaS License of Section 2.1 below.
1.4 Services. The term “Services” means: (a) the services of Limble to Client in making the Licensed Software available to Client for Client’s remote access to and use of the Licensed Software as licensed and described in this Agreement, and (b) the Data Storage Services of Section 3.2, and (c) the support and maintenance services of Section 5. The term “Services” will also mean and include any additional services (e.g., consulting, implementation, planning, and training services) provided by Limble to Client under any SOW (see Section 1.5). Those additional Services will be identified in an SOW – see also Section 3.3. Any other services that are ancillary or related to any of the foregoing Services or the Limble Solution and that are performed by Limble for Client will also be considered “Services” under this Agreement unless a separate written agreement governing the other services is signed by both Parties.
1.5 Statements of Work – SOWs. If Client desires additional Services and if Limble agrees to provide them, they will be set forth in a Statement of Work (“SOW”). Each SOW is part of and will be governed by this Agreement. Limble has no obligation to provide any Services not described in an SOW or elsewhere in this Agreement. Each SOW must be signed by a representative of each Party and will set forth the additional fees to be paid by Client.
1.6 Limble’s Know-How and Methodology. “Know-How” means any know-how, expertise, experiences, ideas, knowledge, advice, recommendations, methodologies, processes, practices, standards, plans, data and information provided or disclosed by Limble to Client in connection with this Agreement or any SOW, Exhibit, Services, Licensed Software, or Documentation. The Know-How proprietary to Limble (or its licensor(s)) is referred to herein as “Methodology” and will be licensed to Client as “Methodology” under the License of this Agreement.
1.7 Documentation. If and to the extent that any documentation, instructions or other works of authorship are delivered or made available by Limble to Client for or in connection with this Solution, then such documentation, instructions and other works of authorship are referred to herein as “Documentation” (but this definition of “Documentation” does not include any Licensed Software).
1.8 Authorized Users. “Authorized Users” are employees of Client who are authorized by Client to access and use the Licensed Software. “Authorized Users” will also include Consultants, if any, who meet the requirements under Section 7.4 below. Authorized Users must respect this Agreement and must sign up or register with Limble in accordance with its process and guidelines. Client will be responsible for any conduct or misconduct of an Authorized User relating to this Agreement or any of its subject matter.
1.9 Authorized Reseller. An “Authorized Reseller” is a distributor or reseller authorized by Limble to sell licenses to clients to use the Licensed Software as a SaaS solution. If Client purchases the SaaS License from an authorized distributor or reseller, then any reference in this Agreement to Authorized Reseller means that distributor or reseller.
1.10 Subscription Fee. The “Subscription Fee” means the subscription or license fee payable by Client for the SaaS License. Client will pay to Limble its then-current Subscription Fee on an annual basis. However, if Client purchases the SaaS License through an Authorized Reseller of Limble, then Client will pay the Subscription Fee agreed to by Client and the Authorized Reseller.
Section 2 – License
2.1 SaaS License – for Licensed Software. Subject to the terms and conditions of this Agreement and Client’s compliance therewith, Limble grants to Client a non-exclusive, non-transferrable, limited-term license for Client through its Authorized Users to access and use the Licensed Software, but only for Client’s internal use for its business (the “SaaS License” or simply the “License”) and not for the development or design of any other software, product or solution. The Licensed Software will run on Limble Servers (defined below). The Authorized Users will access and use the Licensed Software from Client’s Computers (defined below) via the Internet through compatible web browsing software on Client’s Computers. Client may access and use the Licensed Software only in the ordinary course of Client’s business operations and only by and through Authorized Users (as defined below).
2.2 Methodology and Documentation. The SaaS License further includes a non-exclusive, non-transferable limited term license for Client to use the Methodology and Documentation, but only for Client’s internal use and not for the development, improvement or design of any other software, product, service or solution.
2.3 License Restrictions. Client must not use, and is not licensed to use, any Licensed Software, Documentation, Methodology or Services for any other purpose or in any manner or application that is in violation of any law, regulation, ordinance, or government authority, or in violation or breach of any obligation Client may have to a third party, or for any unethical purpose. Rights not expressly granted to Client are reserved by Limble.
2.4 Limble Servers. “Limble Servers” means the server(s) and any other computer(s), storage media, hardware and system(s) selected or designated by Limble for the storage and execution of the Licensed Software for the purpose of allowing Client (through its Authorized Users) access to and use of such Licensed Software via the Internet under the SaaS License. Limble Servers are not dedicated exclusively to the Licensed Software or Client. Limble Servers may be located at Limble’s and/or its contractor’s site(s).
2.5 Client’s Computers. “Client’s Computers” means computers functioning as Internet clients or workstations that are in the possession and control of Client and used by Client’s Authorized Users to access and use Licensed Software via the Internet as described in this Agreement and any applicable Documentation.
2.6 Responsibilities of Limble. Limble is responsible for the procurement and maintenance and server-side Internet access of the Limble Servers and the Licensed Software. Limble is also responsible for any operating system and other third party software needed to run the Licensed Software on the Limble Servers. Limble or its contractor, not Client, owns and holds the licenses to such third party software. Limble (directly or through its contractor) will contract with the applicable third party software licensors for software maintenance and updates and new versions as Limble deems appropriate. Limble will determine which updates and new versions of the third party software will be installed on the Limble Servers and when they are installed.
2.7 Responsibilities of Client. Client, at its expense, is responsible for procuring, installing, implementing, and maintaining Client’s Computers (including system software), compatible web browsing software, Internet access, data feeds, telecommunications, networks, peripherals and any other items and services needed by Client’s Computers and Authorized Users to access (via the Internet) the Licensed Software running on Limble Servers and Client Data resident on the Limble Servers. Client may consult with Limble concerning these requirements and on any upgrades or changes needed to remain compatible with the Licensed Software.
2.8 Licensed Software Updates and New Versions. The SaaS License and Licensed Software include any Licensed Software Updates (see Section 5.2) that Limble installs on the Limble Servers for inclusion in the SaaS License. All such Licensed Software Updates will become part of the Licensed Software. Client’s rights and License will only apply to the then-most-current version of the Licensed Software installed on, and available to Client’s Authorized Users from, the Limble Servers, but will not include any functionality or features of Licensed Software not included in the subscription or payment plan paid for by Client. Prior or out-dated versions of the Licensed Software may be discontinued by Limble. Limble has no obligation to include in the SaaS License or Licensed Software or make available for access and use by Client, any future functionality, modules or products that Limble elects to separately license or provide to its customers. Limble may condition the inclusion and availability of such future functionality, modules or products on the payment of additional fees and/or on other conditions and terms. If Client agrees to pay such additional fees and agrees to such other conditions and terms, if any, then that future functionality, module or product will be included in the SaaS License and will be Licensed Software under and subject to this Agreement.
2.9 No Rights to Code. Client and Authorized Users are not entitled to receive any copy of any of the Licensed Software in any form (source code, object code, executable code, or other form). The SaaS License is strictly limited to remote access via the Internet as described in this Agreement. In the event that Client or any Authorized User does receive any of the Licensed Software, Client and Authorized Users will not decompile, disassemble or reverse engineer any of the Licensed Software, or distribute or publish any copy of any of it, or modify it or create any derivative work based on it, or in any way facilitate any of the foregoing. Nothing in this Section 2.9 prohibits Client’s Authorized Users from receiving or displaying on Client’s Computers any screen displays, content or output “served up” by the licensed use of the Licensed Software under the SaaS License.
2.10 Documentation. Documentation may be copied and used internally by Client, but only to facilitate the licensed use of the Licensed Software and Methodology. Client will treat all Documentation as confidential information and copyrighted works of Limble. Client will not disclose or transfer Documentation to any person other than to Client’s employees and Consultants (as defined in Section 7.4) on a confidential and “need-to-know” basis. Those employees and Consultants must be under confidentiality and restricted use obligations at least as protective of Limble and the Limble Solution as are the confidentiality and restricted use provisions of this Agreement.
Section 3 – Services
3.1 Services. Limble will provide the Services described in this Agreement, including any applicable SOW.
3.2 Data Storage Services. As part of the Services, Client Data will be stored on Limble Servers and available to Client in connection with its licensed use of the Licensed Software and in accordance with this Agreement (the “Data Storage Services”) – see Section 6.1.
3.3 Additional Services. If Client desires additional services or changes to the Services, the Parties may supplement or amend this Agreement or an existing SOW or add a new SOW, but any such supplement, amendment or additional SOW must be agreed to by both Parties in writing. The additional services and changes to Services described in such supplements, amendments or additional SOWs will be governed by this Agreement as “Services.” Additional or changed Services will require additional or increased fees and compensation as stated in the SOW to be paid by Client to Limble for the additional or changed Services.
3.4 Cooperation. Client will promptly make available to Limble such information, assistance and cooperation as Limble may reasonably request in connection with the Services or the Limble Solution.
Section 4 – Payments and Assumptions
4.1 Subscription Fee. Client will pay to Limble its then-current Subscription Fee on an annual basis. However, if Client purchases the SaaS License through an Authorized Reseller, then Client will pay the Subscription Fee agreed to by Client and the Authorized Reseller. Client will pay the annual Subscription Fee for the first 12 months of the Term (as defined in Section 9.1). For each subsequent year during the Term, an annual Subscription Fee as quoted by Limble or Authorized Reseller to Client will be paid by Client to Limble or the Authorized Reseller (as applicable) at the beginning of each applicable year. The Subscription Fee is subject to reasonable increase upon at least 45 days advance written notice to Client. If the increase is not acceptable, then Client may terminate this Agreement under Section 9.1.
4.2 Additional Services. Fees and charges for additional Services or changed Services, if any, are not included in Section 4.1 and are due and payable by Client when invoiced by Limble or as otherwise agreed in writing by the Parties in the applicable SOW.
4.3 Taxes. The fees and other amounts payable by Client do not include any taxes that may be assessed or imposed upon any Licensed Software, Services, this Agreement or any of the payments, transactions, or licenses of this Agreement, including, without limitation, any sales, use, excise, value added, personal property, export, import and withholding taxes, and excluding only U.S. federal and state taxes based upon Limble’s or Authorized Reseller’s net income. Client shall directly pay any such taxes assessed against it, and Client shall promptly reimburse or pay Limble or Authorized Reseller for any such taxes payable, paid, or collectable by Limble or Authorized Reseller. If any taxes are withheld from any payments to Limble or Authorized Reseller under this Agreement, Client must pay such taxes and ensure that Limble or Authorized Reseller (as applicable) receives the full amount of all payments as stated in this Agreement after payment and satisfaction of such taxes.
Section 5 – Maintenance and Support of Licensed Software
5.1 Maintenance of Licensed Software. Limble is responsible for maintaining the Licensed Software running on Limble Servers. Maintenance of Licensed Software consists of implementing fixes, patches, and updates to the Licensed Software (“Fixes”) and work-around solutions for the Licensed Software running on Limble Servers to address programming errors in the Licensed Software. All decisions concerning Fixes and work-around solutions or the correction of programming errors, and the timing and manner thereof, will be made by Limble. Limble will determine if, when and how programming errors should be corrected and Fixes and work-around solutions created and implemented.
5.2 Licensed Software Updates. “Licensed Software Updates” (or simply “Updates”) means future updates to and new versions and releases of the Licensed Software that are implemented on Limble Servers for purposes of the SaaS License during the Term. Licensed Software Updates may include “Fixes” (as defined above) and “New Releases” (i.e., new versions and releases of the Licensed Software). Licensed Software Updates will also include any other modifications, enhancements and additions of or to the Licensed Software that Limble makes available under the SaaS License to Client as part of the Licensed Software.
5.3 Telephone and Email Support. Client will be entitled to telephone and email support from Limble’s telephone and email support personnel concerning problems and issues relating to Licensed Software and remote access to it as contemplated by this Agreement. Telephone and email support does not include training. Telephone and email support is subject to the reasonable availability of Limble’s support personnel during Limble’s standard support hours. Telephone and email support is subject to Limble’s then current telephone and email support policies, limitations and procedures. Support entitles Client to a maximum of five hours of telephone and email support per month (EXCEPT THAT DURING THE FIRST MONTH OF THIS AGREEMENT, THERE WILL BE NO CAP ON A REASONABLE NUMBER OF THESE HOURS). Unused time in a given month will not be carried forward or credited to any subsequent month. Telephone and email support beyond this limit is governed by Sections 3.3 and 4.2 as additional Services and is not covered by the Subscription Fee.
5.4 Other Services. Other services, including, without limitation, consultation, implementation, custom content development, and training, are not included in the support and maintenance services and will require a new SOW and payment of additional fees plus expenses.
5.5 Exceptions and Procedures. Limble’s obligations under this Section 5 do not apply to any problem attributable to Client’s Computers or to their connectivity to the Internet, or to Client’s failure to meet its responsibilities or requirements under this Agreement (including any SOW) or to follow any Documentation provided by Limble.
5.6 Most Current Version of Licensed Software. Limble is only obligated to maintain and support Limble’s then most current version of Licensed Software implemented by Limble on Limble Servers for the SaaS License. Limble will have no obligations under this Section 5 with respect to out-dated Licensed Software.
5.7 Subscription Fee. Payment of the Subscription Fee to Limble covers maintenance and support under this Section 5, but not Section 5.4 or excess hours under Section 5.3.
5.8 Cooperation. Client will make available to Limble such assistance and cooperation as Limble reasonably requests in connection with maintenance and support under this Section 5.
Section 6 – Client Data and Confidentiality
6.1 Client Data. “Client Data” means the data of Client that are transmitted by Client or its Authorized User to Limble’s Servers as part of the licensed use of Licensed Software. Transmitting of Client Data must be in accordance with Limble’s then-current reasonable procedures, requirements and guidelines. Such Client Data will be kept confidential by Limble (and its contractors, if any) and will not be transmitted to any unauthorized third party except as needed for this Agreement or in connection with an acquisition or merger of Limble. Client warrants that Client Data and the transmitting and storage of such data will not infringe, misappropriate or violate the rights or intellectual property of any third party or any law or regulation. Client is responsible for the accuracy, integrity, completeness and content of Client Data.
6.2 Protection of Client’s Other Confidential Information. Limble understands and acknowledges that it may have access to financial or business information of Client which Client maintains in confidence and which is not generally known to others in the profession or industry of either Party or to the general public and which is not known to Limble prior to disclosure by Client to Limble. Limble agrees to hold all such confidential information of Client in confidence and not to disclose any portion of it to any third party other than Limble’s contractors, subcontractors, successors and assigns on a “need to know” basis who are under similar obligations of confidentiality. This Section 6 is subject to Section 7.5 and does not apply to Feedback or any intellectual property in Feedback licensed to Limble.
Section 7 – Intellectual Property
7.1 Ownership. The Licensed Software, Documentation, and Methodology and the copyrights, trade secrets, patent rights and other intellectual property in and to the Licensed Software, Documentation, Services, and Methodology are owned by Limble (and/or Limble’s licensor(s)), and nothing herein assigns or conveys any ownership or exclusivity thereof to Client (see also Section 7.5 below). The rights of Client to the Licensed Software, Documentation, and Methodology are limited to the licenses and rights expressly granted to Client under this Agreement.
7.2 Protections. Client will not allow any person other than its Authorized Users to access or use any Licensed Software. Client will not disclose or transfer any of the Documentation, or Methodology or information learned about or from the Licensed Software or its screen displays to any other person or entity other than Client’s Authorized Users. Client will ensure that its employees and Consultants, if any, comply with the obligations of this Agreement relating to the protection or confidentiality of Licensed Software, Documentation, or Methodology.
7.3 Exceptions to Confidentiality. Client has no obligation of confidentiality under this Agreement with respect to any information in the Licensed Software, Documentation, or Methodology, or any other information disclosed by Limble, that is publicly known or known to Client prior to the first disclosure thereof to Client by Limble or any of Limble’s personnel, contractors or subcontractors. If any information in the Licensed Software, Documentation, or Methodology subsequently becomes publicly known through no fault of Client or any of its employees, consultants or contractors or is lawfully obtained by Client on a non-confidential basis from a third party who did not directly or indirectly receive the same from Limble, then such information (but not other information) will at that time cease to be subject to any obligation of confidentiality or restricted use under this Agreement. However, this does not excuse any infringement of, or grant any rights or license to Client under, any copyrights, patent rights or other intellectual property of Limble (or its licensor(s), if any).
7.4 Consultants. If any consultant or other contractor of Client needs to know or use any Licensed Software, Documentation, or Methodology in connection with services for Client, then such consultant or other contractor is referred to herein as a “Consultant” and Client may allow such Consultant to access and use Licensed Software, Documentation or Methodology, but only as necessary to perform the services for Client, provided that the Consultant is not a competitor of Limble and first agrees in writing: (a) not to access or use the Licensed Software, Documentation or Methodology for any purpose other than services for Client, (b) to abide by confidentiality obligations as least as protective of Limble and the Licensed Software, Documentation and Methodology as the confidentiality obligations in this Agreement, and (c) to abide by Section 7.5 of this Agreement.
7.5 Feedback. “Feedback” means any modifications, improvements, updates, suggestions, ideas, and enhancements of, for or to any Licensed Software, Documentation, Methodology or Services that are disclosed by Client or any of its Authorized Users or Consultants to Limble. If and to the extent that Client or any of its Consultants (or any of its or their personnel) develops or creates any Feedback, or discloses or provides any Feedback to Limble, then Limble will have the right to use, disclose, distribute, copy, modify, and commercialize such Feedback and the intellectual property in and to the Feedback. Client and Consultants agree to license, and hereby license, to Limble the Feedback and all copyrights, patent rights, trade secrets, and other intellectual property in and to such Feedback. This license is non-exclusive, irrevocable and worldwide and includes the right to grant sublicenses to others. Client and Consultants make no guaranty or warranty that any Feedback is free of error or defect or that it is suitable for use by Limble or for any of the purposes or requirements of Limble.
Section 8 – Security
8.1 Passwords, Access and User Accounts. User IDs (e.g., logins), passwords and access to the Licensed Software and Client Data residing on Limble Servers will be administered and governed by Limble’s then-current reasonable guidelines and procedures. Client is responsible for any and all activities that occur under its accounts(s) (including user accounts) and for the confidentiality of all User IDs and passwords of Authorized Users and for the confidentiality of any other security-related information disclosed to Client or any Authorized Users. Client must safeguard such User IDs, passwords, and security-related information. Client must notify Limble of any known unauthorized use of Client’s user accounts and any other breach of security relevant to this Agreement or Limble or the Solution. Each Authorized User will have a user account assigned to him or her. A user account may be assigned to and used by only one individual user – i.e., no sharing of user accounts.
8.2 Security. Client is responsible for maintaining adequate technical and procedural access controls and system security requirements and devices to ensure that there is no unauthorized or improper access to or use of Licensed Software or Limble Servers or violation of data privacy or confidentiality from, by or through any equipment, computers, networks, communication links or devices, offices, facilities, employees, agents, representatives, contractors, volunteers, clients, customers, affiliates or Authorized Users of Client. Limble is not responsible or liable for any unauthorized or improper access to or use of Licensed Software or any Client Data where such access or use originates outside of Limble Servers or from, by or through any equipment, computers, networks, communication links or devices, offices, facilities, employees, agents, representatives, contractors, clients, customers, affiliates or Authorized Users of Client.
8.3 Personal Information. Client and its Authorized Users must not disclose to Limble or transmit to or store on any Limble Servers any personally identifiable information (PII), protected health information (PHI), payment card information (PCI) or any other personal information. Client and its Authorized Users must not violate any law, regulation or government order or the rights of any person. Client will indemnify Limble and its officers, managers, employees, contractors and representatives against, and hold them harmless from, any such violation and any claims of such violation, and any judgments, settlements, damages, awards, expenses, costs, losses, and attorneys’ fees.
8.4 Client Data Only. Except for the transmission and storage of Client Data (as described in Sections 3.2 and 6.1), Client and its Authorized Users may not transmit, upload or store any data, computer programs, or other subject matter to or on Limble Servers.
8.5 Suspension for Security Breach. In the event that Limble believes that Client’s (including any of its Authorized Users’) access to or use of any Licensed Software, Services or Limble Servers or any of Client’s Computers presents a security breach or risk to Client Data or to the data or property of any other client or to the Limble Servers, then Limble may suspend such access and use until the security breach or risk has been eliminated to the reasonable satisfaction of Limble. Such suspension will not be a breach of this Agreement and Limble will have no liability for such suspension. Client will fully cooperate with Limble in connection with any such security breach or risk or any such suspension.
Section 9 – Term and Termination
9.1 Term. The “Term” of this Agreement will begin on the date of this Agreement for an initial term of one year. After the first year of the Term, the Term and this Agreement will continue on a year-to-year basis until one Party gives notice of termination or non-renewal to the other Party at least 30 days prior to the beginning of the next renewal year.
9.2 Termination for Breach. If Client breaches this Agreement or any SOW or Exhibit and fails to cure said breach within ten days after receiving written notice of said breach from Limble, then Limble will be excused from any further obligation or liability under this Agreement or any SOW or Exhibit and Limble may terminate or suspend any license or right granted by Limble under this Agreement or the SOW or the Exhibit, by giving notice to Client. This Section 9.2 will not limit the relief, remedies and damages to which Limble may be entitled.
9.3 Effect of Termination. Upon termination of this Agreement under Section 9.2 or any other termination or expiration of this Agreement, the Services and Licenses will terminate and Client will have no further License or rights under this Agreement or with respect to any Licensed Software, Documentation, or Methodology and will cease all use of the Licensed Software, Documentation, and Methodology, and will confirm that it has done so in writing to Limble. All obligations of confidentiality and other protections of the Licensed Software, Documentation, or Methodology or Limble’s intellectual property under this Agreement will survive any termination or expiration of the Licenses or this Agreement and will continue in effect (but all access to and use of the Licensed Software, Documentation, and Methodology by or for Client or its Consultants must cease). In addition, Sections 7, 9.3 and 10 will survive any termination of this Agreement, but nothing in those surviving Sections will supersede or affect the first sentence or the last sentence of this Section 9.3. Upon termination of the Licenses or this Agreement, any Licensed Software and Documentation in the possession or control of Client or any of its Consultants will be destroyed or permanently erased by Client, and Client and its Consultants will not retain any copy thereof and will confirm compliance therewith in writing to Limble.
Section 10 – General Provisions
10.1 Disclaimers. NEITHER PARTY MAKES ANY WARRANTY, REPRESENTATION OR PROMISE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. LIMBLE DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, AND METHODOLOGY ARE PROVIDED AND LICENSED ON AN “AS IS” BASIS. LIMBLE DOES NOT WARRANT THAT ANY LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, METHODOLOGY OR SERVICES WILL SATISFY CLIENT’S REQUIREMENTS OR THAT THEY ARE WITHOUT DEFECT OR ERROR OR THAT THE USE THEREOF WILL BE UNINTERRUPTED OR ERROR FREE. THE LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, METHODOLOGY, AND SERVICES ARE NOT INTENDED, LICENSED OR PROVIDED FOR ANY HAZARDOUS USE OR ANY APPLICATION REQUIRING FDA OR OTHER GOVERNMENT APPROVAL THAT HAS NOT BEEN OBTAINED BY CLIENT. HAZARDOUS USE MEANS USE IN ANY APPLICATION OR ENVIRONMENT IN WHICH ANY FAILURE OR MALFUNCTION OF, OR ERROR OR DEFECT IN, THE LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, METHODOLOGY, OR SERVICES COULD RESULT IN ANY CATASTROPHE OR LOSS OF LIFE OF OR PHYSICAL INJURY TO A NATURAL PERSON.
10.2 Responsibility for Decisions. CLIENT IS SOLELY RESPONSIBLE FOR DECISIONS MADE AND ACTIONS TAKEN BASED ON THE LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, METHODOLOGY, OR SERVICES. IT IS CLIENT’S RESPONSIBILITY TO VERIFY ALL ANALYSES, RESULTS AND DATA CREATED, COMPILED OR GENERATED WITH THE USE OF THE LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, METHODOLOGY OR SERVICES. ALL USE OF AND RELIANCE ON THE LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, METHODOLOGY OR SERVICES AND ANY INFORMATION, DATA OR RESULTS OBTAINED FROM ANY OF THEM ARE AT THE SOLE RISK OF CLIENT AND SUCH USE AND RELIANCE MUST BE BY QUALIFIED PROFESSIONALS WHO EXERCISE THEIR OWN INDEPENDENT PROFESSIONAL JUDGMENT.
10.3 Limitation of Liability. UNDER NO CIRCUMSTANCES WILL LIMBLE’S AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT, ANY SOW, OR ANY LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, METHODOLOGY OR SERVICES (REGARDLESS OF THE FORM OF ACTION OR CLAIM E.G. CONTRACT, WARRANTY, TORT, AND/OR OTHERWISE) EXCEED A LIMIT EQUAL TO ONE YEAR OF THE SUBSCRIPTION FEE RECEIVED BY LIMBLE FROM CLIENT UNDER THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL LIMBLE BE LIABLE OR RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, COVER, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR ANY LOSS OF PROFITS, BUSINESS OR REVENUE, LOSS OF USE OF ANY COMPUTER PROGRAMS, LOSS OF DATA, COSTS OF RE CREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT, DATA, SERVICES OR SOFTWARE, OR CLAIMS BY ANY PERSON OTHER THAN CLIENT, EVEN IF LIMBLE HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING. IN NO EVENT WILL ANY OF LIMBLE’S OFFICERS, PERSONNEL, OWNERS, LICENSORS, CONTRACTORS, SUBCONTRACTORS, OR ADVISORS HAVE ANY LIABILITY RELATING TO OR ARISING FROM THIS AGREEMENT OR ANY OF THE ANY LICENSED SOFTWARE, DOCUMENTATION, KNOW-HOW, METHODOLOGY OR SERVICES. This Agreement, including its disclaimers and limitations of liability, represents a mutually agreed upon allocation of risk and the consideration given has been set to reflect such allocation.
10.4 Injunctive Relief. The Parties acknowledge and agree that any breach by a Party (the “offending Party”) of any of the covenants or provisions contained in this Agreement will give rise to irreparable injury to the other Party (the “offended Party”) inadequately compensable in damages and monetary remedies alone. Accordingly, the offended Party may seek and obtain preliminary and permanent injunctive relief against the breach or threatened breach of said covenants or provisions. Such relief will be in addition to any other remedies that may be available to the offended Party.
10.5 Notices. Any notice or consent from Limble to Client may be sent or delivered by email, by first class, priority or express mail, by registered or certified mail, by commercial courier (e.g., Federal Express or U.P.S.), or by personal delivery. Client will keep Limble informed of Client’s then-current email and physical addresses.
10.6 Export Act. Client hereby warrants and certifies that any Licensed Software, Documentation, Know-How and Methodology provided by Limble to Client will not be made available or exported by Client or its personnel to any country in contravention of any law or regulation of the United States or any of its agencies, including the Export Administration Act of 1979 and regulations relating thereto.
10.7 Construction. This Agreement (which includes its SOWs and Exhibits) represents the wording selected by the Parties to define their agreement and no rule of strict construction will apply against or in favor of either Party. Whenever the context reasonably permits, the singular will include the plural, the plural will include the singular, and the whole will include any part thereof.
10.8 Headings. Section and paragraph headings used herein are for convenience only and will not be used to broaden or limit this Agreement.
10.9 Assignment. Because this Agreement is personal to Client, Client will have neither the right nor the power to assign or transfer this Agreement by assignment, merger or otherwise to any third party without the written consent of Limble. Limble may assign or transfer this Agreement and its rights under this Agreement (and delegate any remaining obligations and duties under this Agreement) to an affiliate or to a third party who acquires substantially all of the business or intellectual property of Limble applicable to the Licensed Software. Any assignee or transferee of this Agreement must assume the duties and obligations of the assigning or transferring Party under this Agreement.
10.10 Successors. This Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
10.11 Force Majeure. Notwithstanding anything to the contrary, neither Party will be deemed in breach of this Agreement or otherwise liable for any delay or failure to perform an obligation or duty where such delay or failure is caused by any act of nature, fire, flood, accident, riot, war, crime, terrorism, government intervention or regulation, any obligation to comply with any law, regulation or ordinance, any disruption or interference in communications, equipment or software, the Internet, any disruption or delay in supplies, communications, power, or other utilities, any labor dispute or shortage, or circumstances beyond the control of that Party or for the misconduct of an unaffiliated person. It is also understood that downtime of Limble Servers and Licensed Software for maintenance, re-location, Upgrades, and other purposes will be necessary from time-to-time and that unintended interruptions and downtime may also occur and are not a breach of this Agreement.
10.12 Governing Law. This Agreement and the rights and obligations of the Parties hereunder will be governed by and interpreted, construed and enforced in accordance with the laws of the State of Utah, without regard to conflict of law principles. The Parties consent to the jurisdiction of the state and federal courts located in Salt Lake City or County, Utah and agree that such courts and their respective courts of appeal will be the exclusive venue for the resolution of any dispute relating to this Agreement or any of the Licensed Software, Services, Know-How or Methodology. Each Party waives any objection which it may have now or hereafter to the laying of venue in such courts, and irrevocably submits to the exclusive jurisdiction and venue of such courts
10.13 Limble Personnel. The personnel of Limble used to perform Services and obligations under this Agreement may be employees or subcontractors of Limble. Limble remains responsible for the performance of its obligations under this Agreement (including the SOW(s)).
10.14 Relationship. Neither Party is the partner, joint venturer, agent or representative of the other Party. Each Party is an independent contractor. There is no employment relationship between the Parties. Neither Party has the authority to make any representations or warranties or incur any obligations or liabilities on behalf of the other Party. Neither Party will make any representation to a third party inconsistent with this Section.
10.15 Waiver. Any waiver of, or promise not to enforce, any right under this Agreement will not be enforceable unless evidenced by a writing signed by the Party making said waiver or promise.
10.16 U.S Government Agency. If Client is a U.S. Government agency, Client acknowledges that the Licensed Software licensed under this Agreement is a commercial item that has been developed at private expense and not under a Government contract or at Government expense. The Government’s rights relating to the Licensed Software are limited to those rights and provisions applicable to Client as set forth in this Agreement and are binding on Government users in accordance with Federal Acquisition Regulation 48 C.F.R. Section 12.212 for non-defense agencies and/or Defense FAR Supplement 48 C.F.R. Section 227.7202-1 for defense agencies, as applicable. U.S. Government rights to use, modify, reproduce, release, perform, display or disclose Licensed Software are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) and/or restrictions of DFARS 227.7202-1(a) and DFARS 227.7202-3(a), as applicable for U.S. Department of Defense (“DOD”) procurements and the limited rights of restrictions of FAR 52.227-14 and/or restricted rights provisions of FAR 52.227-14 and FAR 52.227-19, as applicable, and applicable agency FAR Supplements, for non-DOD Federal procurements.
10.17 Entire Agreement. This Agreement (which includes its SOWs and Exhibits): (i) represents the entire agreement between the Parties concerning the subject matter of this Agreement, (ii) supersedes all prior agreements, understandings, representations and warranties relating to the subject matter of this Agreement, whether written or oral, and (iii) may only be amended, canceled or rescinded by a writing signed by duly authorized representatives of both Parties. Any terms or conditions of any purchase order or other document submitted by Client in connection with this Agreement or any Services that are in addition to, different from or inconsistent with the terms and conditions of this Agreement are for administrative purposes only and are not binding on Limble and are of no effect.
How to Contact Us
If you have any questions, comments, complaints or suggestions in relation to your data protection, software protection, technology protection, this Statement, or any other concerns about the way in which we process information about you, please contact us:
3290 West Mayflower Way
Lehi, UT 84043
Email: [email protected]
A note from Cigna
This link leads to the machine-readable files that are made available in response to the federal Transparency in Coverage Rule and includes negotiated service rates and out-of-network allowed amounts between health plans and healthcare providers. The machine readable files are formatted to allow researchers, regulators, and application developers to more easily access and analyze data.