This End User License Agreement (this "Agreement") governs your use of any software or service product ("Product," as defined below) provided by AgMarket and Linx Systems, Inc. ("Linx"). This Agreement is a legally binding contract between Linx and you ("you" and "your"), either you an individual user or an entity user acting through its authorized individuals. Read this Agreement carefully before installing or using the Linx Product as it governs your use of the Product. You may not install or use the Product except under the terms of this Agreement. By installing or using the Product, you agree to be bound by this Agreement.
If you do not agree to be bound by the terms of this Agreement, do not install or use the Product, and Linx does not grant you a license to install or use the Product; and you may obtain a full refund, in some cases you may return the entire purchase for a full refund, in accordance with the refund policy of either: (a) the reseller of the Product from whom you purchased it or (b) Linx, if you obtained the Product directly from Linx. Your right to return and receive a refund expires 30 days after the purchase from Linx or an authorized Linx reseller, and applies only if you are the original end user purchaser.
1.1 "Product" means the Linx software program, in object code only, provided to you under this Agreement; all related screen display images and text content in such software program; all accompanying manuals and other documentation (the "Documentation"); and all enhancements, upgrades, and extensions thereto that may be provided by Linx to you from time to time.
1.3 "License Credentials" means login credentials that are unique to you as a particular named end user and that enable the Product to operate.
2. LICENSE AND RESTRICTIONS:
2.1 License and Restrictions on Use. Subject to the terms and conditions of this Agreement, Linx grants to you as an individual named end user of the License Credentials a non-exclusive, non-transferable, limited license to use the Product, solely in object code machine executable form, only on a single compatible computing device after login with the License Credentials, and only if all related license fees have been paid. Your use is subject to the limitations set forth in this Agreement. You may use the Product for your own internal benefit and for providing goods or services to your customers; provided that such customers have no access to the Product. You may not copy the Product, in whole or in part, except that you may make and retain a reasonable number of copies solely for back-up purposes in order to re-install the Product.
2.2 Intellectual Property. You acknowledge that the Product, and its source code, algorithms, data structures, methods, processes, screen formats, report formats, ideas and concepts are valuable intellectual property owned by Linx and its licensors, including all associated patent, copyright, trade secret, trademark, and other intellectual property rights. You agree not to, except as expressly authorized and only to the extent established by applicable statutory law, attempt to (or permit others to) decompile, disassemble or otherwise reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, algorithms or file formats of the Product by any means. You will not develop methods to enable unauthorized parties to use the Product or any copy thereof, or to develop any other product containing any of the concepts and ideas contained in the Product. You will not modify the Product or incorporate any portion of the Product into any other software or create a derivative work of any portion of the Product. You will not remove any copyright or other proprietary notices from the Product or any copies thereof. Linx reserves all rights not expressly granted hereunder. The license granted herein does not constitute a sale of the Product or any portion or copy of it. You agree not to challenge the ownership or rights in and to the Product and related materials, including without limitation, all copyrights and other proprietary rights. You acknowledge and agree that any violation of the terms of this Section 2.2 would irreparably harm Linx and that Linx may enforce the terms of this Section 2.2 through injunctive relief, without limitation to any other rights and remedies available to Linx.
2.3 Upgrades. This Agreement entitles you to receive any future maintenance releases, which includes any bug fixes but does not include any updates or upgrades, releases offered as a separate product or releases subject to a separate license agreement. Your rights to the previously-installed release terminate once you install the new release, except that you may remove the new release and reinstate your rights to the previously-installed release at any time during the term of this Agreement for the remaining term. Notwithstanding any other provision of this agreement: (1) you have no license or right to use any additional copies or upgrades unless you, at the time of acquiring such copy or upgrade, already hold a valid license to the original product and have paid the applicable fee for the upgrade, if any; (2) the making and use of additional copies is limited to necessary backup purposes only.
3. MAINTENANCE AND SUPPORT.
Linx shall have no obligation to provide maintenance and support for the Product under this Agreement. Any such maintenance and support shall be provided in accordance with a separate maintenance agreement between the parties, and will be subject to payment of the applicable maintenance and support fee.
All license fees are non-refundable and non-cancelable except as expressly provided in this Agreement and do not include shipping, sales or use tax, withholding tax, excise tax, VAT or customs duties, all of which you are responsible for paying above and beyond the license fees due to Linx.
5. TERM AND TERMINATION:
This Agreement is effective until terminated. Linx may not terminate this Agreement except (a) upon ninety (90) days written notice to you identifying a material breach of this Agreement that remains uncured upon the end of the notice period, or (b) if the license granted to you under this Agreement is for a limited term (as indicated on the packaging that accompanies the Software, or on the applicable invoice, or on the screens displayed by the Product when it is initially installed), then this Agreement and your license rights hereunder terminate upon expiration of that term. You may terminate this Agreement at any time upon written notice to Linx. Upon termination or expiration of this Agreement for any reason, you agree to cease all use of the Product and to return to Linx or destroy the Product and all documentation and related materials in your possession, and so certify to Linx.
6. NOTICE TO U.S. GOVERNMENT END USERS:
The Product is a "Commercial Item," as that term is defined at 48 C.F.R. § 2.101., consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 252.227-7014, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to this Agreement. Should the foregoing clauses be amended after December, 2007, then their comparable replacements or revisions shall be incorporated herein and automatically apply.
7. LIMITED WARRANTY, WARRANTY DISCLAIMERS AND LIMITATION OF LIABILITY:
7.0 Infringements. Linx at its expense will defend any action brought against you other than actions based on Excluded Claims (defined below) to the extent it is based on a claim that Software provided under this Agreement, when used as authorized by this Agreement, infringes any US patent or any copyright or trade secret of a third party, provided you give Linx prompt written notice of the claim and all information reasonably available to you relating to such claim. Linx will have the right to control the defense of such claims, and you agree not to settle any such claim without Linx’s prior written approval. If Software provided under this Agreement become, or if Linx believes the Software is likely to become, the subject of a claim of infringement, Linx, at its sole discretion, may procure for you the right to continue to use the Software or replace or modify the Software so as to make them non-infringing, provided that the replacement or modified Software gives you substantially the same functionality as the original Software (as determined by Linx in good faith). If none of these options is reasonably practicable, Linx may terminate the affected license or recall the infringing product or component and refund the prorated amount paid for the infringing item under this Agreement. Linx shall have no liability for any action based on a claim of infringement due to: (a) a modification of Software; (b) a combination of Software furnished under this Agreement with products, equipment or materials not furnished by Linx; or (c) any items made with the Software furnished under this Agreement (any of which is hereby defined as an “Excluded Claim”). This Section 7.0 states the entire liability of Linx with respect to any claim of infringement.
7.1 Limited Warranty. Linx warrants that the media on which the Product is furnished will be free from defects in material and workmanship, and that the Product shall substantially conform to its Documentation, as it exists at the date of delivery, for a period of thirty (30) days from the date you receive or download the Product. Linx's entire liability and your exclusive remedy shall be, at Linx's option, either: (i) return of the license fee paid to Linx for the Product, resulting in the termination of this Agreement, or (ii) repair or replacement of the Product or media that does not meet this limited warranty. This offer is void if the media defect results from negligence, accident, abuse, or misapplication.
7.2 Disclaimer. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 7.1, THE PRODUCT AND ANY SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, BOTH EXPRESSED AND IMPLIED. LINX, ITS SUPPLIERS AND LICENSORS DO NOT WARRANT THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS OR THAT ITS OPERATION WILL BE UNINTERRUPTED OR ERROR FREE. LINX, ITS SUPPLIERS AND LICENSORS DISCLAIM AND EXCLUDE ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, LAW, USAGE, OR TRADE PRACTICE TO THE EXTENT ALLOWED BY APPLICABLE LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY. THIS WARRANTY GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM JURISDICTION TO JURISDICTION.
PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS.
FUTURES AND OPTIONS TRADING INVOLVE SUBSTANTIAL RISK. THE VALUATION OF FUTURES AND OPTIONS MAY FLUCTUATE, AND AS A RESULT, CLIENTS MAY INCUR FINANCIAL LOSS.
INFORMATION PROVIDED ON THIS WEBSITE IS INTENDED SOLELY FOR INFORMATIVE PURPOSES AND IS OBTAINED FROM SOURCES BELIEVED TO BE RELIABLE.
INFORMATION IS IN NO WAY GUARANTEED. NO GUARANTEE OF ANY KIND IS IMPLIED OR POSSIBLE WHERE PROJECTIONS OF FUTURE CONDITIONS ARE ATTEMPTED.
IN NO EVENT SHOULD THE CONTENT OF THIS WEBSITE BE CONSTRUED AS AN EXPRESS OR AN IMPLIED PROMISE, GUARANTEE OR IMPLICATION BY OR FROM AGMARKET OR LINX SYSTEMS THAT YOU WILL PROFIT OR THAT LOSSES CAN OR WILL BE LIMITED IN ANY MANNER WHATSOEVER.
This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
7.3 Limitation on Liability. To the maximum extent permitted by applicable law and regardless of whether any remedy herein fails of its essential purpose, and except to the extent that liability arises from instances of Linx or its third party licensors’ gross negligence or willful misconduct, in no event shall Linx or its third party licensors be liable to you or any third party arising out of the use of or inability to use the product or any services under any contract, negligence, strict liability or other theory, for any indirect, special, incidental, exemplary or consequential damages (including lost profits), or for loss of or corruption of data, lost profits, or for cost of procurement of substitute goods or technology, irrespective of whether Linx has been advised of the possibility of such damages. Linx's maximum liability for damages shall be limited to the license fees actually received by Linx under this Agreement for the particular Product(s) which caused the damages. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
8. GOVERNMENT REGULATION:
You agree that the Product and any related technical data will not be shipped, transferred, or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export law. You will comply with all laws, regulations, permits, orders and other restrictions to the extent that they are applicable to the import or export of the Product and related technical data.
9. HIGH RISK APPLICATIONS:
THE PRODUCT IS NOT DESIGNED, MANUFACTURED, OR INTENDED FOR USE IN ENVIRONMENTS REQUIRING FAULT TOLERANCE OR FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPON SYSTEMS, IN WHICH THE FAILURE OF THE PRODUCT COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE ("HIGH RISK APPLICATIONS"). Linx and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Applications.
10. THIRD-PARTY SOFTWARE PROGRAMS.
The Product may contain software ("Third Party Programs") licensed by third parties ("Third Party Licensors"). Certain Third Party Programs are subject to additional third party license terms as specified by their respective Third Party Licensors, and these terms are included in the Documentation. By using the Product, you agree to comply with these additional third party terms for the benefit of the applicable Third Party Licensor. LINX PROVIDES THIRD PARTY PROGRAMS TO YOU "AS IS" and subject to all disclaimers and limitations of liability in Section 7.
11. AMENDMENTS AND MODIFICATIONS.
This Agreement may be amended only in a writing signed by both parties. Notwithstanding the previous sentence, an upgrade to the Product may be accompanied by a different agreement, in which case your use of such upgrade shall be governed by such different agreement.
This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflict of laws provisions, and all disputes shall have exclusive venue in the federal and state courts in or nearest to McLean County, Illinois, and both parties consent to the jurisdiction of these courts. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act (USA) do not apply to this Agreement. No waiver of any right under this Agreement shall be effective unless in writing, signed by a duly authorized representative of the waiving party; failure to insist upon strict compliance with this Agreement shall not be deemed a waiver of any future right arising out of this Agreement. You may not assign this Agreement without Linx's prior written consent; provided, however, that you may transfer this Agreement together with the Product in the context of a reorganization, merger, acquisition or sale of the business assets to which the Product belongs without consent, but such transfer shall not be effective until Linx receives written notice of the transfer, the full name and address of the transferee where communications about the Product may be sent, and the transferee shall be bound to all terms and conditions herein. Linx is free to assign or transfer this Agreement at any time.