Terms Of Service
CLICKVIEW INTERACTIVE, LLC END USER LICENSE AGREEMENT
REDISTRIBUTION NOT PERMITTED
IMPORTANT -- READ CAREFULLY BEFORE USING THIS SOFTWARE:
This End User License Agreement (the "License Agreement"), entered into by and between Clickview Interactive, LLC, a Delaware limited liability company, d/b/a LoopSpark and You, a physical person or legal entity ("You" or "Your") (each also individually referred to as "Party" and together as "Parties"). The effective date of this agreement shall be the date in which You click to accept the terms and conditions hereof (the "Effective Date").
You may install only one (1) copy of the Software (as defined below). By clicking on the "Accept" button, installing, copying or otherwise using the Software, You agree to be bound by the terms of this License Agreement. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE AGREEMENT, CLICK ON THE "CANCEL" BUTTON AND/OR DO NOT INSTALL THE SOFTWARE. YOU AGREE THAT YOUR USE OF THE SOFTWARE ACKNOWLEDGES THAT YOU HAVE READ THIS LICENSE AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.
- GRANT OF LICENSE. LoopSpark hereby grants to You a limited, non-exclusive, non-transferrable, non-sublicensable license to use the Software and any related documentation ("Documentation") subject to the following terms: You may: (i) use the Software on any single computer or device; (ii) use the Software on a second computer or device so long as the first and second computers and/or devices are owned by the same purchaser, and (iii) copy the Software for back-up and archival purposes only, provided any copy must contain all of the original Software’s proprietary notices. You agree that You will only use the Software in a manner that complies with all applicable laws in the jurisdiction in which You use the Software, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.
- SOFTWARE. As used in this License Agreement the term "Software" means: (i) LoopSpark’s computer program and all components thereof; (ii) the online software, platform, text message, tasks, scripts and websites which You can access via the LoopSpark site and Your account that is hosted and maintained by LoopSpark; (iii) downloadable software applications offered by LoopSpark, including any combination of such products (collectively, the "Products"); (iv) any related explanatory written materials and any other possible documentation related to the Software, above all any description of the Software, its specifications, any description of the Software properties or operation, any description of the operating environment in which the Software is used, instructions for use or installation of the Software or any description of how to use the Software or any other Documentation; (v) copies of the Software, patches for possible errors in the Software, additions to the Software, extensions to the Software, modified versions of the Software and updates of Software components, if any, licensed to You by LoopSpark pursuant to this License Agreement.
- LICENSE RESTRICTIONS. You may not: (i) permit other individuals to use the Software except under the terms listed above; (ii) modify, translate, reverse engineer, decompile, disassemble (except to the extent that this restriction is expressly prohibited by law) or create derivative works based upon the Software or Documentation; (iii) copy the Software or Documentation (except for back-up or archival purposes); (iv) rent, lease, transfer, or otherwise transfer rights to the Software or Documentation; (v) remove any proprietary notices or labels on the Software or Documentation; or (vi) export or re-export, or allow the export or re-export of the Software or any copy, portion or direct product of the foregoing, in violation of any export laws, restrictions, national security controls or regulations of the United States or any other applicable foreign agency or authority. Any such forbidden use shall immediately terminate Your license to the Software.
- COPIES OF SOFTWARE AND ENHANCEMENTS. If You receive the first copy of the Software electronically and a second copy on physical media (e.g., CD, diskette, etc.), the second copy may be used for archival purposes only and may not be transferred to or used by any other person. This license does not grant You any right to any enhancement or update.
- TITLE. Title, ownership, rights, and intellectual property rights in and to the Software and Documentation shall remain in LoopSpark and/or its suppliers. The Software is protected by the copyright laws of the United States and international copyright treaties.
- By clicking on the "Accept" button, installing, copying or otherwise using the Software, You expressly acknowledge, consent, and agree that LoopSpark may remotely gather data on Your usage including Software license keys, serial numbers, server IP addresses, user profile information, usage patterns, Your activity and event data, and other information deemed relevant in LoopSpark’s discretion (collectively, the "Data") to ensure that the Software is being used in accordance with the terms of this License Agreement, to aid in troubleshooting and Product enhancement, or any other lawful purpose. All Data is collected anonymously in a form that does not personally identify You. If at any time You are unwilling to provide the Data to LoopSpark, You may opt out of Data collection at any time, in which case You will be required to activate the initial Product installation and make subsequent changes to the Product through a manual activation process. To opt out, You must notify LoopSpark customer support of Your intent to opt out in writing by sending an email to: [email protected] or sending written notice to 1883 West Royal Hunte Drive, Suite 200-A Cedar City, Utah 84720 Attention: Clickview Interactive LLC. Your request to opt out will be processed within 30 days after receipt of notice by LoopSpark customer support. Opting out of providing Data to LoopSpark does not remove LoopSpark’s right to audit Your use of a Product at any time to ensure that the Software is being used in accordance with the terms of this License Agreement or any other lawful purpose. LoopSpark expressly prohibits simultaneous, multiple installations of the Software and domain count overrides without its prior written approval. Any unauthorized use shall be considered by LoopSpark to be a violation of this License Agreement. LoopSpark reserves the right to remedy such violation immediately upon discovery, by charging the then-current list price of unauthorized keys to You or by any other remedies available to it. You agree not to block, electronically or otherwise, the transmission of data required for compliance with this License Agreement. Any blocking of data required for compliance under this License Agreement shall be a violation of this License Agreement and will result in immediate termination of this License Agreement pursuant to Section 9. Further, during the term of this License Agreement and for two (2) years thereafter, LoopSpark may audit Your books, records, and computing devices to assess Your compliance with this License Agreement and Your payment of license fees for the Software and Documentation. In the event that any such audit reveals an underpayment by You then, in addition to any other rights and remedies LoopSpark may have, You will promptly pay all underpayments plus the cost of the audit.
- LIMITED WARRANTY. YOU ACKNOWLEDGE THAT THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. LOOPSPARK DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR THAT THE SOFTWARE WILL NOT INFRINGE ANY THIRD PARTY PATENTS, COPYRIGHTS, TRADEMARKS OR OTHER RIGHTS. THERE IS NO WARRANTY BY LOOPSPARK OR BY ANY OTHER PARTY THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE SELECTION OF THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED FROM IT.
- LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY WHETHER IN TORT CONTRACT OR OTHERWISE SHALL LOOPSPARK OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES EVEN IF LOOPSPARK SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR ANY CLAIM BY ANY OTHER PARTY. FURTHER, IN NO EVENT SHALL LOOPSPARK’ LIABILITY UNDER ANY PROVISION OF THIS LICENSE AGREEMENT EXCEED THE LICENSE FEE PAID TO LOOPSPARK FOR THE SOFTWARE AND DOCUMENTATION. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
- TERM AND TERMINATION. You shall not have the right to terminate this License Agreement for a six (6) month period beginning on the Effective Date (the "Restrictive Period"). Following the Restrictive Period, this License Agreement shall automatically renew for terms consisting of 90 days, unless You give LoopSpark at least thirty (30) days prior written notice in advance of the end of any such 90-day term of Your intention not to renew this License Agreement. No notice shall be required from LoopSpark to effect such termination. In the event You terminate this License Agreement, You shall pay to LoopSpark an amount equal to fifty percent (50%) of any outstanding and remaining balance under this License Agreement for the remaining term, payable in cash within five (5) days of such termination. This License Agreement will automatically terminate if You fail to comply with any term hereof. Upon any termination of this License Agreement, You shall immediately discontinue use of the Software and shall within three (3) days return to LoopSpark, or certify destruction of, all full or partial copies of the Software, Documentation and related materials provided by LoopSpark. Your obligation to pay accrued charges and fees shall survive any termination of this License Agreement.
- INDEMNITY. You agree to indemnify, hold harmless and defend LoopSpark and its officers, directors, shareholders, employees, agents, successors and assigns (the "Indemnitees") against any claims, demands, losses, liabilities, fines, penalties and expenses of any kind or nature whatsoever brought or threatened against any Indemnitee by reason of or resulting from any access, use or misuse of the Software or Documentation by You or on Your behalf except as expressly authorized under this License Agreement.
- NO ASSIGNMENT. This License Agreement is personal to You, and may not be assigned without LoopSpark’s express written consent. In the event that You are an entity that merges with another entity or are acquired by another entity during the term, You shall provide written notice of such merger or acquisition not later than the date on which any public announcement is made. If LoopSpark does not consent to assignment of this License Agreement to the new or acquiring entity in such merger or acquisition, LoopSpark may terminate this License Agreement on thirty (30) days’ written notice. Both parties shall perform under this License Agreement until such termination is effective.
- MISCELLANEOUS. This License Agreement shall constitute the complete and exclusive agreement between us, notwithstanding any variance with any purchase order, order (electronic or otherwise), or other written instrument submitted by You, whether formally rejected by LoopSpark or not. The acceptance of any purchase order is expressly made conditional on Your consent to the terms set forth herein. The terms and conditions contained in this License Agreement may not be modified except in a writing duly signed by You and an authorized representative of LoopSpark. All provisions, that by reasonable construction of their terms or nature, would require survival beyond the termination of this License Agreement shall survive such termination. If any provision of this License Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable, and such decision shall not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances. This License Agreement shall be governed by the laws of the Commonwealth of Delaware, USA, without regard to conflicts of law provisions, and You hereby consent to the exclusive jurisdiction of the state and federal courts sitting in Delaware. Any and all unresolved disputes relating in any way to, or arising out of Your use of the Software or this License Agreement shall be submitted to arbitration in Delaware; except that, to the extent that You have breached or have indicated Your intention to breach this License Agreement in any manner which violates or may violate LoopSpark’s intellectual property rights, or may cause continuing or irreparable harm to LoopSpark (including, but not limited to, any breach that may impact LoopSpark’s intellectual property rights, or a breach by reverse engineering), LoopSpark may seek injunctive relief, or any other appropriate relief, in any court of competent jurisdiction. Any arbitration of a dispute under this License Agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. This License Agreement will not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is hereby expressly excluded.