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This Hosted Service Agreement (the “Agreement”) sets forth the terms and conditions by which you, as an authorized employee of your company, are permitted to access and use the Airbo by HEngage proprietary system (the “HEngage System”) from HEngage, Inc. (“HEngage”) to access the customized website that Airbo by HEngage has provided for use by your company (the “Company Website”) and any accompanying content that is provided to you by your access to the HEngage System and the Company Website.
Subject to the terms and conditions of this Agreement and the agreement between your employer and HEngage, HEngage grants to you a personal, limited, non-exclusive, non-transferable license, without right of sublicense, to access and use the Airbo by HEngage System as accessed via the Company Website.
You are responsible for maintaining the security and confidentiality of the user ID and password that you use to access the Airbo by HEngage System and the Company Website. Your user ID and password are for your use and may not be shared or used by any other user of the Airbo by HEngage System or the Company Website. You agree to notify HEngage immediately at firstname.lastname@example.org if you become aware of any unauthorized use of your user ID, password or account. You are responsible for all activities that occur under your account.
No rights are granted to you to reproduce, modify, make derivative works of, distribute or transmit any software to which the Airbo by HEngage System provides you access.
You acknowledge that the Airbo by HEngage System and any accompanying software and documentation contain the valuable trade secrets of HEngage; consequently, you agree that except as may be expressly permitted by applicable law, you will not cause or permit the reverse engineering, translation, disassembly or decompilation of any the HEngage System or any software comprising the Airbo byHEngage System (“HEngage Software”). If a jurisdiction in which you reside expressly permits by applicable law any of the foregoing activities regardless of contractual restriction, then you agree that prior to engaging in any such activity you will first notify HEngage of your desire to reverse engineer the Airbo by HEngage System or HEngage Software, and HEngage may, in its discretion, either provide you such information or impose reasonable terms and conditions on such use of the HEngage Software to ensure that HEngage’s proprietary rights are protected.
The license granted in Section 1.1 is granted solely to you. You agree not to remove, obscure, or alter any HEngage or other proprietary rights notice affixed to, or contained within, the Airbo by HEngage System or accompanying content. All rights not expressly granted are reserved.
You shall: (i) have sole responsibility for the accuracy, legality, appropriateness and other aspects of all data and information you submit to the Airbo by HEngage System or post on the Company Website (“User Data”); (ii) prevent unauthorized access to, or use of, the Airbo by HEngage System and the Company Website, and notify HEngage promptly of any such unauthorized use; and (iii) comply with all applicable laws in using the Airbo by HEngage System and the Company Website.
Ownership. You acknowledge that any and all intellectual property rights in and to the Airbo by HEngage System, the HEngage Software and any accompanying content and documentation are and shall remain the property of HEngage and its licensors, and you agree that at no time during or after the expiration or termination of this Agreement to in any way question or dispute the ownership thereof by HEngage.
Confidentiality. You hereby acknowledge and agree that the Airbo by HEngage System, and any information regarding the operation or use of the Airbo by HEngage System provided by HEngage is the proprietary and confidential information of HEngage (collectively, “Confidential Information”). You hereby agree not to use the Confidential Information except as authorized by this Agreement and further agree to hold the Confidential Information in strict confidence and protect such Confidential Information from disclosure using the same care you use to protect your own confidential information of like importance, but not less than reasonable care. Upon written request, or at the expiration or termination of this Agreement, you will return or destroy all Confidential Information (and all copies thereof), with written certification thereof. You may also have duties of confidentiality to your employer regarding your access to the Company Website. Those duties are separate from and in addition to any duties you have to HEngage under this Agreement.
THE AIRO BY H ENGAGE SYSTEM, THE COMPANY WEBSITE, AND ALL CONTENT ACCESSIBLE VIA THE AIRBO BY H ENGAGE SYSTEM AND THE COMPANY WEBSITE IS PROVIDED “AS IS,” WITHOUT ANY WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, H ENGAGE DOES NOT WARRANT THAT THE H ENGAGE SYSTEM OR THE COMPANY WEBSITE WILL FUNCTION WITHOUT INTERRUPTION OR BE ERROR-FREE AND H ENGAGE HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS REGARDING THIS AGREEMENT, THE AIRBO BY H ENGAGE SYSTEM AND THE COMPANY WEBSITE, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF WARRANTY, SO THIS PROVISION MAY NOT APPLY TO YOU.
Limitation Of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL H ENGAGE be LIABLE TO you, OR TO ANY THIRD PARTY CLAIMING THROUGH OR UNDER you, FOR ANY LOST PROFITS, LOSS OF DATA, EQUIPMENT DOWNTIME OR FOR ANY INDIRECT, incidental, SPECIAL, exemplary, punitive OR CONSEQUENTIAL DAMAGES of any kind, however arising and regardless of cause of action, EVEN IF H ENGAGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN THE EVENT THAT ANY LIABILITY IS IMPOSED ON H ENGAGE FOR ANY REASON WHATSOEVER HEREUNDER, THE AGGREGATE AMOUNTS PAYABLE BY H ENGAGE to you BY REASON THEREOF SHALL NOT EXCEED one hundred DOLLARS ($100). you acknowledge that the foregoing limitations are an essential element of the Agreement between the parties and that in the absence of such limitations the terms and conditions set forth in this Agreement would be substantially different. some jurisdictions LIMIT OR do not permit disclaimers of liability, so this provision may not apply to you.
Term AND termination
Term; Termination. This Agreement shall continue in full force and effect until terminated as set forth below. It shall immediately terminate at any time that the agreement between your employer and HEngage terminates. You may terminate this Agreement for convenience at any time by ceasing to use Airbo by HEngage System and the Company Website. In the event that either party has committed a material breach of this Agreement, the other party shall have the right to terminate this Agreement by giving thirty (30) days written notice of termination, and the breach has not been cured during such time.
Consequences of Termination.
Upon any termination of this Agreement, the licenses granted herein shall simultaneously terminate and you shall immediately cease all use of the Airbo by HEngage System and shall, within thirty (30) days after such termination, return to HEngage or destroy all copies of any documents containing any Confidential Information. Notwithstanding any termination or expiration of this Agreement, the provisions of Sections 2, 3, 4, 5.2, and 6 shall survive any expiration or termination of this Agreement.
This Agreement will be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, without regard to conflict of law provisions. The state and federal courts located in Suffolk or Middlesex counties, Massachusetts, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement, provided that HEngage may seek injunctive or other preliminary relief in any jurisdiction to enforce its rights under this Agreement. The parties expressly exclude the application of the 1980 United Nations Convention on the International Sale of Goods and the application of the Uniform Computer Information Transactions Act. In the event any provision of this Agreement is held by a proper authority to be prohibited by law or unenforceable, such provision shall be amended and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. You agree to indemnify and hold HEngage harmless from and against any liability, loss, damages, damages, costs and expenses, including reasonable attorneys’ fees, arising out of or in connection with your use of the Airbo by HEngage System and the Company Website and any User Data you submit via the Airbo by HEngage System or the Company Website. You may not assign this Agreement or your rights hereunder, or delegate your duties hereunder, in whole or in part, by operation of law or otherwise, without HEngage’s prior written consent. Any such purported assignment without prior consent shall be null and void. The parties’ rights and obligations under this Agreement will bind and inure to the benefit of their respective successors, heirs, executors and administrators and permitted assigns. All notices, consents, and approvals under this Agreement must be delivered in writing by email, courier, or by certified or registered mail (postage prepaid and return receipt requested), to the other party at the address provided as part of the license order process, and will be effective upon receipt or three business days after being deposited in the mail as required above, whichever first occurs. Either party may change its address by giving notice of the new address to the other party in accordance with the foregoing. Waiver of any breach or failure to enforce any term of this Agreement will not be deemed a waiver of any subsequent breach or right to enforce which may thereafter occur. In exercising your rights under this Agreement, you shall at all times comply with all applicable international, federal, state and local laws and shall not engage in any illegal or unethical practices. Without limiting the foregoing, you agree to comply with all applicable export and import control laws and regulations in your use of the Airbo by HEngage System and, in particular, you shall not export or re-export the Airbo by HEngage System without all required United States and foreign government licenses. This Agreement contains the final, complete, and exclusive agreement of the parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements relating to its subject matter.