PLEASE READ CAREFULLY BEFORE USING THE TRX PRODUCTS. DO NOT INSTALL, RUN OR USE THE TRX PRODUCTS, INCLUDING THE LICENSED SOFTWARE OR RELATED APPS, UNTIL YOU HAVE READ THIS AGREEMENT. BY INSTALLING, RUNNING OR USING THE TRX PRODUCTS, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREE TO BE BOUND BY THEM.
BY EITHER (1) CLICKING ON THE "I ACCEPT" BUTTON OR (2) OTHERWISE USING ANY PART OF THE TRX PRODUCTS, YOU CONSENT TO BECOME A PARTY TO THIS AGREEMENT AND TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT WANT TO BECOME A PARTY TO THIS AGREEMENT OR DO NOT AGREE WITH OR CANNOT COMPLY WITH ALL OF ITS TERMS, DO NOT CLICK ON THE "I ACCEPT" BUTTON AND/OR DO NOT USE ANY PART OF THE TRX PRODUCTS.
This End User Agreement (the "Agreement") is between TRX Systems, Inc. ("TRX" or the "Licensor") and You, including Your employees, personnel and authorized representatives, as applicable (collectively, the "User", "You" or "Licensee"), for the use of the hardware, software, services and apps to be provided by TRX hereunder, including the Licensed Software (as defined below) and associated content, services, and Updates (as defined below), that may be provided to You by or on behalf of TRX, for mapping, locating, tracking and finding Users in locations without reliable GPS (the "Location and Mapping Services"), (collectively, the "TRX Products"). If You are entering into this Agreement as a representative of, or on behalf of, a corporate entity or any other third party, You hereby represent and warrant that You have the legal authority to bind the entity or other third party to this Agreement. Your continued authorized access to and use of the TRX Products is contingent on Your compliance with the terms of this Agreement.
1. Grant and Scope of License.
Subject to Licensee's compliance with the terms and conditions of this Agreement, Licensor hereby grants to Licensee a personal, non-exclusive, non-transferable, non-sublicensable right and license to install and use the TRX Products, including the Licensed Software (as defined below), for Location and Mapping Services during the Term (as defined below). For the purposes of this Agreement, "Licensed Software" means the object code of the computer software of the TRX Programs described on Licensee's purchase order or contract, firmware and embedded software contained in any TRX-provided hardware, and any data and documentation related to the foregoing as provided to You by TRX, and any upgrades, updates, bug fixes or modified versions thereto, in object code only (collectively "Updates"). Licensee shall have no right to access the source code of the Licensed Software or use the TRX Products in any manner, except as specified in this Agreement. The license granted herein is subject to Licensee's ongoing compliance with the terms of this Agreement. The license described in this Section 1 shall in all events automatically terminate upon the expiration of the Term or as otherwise set forth herein.
2. Restrictions on Use.
a. General. The Licensed Software is licensed, not sold to You, for use only as permitted by the terms and conditions of this Agreement. TRX reserves any rights not expressly granted to You. All rights in and to the TRX Products (including the Licensed Software) not specifically granted in this Agreement are reserved by and shall remain the property of TRX.
b. Restrictions. Licensee shall not (nor shall Licensee permit anyone else to) directly or indirectly: (i) copy, modify, or distribute the TRX Products, including the Licensed Software or any portion thereof; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Licensed Software or any portion thereof (except where the foregoing is permitted by applicable local law, and then only to the extent so permitted); (iii) rent or lease the TRX Products to a third party, or otherwise use or allow the use of the TRX Products or any portion thereof for any commercial purpose or on behalf of any third party; (iv) remove or obscure any proprietary notices on the TRX Products; (v) post or otherwise make available the TRX Products, including the Licensed Software, or any portion thereof, in any form, on the Internet or other publicly-available forum; (vi) distribute copies of the TRX Products to others (electronically or otherwise); or (vii) use the TRX Products in a manner that conflicts with TRX's policies or Terms of Use. You may install and use the Licensed Software only on the number of computers or devices provided in Your purchase order or contract and for which You have a valid license. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, YOU HAVE NO LICENSE OR RIGHT TO USE ANY ADDITIONAL COPIES OF THE TRX SOFTWARE, INCLUDING UPDATES UNLESS YOU, AT THE TIME OF ACQUIRING SUCH COPY OR UPDATE, ALREADY HOLD A VALID LICENSE FOR THE ASSOCIATED TRX PRODUCTS OR A SUBSCRIPTION THERETO, AS APPLICABLE. As a specific condition of this license, Licensee agrees to use the Licensed Software in compliance with all applicable laws, including without limitation copyright laws.
3. User-Provided Content.
By using the TRX Products, Licensee agrees that TRX may use any content that is generated or otherwise provided through use of the TRX Products ("User-Provided Content") in accordance with this Agreement and as necessary to deliver the features described in the product documentation and software. Additionally, Licensee represents and warrants that it has obtained, and will maintain throughout the Term, all required consents, rights and licenses necessary for use and sharing of such User-Provided Content with TRX, including as necessary to permit: (i) Licensee's access, use and disclosure of any User-Provided Content to TRX in connection with Licensee's use of the TRX Products; (ii) integration of such User-Provided Content in the TRX Products; (iii) TRX to provide the TRX Products and related services to Licensee. Furthermore, by submitting User-Provided Content, Licensee grants to TRX an irrevocable, sublicensable, non-transferable, non-exclusive, perpetual, limited license to reproduce, use, adapt, modify, translate and distribute the User-Provided Content in connection with TRX's provision of the TRX Products and related services to Licensee as set forth under this Agreement, as described in Licensee's purchase order or contract and as implemented in TRX product documentation and software. TRX hereby disclaims and User hereby releases TRX from any and all liability that may arise from the use of the TRX Products and/or any User-Provided Content.
4. Ownership and Proprietary Rights.
TRX shall own and retain all right, title, and interest in and to the TRX Products and Licensed Software, all copies or portions thereof, and any derivative works thereof (by whomever created) and all underlying intellectual property rights thereto, which at all times shall be the sole and exclusive property of TRX or its licensors, as applicable. Except as expressly set forth in this Agreement, Licensee acquires no rights in or to the TRX Products and Licensee nor any Users shall use the TRX Products except as specified in this Agreement.
The Licensed Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The TRX Products and their features and functions, when used alone or in combination with a computing device or other systems, may be protected by one or more of U.S. and/or foreign patents. A listing of any such patents may be included in the "About" box or menu associated with the TRX Product or on the TRX website and TRX reserves the right to update such listing from time to time; provided, however, You should not consider any such listing to be a complete or exhaustive list of all patents that may cover the TRX Products and You should not consider the absence of any such listing to be an indication that no patents cover the TRX Products. If the TRX Product, or any portion thereof (including images thereof), are shown in a publicly available forum (including in presentations, to customers, in marketing programs, on websites, videos, or in other public venues), all TRX trademarks included in such TRX Product must also be shown, or specific attribution must be provided, indicating the TRX Products are the property of and were developed by TRX. You will not remove or alter TRX's or its licensor's trademarks, copyright or other proprietary notices provided with the TRX Products.
5. Third-Party Components.
Any third-party component embedded, included or provided by TRX for use with the TRX Products may only be used in conjunction therewith, and such use is subject to this Agreement and the provided documentation. However, to the extent the TRX Products include components governed by open source licenses with provisions inconsistent with this Agreement, those components are instead governed solely by the applicable open source licenses.
6. Confidentiality.
Licensee shall retain the TRX Confidential Information in the strictest confidence and shall not disclose such TRX Confidential Information to any third party without TRX's prior express written consent. Licensee shall not use any TRX Confidential Information provided by TRX for any purpose other than the authorized uses set forth in this Agreement, and shall limit access to the TRX Confidential Information to those of Licensee's employees, agents and authorized representatives whose work responsibilities require such access, and agrees to take all reasonable precautions to preclude access of unauthorized persons to such TRX Confidential Information. "TRX Confidential Information" means the Licensed Software and any data or databases contained therein, and information disclosed by TRX to You under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances.
7. Disclaimers of Licensee's Use.
Licensee's use of the TRX Products is subject to the following:
a. Third-Party Products, Data and Content. The TRX Products may work in conjunction with (or rely upon) third-party products, data or content that is not owned or controlled by TRX ("Third-Party Content"). By agreeing to be bound by the terms and conditions of this Agreement, Licensee acknowledges and accepts all risks, known and unknown, associated with its use of the TRX Products and the Third-Party Content, and accepts all terms and conditions for use thereof. Conflicts may develop between the TRX Products and such Third-Party Content that may inhibit the TRX Products' performance, accuracy, functionality or operation. TRX hereby disclaims and User hereby releases TRX from any and all liability that may arise from the use of the TRX Products and the use of such Third-Party Content.
b. Dangerous Conditions and Dangerous Environments; Access to Locations. User's use of the TRX Products under certain conditions, such as fires, explosions, police/military operations, weather systems, underground operations and many other conditions where User may be impaired, disoriented, imperiled, injured, et cetera can lead to the injury or death of the User or other third parties. All decisions based upon the use of the TRX Products are subject to User's verification of the data, content and assessment of dangerous conditions and dangerous environments. All decisions or actions made by User are subject to User's professional judgment and are the sole responsibility of User and not TRX. User is solely responsible for obtaining appropriate authorizations to enter any location, within buildings or otherwise, in order to use the TRX Products for Location and Mapping Services related to the foregoing. By agreeing to by bound by the terms and conditions of this Agreement, Licensee acknowledges and accepts all risk associated with such use. TRX disclaims any and all liability that might arise from Licensee's use of the TRX Products, including to provide or follow directions, develop a course-of-action, develop a situational or operational emergency response, create a risk mitigation strategy travel to or from any location, map the topography of a location, locate personnel, determine signal intensity and Licensee accepts all risk associated with such use. TRX does not authorize the use of the TRX Products and disclaims all liability that might arise from Licensee's use of such TRX Products under any circumstances where doing so might be against the law or put the Licensee or its possessions, or third parties or their possessions at risk or in any kind of danger.
8. Term and Termination.
The term of this Agreement shall be set forth in the purchase order or contract between TRX and Licensee (the "Term"). TRX shall have the right to terminate the Agreement and the license granted herein immediately if Licensee or any User fails to comply with any material terms or conditions of this Agreement. The license granted to Licensee herein will terminate automatically upon any breach of Sections 1, 2, or 6. TRX will also have the right to terminate the license granted herein immediately upon its sole discretion. Upon termination of this Agreement for any reason, Licensee shall immediately stop using the TRX Products and shall destroy and remove the Licensed Software, and all content downloaded therefrom, from all computers, mobile devices and telephones, hard drives, networks, and other storage media used by Licensee. Sections 3, 6, 7, 9, 10 and 11 shall survive any termination of this Agreement.
9. Limited Warranty and Disclaimer.
a. Hardware. TRX warrants its hardware will be free from defective workmanship and materials under normal use ("Hardware Defect") for one year ("Warranty Period"). Hardware Defects will be repaired or replaced in TRX's sole discretion without charge for parts or labor. This shall be Licensee's sole and exclusive remedy for such Hardware Defect. Any repair made by TRX to its hardware is warranted to be free from Hardware Defects for the maximum of the remainder of the initial warranty period or a period of ninety (90) days from the date of such repair.
b. Software. TRX warrants that the Licensed Software to substantially perform in accordance with the applicable documentation during the License Term. Users must be using "supported versions" of TRX Products software (as provided by and updated by TRX Systems during the course of the License Term) and must accept Updates to receive this warranty. In the event of a failure of the Licensed Software to perform substantially in accordance with the Licensed Software ("Software Defects"), TRX in its sole discretion shall replace or repair such Licensed Software to remedy such failure. Replacement or repair of the Licensed Software shall be Licensee's sole and exclusive remedy for such Software Defect.
c. NEITHER WARRANTY DESCRIBED IN THIS SECTION SHALL APPLY TO NORMAL WEAR AND TEAR, ANY TRX PRODUCTS THAT HAVE BEEN ABUSED, MISUSED, DAMAGED, ALTERED, NEGLECTED, SUBJECTED TO UNAUTHORIZED REPAIR OR INSTALLATION, OR SUBJECT TO ACCIDENT, MOISTURE, LIQUIDS, PROXIMITY OR EXPOSURE TO HEAT OR SOME OTHER EXTERNAL FORCE, AS REASONABLY DETERMINED BY TRX.
d. Procedure for Warranty Claims. To claim a Hardware Defect or Software Defect, You must contact TRX product support at [email protected] for technical assistance. If TRX determines in its sole judgment, after standard troubleshooting tests have been performed, that a Hardware Defect exists, TRX will issue a Return Materials Authorization number ("RMA"). That RMA number must appear in plain view on any shipment made to TRX regarding the Hardware Defect. The RMA number shall be used in all communications with TRX regarding the Hardware Defect. You must ship the hardware during the Warranty Period, in a traceable manner, along with the RMA number issued by TRX and an explanation of the defect, to the address provided to You by TRX. You shall prepay the cost of shipping the hardware and bear the risk of loss while the hardware is in transit. TRX shall determine in its sole discretion whether a Hardware Defect exists, and if so, whether to repair or replace such hardware. TRX shall pay the shipping charges to return the hardware to You and bear the risk of loss during transit, unless TRX determines that a Hardware Defect does not exist. In the event that TRX determines a Hardware Defect does not exist, you shall promptly pay TRX to return the hardware to You, including risk of loss during shipment. Any hardware not reclaimed by paying such shipment costs to TRX within 30 days from notice of payment due will be discarded.
e. THE LIMITED WARRANTY SET FORTH IN THIS SECTION 9 IS THE ONLY WARRANTY PROVIDED BY TRX AND ITS LICENSORS, AND IS YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS YOU MAY HAVE REGARDING THE TRX PRODUCTS. EXCEPT FOR THE FOREGOING, THE TRX PRODUCTS, INCLUDING TRX-PROVIDED HARDWARE, LICENSED SOFTWARE AND ANY RELATED SERVICES ARE PROVIDED "AS IS" AND TRX MAKES NO WARRANTY OF ANY KIND WITH REGARD TO THE TRX PRODUCTS, ITS HARDWARE, LICENSED SOFTWARE OR ANY SERVICES PROVIDED BY TRX HEREUNDER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRX EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY DUTIES OR CONDITIONS OF SATISFACTORY QUALITY, REASONABLE CARE AND SKILL, QUIET ENJOYMENT, QUIET POSSESSION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. FURTHER, TRX DOES NOT WARRANT RESULTS OF USE OR THAT THE TRX PRODUCTS ARE BUG OR ERROR FREE OR THAT USE OF THE TRX PRODUCTS WILL BE UNINTERRUPTED. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
10. Consequential Damages; Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES SHALL TRX BE LIABLE TO YOU OR ANY OTHER PERSON: (1) FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, DISCLOSURE OF USER-PROVIDED CONTENT, OR DAMAGES RESULTING FROM YOUR USE OF THE TRX PRODUCTS, HARDWARE, LICENSED SOFTWARE OR THE SERVICES PROVIDED BY OR ON BEHALF OF TRX; OR (2) FOR ANY MATTER BEYOND TRX'S REASONABLE CONTROL. TRX'S MAXIMUM LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00), EXCEPT WHERE NOT PERMITTED BY APPLICABLE LAW, IN WHICH CASE TRX'S LIABILITY SHALL BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY SUCH APPLICABLE LAW. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NEGLIGENCE AND OTHER TORTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO SOLE OR CONCURRENT NEGLIGENCE), BY OPERATION OF LAW OR OTHERWISE. LIABILITY FOR DAMAGES SHALL BE LIMITED AND EXCLUDED, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
11. Indemnity.
Licensee shall indemnify, defend and hold harmless TRX, its officers, directors, shareholders, employees, agents and representatives from any and all third-party claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from or related to: (i) Licensee's use of the TRX Products and/or from any User's failure to comply with any term of this Agreement or the Terms of Use; (ii). any and all claims of personal injury, including death, and property damage arising from Licensee's use of the TRX Products; (iii) Licensee's provision of and TRX's use of the User Generated Content; or (iv) Licensee's or its User's negligence or willful misconduct, or arising out of or relating to a claim that the TRX Products infringe the copyrights or other intellectual property rights of a third party due to: (a) Licensee's use of the TRX Products after TRX has notified Licensee to discontinue use due to an infringement claim (existing or prospective); (b) Licensee's combination, operation or use of the TRX Products with technology or other materials not supplied by TRX for such purpose; (c) the alteration or modification of the TRX Products by TRX; or (d) Licensee's use of a version of the TRX Product for which there is an Update or superseded by a newer version, if the infringement would have been avoided by use of a more current version which TRX has provided or made available to Licensee.
12. U.S. Government Restricted Rights.
If acquired by any agency of the United States Government, the Licensed Software are provided with restricted rights and use, duplication or disclosure is subject to restrictions as set forth in subparagraph (b)(3) of the Rights in Computer Software or Computer Documentation-Restricted Rights clause at 48 C.F.R. § 252.227-7014 or in subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 C.F.R. § 52.227-19, as applicable. TRX is located at 6411 Ivy Lane Suite, Suite 510, Greenbelt, Maryland 20770.
13. Export.
Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the TRX Products in violation of any such restrictions, laws or regulations. By using the TRX Products, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
14. General.
This Agreement represents the complete agreement concerning the license between TRX and you and supersedes all prior agreements and representations between us. This Agreement can only be modified as provided herein. This Agreement can be modified by the terms of an executed Purchase Order, but cannot be otherwise modified by the terms or conditions stated in any other order documentation you may provide. In the event of any conflict between this Agreement and the Purchase Order, the terms and conditions of the Purchase Order shall take precedence over terms and conditions of this Agreement. TRX may also modify this Agreement to reflect changes to the law or changes to TRX Products or for other reasons. TRX will post notice of any modification to this Agreement in our release notes, which will be distributed to the contact information within your account, at least 7 days in advance of the modification becoming effective, unless the modification addresses new functions or changes made for legal reasons, which modifications will be effective immediately. If you do not agree to the modified terms, you should not upgrade your software and should discontinue your use of the product.
If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary to make it legal and enforceable and this Agreement shall otherwise remain in full force and effect and enforceable. The failure of TRX to act with respect to a breach of this Agreement by Licensee, Users or others does not constitute a waiver and shall not limit TRX's rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever without TRX's prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. TRX expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under Maryland law (without regard to its conflicts of laws provisions) as such law applies to agreements between residents of any state in which this Agreement is entered into and performed. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Prince George's County, Maryland and Licensee hereby agree to service of process in accordance with the rules of such courts.
If you have any questions about this Agreement, please contact TRX at [email protected].
BY EITHER (1) CLICKING ON THE "I ACCEPT" BUTTON OR (2) OTHERWISE USING ANY PART OF THE TRX PRODUCTS, YOU CONSENT TO BECOME A PARTY TO THIS AGREEMENT AND TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT WANT TO BECOME A PARTY TO THIS AGREEMENT OR DO NOT AGREE WITH OR CANNOT COMPLY WITH ALL OF ITS TERMS, DO NOT CLICK ON THE "I ACCEPT" BUTTON AND/OR DO NOT USE ANY PART OF THE TRX PRODUCTS.
This End User Agreement (the "Agreement") is between TRX Systems, Inc. ("TRX" or the "Licensor") and You, including Your employees, personnel and authorized representatives, as applicable (collectively, the "User", "You" or "Licensee"), for the use of the hardware, software, services and apps to be provided by TRX hereunder, including the Licensed Software (as defined below) and associated content, services, and Updates (as defined below), that may be provided to You by or on behalf of TRX, for mapping, locating, tracking and finding Users in locations without reliable GPS (the "Location and Mapping Services"), (collectively, the "TRX Products"). If You are entering into this Agreement as a representative of, or on behalf of, a corporate entity or any other third party, You hereby represent and warrant that You have the legal authority to bind the entity or other third party to this Agreement. Your continued authorized access to and use of the TRX Products is contingent on Your compliance with the terms of this Agreement.
1. Grant and Scope of License.
Subject to Licensee's compliance with the terms and conditions of this Agreement, Licensor hereby grants to Licensee a personal, non-exclusive, non-transferable, non-sublicensable right and license to install and use the TRX Products, including the Licensed Software (as defined below), for Location and Mapping Services during the Term (as defined below). For the purposes of this Agreement, "Licensed Software" means the object code of the computer software of the TRX Programs described on Licensee's purchase order or contract, firmware and embedded software contained in any TRX-provided hardware, and any data and documentation related to the foregoing as provided to You by TRX, and any upgrades, updates, bug fixes or modified versions thereto, in object code only (collectively "Updates"). Licensee shall have no right to access the source code of the Licensed Software or use the TRX Products in any manner, except as specified in this Agreement. The license granted herein is subject to Licensee's ongoing compliance with the terms of this Agreement. The license described in this Section 1 shall in all events automatically terminate upon the expiration of the Term or as otherwise set forth herein.
2. Restrictions on Use.
a. General. The Licensed Software is licensed, not sold to You, for use only as permitted by the terms and conditions of this Agreement. TRX reserves any rights not expressly granted to You. All rights in and to the TRX Products (including the Licensed Software) not specifically granted in this Agreement are reserved by and shall remain the property of TRX.
b. Restrictions. Licensee shall not (nor shall Licensee permit anyone else to) directly or indirectly: (i) copy, modify, or distribute the TRX Products, including the Licensed Software or any portion thereof; (ii) reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure, sequence and organization of the Licensed Software or any portion thereof (except where the foregoing is permitted by applicable local law, and then only to the extent so permitted); (iii) rent or lease the TRX Products to a third party, or otherwise use or allow the use of the TRX Products or any portion thereof for any commercial purpose or on behalf of any third party; (iv) remove or obscure any proprietary notices on the TRX Products; (v) post or otherwise make available the TRX Products, including the Licensed Software, or any portion thereof, in any form, on the Internet or other publicly-available forum; (vi) distribute copies of the TRX Products to others (electronically or otherwise); or (vii) use the TRX Products in a manner that conflicts with TRX's policies or Terms of Use. You may install and use the Licensed Software only on the number of computers or devices provided in Your purchase order or contract and for which You have a valid license. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, YOU HAVE NO LICENSE OR RIGHT TO USE ANY ADDITIONAL COPIES OF THE TRX SOFTWARE, INCLUDING UPDATES UNLESS YOU, AT THE TIME OF ACQUIRING SUCH COPY OR UPDATE, ALREADY HOLD A VALID LICENSE FOR THE ASSOCIATED TRX PRODUCTS OR A SUBSCRIPTION THERETO, AS APPLICABLE. As a specific condition of this license, Licensee agrees to use the Licensed Software in compliance with all applicable laws, including without limitation copyright laws.
3. User-Provided Content.
By using the TRX Products, Licensee agrees that TRX may use any content that is generated or otherwise provided through use of the TRX Products ("User-Provided Content") in accordance with this Agreement and as necessary to deliver the features described in the product documentation and software. Additionally, Licensee represents and warrants that it has obtained, and will maintain throughout the Term, all required consents, rights and licenses necessary for use and sharing of such User-Provided Content with TRX, including as necessary to permit: (i) Licensee's access, use and disclosure of any User-Provided Content to TRX in connection with Licensee's use of the TRX Products; (ii) integration of such User-Provided Content in the TRX Products; (iii) TRX to provide the TRX Products and related services to Licensee. Furthermore, by submitting User-Provided Content, Licensee grants to TRX an irrevocable, sublicensable, non-transferable, non-exclusive, perpetual, limited license to reproduce, use, adapt, modify, translate and distribute the User-Provided Content in connection with TRX's provision of the TRX Products and related services to Licensee as set forth under this Agreement, as described in Licensee's purchase order or contract and as implemented in TRX product documentation and software. TRX hereby disclaims and User hereby releases TRX from any and all liability that may arise from the use of the TRX Products and/or any User-Provided Content.
4. Ownership and Proprietary Rights.
TRX shall own and retain all right, title, and interest in and to the TRX Products and Licensed Software, all copies or portions thereof, and any derivative works thereof (by whomever created) and all underlying intellectual property rights thereto, which at all times shall be the sole and exclusive property of TRX or its licensors, as applicable. Except as expressly set forth in this Agreement, Licensee acquires no rights in or to the TRX Products and Licensee nor any Users shall use the TRX Products except as specified in this Agreement.
The Licensed Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. The TRX Products and their features and functions, when used alone or in combination with a computing device or other systems, may be protected by one or more of U.S. and/or foreign patents. A listing of any such patents may be included in the "About" box or menu associated with the TRX Product or on the TRX website and TRX reserves the right to update such listing from time to time; provided, however, You should not consider any such listing to be a complete or exhaustive list of all patents that may cover the TRX Products and You should not consider the absence of any such listing to be an indication that no patents cover the TRX Products. If the TRX Product, or any portion thereof (including images thereof), are shown in a publicly available forum (including in presentations, to customers, in marketing programs, on websites, videos, or in other public venues), all TRX trademarks included in such TRX Product must also be shown, or specific attribution must be provided, indicating the TRX Products are the property of and were developed by TRX. You will not remove or alter TRX's or its licensor's trademarks, copyright or other proprietary notices provided with the TRX Products.
5. Third-Party Components.
Any third-party component embedded, included or provided by TRX for use with the TRX Products may only be used in conjunction therewith, and such use is subject to this Agreement and the provided documentation. However, to the extent the TRX Products include components governed by open source licenses with provisions inconsistent with this Agreement, those components are instead governed solely by the applicable open source licenses.
6. Confidentiality.
Licensee shall retain the TRX Confidential Information in the strictest confidence and shall not disclose such TRX Confidential Information to any third party without TRX's prior express written consent. Licensee shall not use any TRX Confidential Information provided by TRX for any purpose other than the authorized uses set forth in this Agreement, and shall limit access to the TRX Confidential Information to those of Licensee's employees, agents and authorized representatives whose work responsibilities require such access, and agrees to take all reasonable precautions to preclude access of unauthorized persons to such TRX Confidential Information. "TRX Confidential Information" means the Licensed Software and any data or databases contained therein, and information disclosed by TRX to You under this Agreement that is marked as confidential or would normally be considered confidential under the circumstances.
7. Disclaimers of Licensee's Use.
Licensee's use of the TRX Products is subject to the following:
a. Third-Party Products, Data and Content. The TRX Products may work in conjunction with (or rely upon) third-party products, data or content that is not owned or controlled by TRX ("Third-Party Content"). By agreeing to be bound by the terms and conditions of this Agreement, Licensee acknowledges and accepts all risks, known and unknown, associated with its use of the TRX Products and the Third-Party Content, and accepts all terms and conditions for use thereof. Conflicts may develop between the TRX Products and such Third-Party Content that may inhibit the TRX Products' performance, accuracy, functionality or operation. TRX hereby disclaims and User hereby releases TRX from any and all liability that may arise from the use of the TRX Products and the use of such Third-Party Content.
b. Dangerous Conditions and Dangerous Environments; Access to Locations. User's use of the TRX Products under certain conditions, such as fires, explosions, police/military operations, weather systems, underground operations and many other conditions where User may be impaired, disoriented, imperiled, injured, et cetera can lead to the injury or death of the User or other third parties. All decisions based upon the use of the TRX Products are subject to User's verification of the data, content and assessment of dangerous conditions and dangerous environments. All decisions or actions made by User are subject to User's professional judgment and are the sole responsibility of User and not TRX. User is solely responsible for obtaining appropriate authorizations to enter any location, within buildings or otherwise, in order to use the TRX Products for Location and Mapping Services related to the foregoing. By agreeing to by bound by the terms and conditions of this Agreement, Licensee acknowledges and accepts all risk associated with such use. TRX disclaims any and all liability that might arise from Licensee's use of the TRX Products, including to provide or follow directions, develop a course-of-action, develop a situational or operational emergency response, create a risk mitigation strategy travel to or from any location, map the topography of a location, locate personnel, determine signal intensity and Licensee accepts all risk associated with such use. TRX does not authorize the use of the TRX Products and disclaims all liability that might arise from Licensee's use of such TRX Products under any circumstances where doing so might be against the law or put the Licensee or its possessions, or third parties or their possessions at risk or in any kind of danger.
8. Term and Termination.
The term of this Agreement shall be set forth in the purchase order or contract between TRX and Licensee (the "Term"). TRX shall have the right to terminate the Agreement and the license granted herein immediately if Licensee or any User fails to comply with any material terms or conditions of this Agreement. The license granted to Licensee herein will terminate automatically upon any breach of Sections 1, 2, or 6. TRX will also have the right to terminate the license granted herein immediately upon its sole discretion. Upon termination of this Agreement for any reason, Licensee shall immediately stop using the TRX Products and shall destroy and remove the Licensed Software, and all content downloaded therefrom, from all computers, mobile devices and telephones, hard drives, networks, and other storage media used by Licensee. Sections 3, 6, 7, 9, 10 and 11 shall survive any termination of this Agreement.
9. Limited Warranty and Disclaimer.
a. Hardware. TRX warrants its hardware will be free from defective workmanship and materials under normal use ("Hardware Defect") for one year ("Warranty Period"). Hardware Defects will be repaired or replaced in TRX's sole discretion without charge for parts or labor. This shall be Licensee's sole and exclusive remedy for such Hardware Defect. Any repair made by TRX to its hardware is warranted to be free from Hardware Defects for the maximum of the remainder of the initial warranty period or a period of ninety (90) days from the date of such repair.
b. Software. TRX warrants that the Licensed Software to substantially perform in accordance with the applicable documentation during the License Term. Users must be using "supported versions" of TRX Products software (as provided by and updated by TRX Systems during the course of the License Term) and must accept Updates to receive this warranty. In the event of a failure of the Licensed Software to perform substantially in accordance with the Licensed Software ("Software Defects"), TRX in its sole discretion shall replace or repair such Licensed Software to remedy such failure. Replacement or repair of the Licensed Software shall be Licensee's sole and exclusive remedy for such Software Defect.
c. NEITHER WARRANTY DESCRIBED IN THIS SECTION SHALL APPLY TO NORMAL WEAR AND TEAR, ANY TRX PRODUCTS THAT HAVE BEEN ABUSED, MISUSED, DAMAGED, ALTERED, NEGLECTED, SUBJECTED TO UNAUTHORIZED REPAIR OR INSTALLATION, OR SUBJECT TO ACCIDENT, MOISTURE, LIQUIDS, PROXIMITY OR EXPOSURE TO HEAT OR SOME OTHER EXTERNAL FORCE, AS REASONABLY DETERMINED BY TRX.
d. Procedure for Warranty Claims. To claim a Hardware Defect or Software Defect, You must contact TRX product support at [email protected] for technical assistance. If TRX determines in its sole judgment, after standard troubleshooting tests have been performed, that a Hardware Defect exists, TRX will issue a Return Materials Authorization number ("RMA"). That RMA number must appear in plain view on any shipment made to TRX regarding the Hardware Defect. The RMA number shall be used in all communications with TRX regarding the Hardware Defect. You must ship the hardware during the Warranty Period, in a traceable manner, along with the RMA number issued by TRX and an explanation of the defect, to the address provided to You by TRX. You shall prepay the cost of shipping the hardware and bear the risk of loss while the hardware is in transit. TRX shall determine in its sole discretion whether a Hardware Defect exists, and if so, whether to repair or replace such hardware. TRX shall pay the shipping charges to return the hardware to You and bear the risk of loss during transit, unless TRX determines that a Hardware Defect does not exist. In the event that TRX determines a Hardware Defect does not exist, you shall promptly pay TRX to return the hardware to You, including risk of loss during shipment. Any hardware not reclaimed by paying such shipment costs to TRX within 30 days from notice of payment due will be discarded.
e. THE LIMITED WARRANTY SET FORTH IN THIS SECTION 9 IS THE ONLY WARRANTY PROVIDED BY TRX AND ITS LICENSORS, AND IS YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS YOU MAY HAVE REGARDING THE TRX PRODUCTS. EXCEPT FOR THE FOREGOING, THE TRX PRODUCTS, INCLUDING TRX-PROVIDED HARDWARE, LICENSED SOFTWARE AND ANY RELATED SERVICES ARE PROVIDED "AS IS" AND TRX MAKES NO WARRANTY OF ANY KIND WITH REGARD TO THE TRX PRODUCTS, ITS HARDWARE, LICENSED SOFTWARE OR ANY SERVICES PROVIDED BY TRX HEREUNDER. TO THE EXTENT PERMITTED BY APPLICABLE LAW, TRX EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, ANY DUTIES OR CONDITIONS OF SATISFACTORY QUALITY, REASONABLE CARE AND SKILL, QUIET ENJOYMENT, QUIET POSSESSION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. FURTHER, TRX DOES NOT WARRANT RESULTS OF USE OR THAT THE TRX PRODUCTS ARE BUG OR ERROR FREE OR THAT USE OF THE TRX PRODUCTS WILL BE UNINTERRUPTED. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.
10. Consequential Damages; Limitation of Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, UNDER NO CIRCUMSTANCES SHALL TRX BE LIABLE TO YOU OR ANY OTHER PERSON: (1) FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, COMPUTER FAILURE OR MALFUNCTION, DISCLOSURE OF USER-PROVIDED CONTENT, OR DAMAGES RESULTING FROM YOUR USE OF THE TRX PRODUCTS, HARDWARE, LICENSED SOFTWARE OR THE SERVICES PROVIDED BY OR ON BEHALF OF TRX; OR (2) FOR ANY MATTER BEYOND TRX'S REASONABLE CONTROL. TRX'S MAXIMUM LIABILITY FOR DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00), EXCEPT WHERE NOT PERMITTED BY APPLICABLE LAW, IN WHICH CASE TRX'S LIABILITY SHALL BE LIMITED TO THE MINIMUM AMOUNT PERMITTED BY SUCH APPLICABLE LAW. THE FOREGOING LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NEGLIGENCE AND OTHER TORTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS OF WHETHER LIABILITY ARISES FROM BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING BUT NOT LIMITED TO SOLE OR CONCURRENT NEGLIGENCE), BY OPERATION OF LAW OR OTHERWISE. LIABILITY FOR DAMAGES SHALL BE LIMITED AND EXCLUDED, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
11. Indemnity.
Licensee shall indemnify, defend and hold harmless TRX, its officers, directors, shareholders, employees, agents and representatives from any and all third-party claims, damages, liabilities, costs and fees (including reasonable attorney fees) arising from or related to: (i) Licensee's use of the TRX Products and/or from any User's failure to comply with any term of this Agreement or the Terms of Use; (ii). any and all claims of personal injury, including death, and property damage arising from Licensee's use of the TRX Products; (iii) Licensee's provision of and TRX's use of the User Generated Content; or (iv) Licensee's or its User's negligence or willful misconduct, or arising out of or relating to a claim that the TRX Products infringe the copyrights or other intellectual property rights of a third party due to: (a) Licensee's use of the TRX Products after TRX has notified Licensee to discontinue use due to an infringement claim (existing or prospective); (b) Licensee's combination, operation or use of the TRX Products with technology or other materials not supplied by TRX for such purpose; (c) the alteration or modification of the TRX Products by TRX; or (d) Licensee's use of a version of the TRX Product for which there is an Update or superseded by a newer version, if the infringement would have been avoided by use of a more current version which TRX has provided or made available to Licensee.
12. U.S. Government Restricted Rights.
If acquired by any agency of the United States Government, the Licensed Software are provided with restricted rights and use, duplication or disclosure is subject to restrictions as set forth in subparagraph (b)(3) of the Rights in Computer Software or Computer Documentation-Restricted Rights clause at 48 C.F.R. § 252.227-7014 or in subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 C.F.R. § 52.227-19, as applicable. TRX is located at 6411 Ivy Lane Suite, Suite 510, Greenbelt, Maryland 20770.
13. Export.
Licensee shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control ("OFAC"), or other United States or foreign agency or authority, and Licensee shall not export, or allow the export or re-export of the TRX Products in violation of any such restrictions, laws or regulations. By using the TRX Products, Licensee agrees to the foregoing and represents and warrants that Licensee is not located in, under the control of, or a national or resident of any restricted country.
14. General.
This Agreement represents the complete agreement concerning the license between TRX and you and supersedes all prior agreements and representations between us. This Agreement can only be modified as provided herein. This Agreement can be modified by the terms of an executed Purchase Order, but cannot be otherwise modified by the terms or conditions stated in any other order documentation you may provide. In the event of any conflict between this Agreement and the Purchase Order, the terms and conditions of the Purchase Order shall take precedence over terms and conditions of this Agreement. TRX may also modify this Agreement to reflect changes to the law or changes to TRX Products or for other reasons. TRX will post notice of any modification to this Agreement in our release notes, which will be distributed to the contact information within your account, at least 7 days in advance of the modification becoming effective, unless the modification addresses new functions or changes made for legal reasons, which modifications will be effective immediately. If you do not agree to the modified terms, you should not upgrade your software and should discontinue your use of the product.
If any provision of this Agreement is held to be illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary to make it legal and enforceable and this Agreement shall otherwise remain in full force and effect and enforceable. The failure of TRX to act with respect to a breach of this Agreement by Licensee, Users or others does not constitute a waiver and shall not limit TRX's rights with respect to such breach or any subsequent breaches. This Agreement is personal to Licensee and may not be assigned or transferred for any reason whatsoever without TRX's prior written consent and any action or conduct in violation of the foregoing shall be void and without effect. TRX expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder. This Agreement shall be governed by and construed under Maryland law (without regard to its conflicts of laws provisions) as such law applies to agreements between residents of any state in which this Agreement is entered into and performed. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in Prince George's County, Maryland and Licensee hereby agree to service of process in accordance with the rules of such courts.
If you have any questions about this Agreement, please contact TRX at [email protected].