Preface: By using this application, you acknowledge that you have read and accepted the following Terms and Conditions of Use. Please read them carefully. If you do not agree to be bound by these Terms and Conditions of Use, you must not install this software program on your computer and return all tangible copies of this software program in your possession or control to Loop Enterprises, LLC
WHEREAS, This Software Services Agreement (this “Agreement”) is between Loop Enterprises, LLC, a limited liability company duly organized according to the laws of the State of New York, with its offices located at 11 Lefferts Place, Brooklyn, NY 11238 (together with its successors and assigns hereinafter referred to as “Loop”), and you, your business or your employer (together with their successors and assigns hereinafter referred to collectively as “Client”, and together with Loop as the “Parties”); and
WHEREAS, Loop desires to make the Software (as defined below) available for use by Client for the limited purposes and in accordance with the terms and conditions set forth in this Agreement; NOW, THEREFORE, in consideration of the mutual premises and covenants contained in this Agreement, the Parties agree as follows:
1. Definitions. The following capitalized terms shall have the following meanings:
1.1. Software shall mean this computer program, i.e., Karmasoft and instructions, in Object Code form only, together with any and all enhancements, modifications, additions, translations, compilations, updates, upgrades and other software made available to Client by Loop under this Agreement, or under any support agreement entered into in connection with this Agreement.
1.2. Object Code shall mean any compiled, assembled, or machine executable version of the Software, or any part thereof.
1.3. Source Code means the human readable form of the Software.
1.4. API shall mean the specific function calls and allowable parameter values for the Software as provided by Loop to Client in Object Code, Source Code or Documentation form.
1.5. Documentation shall mean any documents, information, directions, explanations, or material, in whatever form, concerning Loop, the Software or the use of the Software.
1.6. Modification shall mean any change, modification, enhancement, addition, or correction to the Software, or any translation of the Software into other computer languages or other hardware or software environments, or any derivative work based on the Software or any software or documentation created by Client, in whole or in part, based upon the Software or Documentation.
1.7. Update shall mean any new version of the Software made available by Loop to its existing Software customers that contains bug fixes or minor enhancements or improvements, but do not contain significant new features, as determined in Loop’s sole discretion.
1.8. Upgrade shall mean any new version of the Software made available by Loop to its existing Software customers that contains major enhancements and new features, as determined in Loop’s sole discretion. 1.9. Confidential Information shall mean any and all non-public information disclosed, directly or indirectly, by Loop to Client, including, without limitation, information concerning inventions, know-how, trade secrets, Source Code, Object Code, API, Documentation and trade secrets relating to the Software and any Updates, Upgrades and Modifications thereto.
1.10 Client’s Premises shall mean the Client’s place of business, i.e., one studio location specified by Client when ordering the Software under this Agreement.
1.11 Competitive Products shall mean any product that supports the same or similar functionality as the Software.
1.12 Support Services shall mean correction of known bugs and errors contained in the Software and provision of Updates as they become generally available.
1.13 Effective Date shall mean the earlier of two (2) weeks from the date of purchase of the Software or the first date on which Client uses the Software.
2. License Grant. Loop hereby grants to Client a nonexclusive, non-assignable right and license to access, use, display, run, or otherwise interact with the Software on Client’s Premises in connection with Client’s yoga studio management endeavors. No right or license is being conveyed to Client to use the Software off Client’s Premises. Client is prohibited from making any copies, archival or otherwise, downloading, modifying, displaying, decompiling or creating derivative works of the Software. Client is further prohibited from using the Software in any manner other than as described above. Client will not have the right to market, sub-license, or otherwise distribute the Software, whether with modifications or without modifications, in a Source Code or Object Code form. Client may not disclose any Documentation or expose any Software or API to any third party without the express prior written consent of Loop. Loop reserves all rights not expressly granted herein.
3. Protection of Software.
3.1. Legends and Notices. Client shall not remove from any copies of the Software or Documentation any Loop copyright or trademark notice attached thereto.
3.2. Title. Anything to the contrary contained herein notwithstanding, any and all right, title and interest in and to the Software, Documentation, Modifications and API, including but not limited to, all copyright, patent, trade secret and other intellectual property rights, and any and all goodwill associated therewith, shall be and remain in and with Loop, its successors or assigns, subject only to the limited license granted to Client hereunder. Client acknowledges and agrees that Loop has the exclusive right to any and all proceeds, royalties, compensation, or benefit of any kind in connection with any transfer, sale, assignment, license, or sublicense of all, or any part of, the Software, Documentation, Modification or API.
3.3. Confidentiality. Client hereby acknowledges that the Software contains valuable Confidential Information of Loop. Client agrees to hold all such Confidential Information in confidence, and agrees not to disclose such Confidential Information to anyone other than Client’s employees with a bona fide need to know as designated by an officer of Client, and only if such employees are governed by a parallel confidentiality obligation of equal or greater force. Additionally, Client agrees to use at least that degree of care which Client uses to protect Client’s own information of a similar proprietary nature, but in no event less than reasonable protection. Excluded from such Confidential Information is information that Client can prove by clear and convincing evidence that Client had in Client’s possession without confidential limitation prior to disclosure, which is known or becomes known to the general public without breach of this Agreement or which is received rightfully by Client and without confidentiality limitations from a third party or which is disclosed publicly by Loop without substantially similar confidentiality restrictions. This confidentiality obligation is to survive the termination, expiration or cancellation of this Agreement for any cause whatsoever, and to remain in force in perpetuity.
3.4 Copies. Client shall not copy, in whole or in part, the Software or Documentation for any purpose whatsoever without the express written consent of Loop.
3.5 Competitive Products. Client is prohibited from, and shall not, develop, market or sell any Competitive Product based on or derived in any way from the Software, Documentation or from the benefits of know-how resulting from access to or work with Loop’s Confidential Information. The term “benefits of know how” means information in non-tangible form which may be retained by persons who have had access to the Confidential Information, including ideas, concepts, know how or techniques contained therein.
3.6 Other Restrictions. Client may not loan, lease, distribute or transfer the Software or copies thereof to third parties, nor reverse engineer or otherwise attempt to discern the Source Code of the Software. Client may not reproduce all or any portion of the Software or the Documentation, other than in accordance with this Agreement..
4.1 Functionality. Loop does not warrant that the Software will (a) be free from errors, (b) run properly on any or all computer hardware and operating systems, (c) meet requirements of Client or (d) operate in an uninterrupted or error free manner. Loop is not responsible for any failure or deficiency caused by or associated with (x) circumstances beyond Loop’s reasonable control, including but not limited to war, insurrection, sabotage, terrorism, armed conflict, embargo, fire, flood, earthquake, Internet virus or denial of service attacks; or (y) acts or omissions of Client, its employees, or its agents, including without limitation custom scripting or coding, any negligence, willful misconduct, or use of the Software outside the scope of this Agreement.
THE SOFTWARE IS PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LACK OF VIRUS, LACK OF NEGLIGENCE, OR LACK OF WORKMANLIKE EFFORT ON THE PART OF LOOP, EACH OF WHICH ARE EXPRESSLY DISCLAIMED BY LOOP AND WAIVED BY CLIENT.
4.2 Limitation of Liability; Damages. Notwithstanding anything to the contrary contained herein, in no event will Loop’s total liability hereunder exceed the total amount of fees received by Loop from Client for the Software divided by the number of users of the Software under Client’s license. In no event will Loop be liable to Client or any third party for any indirect, incidental, special or consequential damages, whether in an action in contract, tort or otherwise, whether foreseeable or not, including without limitation, damages for loss of business profits, revenues, data, or business interruption, resulting from or arising out of the use of or inability to deliver or use the Software, even if Loop has been advised of the possibility of such damages.
5. Indemnification. Client shall indemnify and defend Loop against any and all liability and claims arising out of any act or omission of Client (including but not limited to attorneys’ fees), provided that Loop gives Client prompt written notice of any such claim, sole authority to defend or settle such claim as Client sees fit, and reasonable cooperation (at Client’s expense) in such defense and settlement. Client shall not make any warranty on Loop’s behalf.
6. Third Party Materials, Copyright and Trademark Notices.
6.1 THIRD PARTY MATERIALS. LOOP EXPRESSLY DISCLAIMS RESPONSIBILITY FOR ANY AND ALL CONTENT AND MATERIALS ACCESSIBLE THROUGH THE USE OF THE SOFTWARE (“THIRD PARTY MATERIALS”). THIRD PARTY MATERIALS ARE THE PROPERTY OF THEIR RESPECTIVE OWNERS, MAY BE PROTECTED BY U.S. AND INTERNATIONAL COPYRIGHT AND OTHER LAWS AND MAY CONTAIN INACCURACIES AND MATERIALS THAT ARE OFFENSIVE, DEFAMATORY OR OTHERWISE UNLAWFUL. CLIENT’S USE OF THIRD PARTY MATERIALS IS ENTIRELY AT CLIENT’S OWN RISK.
6.2 Copyright. All Software is Loop’s property and is protected by U.S. and international copyright laws. 6.3 Trademarks. All tradenames, trademarks and service marks used in connection with the Software are the tradenames, trademarks and service marks of their respective owners. Client agrees that: (a) Client will do nothing inconsistent with or to interfere with or diminish Loop’s ownership of Loop’s tradenames, trademarks, service marks, copyrights, patents and other intellectual property during and after the term of this Agreement; and (b) all use of Loop’s tradenames, trademarks and service marks, and all benefit and goodwill associated therewith and derived therefrom, will inure to the benefit of Loop.
7. Support Services. Loop agrees to provide Support Services for no additional charge for a period of 90 days after the effective date of the agreement between Loop and Client. Thereafter, Loop or its agents may provide Client with Support Services pursuant to a separate service agreement, if any. Notwithstanding anything therein or herein to the contrary, Support Services will only be provided (a) by Loop; (b) through a single designee of Client, and (c) on Client’s Premises or by telephone, fax or e-mail. Loop may discontinue Support Services at any time that Client remains in arrears of any of the fees owed to Loop.
8. Notices. When any notice is required or authorized hereunder, such notice shall be given in writing by recognized overnight express service, confirmed facsimile transmission, certified or registered mail, return receipt requested, or personal delivery addressed to the other party as specified below, or such other address as may be communicated in accordance with this Section by the party to be notified; in the case of Loop, to: Loop Enterprises, LLC, 11 Lefferts Place, Brooklyn, NY 11238, Fax: (718) 504-4247, Attention: Roodolph Senecal, with a copy to Fridman Law Group, PLLC, 287 Spring Street, New York, NY 10013, Fax: (646) 304-1030, Attention: Iliya M. Fridman, Esq.; and in the case of Client, to Client’s attention at Client’s address on file with Loop. A notice shall be deemed given on the date of personal delivery, one business day after confirmed facsimile transmission or after being deposited with the overnight express service, or five days after being deposited in the certified or registered mail, return receipt requested.
9. Term, Termination and Survival.
9.1 Term. The term of this Agreement shall commence on the date of acceptance hereof by Client and will automatically terminate immediately upon any breach by Client of any provision hereof.
9.2 Effects of Termination. Immediately following any termination or cancellation of this Agreement or the licenses granted herein, subject to the provisions set forth below, Client shall either destroy or send to Loop (at Client’s expense) all copies of the Software, Documentation and Modifications; and all of Loop’s obligations hereunder shall cease. So long as Client has any copy of the Software, Client shall continue to be bound by the terms hereof.
9.3 Survival. Sections 1, 3, 4, 5, 6, 8, 9 and 10 shall survive the expiration and termination of this Agreement for any reason. Payments which accrue or are due before termination of this Agreement shall survive the expiration or termination of this Agreement.
10.1 Choice of Law. This Agreement shall be governed by the laws of the state of New York, without regard to the conflict of law principles of such state.
10.2 Waiver. No delay, omission, or failure to exercise any right or remedy provided herein shall be deemed to be a waiver thereof or an acquiescence in the event giving rise to such right or remedy, but every such right or remedy may be exercised, from time to time as may be deemed expedient by the party exercising such remedy or right.
10.3 Remedies. Client acknowledges that any breach by Client of any of the provisions of Sections 2 or 3 hereof, will result in irreparable harm and significant injury to Loop which may be difficult to ascertain. Accordingly, Loop acknowledges and agrees that Loop shall have the right to obtain an immediate injunction enjoining any such breach or threatened breach, without having to post bond or prove actual damages.
10.4 Arbitration. Any disputes between the parties arising from or concerning in any manner the subject matter of this Agreement, other than actions pursuant to Section 10.3 hereof, will be referred to the American Arbitration Association for resolution through binding arbitration in New York City by a single arbitrator pursuant to the American Arbitration Association’s rules applicable to commercial disputes. The prevailing party in such arbitration shall be awarded the costs and fees incurred by it therein, including without limitation reasonable attorneys’ fees.
10.5 Invalidity. If any provision herein is ruled too broad in any respect to permit the full enforcement thereof, then such provision shall be limited only so far as it is necessary to allow conformance to the law, and as so limited shall be deemed a part hereof herein. If any invalid provision may not be so limited, such provision shall be deleted from the Agreement, but the remaining provisions shall remain in full force and effect.
10.6 Assignment. Neither this Agreement nor any of Client’s rights granted herein may be assigned or transferred by Client, whether voluntarily or by operation of law, without the express prior written permission of Loop and any attempt to do so shall be null and void.
10.7 Export. Client understands that the Software may be a regulated commodity under the export control laws of the United States, as amended from time to time, and the regulations thereunder, and may require a license to be exported. The Software and Documentation may not be exported or re-exported in violation of such laws.
10.8 Relationship of Parties. Nothing herein shall be deemed to create an employer-employee relationship between Loop and Client, nor any agency, joint venture or partnership relationship between the Parties. Neither party shall have the right to bind the other to any obligation, nor have the right to incur any liability on behalf of the other.
10.9 Integration. This Agreement is the complete and exclusive agreement between the parties with regard to the subject matter hereof and supersedes any and all prior discussions, negotiations and memoranda related hereto.
Warning: This computer program is protected by copyright law and international treaties. Unauthorized reproduction or distribution of the program, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under law.