1.1 “Add-ons” means any modules and/or components of the Software not initially selected and identified by the parties above but subsequently requested in writing by the User.
1.2. “Annual License Fee” means an annual fee for the License to use the Software, and for the Maintenance & Support Services described in section 5 hereof, and is the amount equal to twenty percent (20%) of the then current list price of the Software adjusted periodically. This Annual License Fee shall be charged at time of delivery of the Software and is thereafter due, in advance and in full, on or before the 1st day of the anniversary month for each year following.
1.3. “Authorised Company” means the maximum number of named companies permitted to access the Software in accordance with this Agreement as specified on page 1 hereof. A company shall be deemed as a specific ERP database connection managed via a separate instance of the Software.
1.4. “Authorised Users” means the maximum number of named users permitted to access the Software in accordance with this Agreement as specified on page 1 hereof. A named user shall be deemed as an authorised user who can access all areas of the Software within a single Company.
1.5. “Computer Server” means a computer server configured to operate as a server to other computing machines in a network.
1.6. “Defect” means a reproducible programming error, malfunction or defect in the Software, other than a Non-Programming error, that causes the operation of the Software to not substantially conform to the functional specifications in the Documentation, and that significantly affects the performance in accordance with those specifications. An error, malfunction or defect is “reproducible” if LYNQ can reproduce and verify the reported error, malfunction of defect using specific input data and other conditions, as reported by User to LYNQ, which generated the reported error, malfunction or defect.
1.7. “Documentation” means the LYNQ user documentation for the Software as may be made available by LYNQ, including user documentation which may accompany the Software. Documentation is provided in one or more of the following forms, including, online help files, user manuals, documentation published in the form of a CD-ROM or other storage devices and online user documentation for the Software that LYNQ designates as available to the User via LYNQ website.
1.8. “LAN” or “Local Area Network” means several connected single computing machines all of which are at the Location and which are interconnected by a transmission medium in order to facilitate the inter exchange of data.
1.9. “License Fee” means the initial license fee payable by User for the use of the Software specified on page 1.
1.10. “Licensed Server” means a Computer Server, situated within the Location, on which the Server Software may be installed, run and operated pursuant to the terms of this Agreement.
1.11. “Location” means the location specified on the first page hereof.
1.12. “Non-Programming Error” means any error, defect or malfunction in any Software caused by: (a) hardware used with or by the Software; (b) interference by any User or any third party software; (c) modification or alteration of any Software by persons other than LYNQ; (d) the negligence of User, or accident or misuse; (e) failure to provide a suitable installation environment; (f) use of Software on any system other than a supported system; (g) User supplied data which does not comply with Software formats; or (h) operator error, inexperience or any other cause which is not inherent in the Software.
1.13. “Registration Number” means the algorithmic key number provided by LYNQ to allow User to access and use the Software.
1.14. “Server Software” means the server software components of the Software provided to User pursuant to this Agreement.
1.15. “Single Computing Machine” means a single workstation, desktop or terminal.
1.16. “Software” means the computer program(s) and module(s) specified above and approved by LYNQ as more fully described in the Documentation which LYNQ provides User for such computer program(s) and module(s), including updates and upgrades thereto provided by LYNQ pursuant to this Agreement. LYNQ may from time to time vary the items and content of items that constitute the Software.
1.17. “Stand Alone Machine” means any workstation, desktop or terminal which is: (a) situated at the Location; and (b) disconnected from any other workstation, desktop or terminal.
1.18. “Third Party Run Time License Fees” means any separate charge payable by the User for the use of third party utilities, databases or development tools that are embedded or included by LYNQ in the Software or are designed to be used in conjunction or in association with the Software. By way of example and not limitation, Microsoft SQL Server would be considered to be a Third Party Software for which a Third Party Run Time License Fee would be charged.
1.19. “User Machines” means Single Computing Machines owned by or leased to User.
1.20. “VAR” or “Value Added Reseller” means VAR hereunder who is an authorised independent dealer or reseller of LYNQ or any other party substituted by LYNQ pursuant to the terms hereof in its place.
1.21. “VAR Fees” means the applicable fees of the VAR payable by User for value-added services or products provided by the VAR in connection with the Software. LYNQ assumes no responsibility and liability for these value-added services or product.
1.22. “WAN” or “Wide Area Network” means several connected single computing machines which are not all at the same location and which are interconnected by a transmission medium such as a modem in order to facilitate the inter-exchange of data, so long as all the files produced by the Software are contained on a single computing machine situated at the Location.
2 USE OF THE SOFTWARE
2.1. Pursuant to the License and subject to the terms and conditions herein, LYNQ grants User a revocable, personal, non-exclusive, non-transferable, non-assignable right to: (a) install, run and operate the Software on User Machines either as Stand Alone Machines or, subject to Section 3.3 below, as part of a LAN or WAN, as further specified from the equipment, operating system and other information identified by the parties specified above; (b) use the Documentation internally within User’s organisation at the Location to support User’s permitted use of the Software set out in Section 3.1(a) above; and (c) copy the Software for archival or backup purposes at the Location and/or at an offsite back-up location; no other copies shall be made without prior written consent from LYNQ. All archival and backup copies of the Software are subject to the terms of this Agreement. All titles, trademarks, and copyright and restricted rights notices shall be reproduced in such copies.
2.2. All access to and use of the Software permitted by the License is limited to the maximum number of Authorised Users designated in this Agreement. At no time shall User access or use any of the Software in excess of the number of Authorised Users designated in this Agreement.
2.3. For any permitted use of the Software by User in connection with a LAN or WAN: (a) Server Software may only be installed, run and operated on a Licensed Server situated within the Location; (b) with the exception of sandbox environment(s) no more than one instance of the Server Software per Authorised Company licensed to the User may be installed, run and/or operated at any time. Additional instances of Server Software that may be desired by User require separate written software license agreements with LYNQ with pricing to be established at LYNQ’s then current published rates.
2.4. In the event of a computer malfunction or modification which renders the Software temporarily unusable on authorised User Machines, User may, provided it is not in breach of this Agreement, install and use the Software on alternative User Machines subject to the terms and conditions of this Agreement until such time as the malfunction is corrected or modification completed, whereupon User shall forthwith completely remove the Software from the alternative User Machines and destroy all reproductions of the Software. A permanent change from the Location to another location, or from any other additional location authorized in accordance with this Agreement to another location, may be made by User provided: (a) such new Location is in the same country as the original Location; and (b) User provides LYNQ with written notification of the change in Location within thirty (30) days of such change.
2.5. Except to the extent expressly permitted hereunder, User shall not, and shall not permit third parties to, copy, reproduce, operate or adapt any of the Software or any Documentation, or install or use any Software on a computer network, file server, shared hard drive or any computing device or computer medium.
2.6. User shall not and shall not permit third parties to: (i) decompile, reverse engineer, disassemble, modify, translate, or create derivative works based on, the Software, or any part thereof; (ii) disable or circumvent any access control or related device, process or procedure established with respect to the Software or any part thereof; or (iii) sell, assign, rent, market, loan, lease, licence, sub-licence, grant a security interest in, distribute or otherwise transfer rights, in whole or in part, to the Software and/or the Documentation.
2.7. Notwithstanding anything to the contrary in this Agreement, User is granted only the limited rights set forth in the License to the Software. Nothing in this Agreement grants the User any license or right to use any software beyond the License to the Software specified, and for greater certainty without limiting the foregoing, nothing in this Agreement grants the User any license or right to any computer software that constitutes component architecture software as identified by LYNQ from time to time.
2.8. The obligations of LYNQ under this Agreement, including without limitation, the obligation to: provide the Software, the Registration Number and to provide the Maintenance and Support Services, are subject to and conditioned upon the timely performance of User’s obligations under this Agreement, including without limitation, User’s obligations to pay the Annual License Fee. In this regard, User acknowledges that failure to pay the Annual License Fee and/or other license fees for a given year shall entitle LYNQ pursuant to Section 9.1 below to terminate this Agreement and the license granted hereunder.
3. MAINTENANCE, SUPPORT AND ADDITIONAL SERVICES
3.1. LYNQ will provide, for the relevant period covered by the applicable Annual License Fee, the following maintenance services (the “Maintenance Services”): (a) supplying updates to the Software at LYNQ’s sole discretion; and (b) supplying corrections for any Defect in a currently supported release of the Software made known to LYNQ normally by the issue of updated versions of the Software from time to time as LYNQ shall determine. User shall, at no charge, cooperate fully with LYNQ’s provision of Maintenance Services and, where a Defect is concerned, provide LYNQ with all relevant information collected by User with respect to the Defect. If a Defect for which correction is requested by User is found to be caused by a Non-Programming Error, then LYNQ may charge User for any such investigative or corrective action on a time and material basis at LYNQ’s then current rates. LYNQ shall have no obligation to correct a Defect if the cause is found to be due to a Non-Programming Error.
3.2. LYNQ will provide, for the relevant period covered by the applicable Annual License Fee, the following support services (the “Support Services”): (1) Self Service support via the online help system where the User can (a) keep up to date with software changes in “What’s New” (b) see important information relating to future releases of the software (c) read the most recent and popular topics (d) search the knowledgebase (e) see frequently asked questions (f) access the video library (g) download the software; (2) Service desk supplying technical support to the User during LYNQ’s normal working hours to assist the User in the use of the Software. This support will be provided remotely by telephone or e-mail. Supply by e-mail will receive priority
3.3. User shall make available free of charge to LYNQ and/or its authorised representative(s) all information, facilities and service reasonably required by LYNQ and/or such authorised representative(s) for the performance of its/their obligations under this Agreement.
3.4. All services performed by LYNQ, or an authorised representative of LYNQ, not covered by the Maintenance and/or Support Services and which are requested by User, including but not limited to visits to the Location, assistance with any Software installation, training of User staff or additional support services, shall be chargeable to User upon the provision of services. Unless otherwise agreed to the charges therefore shall be at either LYNQ’s, VAR’s, or the authorised representative’s (depending upon who performs the services) standard rates then current for the time spent by the personnel in performing such services (including any travel time to and from any User location where services are provided), together with any incidental expenses reasonably incurred. Charges for these services shall be due upon invoice. LYNQ reserves the right to add a late charge not exceeding 1.5% per month, or fraction thereof, for failure to make payment within 30 days of the invoice date.
4. FEES AND PAYMENTS
4.1. User agrees to pay LYNQ (or VAR on behalf of LYNQ) the License Fee, the Annual License Fees, and any applicable Third Party Runtime License Fees, in consideration of the License and the provision of Maintenance and Support Services. The License Fee, Annual License Fee and any applicable Third Party Runtime License Fees shall be due and payable on the date on which the Software is delivered to User. Upon payment, LYNQ will issue to User a Registration Number required to access and use the Software pursuant to the License for an initial period (the “Initial Period”) which shall commence on the date and year the Registration Number is delivered to User, and which shall end on the renewal date (as stated on Page 1). The User shall then shall pay the Annual License Fee in full to renew the License for each successive twelve (12) month period following the Initial Period in which the User wishes to continue to use the Software and other products. Upon timely payment received from User of each such subsequent Annual License Fee (payable annually in advance of the renewal date), LYNQ will renew the Registration Number for the Software for an additional twelve (12) month period covered by the Annual License Fee. User acknowledges that its failure to pay any Annual License Fee when due will automatically result in suspension of the License and the withdrawal of any service related to the Software, including Maintenance and Support Services as well as access to Software upgrades and updates. To re-activate the License and re-qualify for Maintenance and Support Services, User shall pay all Annual License Fees and other product fees accrued and outstanding since the date of last payment as well as LYNQ’s charges, at its then published rates, for the Software’s re-certification as the current version to be eligible for Maintenance and Support Services (“User Reactivation Fee”).
4.2. User may request to have: (a) the License expanded to include Add-ons; (b) the number of Authorised Users increased to a new limit or (c) the number of Authorised Companies increased to a new limit; (in each case, a “Requested Addition”). For each Requested Addition, User shall pay for the increase or addition requested by User at the then prevailing rates for an increase or addition of the type requested, and the Annual License Fees shall be increased accordingly. Each Requested Addition paid for shall take effect and shall be incorporated into this Agreement as of the date of receipt by LYNQ of payment of LYNQ’s applicable charges for the Requested Addition such that upon payment the Add-ons, additional Users or additional Companies shall be added to the definition of Software licensed pursuant to the License.
4.3. All charges in this Agreement are exclusive of sales, usage or goods and services taxes and any customs, excise or other duties or charges, each of which are the sole responsibility of User.
5. WARRANTY DISCLAIMER AND LIABILITY LIMITATION
5.1. LYNQ warrants for User’s benefit alone that during a warranty period of ninety (90) days commencing upon User’s first receipt of the initial Software (the “Warranty Period”), the Software shall substantially conform to the functional specifications in the Documentation accompanying the initial Software (the “Warranty”).
5.2. For the Warranty Period, in fulfilment of the Warranty, LYNQ and/or VAR shall provide reasonable programming services to correct any Defect in the Software (the “Warranty Corrective Services”), provided that User has promptly notified LYNQ in writing of the Defect within the Warranty Period and, upon inspection, LYNQ or VAR is able to reproduce the Defect. User shall, at no charge, cooperate fully with LYNQ’s or VAR’s inspection of the Defect and provide LYNQ or VAR with all information collected by User with respect to the Defect. If the Defect is found to be caused by a Non-Programming Error, then LYNQ or VAR may charge User for any such investigative or corrective action on a time and materials basis at the then current rates charged by LYNQ or VAR. LYNQ shall have no obligation to correct a Defect if the cause is found to be due to a Non-Programming Error.
5.3. If the Warranty Corrective Services fail to remedy a Defect covered by the above limited warranty, User’s exclusive remedy for the breach of the Warranty shall be limited to, at LYNQ’s sole discretion: (a) repair of the Defect; (b) replacement of the component(s) of the Software containing the Defect; or (c) refund of the License Fee paid by User for the Software by LYNQ and VAR and termination of this Agreement. USER’S SOLE AND EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO THE AFOREMENTIONED CORRECTIVE ACTION.
5.4. ANY MODIFICATION OF THE SOFTWARE BY ANY PERSONS OR ENTITY OTHER THAN LYNQ SHALL VOID ANY AND ALL WARRANTIES FROM LYNQ TO USER.
5.5. During the term hereof, LYNQ warrants that the Software does not infringe the UK copyright or patent rights of any other party and shall indemnify User against any settlement or final judgment, arising from the infringement of a UK copyright or patent, provided that such infringement is not caused or contributed to by any act of User other than the use of the Software in accordance with the provisions of this Agreement; and provided further that: (a) User shall have given LYNQ prompt written notice of such claim, suit, demand or action; (b) User shall completely cooperate with LYNQ in the defence and settlement thereof (c) User has never breached any provision of this Agreement; and (d) LYNQ shall have exclusive control of the defence of such claim, suit, demand, or action and the settlement or compromise thereof. LYNQ SHALL NOT HOWEVER BE RESPONSIBLE FOR, NOR LIABLE FOR, USER’S OWN LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS DATA/INFORMATION, LOST SAVINGS, OTHER COMMERCIAL OR ECONOMIC LOSS OR OTHER EXEMPLARY, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR SIMILAR DAMAGES OF USER ARISING OUT OF OR RELATED TO ANY SUCH CLAIM, SUIT, DEMAND, OR ACTION OR OUT OF USER’S USE OR INABILITY TO USE THE SOFTWARE OR ANY PART THEREOF, WHETHER BASED ON CONTRACT, TORT (INCLUDING STRICT LIABILITY), THE BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF LYNQ HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, OR THEY ARE FORESEEABLE, AND REGARDLESS OF ANY FUNDAMENTAL BREACH HEREOF OR OF ANY OTHER AGREEMENT. FURTHERMORE, THE LIABILITY LIMITATIONS SET FORTH BELOW SHALL APPLY. (1) If the Software becomes, or in LYNQ’s opinion is likely to become, the subject of a claim of infringement of a copyright or patent, LYNQ may during the term hereof procure for User the right to continue using the Software, replace or modify the Software to render it non-infringing, or discontinue its use and terminate this Agreement and refund to User the most recent Annual License Fee paid by User to LYNQ under this Agreement. (2) LYNQ shall have no liability, and no duty to indemnify User for any claim of copyright or patent infringement based on the use of an older version of the Software by User if infringement would have been avoided by the use of an updated version of the Software. (3) LYNQ shall not indemnify User against any claim or liability that results from an addition to or modification by User or any third party to the Software in a manner to become infringing, or from use of the Software in the practice of a process, or from any use of any Software in combination with other products, equipment, devices, software, systems or data not directly supplied by LYNQ, or from a combination of any Software with other products or items developed or made by third parties including VAR.
5.6. THE FOREGOING SECTION 7.5 AND ITS SUBPARTS STATE THE ENTIRE INDEMNIFICATION LIABILITY AND OBLIGATIONS OF LYNQ AND THE SOLE AND EXCLUSIVE REMEDY OF USER WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.
5.7. EXCEPT TO THE EXTENT EXPRESSLY SET OUT IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE OR OTHERWISE INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, CORRESPONDENCE WITH DESCRIPTION AND NON-INFRINGEMENT, RELATING TO THE SOFTWARE, THIRD PARTY SOFTWARE AND OTHER PRODUCTS OR OTHER SERVICES FURNISHED HEREUNDER, AND ALL SUCH WARRANTIES ARE EXPRESSLY AND SPECIFICALLY DISCLAIMED.
5.8. Without limiting the generality of Section 7.7, LYNQ does not provide any representation, warranty, guarantee or assurance (i) that the functions contained in the Software will meet the specific requirements of User; (ii) that the operation of the Software will be uninterrupted or error-free; (iii) that errors in the Software and will be corrected; (iv) that the Software will operate in all environments due to the broad range of equipment, hardware, networks and other third party software which may be utilized by User; (v) that the Software, will appear precisely as described in the product literature or in the Documentation; or (vi) relating to service results. User is solely responsible for the selection of, and determining the suitability of, the Software for User’s particular tasks and contemplated uses. No oral or written information or advice given by LYNQ, VAR or any authorized representative of LYNQ to User shall create a representation, warranty, assurance or guarantee. LYNQ shall not in any manner whatsoever be liable for any damages, direct or indirect, tangible or intangible, that User may suffer from the Software, unless this Agreement specifically provides for that liability.
5.9. The parties acknowledge and agree: (i) that LYNQ shall not be liable for any act or omission of VAR or any other third party; and (ii) that no agent, employee, VAR or representative of LYNQ has any authority to bind LYNQ to any representation, warranty, guarantee or assurance relating to any Software, Third Party Software or other products or services except as expressly stated in this Agreement. LYNQ DISCLAIMS ANY SUCH REPRESENTATIONS OR WARRANTIES MADE TO USER WHETHER EXPRESS OR IMPLIED. Any amendment to the terms of this Agreement shall be of no force or effect unless it is in writing executed by the duly authorised representatives of the parties, including an officer or other duly authorised signatory of LYNQ.
5.10. USER AGREES THAT IT’S SOLE AND EXCLUSIVE REMEDIES AND LYNQ’S AND VAR’S ENTIRE LIABILITY SHALL BE AS SET FORTH IN THIS AGREEMENT. USER FURTHER AGREES THAT LYNQ AND VAR SHALL NOT, IN ANY EVENT, BE LIABLE TO USER FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS AND REVENUE, BUSINESS INTERRUPTION, LOSS OF BUSINESS DATA/INFORMATION, LOST SAVINGS, OTHER COMMERCIAL OR ECONOMIC LOSS, OR OTHER PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR OTHER SIMILAR DAMAGES ARISING OUT OF ITS USE OR INABILITY TO USE THE SOFTWARE (INCLUDING ANY THIRD PARTY SOFTWARE INCLUDED THEREWITH, EMBEDDED OR INCORPORATED THEREIN) OR ANY PART THEREOF, WHETHER BASED ON CONTRACT, TORT (INCLUDING STRICT LIABILITY), THE BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF LYNQ AND/OR VAR HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, OR THEY ARE FORESEEABLE, AND REGARDLESS OF ANY FUNDAMENTAL BREACH HEREOF OR OF ANY OTHER AGREEMENT. LYNQ AND VAR ARE ALSO NOT RESPONSIBLE FOR ANY CLAIMS MADE BY A THIRD PARTY, AND FOR ANY CLAIM AGAINST USER MADE BY ANY OTHER PARTY. THE FOREGOING SHALL APPLY TO ANY PERMITTED SUCCESSORS AND ASSIGNS OF USER.
5.11. IN NO EVENT SHALL LYNQ’S TOTAL AGGREGATE LIABILITY TO USER ARISING OUT OF OR RELATING TO THIS AGREEMENT AND/OR THE SOFTWARE (INCLUDING ANY THIRD PARTY SOFTWARE INCLUDED THEREWITH, EMBEDDED OR INCORPORATED THEREIN) EXCEED THREE TIMES THE TOTAL AMOUNT PAID BY USER AS ITS MOST RECENT ANNUAL LICENSE FEE FOR THE USE OF THE SOFTWARE (EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 7.3).
5.12. No action, regardless of form, arising from this Agreement may be brought by either party more than one (1) year after the cause of action has accrued, except that an action for non-payment may be brought within two (2) years after the later of the date of last payment or the date such unpaid amount should have been paid.
6. PROPRIETARY RIGHTS AND CONFIDENTIALITY
6.1. User acknowledges that the Software and Documentation are proprietary property and a valuable trade secret of LYNQ and its international licensor and hereby specifically acknowledges and recognises LYNQ’s and its international licensor’s ownership of the copyright and any other proprietary rights in and to the Software and Documentation. User agrees to hold the Software in confidence and not to disclose any of the Software or accompanying Documentation to any third party during the term of this Agreement or thereafter. User also hereby agrees not to attack or assist others in attacking the validity or ownership of LYNQ’s or its international licensor’s copyright, trademark rights or other proprietary rights in the Software. This Agreement is a license agreement and not an agreement for sale. Except to the extent set forth in and for the term of this Agreement, all right, title and interest in and to the Software and the Documentation are reserved. LYNQ retains all title, copyright and other proprietary rights in or related to the Software and in all copies of all or any portion thereof. User shall ensure that its employees, consultants and independent contractors are aware of User’s obligation hereunder and are placed under similar obligations of confidence. User also agrees not to alter or remove any details of ownership, copyright, trademark, or other proprietary rights connected with the Software or its use. If User attempts to use, copy, modify, license or convey the Software, in any manner contrary to the terms of this Agreement or in competition with LYNQ or in derogation of its proprietary rights, LYNQ shall have, in addition to any other remedies available to it, the right to temporary, preliminary and permanent injunctive relief enjoining such action. User hereby acknowledges that other remedies are inadequate and that irreparable harm will be suffered by LYNQ by reason of any breach of this provision by User. User hereby expressly waives any requirement that LYNQ post any bond to obtain such injunctive relief. This Section 8.1 shall survive any termination or expiration of this Agreement.
7. TERM AND TERMINATION
7.1. If User: (a) attempts to use, copy, modify, license, or convey the Software in any manner contrary to the terms of this Agreement or in derogation of LYNQ’s proprietary rights in any Software; (b) fails to pay any Annual License Fee by the due date therefore, or other monies owed to LYNQ by the due date therefore; or (c) fails to comply with any other provision of this Agreement and does not rectify such non-compliance within 15 days of LYNQ’s written notice thereof; then LYNQ may, without prejudice to any other of its rights or remedies and without prior notice, terminate this Agreement by giving written notice to User.
7.2. If User: (a) ceases operation of its business; or (b) makes an assignment for the benefit of creditors, or commences or has commenced against it any proceeding in bankruptcy, insolvency, or reorganisation pursuant to UK bankruptcy laws or other laws of any state or country; then LYNQ may, without prejudice to any other of its rights or remedies and without prior notice, terminate this Agreement by giving written notice to User.
7.3. Upon termination or expiration of this Agreement for any reason all rights granted hereunder to User shall terminate. For greater certainty and without limitation, upon termination of this Agreement User shall lose the License and any and all right to use or access in any permitted manner the Software and Documentation and shall forthwith deliver the Software and Documentation to LYNQ and destroy all reproductions made in whole or in part for system backup or any other purpose, and if LYNQ so requests shall certify in writing that all such reproductions have been destroyed. Termination of this Agreement for any reason shall neither relieve User of any accrued obligations to pay any monies owing to LYNQ and/or VAR nor entitle User to any refund of fees for Annual License Fees or other amounts paid hereunder.
7.4. In the event of any breach of this Agreement by User, including without limitation any failure by User to pay any of the amounts herein as such amounts become due, or within ten (10) days thereafter, LYNQ shall have the right, without prejudice to any other of its rights or remedies and without prior notice, at LYNQ’s discretion, to terminate or suspend User’s operation of the Software.
7.5. Any obligations of this Agreement that by their nature extend beyond the expiration or termination of this Agreement shall survive any expiration or termination and remain in effect, together with all provisions of this Agreement necessary for the interpretation and enforcement of said obligations.
8. GENERAL TERMS AND CONDITIONS
8.1. LYNQ and/or VAR will not be liable for any failure or delay in performance due in whole or in part to any cause beyond LYNQ’s and/or VAR’s reasonable control.
8.2. This Agreement constitutes the entire Agreement between the parties concerning the subject matter hereof and supersedes all previous communications, representations, warranties and agreements either written or oral; and User hereby acknowledges that no reliance is placed on any representation made by or on behalf of LYNQ but not embodied in this Agreement. The printed terms and conditions of any purchase order or other correspondence of User in connection with this Agreement shall not apply. In the event of any conflict between this Agreement and the terms and conditions of any purchase order or similar document to which User acquired the license granted by this Agreement, renews or adds to the license granted by this Agreement, the terms and conditions of this Agreement shall control. Except as expressly provided herein, this Agreement may be amended only in writing executed by the duly authorised representatives of the parties hereto.
8.3. Any dispute which may arise between the parties concerning this Agreement shall be determined by the laws of England and parties hereby submit to the exclusive jurisdiction of the courts of England for such purpose.
8.4. All notices required to be given under this Agreement shall be given in writing and shall be deemed to have been given when (i) delivered by hand, (ii) mailed by prepaid registered or certified mail, return receipt requested, (iii) sent by facsimile device, with a copy sent at the same time by registered or certified mail, (iv) sent by commercial courier with written verification of the receipt, or (v) sent by email, with a copy sent at the same time by registered or certified mail to each party at its addresses set forth herein or at such other address as either party may designate to the other by notice as required hereby.
8.5. The parties hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, or agency relationship between the parties. No party shall have the right to obligate or bind any other party in any manner to any third party. In this regard, User acknowledges and agrees that VAR is not LYNQ’s agent and has no authority to modify this Agreement without LYNQ’s written consent including but not limited to the warranty disclaimers and liability limitations set forth herein.
8.6. User shall not assign or otherwise transfer its rights or obligations under this Agreement, in whole or in part, whether voluntarily, involuntarily, by operation of law, or otherwise, without the prior written consent of LYNQ. Without limiting the foregoing, User shall not assign or transfer this Agreement or any of the rights or obligations hereunder whether by merger, consolidation, reorganisation, acquisition, amalgamation, or the like, without obtaining LYNQ’s prior written consent. Any assignment, transfer, or any other act that does not comply with the foregoing shall be void, and shall automatically terminate all rights of User under this Agreement. VAR shall also not transfer its rights, or assign its obligations under this Agreement, without the prior written consent of LYNQ. In the event VAR is terminated as a LYNQ reseller, does not in LYNQ’s opinion provide satisfactory service, or in LYNQ’s opinion irreconcilable differences arise between or among the parties, then LYNQ in its sole discretion reserves the right to assign VAR’s rights, privileges and obligations hereunder to another authorised reseller or to assume them itself. Such transfer or reassignment may be made without the requirement of obtaining VAR’s written or other consent or approvals to such action. Subject to the foregoing provisions pertaining to assignment, the obligations of this Agreement shall be binding upon and inure to the benefit of the heirs, legal representatives and permitted assigns of the parties hereto.
8.7. The paragraph headings of this Agreement are for reference and convenience only and are not a part of this Agreement. They shall have no effect upon the construction or interpretation of any part hereof. The language in all parts of this Agreement shall be in all cases construed simply according to its fair meaning and not strictly for or against any of the parties hereto. The rule of construction that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement.
8.8. If a court finds any provision of this Agreement invalid or unenforceable as applied to any circumstance, the remainder of this Agreement and the application of such provision to other party(ies) or circumstances shall be interpreted so as to best effect the intent of the parties hereto. The parties further agree to replace any such void or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the extent possible, the economic, business, and other purposes of the void or unenforceable provision. WITHOUT LIMITING THE FOREGOING, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH. FURTHER, IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED ITS ESSENTIAL PURPOSE, ALL OTHER LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT. ALL SUCH PROVISIONS SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
8.9. Any waiver of a default under this Agreement must be in writing and shall not be a waiver of any other default concerning the same or any other provision of this Agreement. No delay or omission in the exercise of any right or remedy (including, without limitation, delay in exercising any right of termination or any extension of time), shall impair such right or remedy or be construed as a waiver. A consent or approval of any act shall not be deemed to waive or render unnecessary consent to or approval of any other subsequent act.
8.10. Each of the terms “including”, “include” and “includes”, when used in this Agreement, is not limiting whether or not non-limiting language (such as “without limitation” or “but not limited to” or words of similar import) is used with reference thereto. The singular shall refer to the plural and vice versa. The term person refers to natural persons, as well as to all other forms of entities whether incorporated or not.
8.11. Each person signing this Agreement warrants that they have the authority to bind the entity that they represent to its terms and conditions and that upon the request of the other party, will procure all the necessary resolutions and other requirements that the requesting party may seek authorising this transaction.