SOFTWARE LICENSE FOR LATAKOO SOFTWARE
PLEASE READ THIS SOFTWARE LICENSE (THIS “LICENSE") CAREFULLY BEFORE USING THE LATAKOO SOFTWARE. BY USING THE LATAKOO SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT USE THE LATAKOO SOFTWARE.
TERMS OF SERVICE
latakoo, Inc., a Texas corporation (“Latakoo”) makes this License with the user (“Client”) of any of the Latakoo software by Client electronically agreeing to be bound by or accepting this License in connection with obtaining the services of Latakoo. All references to this License, unless otherwise specified, will include the schedules and exhibits to this License.
- License. This License contains the standard terms and conditions for Latakoo’s provision of services, including without limitation, latakoo Flight (collectively, the “Services”) to Client. The terms of this License may be supplemented by individual schedules containing additional terms and conditions applicable to specific Services (each a “Schedule” and all schedules of a Client, collectively “Schedules”).
- Term. The term of this License will begin upon the Effective Date of the purchase of Services from Latakoo and will continue in effect until the termination or expiration of all Services and Schedules issued pursuant to this License.
- Client Orders. Client will provide Latakoo with such information as is necessary to provide the Services, which will include at Latakoo’s request, specifications of equipment that will be using the Services (“Client Order”). The terms of this License will be superior to, and supersede, any conflicting or inconsistent terms contained in any Client Order or other Client provided documents. If Client changes or cancels a Client Order, or any portion of a Client Order, after Client commenced using the Latakoo software, Client will pay Latakoo for the use to date.
- Fees and Payment. Client will pay Latakoo for the Services in the amounts agreed upon and set forth in the applicable Schedule or other mutually agreed pricing document. Unless otherwise provided in an applicable pricing document, Latakoo will have the right to revise or amend the pricing by providing thirty (30) days prior written notice to Client before such revision or amendment becomes effective. Latakoo’s invoices will be deemed to be correct and acceptable to Client unless Client advises Latakoo of disputed items within ten (10) days of their receipt by Client. Payments will be charged to the credit card provided to Latakoo to make payments as of the invoice date.
- Confidentiality and Risk of Loss. In an effort to provide confidentiality to Client, only Client will have access to any of the content transmitted with use of the Services. Client acknowledges that Latakoo will not be able to (a) retrieve any of the content or information transmitted by the Services, (b) access or provide passwords used by the Client in order to access content or (c) provide a system or method to bypass the password protection, under any circumstances. Consequently, all risk of loss will be upon Client in the event that passwords to access the content are misplaced, lost, forgotten or otherwise are unavailable. Client will and covenants to take reasonable steps to protect their content and to have access to such content and information.
- Compliance with Laws. Latakoo will comply with all federal, state and local laws, rules, regulations and decisions applicable to Latakoo’s provision of the Services pursuant to this License. Client will comply with all federal, state and local laws, rules regulations and decisions applicable to Client’s use of the Services provided pursuant to this License. Latakoo reserves the right to revise the terms, or conditions or pricing under this License, any Schedule and/or the Services to meet any requirement imposed by federal, state, or local law, rule or regulation, upon reasonable notice to Client.
- Intellectual Property Ownership; Transfer or Resale. Client acknowledges that Latakoo has expended substantial time, effort and funds to create and deliver the Services. All of Latakoo’s intellectual property that are part of the Services are and will continue to be Latakoo’s exclusive property, under all circumstances. Nothing contained in this License or in any Schedule will be deemed to convey to Client or to any other party any ownership interest in or to intellectual property or data provided, used or transmitted in connection with the Services.
Under no circumstances will Client resell, loan, transfer, distribute, modify or otherwise exploit any of the Services that Latakoo delivers to Client.
- Termination for Cause. If either party is in material breach of this License or any Schedule, the non-breaching party may terminate the individual Schedule or this License, as applicable, provided such breach is not cured within thirty (30) days following written notice of such breach, unless such breach is the failure to pay for the Services under the terms of this License, in which case Client will have five (5) days to cure such breach following notice. Notwithstanding the foregoing, this License or any Schedule may be terminated by Latakoo immediately upon written notice to Client if in Latakoo’s reasonable good faith judgment any Services provided to Client are being used contrary to this License or any Schedule. If this License or a Schedule is terminated as a result of a breach, the non-breaching party will, in addition to its rights of termination, be entitled to pursue all other remedies against the breaching party. Termination of this License or any Schedule will not relieve Client of its obligation to pay for any Services performed or provided by Latakoo under this License or any Schedule.
- Warranty and Disclaimers. Latakoo warrants to Client that Latakoo will use commercially reasonable efforts to deliver the Services in a timely manner. Because the Services involve (a) software being transmitted to computers not controlled by Latakoo, (b) the transmitting of data from those computers not controlled by Latakoo with the help of the Services and software of Latakoo, and (c) the receiving of data by computers controlled by third parties designated by Clients, Latakoo cannot and will not, for the fee charged for the Services, be an insurer or guarantor that the data or content will be accurately or reliably transmitted. THE WARRANTY IN THE FIRST SENTENCE OF THIS SECTION IS THE ONLY WARRANTY LATAKOO HAS GIVEN CLIENT WITH RESPECT TO THE SERVICES. LATAKOO MAKES NO REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES OR ANY MATERIALS (TANGIBLE OR INTANGIBLE) SUPPLIED BY LATAKOO UNDER THIS LICENSE, AND LATAKOO EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES AS TO THE RELIABILITY OF THE SERVICES OR ANY IMPLIED WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liability. Client also acknowledges that the prices Latakoo charges for the Services are based upon Latakoo’s expectation that (a) the computers and computer systems used by Client’s and (b) the individuals, companies and entities content or data to be transmitted is transmitted are in good working order and any loss or delay that may be incurred by use of the Services will be borne by Client and not Latakoo. Client agrees that it is responsible and liable for determining that the Services are in accordance with Latakoo’s obligations under this License. If Client reasonably determines that the Services do not meet Latakoo’s obligations under this License, Client will so notify Latakoo in writing within ten days after use of the Services in question that do not meet Latakoo’s obligations under this License. Client’s failure to notify Latakoo in accordance with this License will mean that Client accepts the Services as is. If Client does notify Latakoo within ten days after the applicable use of the Services in question, then, unless Latakoo reasonably disputes Client’s claim, Latakoo will, at its option, either (i) re-perform the Services in question or at issue without charge to Client or (ii) issue a credit for the amount Client paid to Latakoo for the nonconforming Services. LATAKOO’S REPERFORMANCE OF THE SERVICES OR THE REFUND OF ANY FEES CLIENT HAS PAID FOR SUCH SERVICES WILL CONSTITUTE CLIENT’S SOLE REMEDY AND LATAKOO’S MAXIMUM LIABILITY UNDER THIS LICENSE. IF NOTWITHSTANDING THE ABOVE, LIABILITY IS IMPOSED ON LATAKOO, THEN CLIENT AGREES THAT LATAKOO’S TOTAL LIABILITY FOR ANY OR ALL OF CLIENT’S LOSSES OR INJURIES FROM LATAKOO’S ACTS OR OMISSIONS UNDER THIS LICENSE, REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, WILL NOT EXCEED THE AMOUNT PAID BY CLIENT TO LATAKOO UNDER THIS LICENSE FOR THE PARTICULAR SERVICES WHICH ARE THE SUBJECT OF THE ALLEGED BREACH DURING THE ONE MONTH PERIOD PRECEDING THE ALLEGED BREACH BY LATAKOO. CLIENT COVENANTS THAT IT WILL NOT SUE LATAKOO FOR ANY AMOUNT GREATER THAN SUCH AMOUNT.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS LICENSE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES TO BUSINESS REPUTATION, LOST BUSINESS, OR LOST PROFITS), WHETHER FORESEEABLE OR NOT AND HOWEVER CAUSED, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MIGHT ARISE.
- Waiver. Either party may waive compliance by the other party with any covenants or conditions contained in this License or any Schedule, but only by written instrument signed by the party waiving such compliance. No such waiver, however, will be deemed to waive any other circumstance or any other covenant or condition not expressly named in the written waiver.
- Audit. Latakoo will have the right to audit Client’s and any of its agent’s use of the Services to assure compliance with the terms of this License. Client will be responsible for assuring full cooperation with Latakoo in connection with such audits and will provide Latakoo or obtain for Latakoo access to such records and personnel as Latakoo may reasonably require for such purpose.
- Limited Use of Client’s Name. Latakoo will have the right to use the name, logo and trademark of Client, without further notice to Client, solely to identify Client as a user of the Services and licensee of Latakoo.
- Successors and Assigns. This License will be binding upon and will inure to the benefit of the parties to this License and their respective heirs, representatives, successors and permitted assignees. This License may not be assigned, transferred, shared or divided in whole or in part by Client without Latakoo’s prior written consent.
- Excusable Delays. Neither party will be liable for any delay or failure in its performance under this License (except for the payment of money) if and to the extent that such delay or failure is caused by events beyond the reasonable control of the party including, without limitation, acts of God, public enemies, or terrorists, labor disputes, equipment malfunctions, material or component shortages, supplier failures, embargoes, rationing, acts of local, state or national governments or public agencies, utility or communication failures or delays, fire, earthquakes, flood, epidemics, riots and strikes. If a party becomes aware that such an event is likely to delay or prevent punctual performance of its own obligations, the party will promptly notify the other party and use its best effort to avoid or remove such causes of nonperformance and to complete delayed job whenever such causes are removed.
- Choice of Law. This License is governed by and construed in accordance with the internal substantive laws of the State of Texas. Any dispute under this License will be brought in the federal or state courts in Travis County, Texas.
- Notices. All notices, requests and other communications under this license will be in writing and will be deemed delivered at the time of receipt if delivered by hand or communicated by electronic transmission, or, if mailed, three (3) days after mailing by first class mail with postage prepaid. Notices to Client will be addressed to the billing addresses provided to Latakoo and Latakoo address will be as set forth below:
421 West 3rd Street #502
Austin, TX 78701
Each party may change their notice address to such other address as either party desires by designating, in writing, a new address, from time to time.
- Complete License. This License, as supplemented by any Schedules, sets forth the entire understanding of Client and Latakoo with respect to the subject matter of this License and supersedes all prior letters of intent, Licenses, covenants, arrangements, communications, representations, or warranties, whether oral or written, by any officer employee, or representative of either party relating thereto.
- Amendments. This License may only be amended in writing signed by authorized representatives of both parties.
- Survival. The provisions of Sections 4, 5, 6, 7, 9, 10, 12, 15 and 16, in addition to any other provisions of this License or any Schedule that would normally survive termination, will survive termination of this License for any reason.
- Authority to Sign. Each party represents that (i) the person authorizing this License or any Schedule has all right, power and authority to authorize this License or any Schedule on behalf of such party; and (ii) such party has full power and authority and all necessary authorizations to comply with the terms of this License and to perform such party’s obligations under this License.