1. Third-Party Materials. The Direct Heroes Platform and Direct Heroes Materials may contain or be accompanied by third-party software, data or other materials that are subject to and provided in accordance with terms that are in addition to or different from the terms set forth in this Agreement. Such terms may be included or referenced in or with such third-party software, data or other materials or a web page specified by Direct Heroes (the URL for which may be obtained on Direct Heroes’ website or on request to Direct Heroes). Licensee agrees to comply with such terms. In addition, Licensee will take sole responsibility for obtaining and complying with required licenses, if any, for use of Third Party Materials outside of the authorized use of the third party software contemplated within this Agreement. LICENSEE ACKNOWLEDGES AND AGREES THAT DIRECT HEROES HAS NO RESPONSIBILITY FOR, AND MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING, SUCH THIRD-PARTY SOFTWARE, DATA OR OTHER MATERIALS OR LICENSEE’S USE OF SUCH THIRD-PARTY SOFTWARE, DATA OR OTHER MATERIALS.
1. Subscription. Direct Heroes may offer, and Licensee may elect to acquire, Subscriptions for the Direct Heroes Materials licensed to Licensee under this Agreement (and such Subscriptions may include rights in addition to or different from those set forth in this Agreement). Any Subscriptions are subject to Direct Heroes’ terms therefor, which terms are set forth in the applicable Subscription Program Terms. Licensee agrees that if it requests, accepts, or makes use of any Subscription, Licensee will be bound by such terms, as they may be modified from time to time in accordance with the applicable Subscription Program Terms (and such terms, as so modified from time to time, are a part of and incorporated by reference into this Agreement), and Licensee agrees to comply with such terms. Licensee acknowledges that Direct Heroes may require a further acceptance of such terms as a condition to providing Subscriptions.
1. Services. Direct Heroes may provide, and Licensee may elect to receive or benefit from, certain Services from time to time. Any Services are subject to Direct Heroes’ terms therefore, which terms are set forth in the applicable Services Terms. Licensee agrees that if it requests, accepts, or makes use of any Services, Licensee will be bound by such terms, as they may be modified from time to time in accordance with the applicable Services Terms (and such terms, as so modified from time to time, are a part of and incorporated by reference into this Agreement), and Licensee agrees to comply with such terms. Licensee acknowledges that Direct Heroes may require a further acceptance of such terms as a condition to providing Services.
1. Nature of Licenses. Licensee acknowledges and agrees that when Licensee acquires a license of Direct Heroes Materials, a Subscription or Services, Licensee’s acquisition is neither contingent on the delivery of any future features or functionality nor subject to any public or other comments (oral, written or otherwise) made by Direct Heroes regarding future features or functionality.
1. Confidential Information.
2.9.1 Obligations. The Licensee will not disclose the Confidential Information, except to Affiliates, employees, agents or professional advisors who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that those people and entities use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement, while using reasonable care to keep it confidential.
2.9.2 Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the Licensee may also disclose Confidential Information to the extent Licensee is compelled to disclose by a court pursuant to legal proceedings; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify Direct Heroes of such disclosure before disclosing; and (ii) comply with Direct Heroes reasonable requests regarding its efforts to oppose the disclosure. Notwithstanding the foregoing, subsections (i) and (ii) above will not apply if the Licensee determines that complying with (i) and (ii) could: (a) result in a violation of the law; (b) obstruct a governmental investigation; and/or (c) lead to death or serious physical harm to an individual.
1. User Submissions. Anything you post, upload, share, store, or otherwise provide through the Services, including any social CRM and Direct Message Marketing Solutions you create and/or communicate with through the Services, is your “User Submission.” Some User Submissions are viewable by other users. In order to display your User Submissions on the Services, and
1. If Licensee is using a free version of the Services, all of Licensee's social CRM and Direct Message Marketing Solutions created through the Services will automatically include an attribution to Direct Heroes. Licensee agrees not to remove, modify, or obscure the Direct Heroes attribution. In addition, whether Licensee is using the free or paid version of the Services, Licensee hereby grants Direct Heroes a nonexclusive license to use any social CRM and Direct Message Marketing Solutions Licensee creates using the Services in Direct Heroes marketing materials. Licensee understands and agrees that Direct heroes, in performing the required technical steps to provide the Services to our users (including Licensee), may need to make changes to Licensee's User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
3. License Limitations/Prohibitions
3.1 Limitations and Exclusions.
3.1.1 No License Granted/Unauthorized Activities. The parties acknowledge and agree that, notwithstanding anything to the contrary in this Agreement, no license is granted (whether expressly, by implication or otherwise) under this Agreement (and this Agreement expressly excludes any right) (a) to Excluded Materials, (b) to any Direct Heroes Materials that Licensee did not acquire lawfully or that Licensee acquired in violation of or in a manner inconsistent with this Agreement, (c) for Subscription of or Access to the Direct Heroes Materials beyond the applicable license term (whether a fixed term or Subscription period) or outside the scope of the applicable License Type or Permitted Number, (d) for Subscription of the Direct Heroes Materials on any Computer other than a Computer owned or leased, and controlled by Licensee, unless otherwise authorized in writing by Direct Heroes or granted by License Type, (e) to distribute, rent, loan, lease, sell, sublicense, or otherwise provide all or any portion of the Direct Heroes Materials to any person or entity except as expressly set forth in this Agreement or as expressly authorized in writing by Direct Heroes, (f) to provide or make available any features or functionality of the Direct Heroes Materials to any person or entity (other than to and for Licensee itself for the purpose specified in the applicable License Type), whether or not over a network and whether or not on a hosted basis, (g) except as otherwise expressly provided with respect to a specific License Type, to Subscribe for or Access or allow the Subscription for of or Access to the Direct Heroes Materials over the Internet or other non-local network, including, without limitation, use in connection with a wide area network (WAN), virtual private network (VPN), virtualization, Web hosting, time-sharing, service bureau, software as a service, cloud or other service or technology, (h) to remove, alter or obscure any proprietary notices, labels or marks in the Direct Heroes Materials, (i) to decompile, disassemble or otherwise reverse engineer the Direct Heroes Materials, or (j) to translate, adapt, arrange, or create derivative works based on, or otherwise modify the Direct Heroes Materials for any purpose.
3.1.2 Direct Heroes Materials as a Single Product. The Direct Heroes Materials are licensed to Licensee as a single product and the applicable components may not be separated for Subscription or Access.
3.1.3 Territory. Except as otherwise authorized in writing by Direct Heroes, the licenses granted in this Agreement are granted only for the Territory. Nothing in this Agreement permits Licensee (including, without limitation, Licensee’s Personnel, if any) to Subscribe for or Access the Direct Heroes Materials outside of the Territory.
3.1.4 Effect of Unauthorized Use. Licensee will not engage in, and will not permit or assist any third party to engage in, any of the uses or activities prohibited (or any uses or activities inconsistent with the limitations described) in this Section 3.1 (Limitations and Exclusions) (collectively, “Unauthorized Uses”). Any such Unauthorized Use, and any Subscription of or Access to the Direct Heroes Materials provided under this Agreement, outside of the scope of the applicable license grants (including, without limitation, outside the applicable License Type and/or Permitted Number) or otherwise not in accordance with this Agreement, constitute or result in infringement of Direct Heroes’ intellectual property rights as well as a breach of this Agreement. Licensee will notify Direct Heroes promptly of any such Unauthorized Uses or other unauthorized Subscription or Access.
3.2.1 Licensee may not (i) utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any form of technical protection used by Direct Heroes in connection with the Direct Heroes Materials, or (ii) Subscribe or Access the Direct Heroes Materials with any product code, authorization code, serial number, or other copy-protection device not supplied by Direct Heroes directly or through a Reseller. Without limitation of the generality of the foregoing, Licensee may not utilize any equipment, device, software, or other means to (or designed to) circumvent or remove the Direct Heroes License Manager or any tool or technical protection measure provided or made available by Direct Heroes for managing, monitoring or controlling Subscription of or Access to Direct Heroes Materials.
3.2.2 Licensee may not utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any usage restrictions, or to enable functionality disabled by Direct Heroes, in connection with the Excluded Materials. Licensee may not bypass or delete any functionality or technical limitations of the Direct Heroes Materials that (or that are designed to) prevent or inhibit the unauthorized copying of, Subscription or Access to the Excluded Materials.
3.3 Further Restrictions. Licensee's use of the Services is subject to the following additional restrictions: Licensee represents, warrants, and agrees that Licensee will not contribute any Content or User Submission (each of those terms is defined below) or otherwise create any social CRM and Direct Message Marketing Solutions or use the Services in a manner that:
(a) Infringes or violates the intellectual property rights or any other rights of anyone else
(including Direct Heroes);
(b) Violates any law or regulation, including any applicable export control laws;
(c) Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(d) Jeopardizes the security of your Direct Heroes account or anyone else’s (such as allowing someone else to log in to the Services as you);
(e) Attempts, in any manner, to obtain the password, account, or other security information from any other user;
(f) Violates the security of any computer network, or cracks any passwords or security encryption codes;
(g) Runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any
processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
(h) “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
(i) Copies or stores any significant portion of the Content;
(j) Decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
4. All Rights Reserved Except as expressly authorized in writing by Direct Heroes, Direct Heroes retains title to and ownership of, and all other rights with respect to, the Direct Heroes Materials and all copies thereof, including, without limitation, any related copyrights, trademarks, trade secrets, patents, and other intellectual property rights. Licensee has only the limited licenses granted with respect to the Direct Heroes Materials expressly set forth in this Agreement, and Licensee has no other rights, implied or otherwise. Licensee acknowledges and agrees that the Direct Heroes Materials are licensed, not sold, and that rights to Subscribe and Access the Direct Heroes Materials are acquired only under the license from Direct Heroes. The structure and organization of Software included in the Direct Heroes Materials, any source code or similar materials relating to such Software and Development Materials and any other Direct Heroes Materials identified as confidential or proprietary are valuable trade secrets of, and confidential and proprietary information to, Direct Heroes and its suppliers, and (a) may not be distributed, disclosed or otherwise provided to third parties, and (b) may be used only internally and only in conjunction with and for Licensee’s own authorized internal use of the Direct Heroes Materials.
In certain cases, information about you is needed by our partners, such as credit card transaction processing, user security and authentication.
5. Privacy; Use of Information; Connectivity
5.2 Connectivity. Certain Direct Heroes Materials may facilitate or require Licensee’s access to and use of content and services that are hosted on websites maintained by Direct Heroes or by third parties. In some cases, such content and services may appear to be a feature or function within, or extension of, the Direct Heroes Materials on Licensee’s Computer even though hosted on such websites. Accessing such content or services and use of Direct Heroes Materials may cause Licensee’s Computer, without additional notice, to connect automatically to the Internet (transitorily, intermittently or on a regular basis) and to communicate with an Direct Heroes or third-party website—for example, for purposes of providing Licensee with additional information, features and functionality or to validate that the Direct Heroes Materials and/or content or services are being used as permitted under this Agreement or other applicable terms. Such connectivity to Direct Heroes websites is governed by Direct Heroes’ policies on privacy and data protection described in Section 4 (Privacy; Use of Information; Connectivity). Such connectivity to websites of third parties is governed by the terms (including the disclaimers and notices) found on such sites or otherwise associated with the third-party content or services. Direct Heroes does not control, endorse, or accept responsibility for any such third-party content or services, and any dealings between Licensee and any third party in connection with such content or services, including, without limitation, such third party’s privacy policies, use of personal information, delivery of and payment for goods and services, and any other terms associated with such dealings, are solely between Licensee and such third party. Direct Heroes may at any time, for any reason, modify or discontinue the availability of any third-party content or services. Access to and use of certain content and services (whether of Direct Heroes or third parties) may require assent to separate terms and/or payment of additional fees.
Your use of the service is up to you. We have some pretty neat technology, but we can’t possibly know your situation, so how you use it is on you, not us. To gain access to all of the information provided, you need a subscription, even though we give you some pretty great free stuff as well.
6.1 Functionality Limitations. Direct Heroes Materials are not a substitute for Licensee’s professional judgment or independent testing. The Direct Heroes Materials are intended only to assist Licensee with its design, analysis, simulation, estimation, testing and/or other activities and are not a substitute for Licensee’s own independent design, analysis, simulation, estimation, testing, and/or other activities, including those with respect to product stress, safety and utility. Due to the large variety of potential applications for the Direct Heroes Materials, the Direct Heroes Materials have not been tested in all situations under which they may be used. Direct Heroes will not be liable in any manner whatsoever for the results obtained through use of the Direct Heroes Materials. Persons using the Direct Heroes Materials are responsible for the supervision, management, and control of the Direct Heroes Materials and the results of using the Direct Heroes Materials. This responsibility includes, without limitation, the determination of appropriate uses for the Direct Heroes Materials and the selection of the Direct Heroes Materials and other computer programs and materials to help achieve intended results. Persons using the Direct Heroes Materials are also responsible for establishing the adequacy of independent procedures for testing the reliability, accuracy, completeness, and other characteristics of any output of the Direct Heroes Materials, including, without limitation, all items designed with the assistance of the Direct Heroes Materials. Licensee further acknowledges and agrees that the Direct Heroes Materials form part of Licensee’s total unique hardware and software environment to deliver specific functionality, and that the Direct Heroes Materials provided by Direct Heroes may not achieve the results Licensee desires.
6.2.1 Disabling Access. SUBJECT TO THE EXPRESS WRITTEN PERMISSION OF DIRECT HEROES TO THE CONTRARY, LICENSEE ACKNOWLEDGES AND AGREES THAT SUBSCRIPTION FOR AND ACCESS TO DIRECT HEROES MATERIALS MAY BE DISABLED BY THE ACTIVATION, SECURITY, AND TECHNICAL PROTECTION MECHANISMS IF LICENSEE TRIES TO TRANSFER ALL OR A PART OF THE DIRECT HEROES MATERIALS TO ANOTHER COMPUTER, IF LICENSEE TAMPERS WITH THE TECHNICAL PROTECTION MECHANISMS OR DATE-SETTING MECHANISMS ON A COMPUTER OR IN THE DIRECT HEROES MATERIALS, IF LICENSEE USES THE DIRECT HEROES MATERIALS PAST AN APPLICABLE SUBSCRIPTION PERIOD OR FIXED TERM, OR IF LICENSEE UNDERTAKES CERTAIN OTHER ACTIONS THAT AFFECT THE SECURITY MODE OR UNDER OTHER CIRCUMSTANCES AND THAT, IN ANY SUCH EVENT, LICENSEE’S ACCESS TO LICENSEE’S WORK PRODUCT AND OTHER DATA MAY BE AFFECTED. MORE INFORMATION IS CONTAINED IN THE APPLICABLE DIRECT HEROES MATERIALS OR AVAILABLE FROM DIRECT HEROES ON REQUEST.
6.2.2 Effect of Authorized User Login Code. Licensee acknowledges and agrees that receipt of a login code (whether or not provided to Licensee in error) will not constitute evidence of or affect the scope of Licensee’s license rights. Those rights will be only as set forth in this Agreement and the applicable License Identification.
6.3 Affected Data. Work product and other data created with Direct Heroes Materials made available under certain License Types, may contain certain notices and limitations that make the work product and other data usable only in certain circumstances. In addition, if Licensee combines or links work product or other data created with such Direct Heroes Materials with work product or other data otherwise created, then such other work product or data may also be affected by these notices and limitations. Direct Heroes will have no responsibility or liability whatsoever if Licensee combines or links work product or other data created with such Direct Heroes Materials with work product or other data otherwise created. In addition, Licensee will not remove, alter or obscure any such notices or limitations.
Your use of the service is up to you. We have some pretty neat technology, but we can’t possibly know your situation, so how you use it is on you, not us.
7. Limitations of Liability
7.1 THE DIRECT HEROES MATERIALS ARE PROVIDED WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OMISSIONS, COMPLETENESS, CORRECTNESS AND DELAYS. IN PARTICULAR THE LICENSEE UNDERSTANDS:
7.1.1 Limitations on Data and Service Levels. IT IS NOT POSSIBLE FOR ALL DATA CONTAINED IN THE DIRECT HEROES MATERIALS TO BE COMPREHENSIVE, ACCURATE AND UP-TO-DATE, AND THAT AT ANY TIME THE DIRECT HEROES MATERIALS ARE LIKELY TO CONTAIN INACCURACIES OR OMISSIONS. DIRECT HEROES PROVIDES THE LICENSEE WITH OPPORTUNITIES TO POINT OUT ANY INACCURACIES THAT MAY BE INCLUDED IN THE DIRECT HEROES MATERIALS. THIS SHOULD NOT BE TAKEN TO MEAN THAT DIRECT HEROES IS COMMITTED TO CORRECTING ANY INACCURACIES BROUGHT TO ITS ATTENTION WITHIN ANY SPECIFIED TIME OR AT ALL. DIRECT HEROES DOES NOT REPRESENT OR WARRANT THAT ACCESS TO OR USE OF THE DIRECT HEROES MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE DIRECT HEROES MATERIALS SUPPLIED ARE ACCURATE OR CORRECT OR THAT THEY MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. DIRECT HEROES DOES NOT REPRESENT OR WARRANT THAT ACCESS TO OR USE OF THE DIRECT HEROES MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT THE DIRECT HEROES MATERIALS SUPPLIED ARE ACCURATE OR CORRECT OR THAT THEY MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY.
7.1.2 Limitations on Damages. DIRECT HEROES AND ITS AFFILIATES SHALL NOT BE LIABLE TO THE LICENSEE IN CONTRACT, TORT OR OTHERWISE FOR ANY LOSS OF REVENUE, BUSINESS, ANTICIPATED SAVINGS OR PROFITS, LOSS OF GOODWILL OR DATA AND/OR FOR ANY DIRECT AND/OR INDIRECT AND/OR CONSEQUENTIAL LOSS WHATSOEVER AND HOWSOEVER ARISING SUFFERED OR INCURRED IN CONNECTION WITH THE PERFORMANCE OF THE OBLIGATIONS UNDER THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH THE DIRECT HEROES MATERIALS, WHETHER OR NOT CAUSED BY DIRECT HEROES OR ITS AFFILIATES’ NEGLIGENCE.
7.1.3 Indemnity by Licensee. LICENSEE SHALL ACCEPT SOLE RESPONSIBILITY FOR AND DIRECT HEROES AND ITS AFFILIATES SHALL NOT BE LIABLE FOR THE USE OF THE DIRECT HEROES MATERIALS BY LICENSEE AND LICENSEE SHALL HOLD DIRECT HEROES AND ITS AFFILIATES HARMLESS AND FULLY INDEMNIFIED AGAINST ANY CLAIMS, COSTS, DAMAGES, LOSS AND LIABILITIES ARISING OUT OF ANY SUCH USE. DIRECT HEROES AND ITS AFFILIATES SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY LIABILITY OF LICENSEE TO ANY THIRD PARTY WHICH MIGHT ARISE.
7.1.4 Assumption of Risk. LICENSEE ASSUMES FULL RESPONSIBILITY AND RISK OF, AND DIRECT HEROES AND ITS AFFILIATES SHALL NOT BE LIABLE FOR, ANY LOSS WHICH RESULTS FROM ANY TRANSACTIONS OR DECISIONS MADE BY THE LICENSEE ON THE BASIS OF OR AS A RESULT OF THE DIRECT HEROES MATERIALS.
7.2 Application of and Basis for Limitations. THE LIMITATIONS OF LIABILITY IN THIS SECTION 7 (LIMITATIONS OF LIABILITY) WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW TO ANY DAMAGES OR OTHER LIABILITY, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, EVEN IF DIRECT HEROES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HEREUNDER FAIL OF THEIR ESSENTIAL PURPOSE. ALSO, LICENSEE AGREES THAT THE LICENSE, SUBSCRIPTION AND DIRECT HEROES MATERIALS FEES AND OTHER FEES CHARGED BY DIRECT HEROES AND PAID BY LICENSEE ARE BASED ON AND REFLECTIVE OF THE ALLOCATION OF RISK CONTEMPLATED BY THIS SECTION 7 (LIMITATIONS OF LIABILITY) AND THAT THE LIABILITY LIMITATIONS IN THIS SECTION 7 (LIMITATIONS OF LIABILITY) ARE AN ESSENTIAL ELEMENT OF THE AGREEMENT BETWEEN THE PARTIES.
If you have a full access subscription, it will be terminated if you don’t pay.
8. Term and Termination
8.1 Term; Termination or Suspension. Each license under this Agreement, with respect to each specific set of Direct Heroes Materials covered by this Agreement, will become effective as of the date first written above. Each of Direct Heroes or Licensee may terminate this Agreement, Licensee’s license as to Direct Heroes Materials, Licensee’s Subscription, and/or the provision of Services relating to the Direct Heroes Materials if the other party is in breach of this Agreement and fails to cure such breach within ten (10) days after written notice of the breach. In addition, Direct Heroes may, as an alternative to termination, suspend Licensee’s license as to the Direct Heroes Materials, Licensee’s Subscription, the provision of Services relating to the Direct Heroes Materials, and/or other Direct Heroes obligations or Licensee rights under this Agreement (or under other terms, if any, relating to materials associated with the Direct Heroes Materials), if Licensee fails to make a payment to Direct Heroes or a Reseller or otherwise fails to comply with the provisions of this Agreement or other terms relating to any such license, Subscription, Services, or other associated materials. Direct Heroes may also terminate this Agreement if Licensee becomes subject to bankruptcy proceedings, becomes insolvent, or makes an arrangement with Licensee’s creditors. This Agreement will terminate automatically without further notice or action by Direct Heroes if Licensee goes into liquidation. Licensee acknowledges and agrees that Direct Heroes may assign or sub-contract any of its rights or obligations under this Agreement.
8.2 Effect of Termination of Agreement or License. Upon termination or expiration of this Agreement, the licenses granted hereunder will terminate. Upon termination or expiration of any license granted to Licensee, Licensee must cease all use of Direct Heroes Materials to which such license applies, any Subscription (including, without limitation, associated services), and any Services.. If Licensee’s Subscription is terminated or expires, but this Agreement and Licensee’s license to the Direct Heroes Materials remains in effect, any rights of Licensee based on the Subscription (including, without limitation, rights with respect to Previous Versions) will terminate, and (unless otherwise authorized by the Subscription Program Terms) Licensee must comply with the obligations of Section 2.2.1 (Effect of Upgrades) with respect to (including the obligations to cease use) all copies of such Previous Versions.
8.3 Survival. Sections 2.3 (Additional Terms), 2.4 (Other Materials), 2.5 (Authorized Users), 2.6 (Third- Party Materials), 3.1.1 (No License Granted/Unauthorized Activities), 3.1.4 (Effect of Unauthorized Use), 3.2 (Circumvention), 4 (All Rights Reserved), 5 (Privacy; Use of Information; Connectivity), 6 (Warnings), 7 (Limitations of Liability), 8 (Term and Termination), and 10 (General Provisions) and 1 (Definitions) will survive and termination or expiration of this Agreement.
9. General Provisions (a) Notices. Notices in connection with this Agreement by either party will be in writing and will be sent by electronic mail, postal service, or a registered delivery service, except that Licensee may not provide notice to Direct Heroes of a Direct Heroes breach or provide notice of termination of this Agreement by electronic mail. Notices from Direct Heroes to Licensee will be effective (a) in the case of notices by email, one (1) day after sending to the email address provided to Direct Heroes, or (b) in the case of notices by mail or delivery service, five (5) days after sending by regular post or delivery service to the address provided to Direct Heroes. Licensee hereby consents to service of process being effected on Licensee by registered mail sent to the address set forth on Licensee’s Customer Information Form (or, if no Customer Information Form has been provided, Licensee’s last address known by Direct Heroes) if so permitted by applicable law.
9.1 Governing Law and Jurisdiction. This Agreement shall be construed under the laws of the Province of British Columbia. The parties hereby attorn to the non-exclusive jurisdiction of the British Columbia courts. If any provision of this Agreement be illegal or unenforceable under the laws of the Province of British Columbia such provision shall be considered to be deleted and the remainder of this Agreement shall continue in full force and effect.
9.2 No Assignment; Insolvency. Licensee may not assign this Agreement or any rights hereunder (whether by purchase of stock or assets, merger, change of control, bankruptcy, operation of law, or otherwise) without Direct Heroes' prior written consent, which may be withheld in Direct Heroes sole and absolute discretion, and any purported assignment by Licensee will be void.
9.3 Direct Heroes Subsidiaries and Affiliates. Licensee acknowledges and agrees that Direct Heroes may arrange to have its subsidiaries and affiliates engage in activities in connection with this Agreement, including, without limitation, delivering Direct Heroes Materials and providing Subscriptions and Services, provided that Direct Heroes (and not such subsidiaries and affiliates) will remain subject to the obligations of Direct Heroes under this Agreement. Licensee also agrees that Direct Heroes’ subsidiaries and affiliates may enforce (including taking actions for breach of) this Agreement.
9.4 Severability. If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision or any other provision of this Agreement in any other jurisdiction.
9.5 No Waiver. No term or provision of this Agreement will be considered waived, and no breach
excused, unless such waiver is in writing signed on behalf of the party against which the waiver is asserted. No waiver (whether express or implied) will constitute consent to, waiver of, or excuse of any other, different, or subsequent breach.
9.6 Language. The English language version of this Agreement is legally binding in case of any inconsistencies between the English version and any translations. If Licensee purchased the license for the Direct Heroes Materials in Canada, Licensee agrees to the following: The parties hereto confirm that it is their wish that this Agreement, as well as other documents relating hereto, including notices, have been and shall be written in the English language only. Les parties ci-dessus confirment leur désir que cet accord ainsi que tous les documents, y compris tous avis qui s'y rattachent, soient rédigés en langue anglaise.
9.7 Construction. It is agreed that ambiguities in this Agreement will not be construed against the drafter.
9.8 Force Majeure. Neither party hereto shall be liable to the other for delay in any performance or for the failure to render any performance under this Agreement when such delay or failure is a direct result of any present or future law, ordinance, regulation, order, failure to deliver on the part of its suppliers, judgment or decree, act of God, earthquake, epidemic, explosion, lockout, boycott, strike, labor unrest, riot, war, or similar catastrophic occurrence. In the event of any such delay or failure, the affected party shall send written notice by email of the delay or failure and the reason thereof to the other party within fourteen (14) calendar days from the time the affected party knew or should have known of the Force Majeure in question. The provisions of this Article shall not be applicable to any obligation involving the payment of money.
9.9 Entire Agreement. This Agreement and any other terms referenced in this Agreement (such as the Subscription Program Terms and the Services Terms) constitute the entire agreement between the parties (and merges and supersedes any prior or contemporaneous agreements, discussions, communications, agreements, representations, warranties, advertising or understandings) with respect to the subject matter hereof, except that particular Direct Heroes Materials may be subject to additional or different terms associated with such Direct Heroes Materials. The parties acknowledge that, in entering into this Agreement, they are not relying on any agreements, discussions, communications, agreements, representations, warranties, advertising or understandings other than as expressly set forth in this Agreement. Licensee acknowledges and agrees that Direct Heroes may add to or change the Subscription Program Terms and the Services Terms from time to time, provided that Direct Heroes will provide written notice of the additions or changes (and may allow Licensee not to renew, may permit Licensee to terminate, and may offer other options with respect to Subscriptions or Services) before the additions or changes are effective as to Licensee. In the event of a conflict between this Agreement and any other terms of Direct Heroes (including, without limitation, the Subscription Program Terms, the Services Terms, or such additional or different terms), the other terms will apply. Terms stipulated by Licensee in any communication by Licensee which purport to vary this Agreement or such other terms will be void and of no effect unless agreed in a writing signed by an authorized representative of Direct Heroes. Any other modifications to this Agreement will also be invalid unless agreed to in a writing signed by an authorized representative of Direct Heroes.
9.10 Execution in Counterpart. This Agreement may be executed in as many counterparts as may be necessary, and transmitted via facsimile or electronic scanning and email if necessary, each of which so signed being deemed to be an original and such counterparts together constituting one and the same Agreement.
“Access” or “Accessible” means, with respect to a computer program or other materials, (a) to use or execute a computer program or other materials or (b) to use or otherwise benefit from the features or functionality of a computer program or other materials.
"Account" means Direct Heroes Platform Account
"Affiliate" means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
“Agreement” means this License and Services Agreement, including all schedules thereto, as the License and Services Agreement may be amended from time to time in accordance with the terms thereof.
“Authorized User” means any individual person who is authorized to Subscribe (defined herein) or Access (defined herein) any of the Direct Heroes Materials via the Direct Heroes Platform.
“Computer” or “Device” means (i) a single electronic device, with one or more central processing units (CPUs), that accepts information in digital or similar form and manipulates the information for a specific result based on a sequence of instructions, or (ii) a software implementation of such a device (or so-called virtual machine).
"Control" means control of greater than fifty percent of the voting rights or equity interests of a party.
"Confidential Information" means information that one party (or an Affiliate) discloses to the other party under this Agreement, and which is marked as confidential or would normally under the circumstances be considered confidential information. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Subject to the preceding sentence, Customer Data is considered Customer’s Confidential Information.
"Customer Data" means content provided to Direct Heroes by Licensee (or at its direction) via the Services under the Account.
“Customer Information Form” means a form completed by or on behalf of Licensee and submitted to Direct Heroes or a Reseller, directly or indirectly, in connection with Licensee’s order for a license of Direct Heroes Materials, Subscription or Services.
“Evaluation Purposes” means purposes of evaluation and demonstration of the capabilities of the Software but excludes competitive analysis and any commercial, professional, venture in the nature of trade, or other for-profit purposes.
“Excluded Materials” means any materials, including Software or User Documentation (and including, without limitation, any computer programs, modules or components of a computer program, functionality or features of a computer program, explanatory printed or electronic materials, content or other materials, if any), that may be provided or become available to Licensee, by any means, or that are on any media delivered to Licensee, for which (a) Licensee does not have a License Identification authorized by Direct Heroes, or (b) Licensee has not paid (and continued to pay) the applicable fees. Licensee acknowledges that Excluded Materials are included on the Direct Heroes Platform for convenience of the licensing mechanism used by Direct Heroes, and Access to such Excluded Materials does not in any way authorize, expressly or impliedly, a right to use such Excluded Materials.
“License Identification” means one or more designations by Direct Heroes that set forth the License Type (among other things) for Licensee’s license of the Licensed Materials. The License Identification may obtained from Direct Heroes on request. For clarification, License Identification does not include a designation, confirmation, platform or other documentation provided by a Reseller or other third party.
“License Type” means a type of license specified by Direct Heroes for Direct Heroes Materials. License Type includes the terms specified by Direct Heroes for each type of license. License Type is determined by Direct Heroes and may be specified in the applicable License Identification.
“Licensee’s Internal Business Needs” means, in reference to Direct Heroes Materials, the use of such Direct Heroes Materials (and the features and functionality thereof) by Licensee’s own Personnel to meet the internal requirements of Licensee’s business in the ordinary course of such business, provided that Internal Business Needs will in no event include providing or making available such Direct Heroes Materials (or the features or functionality thereof) to any third party.
“Networked Basis” means a computing environment that includes a Computer acting as a file server which allows the Direct Heroes Materials Subscribed for on such Computer to be uploaded and operated, viewed or otherwise Accessed from, other Computers through a local area network connection or through a VPN connection subject to compliance with the Access Requirements.
“Direct Heroes Platform” means the Software tool known as Direct Heroes or any future Direct Heroes tool for managing, monitoring or controlling Subscription of or Access to an Account and/or Direct Heroes Materials.
“Direct Heroes Materials” means any materials distributed via the directheroes.com website, or Direct Heroes Platform Account or made available by Direct Heroes, directly or indirectly, including Software, User Documentation (whether or not licensed to Licensee). Direct Heroes Materials also includes any User Documentation that Direct Heroes provides or makes available to Licensee for use with Software licensed under this Agreement. Direct Heroes Materials also includes, without limitation, any error corrections, patches, service packs, updates and upgrades to, and new versions of, the that Direct Heroes provides or makes available to Licensee under Licensee’s then-current license. Licensee acknowledges that availability of Upgrades and new versions may be subject to additional fees and the Subscription Program Terms. In addition, Direct Heroes Materials includes, without limitation, any Previous Versions and other Direct Heroes Materials that Licensee receives or retains pursuant to the Subscription Program Terms, but only for so long as and to the extent expressly authorized by the Subscription Program Terms. Notwithstanding the foregoing (or any other provision of this Agreement), Direct Heroes Materials in all cases excludes Excluded Materials.
“Permitted Number” means a maximum number (e.g., number of authorized users, number of concurrent users, number of computers, sessions, etc.) applicable to a license of the Direct Heroes Materials and to the License Type associated with such license. Such number is determined by Direct Heroes and may be specified in the applicable License Identification.
“Personnel” means (a) Licensee’s individual employees and (b) individual persons who are independent contractors working on Licensee’s premises and who Subscribe and Access the Direct Heroes Materials only on and through Computers owned or leased and controlled by Licensee.
“Previous Versions” means, as to any then-current release of Direct Heroes Materials, a prior release of the Direct Heroes Materials as to which such then-current release is a successor or substitute (as determined by Direct Heroes).
“Reseller” means a distributor or reseller authorized directly or indirectly by Direct Heroes to distribute authentic Direct Heroes Materials to Licensee.
”Services” means services (including the results of services) provided or made available by Direct Heroes, including, without limitation, support services, storage, simulation and testing services, training and other benefits, but excluding services provided or made available as part of Subscription and subject to the Service Terms.
“Services Terms” means the terms for Services set forth at a location where a user may order or register for, or that is displayed in connection with ordering or registering for, such Services (e.g., a web page) or, if there are no such terms, at https://www.directheroes.com/serviceterms or any successor or supplemental web page of Direct Heroes.
“Software” means a computer program, or a module or component of a computer program, distributed or made available by Direct Heroes. The term “Software” may also refer to functions and features of a computer program and functions and features of a cloud-based application.
“Stand-alone Basis” means (i) the Direct Heroes Materials are Accessed, subject to the terms of the Licensee’s Subscription Type via the Direct Heroes Platform Account and (ii) the Direct Heroes Materials cannot be copied, operated, viewed, or otherwise Accessed from or through, any other Computer (e.g., through a network connection of any kind).
“Subscription” or “Subscribe” is the authorized use of Direct Heroes platform, granted by Direct Heroes, through which Direct Heroes provides (among other things), updates and upgrades to Accounts, new versions of Accounts, and certain other support, services and training relating to Direct Heroes Materials.
“Territory” (a) means the country specified in the License Identification, or (b) if there is no such License Identification, or no country is specified in the License Identification, means the country in which Licensee acquires a license to the Direct Heroes Materials.
“Unsubscribe” means to disable Access to the Direct Heroes Materials.
“Upgrade” means a full commercial version of Direct Heroes Materials (a) which is a successor to or substitute for a prior release of such Direct Heroes Materials (and may incorporate error corrections, patches, service packs and updates and upgrades to, and may enhance or add to the features or functionality of, the prior release), (b) is provided to a Licensee who has previously licensed the applicable prior release from Direct Heroes and (c) for which Direct Heroes generally charges a separate fee or makes available solely to customers under Subscription. An Upgrade does not include Direct Heroes Material that Direct Heroes treats as a separate product. Whether Direct Heroes Materials are an Upgrade is determined by Direct Heroes and may be specified in the applicable License Identification.
“User Documentation” means the explanatory or instructional materials for Software (including materials regarding training for and use of the Software), whether in printed or electronic form, that Direct Heroes or a Reseller incorporates in the Software or otherwise provides to its customers when or after such customers license, acquire or Subscribe for the Software.
“Access Requirements” means (i) the Direct Heroes Materials are Accessed via the Direct Heroes Platform; (ii) the maximum number of concurrent users Accessing the Direct Heroes Materials does not exceed the Permitted Number at any time; and (iii) the minimum internet browser requirements as stipulated by Direct Heroes from time-to-time.