THESE TERMS OF SERVICE (“TERMS”) CONSTITUTE AN AGREEMENT BETWEEN YOU AND LIVE EARTH, LLC (“LIVE EARTH”). BY ACCESSING OR USING THE LIVE EARTH SERVICE, YOU ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THESE TERMS, DO NOT ACCESS OR USE THE SERVICE. YOU REPRESENT AND WARRANT THAT: (I) YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF YOU ARE USING THE SERVICE ON BEHALF OF A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ACCEPT THESE TERMS ON BEHALF OF THAT ENTITY AND BIND THAT ENTITY TO THESE TERMS (IN WHICH CASE, “YOU” AND “YOUR” WILL REFER TO THAT ENTITY). LIVE EARTH MAY CHANGE THESE TERMS AT ANY TIME. YOU AGREE THAT LIVE EARTH MAY NOTIFY YOU OF THE UPDATED TERMS BY POSTING THEM ON LIVE EARTH’S WEBSITE AND THAT YOUR USE OF THE SERVICE AFTER THE EFFECTIVE DATE OF ANY UPDATED TERMS CONSTITUTES YOUR AGREEMENT TO THE UPDATED TERMS.
“Content” means the data and content available through and displayed within the Service, provided by a Person other than you. “Fees” means the amounts owed by you to Live Earth for use of the Service, as identified on the Order Form. “Intellectual Property Rights” means all: (a) patents, patent disclosures and inventions (whether patentable or not); (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith; (c) copyrights and copyrightable works (including computer programs), rights in data and databases; and (d) trade secrets, knowhow and other confidential information. “Live Earth” means Live Earth, LLC. “Order Form” means an ordering document such as a purchase order or an online order, entered into between you and Live Earth, identifying the Service and the Fees. “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity. “Service” means your access to the Software. “Software” means the Live Earth software platform, to include its clients (desktop, web, mobile), server, APIs, and documentation. “Tax” means any sales, use, value added, goods and services, consumption, excise, local stamp, or other tax, duty, or other charge imposed by a governmental authority including any associated penalties and interest, related to the Service, not resulting from Live Earth’s income. “Term” means: (a) for a paid subscription, the period starting on the date you first access or use the Service, and ending on the earlier of the date your subscription expires or the date it is terminated by Live Earth due to your breach of these Terms; or (b) for a no-cost pilot, the period starting on the date you first access or use the Service, and ending on the earlier of the date you purchase a subscription or the date your no-cost pilot is terminated by Live Earth in its sole discretion. “Terms” means these Live Earth Terms of Service. “Third Party” means any Person other than you or Live Earth. “User” means a Person who has registered to access the Service, and to whom Live Earth has granted an account.
Live Earth will use commercially reasonable efforts to provide continuous availability and access to the Service twenty-four (24) hours a day, seven (7) days a week. However, there may be outages beyond Live Earth’s control, for example, due to Third Parties on which the Service depends. Additionally, Live Earth may temporarily suspend the Service for scheduled maintenance, or make changes, updates, or enhancements to the Service at any time.
To obtain access to the Service, you are required to obtain an account with Live Earth by completing a registration form and designating a user ID and password to become a User. The number of Users permitted by your entity are designated in the Order Form. At no time may the Service be accessed by a number of individuals exceeding the number of Users specified in the Order Form, unless Live Earth grants no-cost pilots in its sole discretion. Subject to and conditioned upon your strict compliance with these Terms, Live Earth grants to you a non-exclusive, non-transferable, non-sublicensable limited license during the Term to use the Software solely in connection with the Service, subject to all conditions and limitations set forth in these Terms. You are required to safeguard the Service and Software from infringement, misappropriation, theft, misuse or unauthorized access; promptly notify Live Earth if you become aware of any infringement of Live Earth’s Intellectual Property Rights in the Service or Software; and fully cooperate with Live Earth in any legal action taken by Live Earth to enforce its Intellectual Property Rights. You are required to use the Service and Software in accordance with these Terms. You may not, directly or indirectly:
Live Earth may terminate your access to the Service and your license to the Software if you breach any of these Terms, or if you use the Service in a manner that Live Earth in its sole discretion determines threatens the security or availability of the Service.
If Live Earth offers you a no-cost pilot, all access to your data and annotations will be lost at the end of the Term, unless you purchase a subscription prior to the end of the Term of your no-cost pilot.
You are required to pay Live Earth all applicable Fees for the Service. Fees are non-refundable. No expiration or termination of your access to the Service will entitle you to any refund. Fees are exclusive of Tax, and you are responsible for paying any Tax. In the event you have not paid such Tax or provided a resale certificate, and Live Earth is required to pay such Tax, you will reimburse Live Earth for such Tax. Payment will be made in U.S. Dollars in accordance with remittance instructions furnished by Live Earth. Payment terms are Net 30 days from the invoice date, or as otherwise stated on the Order Form. Payments that are outstanding more than ten (10) days from their respective due date shall bear an interest rate of the lesser of one and one-half percent (1.5%) per month or the maximum interest rate allowed by the State of Texas, until fully paid, including any interest payments thereon. In the event you do not pay within these terms, all collection costs incurred by Live Earth including attorney’s fees will be paid by you and Live Earth may terminate your access to the Service.
In accordance with the Digital Millennium Copyright Act of 1998, if you believe that any Content or other material in the Service or otherwise included in or linked to by Live Earth violates your copyright, you may file a notice in accordance with the Live Earth Copyright Policy.
THE SERVICE, SOFTWARE, AND CONTENT ARE PROVIDED “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LIVE EARTH, ON ITS OWN BEHALF AND ON BEHALF OF ITS LICENSORS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SERVICE, SOFTWARE, AND CONTENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, LIVE EARTH PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SERVICE OR CONTENT WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. ACCESS TO CONTENT MAY BE INTERRUPTED OR REMOVED. LIVE EARTH WILL NOT BE LIABLE TO YOU FOR ANY MODIFICATION, SUSPENSION, OR DISCONTINUATION OF THE CONTENT.
Indemnification by Live Earth: Live Earth will indemnify, defend and hold you harmless from and against all damages awarded in a final judgment in any Third Party claim alleging that the Service or Software (excluding all Third Party Products and Content) infringes or misappropriates any U.S. patent or U.S. patent application published on or before the start date of the Term, or copyright or trademark of that Third Party in the U.S., on the condition that you notify Live Earth promptly of the claim and give Live Earth sole control of the defense and negotiation for its settlement or compromise. Live Earth will have no obligation to indemnify you if you are in breach of these Terms, nor will Live Earth have any obligation in any action or for any losses incurred in relation to, arising out of or resulting from, in whole or in part: (i) any use of the Service or Software on any hardware, system or other software not provided or authorized in writing by Live Earth, if such infringement would not have occurred but for such combination; (ii) any modification of the Service or Software to include the addition of content or data not provided or authorized in writing by Live Earth, or your or any Third Party’s negligence, abuse, misapplication or misuse of the Service or Software, if such infringement would not have occurred but for such modification, neglect, abuse, misapplication or misuse; or (iii) any action relating to the use of Third Party Products or Content. THIS SECTION SETS FORTH LIVE EARTH’S SOLE LIABILITY AND ENTIRE OBLIGATION AND YOUR EXCLUSIVE REMEDY FOR ANY ACTION ARISING OUT OF ANY CLAIM OF INFRINGEMENT. Indemnification by you: You agree to indemnify, defend, and hold Live Earth and its licensors harmless from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Service, any violation of these Terms, or any content provided by you. This provision survives the Term.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW: IN NO EVENT WILL LIVE EARTH, OR ANY OF ITS LICENSORS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE SERVICE OR CONTENT, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS, OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT LIVE EARTH WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LIVE EARTH IS NOT LIABLE FOR THE ACCURACY OF THE CONTENT OR THE OUTCOME OF ANY DECISION YOU MAY MAKE BASED ON THE CONTENT. IN NO EVENT WILL LIVE EARTH’S, INCLUDING ANY OF ITS LICENSORS’, COLLECTIVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS OR THE SERVICE OR SOFTWARE, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU FOR THE SERVICE THAT IS THE SUBJECT OF THE CLAIM. THE LIMITATIONS SET FORTH ABOVE WILL APPLY EVEN IF LIVE EARTH’S REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE. THIS PROVISION SURVIVES THE TERM.
These Terms will be governed by and construed in accordance with the internal laws of the State of Texas and the federal law of the U.S. without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Texas. Any legal suit, action or proceeding arising out of or related to these Terms or the matters contemplated hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Austin and County of Travis, and you irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waive any objection based on improper venue or forum non conveniens. This provision survives the Term. YOU HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR THE SOFTWARE.