Vagabond Vending LLC and/or Vagabond Rental & Services LLC (the “Company”) is the developer and owner of the Vagabond Application (defined by the device application, its centralized hardware environment and code) and the Customer is in the business of operating vending machines. The Customer desires to utilize the Application to assist in its business operation. The Company grants and Customer accepts a limited, non-exclusive license to access and use the Application solely for Customer’s internal business purposes under the following terms and conditions:
a) The Company retains ownership of the Application at all times and reserves all rights to it not expressly granted to Customer by this Agreement.
b) The terms of this license will govern any software upgrades provided by the Company that replace and/or supplement the original Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. From time to time, the Company may release software updates to the version of the Application that was originally purchased. The Company will provide any such updates that it may release up to, but not including, the next major release of the Application, for free.
c) Customer may not and agrees not to, or to enable others to, copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Application. Any attempt to do so is a violation of the rights of the Company and its affiliates. Customer agrees, as a function of this Agreement, to enforce to the best of its ability, this restriction upon its users and employees.
d) Any content displayed by the Application is provided for informational purposes only and is not intended to be relied upon solely for revenue generation. To the extent that the Application makes available or links to third-party content, the Company makes no warranty that a user will not encounter content that may be deemed offensive, indecent, or objectionable. The Company is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such third party materials or web sites. The Company, its officers, affiliates and subsidiaries do not warrant or endorse and do not assume and will not have any liability or responsibility to any person or entity for any third-party services, third party materials or web sites, or for any other materials, products, or services of third parties.
e) The Company and its subsidiaries may collect, maintain, process and use diagnostic, technical, data content and related information, including but not limited to information about users, the system, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support and other services related to the Application, and to verify compliance with the terms of this Agreement. The Company may use this information, as long as it is in a form that does not personally identify a user, to improve our products, to improve our support to partners and Customers or to provide or sell aggregate data related information to Company customers and partners.
f) Customer will defend, indemnify and hold the Company, its affiliates, employees, officers, directors and shareholders harmless against any damages and all related costs (including reasonable attorneys' fees) incurred in connection with claims made or brought by a third party based upon, resulting from or related to Customer’s acts or omissions.
g) Customer acknowledges and agrees that the Application is provided to Client AS IS. THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF QUIET ENJOYMENT, DATA ACCURACY, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR TITLE.
h) Under no circumstances shall the Company be liable to Customer for any loss of use, interruption of business, lost profits, or for any indirect, special, incidental, or consequential damages of any kind, regardless of the form of action, whether in contract, tort (including negligence), strict product liability or otherwise, even if the Company has been advised of the possibility of such damages. The Company’s aggregate cumulative liability to Customer shall in no event exceed the amounts paid to the Company by Customer for the Application license.
i) This Agreement shall be effective upon Customer’s service activation and, unless terminated earlier as set forth in this Agreement, shall remain in full force and effect for a period of twelve (12) months if yearly option is chosen (the “Initial Term”), and will automatically renew for successive one-year periods (each a “Renewal Term”) unless, prior to thirty (30) days before the end of a term, either party gives written notice to the other that it chooses not to extend the Agreement, in which case the Agreement will expire on the last day of the current term. This Agreement shall be effective upon Customer’s service activation and, unless terminated earlier as set forth in this Agreement, shall remain in full force and effect for a period of one (1) month if monthly option is chosen (the “Initial Term”), and will automatically renew for successive one-month periods (each a “Renewal Term”) unless, prior to ten (10) days before the end of a term, either party gives written notice to the other that it chooses not to extend the Agreement, in which case the Agreement will expire on the last day of the current term. The Company reserves the right to suspend or terminate Customer’s access to the Application at any time for any or no reason. Notwithstanding the foregoing, the provisions of this Agreement that by their nature survive suspension or termination of the Agreement shall so survive, including without limitation, sections (f), (g) and (h) and all provisions related to the protection of the Company’s intellectual property rights.
In consideration for the Company providing Customer access to the Application, Customer shall pay the Company’s then-current standard fees. Payment for service activation must be made in full by credit card within 5 days of activation. Payment for each renewal term must be made in full within 5 days of the expiration of the current term. If and when an account increases the number of machines being tracked within a billing cycle, the credit card on file will be billed on a prorated basis for that partial cycle.