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LoraxPRO Terms of Use

LoraxPro Terms of Use

May 1, 2009

IMPORTANT — PLEASE READ CAREFULLY THE TERMS OF USE BELOW. BY SELECTING THE "I ACCEPT" BUTTON OR BY USING A PASSWORD TO ACCESS THE LORAXPRO WEB SITE, YOU INDICATE YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THESE TERMS OF USE. YOU SHOULD PRINT AND KEEP A COPY OF THESE TERMS OF USE FOR YOUR RECORDS.

These Terms of Use ("TOU") constitute a legal and binding agreement between LoraxPro, LLC ("LoraxPro") and the person or legal entity who has purchased a subscription to the LoraxPro software services ("Customer"), and Customer’s employees, and agents working on Customer’s green building project ("Project") who access LoraxPro using the Customer’s subscription ("Users"). Customer's and Users’ right to access and use LoraxPro through a restricted Internet site ("Site"), to use or download documents and certain other materials on the Site (the "LoraxPro Materials"), and to use and access any customer support services ("Customer Support Services") purchased by Customer with respect to its subscription to LoraxPro and the Site is governed by this TOU (the Site, the LoraxPro Materials and the Customer Support Services are collectively referred to as the "LoraxPro Solutions"). By selecting the "I ACCEPT" option or by accessing or using this Site, you are agreeing to enter into this TOU and to be bound by and comply with all of the terms and conditions set forth herein. If you do not agree to all the terms and conditions of this TOU, (A) do not use or access the Site, and/or (B) select the "I REJECT" option.

1.0 SERVICE ACCESS

Subject to the terms and conditions of this TOU, including payment by Customer of all amounts due hereunder, LoraxPro grants to Customer and Users a project-based, nonexclusive, revocable, non-transferable license, without the right to sublicense, to access and use the LoraxPro Solutions identified in the applicable order form (the "Order Form") and hosted on servers owned or operated by LoraxPro or its designee during the Term in connection with Customer’s business purposes for the number of user licenses for which Customer has fully paid the applicable license fees to LoraxPro.

To be eligible to access and use the LoraxPro Solutions, Customer must have validly purchased a subscription to the LoraxPro Service via a valid Order Form and must be current in all payments due to LoraxPro hereunder. Subject to the requirements set forth herein, the Customer may provide invitations consisting of unique user log-in information to Users who collaborate on Customer’s project to enable such Users to access the LoraxPro Service for a specific project that has been licensed to use the LoraxPro Service.

Except as otherwise permitted herein, Customers and Users will not: (i) rent, lease, lend, assign, sublicense, transfer, distribute, sell or otherwise make available, the LoraxPro Solutions to any third party; (ii) use or permit the LoraxPro Solutions to be used as part of a service bureau, time-sharing, interactivecable system or otherwise, for the benefit of any third party, or (iii) reverse engineer, decompile, or disassemble the LoraxPro Solutions or permit any third party to do the same. Customer and its Users may not (a) remove, alter, or obscure any proprietary notices, labels, or marks from the LoraxPro Materials, or (b) modify, translate, adapt, arrange, or create derivative works based on the LoraxPro’s Materials for any purpose without LoraxPro’s prior written authorization.

2.0 REGISTRATION

In order to utilize the LoraxPro Solutions, Customer and/or User will be required to provide certain contact and account information as part of a registration process. Each of Customer and User (i) represents and warrants that all information submitted by it during the registration process is accurate and (ii) agrees to update this information to keep it accurate and complete during the term of this TOU. Customer and each User grants to LoraxPro the right to store on the Site personal contact information provided by Customer and such Users.

3.0 PAYMENT

The quote set forth in any LoraxPro Order Form may not include any taxes, which may apply to your purchase and which shall be the sole responsibility of the Customer. Any such taxes required to be collected by LoraxPro shall be added to the amount quoted and shall appear as a separate item when invoiced by LoraxPro. The right of LoraxPro to receive any payment will not be subject to any abatement, reduction, setoff, defense, counterclaim or recoup of any amount due or alleged to be due because of any past, present or future claims of Customer or any User. User agrees to pay LoraxPro all sales, VAT or similar tax imposed on the provision of the LoraxPro Solutions (but not in the nature of an income tax on LoraxPro), regardless of whether LoraxPro fails to collect the tax at the time the Solutions are provided.

4.0 USERS

LoraxPro is utilized on a project basis enabling Users to perform tasks pursuant to accomplishing a ‘green’ building project and/or for submittal to the US Green Building Council for LEED certification. LoraxPro is available to all members of a project team (ie "Users") for use on that specific project. LoraxPro maintains the right to restrict the number of Users who submit support requests, have access to the Site, or who otherwise have access to or use the LoraxPro Solutions.

Fees or other conditions may apply if you want to add Users beyond any current or future LoraxPro guidelines. You agree and acknowledge that all Users shall be bound by the applicable terms and conditions of this TOU. LoraxPro reserves the right, but shall have no obligation, to verify that Users have been authorized by you and to restrict access to the LoraxPro Solutions entitlements if, in its reasonable judgment, a User cannot be so verified.

5.0 ALL RIGHTS RESERVED

Except as expressly provided otherwise in this TOU, title, ownership, and all rights and interest including, without limitation, patents, copyrights, trademarks, trade secrets, and other intellectual property rights, in and to the LoraxPro Solutions remain with LoraxPro and its licensors, or to the respective trademark holder. LEED™ is a registered trademark of the US Green Building Council.

The structure, organization, and code of the LoraxPro Solutions, and all accompanying materials, are valuable trade secrets of LoraxPro, and Customer and/or User shall keep such trade secrets confidential. As previously stated in Section 1.0, Customers and Users may not copy, reverse engineer, decompile, or disassemble the LoraxPro Solutions or permit any third party to do the same. No logo, graphic, sound, content or image from the Site may be copied or re-transmitted unless expressly permitted by LoraxPro separately in writing. The LoraxPro Solutions are licensed on a project-basis and not sold.

6.0 ACCEPTABLE USE AND PRIVACY POLICY

Customer’s and Users’ use of the LoraxPro Solutions is also subject to compliance with LoraxPro’s Acceptable Use Policy and LoraxPro’s Privacy Policy, each of which is incorporated by reference into this TOU and is available for review on the LoraxPro Internet page (or any successor or replacement Internet page designated by LoraxPro) located on LoraxPro’s Internet site at www.LoraxPro.com.

7.0 RIGHT TO REMOVE OR DISABLE ACCESS

If LoraxPro is made aware of Content or Customer or User conduct that is, or that LoraxPro believes in good faith may be, (i) libelous, obscene, excessively violent, or defamatory, (ii) a violation of any law, regulation, or rights of a third party, including, but not limited to, rights under the copyright law and prohibitions on libel, slander, and invasion of privacy, or (iii) a violation of LoraxPro’s Acceptable Use Policy, LoraxPro has the right, but not the obligation, to immediately remove or disable access to that Content and/or terminate Customer’s and/or User’s ability to access the LoraxPro Solutions without notice to the Customer.

8.0 LICENSE BY CUSTOMER AND USERS

Customer shall ensure that it has the requisite rights to submit, post, reproduce, publish, distribute, or otherwise transmit all material, information and media submitted or uploaded by Customer or its Users on or through the Site, including without limitation building design information, PDF file(s), gbXML file(s) and/or other relevant information uploaded by Customer or its Users ("Content"). LoraxPro acknowledges that it does not own the Content that Customer or its Users submit to the Site in connection with the LoraxPro Solutions.

By submitting, posting, or otherwise making Content available to LoraxPro, or available to any individual or entity on or through the Site, each of Customer and each User hereby grants LoraxPro a non-exclusive, royalty free, paid up, worldwide, sub-licensable license to use, read, store, display, perform, reproduce, modify, transmit, distribute, add information to and otherwise create derivative works of the Content to enable LoraxPro (a) to perform services under this Agreement including, without limitation, LEED consulting and documentation services; (b) to qualify products and services of third party vendors for implementing the building design created by Customer or such User; (c) to share information content and/or content with third party entities individually or by category whom Customer or such User has authorized LoraxPro to share such information; (d) to use and disclose building statistics and analysis results in an aggregated form on an anonymous basis; and (e) to format, maintain, repair, protect, organize and otherwise administer the Site and LoraxPro Solutions and otherwise use such Content in the ordinary course of LoraxPro’s, or its designated third parties’, provision of the LoraxPro Solutions.

9.0 CONTENT: GENERAL

As between LoraxPro and Customer, Customer is solely responsible for all Content and all activities that occur on the Site under Customer’s User accounts, including, without limitation any comments, information, questions, data, plans, feedback, ideas, descriptions of processes, or other information submitted, posted, reproduced, published, distributed, or otherwise transmitted to LoraxPro by Customer or any User through the Site or LoraxPro Solutions. Customer may use the Site, the LoraxPro Materials, and the LoraxPro Solutions for lawful purposes only.

Customer is responsible for implementing sufficient procedures and checkpoints to satisfy Customer’s particular requirements for accuracy of data input and output. Customer acknowledges that: (i) Customer will evaluate and bear all risks associated with the use of any Content, including any reliance by Customer or its Users on the accuracy, completeness, or usefulness of such Content; and (ii) under no circumstances will LoraxPro be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damages or any kind incurred as a result of Customer’s or any User’s use, deletion, modification, or correction of any Content.

10.0 PROTECTION OF CONTENT

Customer shall maintain backup copies of the Content submitted to the Site. LoraxPro will make commercially reasonable efforts to assist Customers in the event of Content loss stemming from hardware malfunctions on LoraxPro servers or the servers of our service providers. LoraxPro makes no warranties or representations regarding its back-up practices, and does not warrant that it will be able to fully restore any lost or damaged Content or other data.

Customer acknowledges that no network security procedures can assure complete network security or prevent all unauthorized access to the Site and will immediately notify LoraxPro of any known security breaches affecting the Site, LoraxPro Solutions, or LoraxPro Materials.

11.0 CONFIDENTIALITY

11.1 Confidential Information: As used in this TOU, confidential information shall mean (a) any information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party") that is marked or designated as "confidential" or "proprietary" at the time of disclosure; (b) LoraxPro Solutions, (c) information related to access to the Site, including Customer’s registration information and account passwords, (d) information related to LoraxPro’s business or operations, product plans or product prices, and (e) the terms of this TOU (collectively "Confidential Information").

11.2 Limitations on Disclosure and Use of Confidential Information: Receiving Party shall exercise the same degree of care employed by such party to prevent the unauthorized disclosure of its own Confidential Information, but in no event employing less than reasonable care. Confidential Information disclosed under this TOU shall only be used by Receiving Party in the furtherance of this TOU or the performance of its obligations hereunder. Receiving Party may disclose Confidential Information pursuant to any statutory or regulatory authority or court order, provided Disclosing Party is given prompt prior written notice of such requirement and the scope of such disclosure is limited to the extent possible.

Notwithstanding the foregoing, nothing herein shall limit LoraxPro’s right to disclose its standard and other LoraxPro Confidential Information to third parties.

11.3 Exceptions: Confidential Information shall not include Confidential Information that from and after the date of disclosure: (i) is or becomes a matter of public knowledge through no fault of the Receiving Party; or (ii) was rightfully in the Receiving Party’s possession prior to receipt from the Disclosing Party free of any obligation of confidence, as shown by Recipient’s written records; or (iii) was rightfully disclosed to the Receiving Party by another person without restriction as to use or disclosure; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information as shown by Receiving Party’s written records.

11.4 Independent Development: Receiving Party reserves the right to independently develop and market any technology, products or services or pursue business opportunities that compete with or are similar to those disclosed by Disclosing Party under this TOU without the use of the Disclosing Party’s Confidential Information.

12.0 LORAXPRO LIMITED WARRANTY AND DISCLAIMER

12.1 (i) LoraxPro warrants to Customer that, as of the Effective Date and for a period of sixty (60) days thereafter, the Site will provide substantially the features and functions described in the online help documentation for the version of the Site purchased by Customer under normal use and circumstances. LoraxPro's entire liability and Customer’s exclusive remedy for breach of the warranty set forth in the preceding sentence is, at LoraxPro’s sole option, to attempt to correct or work around errors, or to refund the license fees actually paid by Customer and terminate this TOU. Customer must notify LoraxPro in writing via USPS Certified Mail of any claim under the warranty set forth in this Section 12.1(i) within thirty (30) days of occurrence of the event giving rise to such claim.

(ii) LoraxPro warrants to Customer that the Customer Support Services will be performed in a manner consistent with generally accepted industry standards and practices applicable to support services of a similar nature as the Customer Support Services. LoraxPro’s entire liability and Customer’s exclusive remedy for breach of the warranty set forth in the preceding sentence is for LoraxPro to use commercially reasonable efforts to correct or re-perform the non-conforming Customer Support Services in accordance with generally accepted industry standards and practices applicable to support services of a similar nature as the Customer Support Services. Customer must notify LoraxPro in writing via USPS Certified Mail of any claim under the warranty set forth in this Section 12.1(ii) within thirty (30) days of occurrence of the event giving rise to such claim.

12.2 DISCLAIMER OF WARRANTIES: EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN SECTION 12.1 HEREOF, THE SOFTWARE AND LORAXPRO SOLUTIONS ARE PROVIDED "AS IS" AND LORAXPRO AND ITS SUPPLIERS MAKE NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, INCLUDING, WITHOUT LIMITATION, (i) REGARDING THE USABILITY, SUITABILITY, CONDITION, OPERATION OR ACCURACY OF THE SOFTWARE OR THE LORAXPRO SOLUTIONS, OR (ii) THAT ACCESS TO OR USE OF THE CONTENT, SOFTWARE OR LORAXPRO SOLUTIONS WILL BE AVAILABLE, TIMELY, UNINTERRUPTED, OR ERROR-FREE, (iii) THAT THE LORAXPRO SOLUTIONS WILL DELIVER CUSTOMER’S DESIRED RESULTS OR MEET CUSTOMER REQUIREMENTS OR EXPECTATIONS, OR (iv) THAT THE CONTENT, LORAXPRO SOLUTIONS AND SOFTWARE WILL BE FREE OF VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE THAT MANIFESTS CONTAMINATING OR DESTRUCTIVE PROPERTIES. EXCEPT FOR THE EXPRESS LIMITED WARRANTIES SET FORTH IN SECTION 12.1, LORAXPRO AND ITS SUPPLIERS SPECIFICALLY DISCLAIM ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY. CUSTOMERS' AND USERS’ USE OF THE LORAXPRO SOLUTIONS AND CONTENT IS AT ITS OWN RISK, AND CUSTOMER ASSUMES FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM USE OF OR INABILITY TO USE THE CONTENT, SOFTWARE, OR LORAXPRO SOLUTIONS.

12.3 GENERAL DISCLAIMER: LORAXPRO SOLUTIONS ARE INTENDED TO BE USED BY TRAINED PROFESSIONALS ONLY AND ARE NOT SUBSTITUTES FOR PROFESSIONAL JUDGMENT, INDEPENDENT TESTING, BUILDING DESIGNS, OR CONSTRUCTION TECHNIQUES. LORAXPRO SOLUTIONS ARE INTENDED TO ASSIST WITH GREEN BUILDING PROJECTS AND WITH PROJECT-BASED US GREEN BUILDING COUNCIL LEED™ DOCUMENTATION AND CERTIFICATION. LORAXPRO IS NOT A SUBSTITUTE FOR INDEPENDENT ANALYSIS, ESTIMATION, OR TESTING OF DESIGNS, BUILDING PRODUCTS, OR ANY OTHER ASPECT OF A GREEN BUILDING PROJECT. LORAXPRO SHALL NOT BE LIABLE IN ANY MANNER WHATSOEVER FOR THE RESULTS OBTAINED THROUGH THE USE OF THE LORAXPRO SOLUTIONS OR FROM ANY THIRD-PARTY RESOURCE USED IN CONJUNCTION WITH LORAXPRO. PERSONS USING THE LORAXPRO SOLUTIONS ARE RESPONSIBLE FOR THE SUPERVISION, MANAGEMENT, AND CONTROL OF THEIR USE. THIS RESPONSIBILITY INCLUDES, BUT IS NOT LIMITED TO, THE DETERMINATION OF APPROPRIATE USES FOR THE LORAXPRO SOLUTIONS AND THE SELECTION OF OTHER PROGRAMS AND SERVICES TO ACHIEVE INTENDED RESULTS. PERSONS USING THE LORAXPRO SOLUTIONS ARE ALSO RESPONSIBLE FOR ESTABLISHING THE ADEQUACY OF INDEPENDENT PROCEDURES FOR TESTING THE RELIABILITY AND ACCURACY OF ANY OUTPUT, INCLUDING ANY RESULTS PROVIDED.

13.0 LIMITATION OF LIABILITY

LORAXPRO’S, AND ITS SUPPLIERS’, ENTIRE CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS TOU, THE LORAXPRO SOLUTIONS, THE SOFTWARE, AND THE CONTENT SHALL NOT EXCEED, IN THE AGGREGATE, THE TOTAL OF THE GREATER OF $5,000 USD OR THE CUSTOMER’S SINGLE PROJECT LICENSE FEE PAYMENTS FOR THAT SPECIFIC PROJECT.

IN ADDITION, IN NO EVENT SHALL LORAXPRO OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES, LOSS OF PROFITS, REVENUE OR DATA, OR COST OF COVER ARISING OUT OF OR IN CONNECTION WITH THIS TOU, THE LORAXPRO SOLUTIONS, THE SOFTWARE OR THE CONTENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LIMITATIONS OF LIABILITY IN THIS SECTION 13.0 SHALL APPLY TO ALL DAMAGES, CLAIMS AND LOSSES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER DERIVED FROM CONTRACT (INCLUDING, BUT NOT LIMITED TO, WARRANTY OR INDEMNIFICATION CLAIMS), TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR OTHERWISE, EVEN IF LORAXPRO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF WHETHER THE LIMITED REMEDIES AVAILABLE HERE UNDER FAIL OF THEIR ESSENTIAL PURPOSE.

14.0 TERM, SUSPENSION, AND TERMINATION

The effective date ("Effective Date") of the initial term ("Initial Term") of your subscription will be the date specified on your LoraxPro Order Form and, unless otherwise specified on such Order Form, will continue until the Project has received final USGBC LEED Certification or until this TOU is canceled by the Customer.

14.1 License Fee: This TOU shall commence immediately upon receipt of a Customer’s license payment. Renewal terms (each, a "Renewal Term") shall commence on the one (1) month anniversary of the Effective Date and, unless otherwise specified on your LoraxPro Order Form, will continue on a month-to-month basis from the Effective Date immediately following the end of the Initial Term until the Project has received final USGBC LEED Certification or until this TOU is canceled by the Customer subject to the Customer remaining current with license payments. The Initial Term and any Renewal Term(s) (if any) of your subscription are collectively referred to as the "Term".

This TOU takes effect on the Effective Date, and shall continue during the Term of your subscription, or, if earlier, the date on which your subscription is terminated in accordance with the terms set forth herein.

The Customer may terminate ("Customer Termination") this TOU at any time by providing electronic or written notice to LoraxPro. Upon Customer Termination, the Customer will have the right to use LoraxPro through the remainder of the Initial Term or Renewal Term paid for at the time of termination notice. LoraxPro is not obligated to pro-rate or refund any unused portion of the Initial Term or Renewal Term at the time of Customer Termination notice.

Each of LoraxPro and you may immediately terminate your subscription if either party fails to perform its obligations under these terms and conditions and such failure continues for thirty (30) days after written notice by the non-defaulting party.

LoraxPro may suspend or terminate a Customer’s subscription if the Customer fails to pay LoraxPro (or an authorized reseller as the case may be) for a subscription or renewal in accordance with these terms. LoraxPro may terminate your subscription at any time for convenience, in which case LoraxPro shall refund that proportion of the subscription fee you paid which equals the unexpired portion of the then current Term.

For free or evaluation subscriptions to the LoraxPro Solutions, LoraxPro may suspend or terminate a Customer’s subscription and/or Customer’s and Users’ access to the LoraxPro Solutions in its sole discretion at any time without notice. LoraxPro may terminate your license to LoraxPro Solutions, without penalty or further obligation, for any reason upon sixty (60) days prior written notice to Customer.

Should LoraxPro elect termination for any reason other than Customer’s default, Customer shall only be liable for a pro rata payment for those LoraxPro Solutions delivered to Customer prior to the effective date of termination. Termination is in addition to all other legal or equitable remedies available to LoraxPro. Sections 3, 5,8, 9, 11, 12.2, 13, 14, 16, 17 and 18.4 shall survive any termination.

15.0 EFFECT OF TERMINATION

Upon termination of this TOU for any reason, Customer shall maintain the right to access the LoraxPro Solutions to retrieve any project data, but not to use LoraxPro Solutions for any other use. Upon termination, Customer and all of Customer’s Users will delete all LoraxPro Materials made available by LoraxPro to Customer or its Users under this TOU, except for any completed LEED Certification documents and/or Templates previously generated. Customer may keep back-up copies of such materials for future LEED submissions pertaining to this specific Project. Upon termination of the TOU, all of Customer’s and each User’s rights hereunder shall cease.

16.0 INDEMNITY

Customer agrees to indemnify, defend and hold harmless LoraxPro and its officers, directors, owners, agents, employees and suppliers (collectively, the "LoraxPro Indemnified Parties") from all damages, losses, liability, costs and expenses (including, without limitation, reasonable attorneys’ fees) incurred by the LoraxPro Indemnified Parties in connection with any third party claim against a LoraxPro Indemnified Party arising out of or related to any claim that the Content or Customer’s or Users’ use of the LoraxPro Solutions violates any applicable law, rule, regulation or the rights of any third party.

LoraxPro shall promptly notify Customer of any such claim and shall cooperate, at Customer’s expense, as reasonably required by Customer in the defense of any claim. Customer shall have the right to conduct the defense of any such claim, provided, however, that LoraxPro shall have the right, at its own expense, to participate in the defense of any matter subject to indemnification hereunder, and Customer shall not settle any such claim without the consent of LoraxPro. LoraxPro reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Customer hereunder.

17.0 ENTIRE AGREEMENT

This document (including the documents incorporated by reference herein) contains the entire agreement and understanding between Customer or User and LoraxPro concerning the subject matter of this TOU, and supersedes all other prior or contemporaneous communications, representations, advertising, discussions, negotiations, proposed agreements and all other agreements, whether written or oral, for the LoraxPro Solutions. LoraxPro has not made and Customer has not relied upon any representations not expressly set forth in this document in making this TOU.

The TOU may be modified only by a written agreement duly executed by authorized signatories for each party. LoraxPro may update or modify the terms of the Acceptable Use Policy, Privacy Policy, or its support policies at any time with or without notice, effective upon posting the updated version thereof on the LoraxPro Internet page (or any successor or replacement Web page designated by LoraxPro) located on LoraxPro’s Website at www.LoraxPro.com. Customer and Users are responsible for regularly reviewing such updates.

If Customer or User does not accept a modification by LoraxPro to its policies, Customer must notify LoraxPro of its termination of its license to the LoraxPro Solutions within thirty (30) days in writing via USPS Certified Mail, and Customer or User must immediately discontinue accessing and using the LoraxPro Solutions. If Customer or User continues to use the LoraxPro Solutions, Customer and User will be deemed to have accepted the modifications.

18.0 GENERAL PROVISIONS

18.1. Waiver/Severability

No term or provision hereof will be considered waived, and no breach excused, unless such waiver is in writing signed on behalf of the party against whom the waiver is asserted. No waiver (whether express or implied) will constitute a consent to, waiver of or excuse of any other, different or subsequent breach. If and to the extent any provision of this TOU is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof shall be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and shall 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 shall not in any way affect the legality, validity, or enforceability of any other provision of this TOU in any other jurisdiction.

18.2. Force Majeure

Except for the failure to make payments, neither party will be liable for any loss, damage or penalty resulting from delays or failures in performance resulting from acts of God, war, terrorism or terrorist act, civil unrest, strikes, lockouts or other labor disturbances, failure or interruption of a third party internet connection(s) or infrastructure, supplier delay or other causes beyond the non-performing party’s reasonable control and not caused by the negligence of the non-performing party, provided that the non-performing party promptly notifies the other party of the delay and the cause thereof and promptly resumes performance as soon as it is reasonably possible to do so.

18.3. Independent Contractor

In performing their respective duties under this TOU, each of the parties will be operating as an independent contractor. Nothing contained herein will in any way constitute any association, partnership, or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither of the parties will hold itself out in any manner that would be contrary to the provisions of this Section 18.3.

18.4. Governing Law, Jurisdiction, and Venue

The LoraxPro Solutions are controlled by LoraxPro, LLC and third party vendors from within the state of Maryland, United States of America. By accessing or using the LoraxPro Solutions, Customer agrees that the statutes and laws of the State of Maryland, without regard to the conflicts of laws principles thereof, shall govern all matters relating to Customer’s access to, or use of, the LoraxPro Solutions. Customer and LoraxPro specifically disclaim the U.N. Convention on Contracts for the International Sale of Goods. No choice of law rules of any jurisdiction apply.

The parties hereby submit to the exclusive personal jurisdiction of and venue in the Superior Court of the State of Maryland, County of Howard or County of Baltimore, and the United States District Court for the Fourth Circuit in Washington, DC in respect to all claims arising out of or related to the LoraxPro Solutions and the TOU. The TOU is void where prohibited by law, and the right to access the LoraxPro Solutions is hereby revoked in such jurisdictions.

18.5. Export

In conformity with laws and regulations of the United States and other countries relating to international trade, Customer and its employees, agents and Users shall not disclose, export or re-export, directly or indirectly, any product, documentation or technical data (or direct products thereof) provided under this TOU, or use the LoraxPro Solutions to disclose, export or re-export any Content to any country, entity or other party which is ineligible to receive such items under U.S. laws and regulations as modified from time to time by the U.S. Department of Commerce or the U.S. Department of the Treasury or under other laws or regulations to which Customer may be subject. Customer shall be solely responsible for (i) complying with those laws and regulations and (ii) monitoring any modifications to them.

LoraxPro makes no representation that LoraxPro Solutions or Content are appropriate or available for use in locations outside the United States, and accessing them from territories where the contents are illegal is prohibited. Those who choose to access the LoraxPro Solutions or Content from other locations do so at their own initiative and risk, and are responsible for compliance with all local laws.

18.6. Notices

Notices to LoraxPro under the TOU shall be sufficient only if in writing and transmitted via personal delivery or delivered by a major commercial rapid delivery courier service or by certified or registered mail, return receipt requested, to:

LoraxPro
Attention: Legal Department
8601 Robert Fulton Drive
Columbia, MD 21046

Neither party may make any public statement, press release, or other public announcement relating to the terms of or existence of the TOU or any relationship between the parties, without the prior written approval of the other party, except as required bylaw; provided, however, that LoraxPro may identify Customer as a customer on any LoraxPro customer list published orally, in print, or electronically. The TOU is in the English language only, which language shall be controlling in all respects, and all versions hereof, in any other language, shall not be binding on the parties hereto. All communications and notices to be made or given pursuant to the TOU shall be in the English language only.

18.7. Links

LoraxPro Solutions contains links to third-party Internet sites that are not under the control of LoraxPro. When Customer accesses a non-LoraxPro Internet site, Customer does so at Customer’s own initiative and risk, and LoraxPro is not responsible for the accuracy or reliability of any information, data, opinions, advice, or statements made on these sites; or for the quality of any products or services available on such sites; or for any damage or loss caused or alleged to be caused through or in connection with use of or reliance on the content, goods, or services available on or through any such link, site, or resource.

18.8. Assignment

Customer agrees that its rights and obligations under this TOU may not be transferred or assigned and its duties may not be delegated directly or indirectly without the prior written consent of LoraxPro in its sole discretion. LoraxPro may assign or otherwise transfer its rights and obligations to successors-in-interest (whether by purchase of stock or assets, merger, operation of law, or otherwise) of that portion of its business related to the subject matter hereof. Any attempted assignment in violation of this Section 18.8 shall be a material breach of this TOU and shall be void. Subject to the restrictions set forth in this Section 18.8, all of the terms and conditions of this TOU shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and permitted assigns of the parties hereto.

19.0 Special Terms For Google Maps

Customer’s and Users’ use of the LoraxPro Solutions is further subject to Google, Inc.’s Terms of Service for Google Maps / Google Earth set forth at the following URL:

http://code.google.com/apis/maps/terms.html



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