Logicbroker Terms and Conditions
IMPORTANT - READ CAREFULLY: These Terms and Conditions (these “Term and Conditions”) is a legal agreement between you (either an individual or a single entity, the “Client”) and LOGICBROKER, INC., a Delaware corporation (“Logicbroker”) with respect to the software-as-a-service (SaaS) solutions of Logicbroker (each a “Solution”) associated with this Microsoft Azure Marketplace (the “Azure Marketplace”) app listing (the “App”) and is in addition to, and not in lieu of, a written Subscription Agreement between Client and Logicbroker regarding one or more Solutions (as amended and in effect, the “Subscription Agreement”, and collectively with these Terms and Conditions, the “Agreement”), the terms and conditions of which are hereby incorporated by reference thereto.  To the extent there exists any ambiguity or conflict between these Term and Conditions and the Subscription Agreement, the Subscription Agreement shall control.  In order to use any Solution, a Subscription Agreement must be in effect.  
BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE APP, CLIENT IS HEREBY ACCEPTING AND AGREEING TO BE BOUND BY ALL OF THESE TERMS AND CONDITIONS.  LOGICBROKER MAY, IN ITS SOLE DISCRETION AND AT INTERVALS OF ITS SOLE CHOOSING, MODIFY THE APP, ANY SOLUTION AND/OR THESE TERMS AND CONDITIONS AT ANY TIME AND WITHOUT PRIOR NOTICE.  IT IS CLIENT’S RESPONSIBILITY TO MONITOR SUCH CHANGES.  

By downloading, installing or otherwise using the App, the Client grants Microsoft permission to share Client’s supplied contact information with Logicbroker so that Logicbroker can contact Client regarding the Solutions. The shared information will be handled in accordance with the Agreement.

Definitions of certain capitalized terms used in these Terms and Conditions, and not otherwise defined, are set forth in Schedule I.
1.0	SUBSCRIPTION(S)
Pursuant to the Subscription Agreement, Logicbroker shall provide subscriptions to, and Client shall subscribe to, certain Solution(s) as set forth in the Subscription Agreement (each a “Subscription”), and such other services, including support services, as set forth and described in the Subscription Agreement (the “Services”).  The Subscription Agreement shall set forth the fees, payment terms, term, and termination rights of each Subscription and the Services.
2.0	GENERAL TERMS & CONDITIONS
2.1.	License
Logicbroker hereby grants to Client a non-exclusive, non-sublicensable, non-transferable, limited right and license to utilize, and permit its employees, officers and directors to use the App, strictly in accordance with these Terms and Conditions and solely in connection with the Subscriptions. 
2.2.	Client’s Use of Services in Compliance with Law and Third-Party Agreements
As between the parties, Client shall be solely responsible for review and performance of all agreements, licenses and terms and conditions governing Client’s use and access to third party systems. Client shall ensure that (a) the purpose, content and execution of each document transmitted or processed through the App complies with all applicable laws and regulations governing the subject matter of each document, and (b) such transmission does not violate any applicable law, regulation or third party right.  
 
2.3.	Logins
Logicbroker will provide Client with one or more user ID’s, initial passwords and/or other devices for Client’s designated system administrators to access and use the App. Client shall keep, and it shall be Client’s sole responsibility to keep, all user IDs, passwords and other means of access to the App and Logicbroker systems within the possession or control of Client’s administrators, employees and/or other users confidential and secure from unauthorized use. 
2.4.	Ownership of Solutions
As between the parties, Logicbroker owns and shall retain all right, title, and interest in and to the Solutions and the APP, including without limitation all related applications, portal and other user interfaces, designs, processes, software and source code, and any and all future enhancements or modifications thereto howsoever made, and all intellectual property rights therein (collectively, “Logicbroker Technology”).  Client shall not redistribute for commercial purposes, reverse engineer, disassemble, transfer or use Logicbroker Technology in any manner inconsistent with the terms of the Agreement.  Client shall not use or assist or permit any third party to use Logicbroker Technology to create, develop, market or sell any derivative work or product or service competitive with or performing similar functions to any of the Solutions.  Client shall not remove from any Logicbroker Technology any Logicbroker or third party trademarks, copyright or other proprietary notices. 
2.5.	Confidentiality
A.	Each receiving party shall use Confidential Information of the disclosing party solely in furtherance of the performance of the Agreement and for no other purpose.  Each party shall use the same degree of care to protect the other party’s Confidential Information as it uses to protect its own Confidential Information of like nature, but in no circumstances with less than reasonable care. Each party agrees not to disclose the other party’s Confidential Information to any person or entity other than: (i) to employees, agents, subcontractors or consultants of the receiving party on an as-needed basis, provided that such persons have entered into written confidentiality agreements consistent with this Section 2.5 or are otherwise bound under substantially similar confidentiality restrictions; (ii) with respect to Client’s Confidential Information, as authorized by Client; (iii) to the extent required by court order, legal process, governmental or exchange regulation or applicable law, provided that the party required to disclose the Confidential Information of the other party provides prompt advance written notice thereof (to the extent permitted by law) to such other party; or (iv) as otherwise expressly authorized in writing by the disclosing party. Notwithstanding any provision hereof to the contrary, Logicbroker may use and disclose anonymous, aggregated data and statistics regarding use of the Solutions and/or the App. 
B.	Each party acknowledges and agrees that the use or disclosure of Confidential Information inconsistent with the Agreement could cause irreparable harm to a disclosing party, the extent of which would be difficult to ascertain.  Accordingly, each party agrees that, in addition to any remedies available at law, any non-breaching party shall have the right to obtain immediate injunctive relief, without the necessity of posting a bond, in the event of a breach or threatened breach of this Section 2.5 by the other party or any of its Affiliates, or any of their respective representatives, officers, directors, managers, employees, agents, subcontractors or consultants.  This Section 2.5 shall survive termination or expiration of the Agreement. 
2.6.	Warranties
THE APP IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTY OF ANY KIND.  LOGICBROKER MAKES NO WARRANTY THE APP WILL BE ERROR FREE OR AVAILABLE AT ALL TIMES, NOR DOES LOGICBROKER WARRANT THE COMPATIBILITY OR OPERATION OF THE APP WITH ALL CLIENT OR THIRD PARTY SYSTEMS, HARDWARE OR SOFTWARE CONFIGURATIONSLOGICBROKER MAKES AND CLIENT RECEIVES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING OR RELATING TO THE SUBJECT MATTER HEREOF. LOGICBROKER DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT WITH RESPECT TO THE SUBJECT MATTER HEREOF. CLIENT HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY WARRANTY, CONDITION, GUARANTY OR REPRESENTATION BY LOGICBROKER OTHER THAN THOSE CONTAINED IN THE AGREEMENT. 
2.7.	Limitation of Liability
EXCEPT FOR CLAIMS FOR (I) PERSONAL INJURY DUE TO NEGLIGENCE, (II) WRONGFUL DEATH, (III) WILLFUL MISCONDUCT OR (IV) FRAUD, IN NO EVENT SHALL LOGICBROKER BE LIABLE TO CLIENT FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF DATA, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH THE APP, THE SOLUTIONS, OR ANY SERVICES PROVIDED TO CLIENT OR ANY AGREEMENT BETWEEN THE PARTIES RELATING THERETO (WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR ANY OTHER LEGAL THEORY), EVEN IF LOGICBROKER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT FOR CLAIMS FOR (I) PERSONAL INJURY DUE TO NEGLIGENCE, (II) WRONGFUL DEATH, (III) WILLFUL MISCONDUCT, OR (IV) FRAUD, THE ENTIRE LIABILITY OF LOGICBROKER TO CLIENT IN CONNECTION WITH SOLUTIONS AND SERVICES PROVIDED TO CLIENT AND ANY AGREEMENT BETWEEN THE PARTIES RELATING THERETO, INCUDING WITHOUT LIMITATION THESE TERMS AND CONDITIONS AND THE SUBSCRIPTION AGREEMENT, (WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR ANY OTHER LEGAL THEORY) SHALL NOT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNT OF FEES PAID OR BECOMING DUE UNDER THE AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH CLAIM(S). THIS SECTION 2.7 SHALL SURVIVE TERMINATION OR EXPIRATION OF THE AGREEMENT. 
2.8.	Miscellaneous
A.	Notices.  Except as otherwise expressly provided, all notices, requests, demands or consents under these Terms and Conditions must be in writing, and be delivered personally, by certified mail (return receipt requested), or by internationally recognized courier service to the addresses of the parties set forth in the App.  Except as otherwise specified herein, all notices and other communications shall be deemed to have been duly given on the date of receipt. Each party may change such party's address for purposes hereof by notice to the other party pursuant to the notice provisions of this Section 2.8.A.
B.	Independent Contractors; No Third Party Beneficiaries.  The parties are independent contractors with respect to each other, and neither shall be deemed an employee, agent, partner or legal representative of the other for any purpose or shall have any authority to create any obligation on behalf of the other. No third-party beneficiary rights are granted as a result of or pursuant to the Agreement.
C.	Force Majeure.  Any delay in or failure of performance by either party under the Agreement will not be considered a breach and will be excused to the extent caused by any event beyond the reasonable control of such party including, but not limited to, acts of God, acts of civil or military authorities, strikes or other labor disputes, fires, interruptions in telecommunications or Internet or network provider services, problems due to other party’s owned equipment, power outages, and governmental restrictions.  Further, Logicbroker’s non-performance of its obligations under the Agreement (including delays in performance) shall be excused if and to the extent that such non-performance directly results from (a) the Client’s failure to perform its obligations under the Agreement or (b) the Client’s willful misconduct.
D.	Entire Agreement; Severability.  The Agreement supersedes all prior agreements, understandings, representations, warranties, proposals, requests for proposal and negotiations, if any, related to the subject matter hereof.  Each provision of the Agreement is severable from each other provision for the purpose of determining the enforceability of any specific provision. 
 
E.	Assignment.  Except as otherwise provided below, Client may not assign the Agreement or any rights or obligations hereunder without the prior written consent of Logicbroker.  Any purported assignment of the Agreement in violation of this subsection shall be invalid.  The Agreement shall be binding upon and inure to the benefit of the parties, their respective successors and permitted assigns.
F.	Governing law; Jurisdiction.  The Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut, without giving effect to any conflict of laws principles that would require the applicable of laws of any other jurisdiction.  The parties agree the United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.  The Uniform Computer Information Transactions Act or any version thereof, adopted by any state in any form (“UCITA”), shall not apply to the Agreement and, to the extent that UCITA is applicable, the parties agree to opt-out of the applicability of UCITA pursuant to the opt-out provision(s) contained therein. The parties agree to submit to the jurisdiction of the state and federal courts located in New Haven County, Connecticut, for the adjudication of any case or controversy arising under the Agreement, and the parties hereby waive their right to a trial by jury in any such litigation.
G.	Rules of Usage.  In these Terms and Conditions, unless a clear intention appears otherwise:  (a) the singular number includes the plural number and vice versa; (b) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by these Terms and Conditions, and reference to a person in a particular capacity excludes such person in any other capacity or individually; (c) reference to any gender includes each other gender; (d) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof; (e) reference to any law means such law as amended, modified, codified, replaced or re-enacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder; (f) “hereunder”, “hereof”, “hereto” and words of similar import shall be deemed references to these Terms and Conditions as a whole and not to any particular section or other provision hereof; (g) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term; (h) “or” is used in the inclusive sense of “and/or”; (i) with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding”; (j) references to documents, instruments or agreements shall be deemed to refer as well to all addenda, exhibits, schedules or amendments thereto; (k) references to “person” or “persons” means an individual, corporation, limited liability company, partnership, trust, joint venture or other legal entity; (l) article and section headings herein are for convenience only and shall not affect the construction hereof; (m) section references shall be deemed to refer to all subsections thereof, unless otherwise expressly indicated; and (n) “derivatives” or “derivative works” of any intellectual property means any revision, modification, translation, expansion, recasting, transformation, porting adaptation, or other altered version of such Intellectual Property, as well as any derivative work of such intellectual property within the meaning of 17 U.S.C. Section 101 of the United States Copyright Act.

 
Schedule I
Definitions

“Affiliate” means, with respect to any specified person, any other person who or which, directly or indirectly, controls, is controlled by or is under common control with such specified person, including, without limitation, any partner, officer, director, managing member or employee of such person.  As used in this definition, “control” (including the terms “controlled by” and “under common control with”) means possession, directly or indirectly, through one (1) or more intermediaries, of the power to direct or cause the direction of management and policies of a person, whether through ownership of voting securities, by contract, or otherwise.
“Client Data” means data and documents of Client uploaded to or transmitted through the subscribed Solution(s).
“Confidential Information” means any and all information disclosed by or at the direction of either party to the other in connection with the provision or use of the subscribed Solution(s) under the Agreement, including, without limitation, information relating to the business, operations, technology, properties, employees and customers of the disclosing party.  Without limiting the foregoing, and whether or not marked confidential or proprietary, (a) all Client Data shall be treated as Client’s Confidential Information; and (b) the structures and architecture of the Solutions, the methodologies of Services and Solutions, pricing of Services and Solutions, personnel, plans and strategies of Logicbroker and the source code and object code of the Solutions shall be treated as Logicbroker’s Confidential Information. Notwithstanding the foregoing, “Confidential Information” shall not include any information that a receiving party can demonstrate (i) was known to it prior to such information’s disclosure in connection with provision or use of the subscribed Solution(s); (ii) is or becomes known publicly through no wrongful act of the receiving party; (iii) was rightfully received from a third party under no contractual, legal or fiduciary obligation to keep such information confidential; or (iv) was independently developed by the receiving party, without the use of any Confidential Information of disclosing party.