2. Limited License. After accepting these Terms, You will be granted, during the “Term” (as defined below) a limited, personal, non-exclusive, non-transferable, non-sublicensable, and revocable license to Use the Product, in machine-readable, object code form only, and in accordance with these Terms.
3. User Name and Password. In order to Use the Product, You may be required to create a user name and password and/or an account. Your account and user name and password are for You only, and shall not be shared with or used by any third party. You are solely responsible for, and 247 Super, LLC (“247 Super,” “We,” “Us,” or “Our”) shall not be responsible for: (i) safeguarding and maintaining the confidentiality of Your user name and password; (ii) preventing the unauthorized access to or use of the Product through Your account or the use of Your user name and password; or (iii) any access to or use of the Product through Your account or the use of Your user name and password, whether by You or otherwise. You shall promptly notify Us of any unauthorized access to or use of the Product of which You become aware, any loss, theft, or unauthorized use of Your user name and password, or any unauthorized access to Your account.
4.1. The Product. The Product, all documentation provided by 247 Super in connection with the Product (the “Documentation”), along with all property, rights, titles, and interests in and to the Product and the Documentation, including, without limitation, patents, patentable subject matter, copyrights, software code (including, without limitation, object code and source code), moral rights, trademark rights, service mark rights, trade secrets, goodwill, and any other proprietary rights (collectively, the “Rights”), are and shall remain the sole property of 247 Super or its licensors (as applicable). Other than the license provided for in Section 2 above, You do not and shall not obtain any interest in or to the Product, the Documentation, or the Rights.
4.2. User Information. You may provide certain information and data in connection with Your Use of the Product (collectively, “User Information”). All User Information shall be truthful, accurate, complete, and not misleading. You hereby grant to Us: (a) a royalty-free, worldwide, transferable, sub-licensable, perpetual, and irrevocable right and license to use User Information in connection with Our provision of the Product; and (b) to de-identify and aggregate User Information (collectively “Data”) for use in connection with Our business.
4.3. Data. 247 Super shall own all Data and all rights, titles, and interests in and to the Data. If 247 Super does not automatically own the Data by virtue of these Terms, You hereby assign to Us any and all rights You have in and to the Data. You represent and warrant that You have all rights necessary to provide the User Information You provide and grant the licenses and assignments provided for in these Terms.
4.4. Suggestions. You grant to Us a royalty-free, worldwide, transferable, sub-licensable, irrevocable, and perpetual right and license to incorporate into the Product or use in connection with Our business any suggestions, enhancements, requests, recommendations, testimonials, comments, reviews, or other feedback (collectively, “Suggestions”) You provide in connection with Your Use of the Product. You represent and warrant that You have all rights necessary to provide the Suggestions You provide and grant the licenses and assignments provided for in these Terms.
4.5. Marks. All of Our trademarks, service marks, logos, and product names (the “Marks”) are owned by Us. You shall not display or use the Marks in any manner without first obtaining Our written consent.
5. Prohibited Activities. You shall not: (a) violate any applicable local, state, national, or international law or rule, or any right of any third party (contractual, legal, or otherwise), when fulfilling Your obligations under these Terms or in connection with Your Use of the Product; (b) provide any content or information that is false, misleading, unlawful, or harmful to 247 Super or any third party when fulfilling Your obligations under these Terms or in connection with Your Use of the Product; (c) disassemble, decompile, reverse assemble, reverse engineer, reverse compile, modify, adapt, translate, copy, distribute, or create derivative works from the Product or the Documentation; (d) Use the Product or the Documentation to compete with 247 Super; (e) Use the Product other than through Your account and/or user name and password; (f) use or knowingly permit the use of any security testing tools in order to probe, scan, or attempt to penetrate or ascertain the security of the Product; (g) remove any copyright, trademark, or other proprietary notices or labels on or in the Product or the Documentation; or (h) authorize, direct, encourage, or facilitate any third party to undertake any of the foregoing prohibited activities.
6. Policy for Children. The Product is intended for general audiences, but is not intended for or directed to children less than thirteen (13) years of age. Children under thirteen (13) are not permitted to Use the Product. If You become aware that a child under thirteen (13) years of age has provided Us with personal information, You shall promptly notify Us in writing with reasonable specificity for Us to identify the same.
7. Termination. The “Term” of these Terms shall commence upon Your acceptance of these Terms and shall continue until terminated by either You or Us. You may terminate these Terms by discontinuing Your Use of the Product and uninstalling and completely removing the Product from any of Your devices upon which it is installed. We may terminate these Terms and Your Use of the Product at any time and for any reason, including, without limitation, for a violation or breach of these Terms by You, for Your creation of a risk or possible legal exposure for Us, or in the event that Our provision of the Product is no longer commercially viable. If We terminate these Terms and Your Use of the Product, we will endeavor to notify You by email within a reasonable time after such termination, but We are under no obligation to make such a notification. At the conclusion of the Term, You shall promptly uninstall and completely remove the Product from any of Your devices upon which it is installed.
8. Transfer Device. If You sell or otherwise transfer to a third party a device upon which the Product is installed, You shall uninstall and completely remove the Product from such device before doing so.
9. Upgrades; Modifications; Improvements. We may make upgrades, modifications, and improvements to the Product at any time without prior notice to You. These Terms entitle You to, during the Term, any such upgrade, modification, or improvement to the Product. Should You disapprove of such upgrades, modifications, or improvements to the Product, Your sole recourse is to terminate these Terms and Your Use of the Product.
10. Monitoring. We may, for internal business purposes and for purposes of determining Your compliance with these Terms, at Our sole discretion, monitor and review Your Use of the Product, including, without limitation, Your provision of User Information; however, We are under no obligation to do so.
11. Security Policy. We will take normal and reasonable steps, in accordance with industry standards, to maintain the security of the User Information, including, without limitation, providing restrictions against the unauthorized access to and use of User accounts, providing firewalls to prevent unauthorized access to user accounts and User Information, making backup copies of User Information, providing backup servers, restricting access to the 247 Super server area, along with other reasonable and normal steps. Please note that We may engage third parties to perform security measures in Our place. You acknowledge and agree that the above-mentioned security measures are in place to protect the loss, misuse, and alteration of User Information, and that these security measures, including the engagement of third parties, are both reasonable and in accordance with industry standards. However, We do not guarantee the security or maintenance of user accounts or User Information.
12. Notice. Any notice to 247 Super which may be permitted or required under these Terms shall be sent to:
247 Super, LLC
974 Breckenridge Lane
Louisville, KY 40207
13. Disclaimer. The Product and the Documentation are provided on an “AS IS” and “AS AVALABLE” basis. 247 Super makes no, and specifically disclaims all, representations, warranties, and conditions, express or implied, of any kind or nature, for or related to the Product and the Documentation, including, without limitation: (a) warranties of merchantability, fitness for a particular purpose, satisfactory quality, title, and non-infringement; (b) warranties arising from usage in trade or by course of dealing; (c) warranties that the Product or the Documentation will meet Your requirements or expectations, will be uninterrupted, timely, secure, OR error-free, OR will be accompanied by accurate and reliable information; OR (d) warranties that User Information will be kept secure.
14. Limitation of Liability. OUR cumulative liability to You or any other party for any loss or damages resulting from any claims, demands, or actions arising out of or relating to these terms, the product or the Documentation, or your use of the product or the Documentation shall not exceed the fees and expenses paid by you to 247 Super for the use of the product during the twelve (12) months prior to the claim. IN NO EVENT SHALL 247 SUPER BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, EVEN IF 247 SUPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitations of liability for incidental or consequential damages, so the exclusions and limitations set forth above may not apply to you.
15. Indemnification. You shall defend, indemnify, and hold harmless 247 Super, and its directors, officers, members, employees, and agents from and against any claims, actions, suits, losses, damages, fines, liabilities, judgments, costs, and expenses (including attorneys’ fees and court costs) (each a “Claim”) arising from or relating to: (a) any breach by You of any provision of these Terms; (b) Your Use of the Product or the Documentation; or (c) any property maintenance work performed by or for You.
16. Indemnification Procedures. In the event of a potential indemnity obligation under these Terms, You shall: (i) promptly notify Us in writing of any Claim; (ii) assume control of the defense and settlement of any Claim subject to indemnification by You under these Terms; provided, however, We may, at our sole discretion and at our sole option, at any time, elect to take over control of the defense and settlement of any such Claim; (iii) obtain Our prior written consent before settling any Claim subject to indemnification by You under these Terms; and (iv) upon Our reasonable request, cooperate in all reasonable respects with Us in the investigation, trial, defense, appeal, and settlement of any Claim subject to indemnification by You under these Terms, in the event We elect to take control over it or them. The indemnification obligations contained under these Terms shall survive the expiration or termination of these Terms.
17. Governing Law and Forum. This Agreement shall be construed and governed in accordance with the laws of the Commonwealth of Kentucky. You hereby irrevocably consent to personal jurisdiction in a federal or state court of competent jurisdiction located in Louisville, Jefferson County, Kentucky for all matters relating to this Agreement.
18. Damages and Attorneys’ Fees. In the event of a breach or threatened breach by You of any provision of these Terms, 247 Super shall be entitled to seek injunctive relief, without bond, including specific performance, to carry out the obligations of these Terms, restraining You from such breach or threatened breach, as well as to seek any other legal or equitable remedies available to 247 Super, including damages and attorneys’ fees. All of 247 Super’ remedies for any breach of these Terms by You shall be cumulative, and Our pursuit of one remedy shall not be deemed to exclude any other remedies. In the event of a dispute between You and Us under these Terms, We, if We are the prevailing party in such dispute, shall be entitled to reimbursement of Our attorneys’ fees and out-of-pocket costs incurred in connection with such dispute.
19. Entire Agreement; Modification. These Terms constitute the entire agreement and understanding between You and Us relating to the use of the Product and they supersede all prior negotiations and understandings between You and Us, both oral and written, regarding such subject matter. No section, obligation, or provision of or under these Terms may be amended or modified by You unless such amendment or modification is agreed to in writing and signed by an authorized representative of 247 Super. Notwithstanding the foregoing, We may amend or modify these Terms from time to time, in Our sole discretion. If We make any material amendment(s) or modification(s) to these Terms, We will notify You through Your account or by email prior to such amendment(s) or modification(s) becoming effective. Your continued or subsequent Use of the Product after We make such a notification shall signify Your acknowledgement of and consent to the amended or modified Terms.
20. Miscellaneous. Should any provision of these Terms be declared void or unenforceable by any court of competent jurisdiction, such declaration shall have no effect on the remaining provisions hereof. The failure of 247 Super to enforce any rights granted hereunder or to take action against any party in the event of any breach of these Terms shall not be deemed a waiver by 247 Super as to the subsequent enforcement of Our rights or any subsequent actions taken by Us in the event of future breaches. You shall not assign or delegate these Terms or any of Your rights or obligations hereunder without the prior written consent of 247 Super. Any attempted or purported assignment or delegation without such required consent shall be deemed void. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the You and Us and Your and Our respective permitted successors and assigns. The headings in these Terms are for convenience only and shall have no legal effect.