NOTICE REGARDING CLOUD HOSTED DESKTOP SERVICES**
We are pleased to announce that we are now accepting pre-orders for our Cloud Hosted Desktop ("Leap VDI") services. Your payment of $29.99, $35.99, $39.99 or $59.99 will reserve your spot to subscribe to Leap VDI on a first-come, first-served basis and will also entitle you to free access to our Hypergate PC remote access software Beta in the interim. Upon subscription to Leap VDI, you will be charged subscription fees as described on our website or other product description materials [and your pre-order payment will be applied to such subscription fees]. Refunds will not be issued for Leap VDI pre-orders; however, If you wish to cancel your pre-order or elect not to subscribe to Leap VDI, you will receive a credit in the amount of two times your pre-order payment towards any other Leap product or service. Our Terms and Conditions below shall apply to all Leap VDI pre-orders and the provision of products and services in relation thereto.
Please Read and Accept Terms and Conditions to Continue.
TERMS OF SERVICE AND
END USE LICENSE AGREEMENT
FOR PRODUCTS AND SERVICES OF LEAP COMPUTING, INC.
The use of products and services from Leap Computing, INC. [hereafter referred to as "Leap Computing", "we", "us" or "our"] constitutes agreement to these terms (the "Agreement"). You may view our Privacy Policy and our Website Terms of Service which are fully incorporated herein for all purposes as if set forth at length. In the event of conflict or inconsistency among the Agreement and the Website Terms of Service or Privacy Policy, the terms of this Agreement shall supersede and control. This Agreement also supersedes and controls over any conflicting or additional terms and conditions of any Order (defined below in Section 4), acknowledgement or confirmation or other document issued by you.
If you are entering this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms "you", "your" or "Customer" shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, do not accept this Agreement or use the Service or any portion thereof.
1.) License
Subject to the terms and conditions of this Agreement, we hereby grant you a limited, personal, non-exclusive, non-transferable, non-sublicensable license to use the product(s) and service(s) set forth in your Order, which may include storage capabilities, processing capabilities, hardware, software and the related documentation (hereinafter "Service"), solely for the number of users and uses as set forth in your Order, for your internal business purposes and requirements as determined by you.
If you are licensing the Service for evaluation purposes, your use of the Service is only permitted in a non-production environment and for the period limited by the license key or evaluation period. Notwithstanding any other provision in this Agreement, an Evaluation License of the Service is provided "AS-IS" without indemnification, support or warranty of any kind, expressed or implied.
2.) Restrictions
You acknowledge that the Service and the structure, organization and source code of the Service constitute valuable trade secrets of ours. The license rights granted in this Agreement do not authorize you (nor may you authorize any third party) to: (a) transfer, distribute or disclose the Service, in whole or in part to any third party; (b) sell, lease, modify, enhance, translate or create derivative works of the Service, or incorporate the Service into or with other software; (c) copy the Service, in whole or in part; (d) reverse engineer, reverse assemble, decompile or convert or apply any procedure or process to the Service to ascertain, derive, and/or appropriate for any reason or purpose, the source code, source listings, design, architecture, logic or algorithms for the Service, or any trade secret information or process contained in the Service (except to the extent that such acts may not lawfully be prohibited); (e) use the Service for any timesharing, service bureau, ASP, SaaS service, or rental use of the program (this restriction does not preclude or restrict you from contracting for services from outsourced IT providers); (f) work around any technical limitations in the Service; (g) disclose the results of any system performance metrics or benchmarking of the Service, or use such results for your own competing software development activities; or (h) alter, change or remove any proprietary notices or confidentiality legends placed on or contained within the Service.
3.) Reservation of Rights
Your rights in the Service are limited to those expressly granted in this Agreement. We reserve all rights and licenses not expressly granted to you under this Agreement. The Service provided hereunder is licensed and not sold.
4.) Orders and Shipping
An "Order" means any initial or subsequent ordering document and/or online request for access to or purchase of a Service that is submitted to us. Your Order is subject to this Agreement. No Orders are binding on us until accepted by us. Orders are deemed to be accepted upon our delivery of the Service set forth in such Order.
If the ordered Service includes a physical product, such as hardware or software, then we will ship such products to you by the method set forth on our website and to the address you designate. You are responsible for all shipping costs, taxes, fees, duties and the like that are associated with the sale and shipment of such product, which amounts will be included in the payment due for such product. For in-stock products, we will use commercially reasonable efforts to ship such products to you promptly upon receipt of payment from you. For special order or out-of-stock products, we will use commercially reasonable efforts to ship such products to you promptly upon receipt of payment from you and our receipt of the product from the manufacturer.
Software for some Services is available only by download, and physical copies will not be shipped to you. In such case, upon completion of your purchase of the Service, you will receive an email at your designated email address containing a link for the purpose of downloading the software.
5.) Support and Maintenance
Except as expressly specified herein, we do not provide any support or subscription services for the Service under this Agreement. Although we may occasionally provide them to you, you have no rights to any updates, upgrades or extensions or enhancements to the Service developed by us unless you separately purchase support or subscription services. These support or subscription services are subject to their own separate terms.
6.) Account Setup / Email on file
We will setup your account after we have received payment and we and/or our payment partner(s) have screened the Order(s) in case of fraud. It is your responsibility to provide us with an email address. If there is ever an abuse issue or we need to contact you, the primary email address on file will be used for this purpose. It is your responsibility to ensure the email address on file is current or up to date at all times. It is your responsibility to ensure that the contact information for your account is correct and up-to-date. Leap Computing is not responsible for a lapsed registration due to outdated contact information being associated with the account. If you need to verify or change this information, or if you suspect there has been unauthorized access by others, you should contact our sales team via email at
[email protected]. Providing false contact information of any kind may result in the termination of your account and Service(s).
The credit card holder or owner of the PayPal e-mail address which is utilized for payment on the account is designated as the authorized owner of the account.
7.) Transfers
If applicable to the Service set forth in your Order, our transfers team will make every effort to help you move your data to us.
If you decide to terminate the Service you will be responsible for transferring your data back to yourself from our platform. Once the Service is terminated you will have 3 weeks (15 Business Days) to retrieve your data before it will be deleted from our system. LEAP Computing is not responsible for data that has been deleted after this 3 week (15 Business Day) time frame.
8.) Third Party Providers
Some elements of the Service, which may include goods or services, may be provided by third parties. All transactions with third party providers are solely between you, your users and the individual provider. Leap Computing is not the agent, representative, trustee or fiduciary of you or the third party provider in any transaction. Some products provided by Leap Computing are provided under license with vendors, and the use of any such third party products will be governed by the applicable license agreement, if any, with such third party.
All discounts, promotions and special offers may be subject to additional restrictions and limitations by the third party provider. All transactions with third party providers are subject to the terms and conditions under which the provider agrees with you to provide the goods or services, including without limitation warranties, returns and refunds. You should confirm the terms of any purchase and/or use of goods or services with the specific provider with whom you are dealing.
WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES REGARDING, AND ARE NOT LIABLE FOR, GOODS OR SERVICES PROVIDED BY A THIRD PARTY PROVIDER OR MANUFACTURER, INCLUDING WITHOUT LIMITATION THE QUALITY, AVAILABILITY, OR TIMELINESS THEREOF. YOU UNDERTAKE ALL TRANSACTIONS WITH THESE PROVIDERS AT YOUR OWN RISK. WE DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF ANY INFORMATION REGARDING THIRD PARTY PROVIDERS.
9.) Content
The Service may only be used for lawful purposes. The laws of the State of Texas and the United States of America apply. Leap Computing reserves the right, but has no obligation, to monitor and/or police the content of the Service as used by you.
Use of the Service to infringe upon any copyright, patent, trademark or other intellectual property rights of others is prohibited. This includes but is not limited to unauthorized copying of music, books, photographs, or any other copyrighted work. The offer of sale of any counterfeit merchandise of a trademark holder will result in the immediate termination of your account. Any account found to be in violation of another's intellectual property rights may be expeditiously removed, or access to the material disabled at our sole and complete discretion. Any account found to be in repeated violation of the intellectual property rights of others may be suspended and/or terminated at our sole and complete discretion. If you believe that your copyright or trademark is being infringed upon, please email
[email protected] with the information required as listed in our Website Terms of Service.
If applicable to the Service set forth in your Order, using a shared account as a backup/storage device is not permitted.
If applicable to the Service set forth in your Order, examples of unacceptable material on all virtual desktop infrastructures include, but are not limited to:
- Topsites
- Web Servers and Hosting of any kind (HTTP, FTP, etc.)
- IRC Scripts/Bots
- Proxy Scripts/Anonymizers
- Pirated Software/Warez
- Image Hosting Scripts (similar to Photobucket or Tinypic)
- AutoSurf/PTC/PTS/PPC sites
- IP Scanners
- Bruteforce Programs/Scripts/Applications
- Mail Bombers/Spam Scripts
- Banner-Ad services (commercial banner ad rotation)
- File Dump/Mirror Scripts (similar to rapidshare)
- Commercial Audio Streaming (more than one or two streams)
- High-Yield Interest Programs (HYIP) or Related Sites
- Investment Sites (FOREX, E-Gold Exchange, Second Life/Linden Exchange, Ponzi, MLM/Pyramid Scheme)
- Sale of any controlled substance without prior proof of appropriate permit(s)
- Prime Banks Programs
- Lottery/Gambling Sites
- MUDs/RPGs/PBBGs
- Hacker focused sites/archives/programs
- Sites promoting illegal activities
- Forums and/or websites that distribute or link to warez/pirated/illegal content
- Escrow/Bank Debentures/Bank Debenture Trading Programs
- Fraudulent Sites (Including, but not limited to sites listed at aa419.org & escrow-fraud.com)
- Push button mail scripts
- Broadcast or Streaming of Licensed Live Sporting Events (UFC, NASCAR, FIFA, NFL, MLB, NBA, WWE, WWF, etc.)
- Tell A Friend Scripts
- Anonymous or Bulk SMS Gateways
- PayDay Loan Sites (including any site related to PayDay loans, PayDay loan affiliate programs, etc.)
The Service, including all related equipment, networks and network devices are provided only for authorized customer use. Leap Computing systems may be monitored for all lawful purposes, including to ensure that use is authorized, for management of the system, to facilitate protection against unauthorized access, and to verify security procedures, survivability, and operational security and confirm compliance with this Agreement. During monitoring, information may be examined, recorded, copied and used for authorized purposes. Use of Leap Computing system(s) constitutes consent to monitoring for these purposes.
Any account found connecting to a third party network or system without authorization from the third party is subject to suspension. Access to networks or systems outside of your direct control must be with expressed written consent from the third party. Leap Computing may, at its discretion, request and require documentation to prove access to a third party network or system is authorized.
We reserve the right to refuse service to anyone. Any material that, in our judgment, is obscene, threatening, illegal, or violates our terms of service in any manner may be removed from our servers (or otherwise disabled), with or without notice.
Failure to respond to email from our abuse department within 48 hours may result in the suspension or termination of the Service. All abuse issues must be dealt with via troubleticket/email and will have a response within 48 hours.
Potential harm to minors is strictly forbidden, including but not limited to child pornography or content perceived to be child pornography.
Any user found in possession of child pornography will be suspended immediately without notice. The Service may be immediately terminated with or without notice for any violations of these content standards in our sole and complete discretion. Violations will be reported to the appropriate law enforcement agency.
It is your responsibility to ensure that scripts/programs installed under your account are secure and permissions of directories are set properly, regardless of installation method. Users are ultimately responsible for all actions taken under their account. This includes the compromise of credentials such as user name and password. It is required that you use a secure password. If a weak password is used, your account may be suspended until you agree to use a more secure password. Audits may be done to prevent weak passwords from being used. If an audit is performed, and your password is found to be weak, we will notify you and allow time for you to change/update your password.
If in doubt regarding the acceptability of your content, please contact us at
[email protected] and we will be happy to assist you.
10.) Zero Tolerance Spam Policy
We take a zero tolerance stance against sending unsolicited e-mail, bulk emailing, and spam. "Safe lists," purchased lists, and selling of lists will be treated as spam. Any user who sends out spam will have their account terminated with or without notice.
Sites advertised via SPAM (Spamvertised) may not be hosted on the Service. This provision includes, but is not limited to SPAM sent via fax, phone, postal mail, email, instant messaging, or usenet/newsgroups. No organization or entity listed in the ROKSO may be hosted on our servers. Any account which results in our IP space being blacklisted will be immediately suspended and/or terminated.
Leap Computing reserves the right to require changes or disable as necessary any account that does not comply with its established policies, or to make any such modifications in an emergency at its sole discretion.
Leap Computing reserves the right to charge the holder of the account used to send any unsolicited e-mail a clean up fee or any charges incurred for blacklist removal. This cost of the clean up fee is entirely at the discretion of Leap Computing.
11.) Intellectual Property Claims Against You
Should the Service become, or in our opinion be likely to become, the subject of an infringement claim either against us, you or another one of our users, we will, at our option and expense either: (a) procure the rights necessary for you to make continued use of the affected Service in accordance with this Agreement; (b) replace or modify the affected Service to make it non-infringing; or (c) terminate the the affected Service and discontinue the related support services, and, upon your certified deletion of the affected Service, refund: (i) the fees paid by you for the license to the affected Service, less straight-line depreciation over a three (3) year useful life beginning on the date such Service was delivered; and (ii) any pre-paid service fee attributable to related support services to be delivered after the date such service is stopped.
Notwithstanding the foregoing, we will have no obligation under this section or otherwise with respect to any claim based on: (a) a combination of Service with products, software or services other than ours; (b) use for a purpose or in a manner for which the Service was not designed; (c) use of any older version of the Service when use of a newer revision would have avoided the infringement; (d) any modification to the Service made without our express written approval; (e) any claim that relates to open source software or freeware technology or any derivatives or other adaptations thereof that is not embedded by us into the Service; (f) any claim that relates to Linux or Android open source software, even when it has been embedded into or distributed with the Service; or (g) any Service provided on a no charge, beta or evaluation basis. THIS SECTION STATES YOUR SOLE AND EXCLUSIVE REMEDY AND OUR ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS OR ACTIONS.
12.) Open Source Software
A portion of the Service may contain or consist of open source software, which you may use under the terms and conditions of the specific license under which the open source software is distributed.
THIS OPEN SOURCE SOFTWARE IS DISTRIBUTED IN THE HOPE THAT IT WILL BE USEFUL, BUT IS PROVIDED "AS IS" WITHOUT ANY WARRANTY, EXPRESS, IMPLIED, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY REGARDING TITLE OR AGAINST INFRINGEMENT. IN NO EVENT SHALL WE, THE COPYRIGHT HOLDERS, OR THE CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTUTUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS OPEN SOURCE SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
13.) Payment Information
You agree to supply appropriate payment for the Service, in advance of the time period during which the Service is provided. Subject to all applicable laws, rules, and regulations, all payments will apply to the oldest fee(s) in your billing account. You agree that until and unless you notify Leap Computing of your desire to cancel the Service, the Service will be billed on a recurring basis, unless otherwise stated in writing by Leap Computing.
As a client of Leap Computing, it is your responsibility to ensure that your payment information is up to date, and that payment is made on time. Leap Computing reserves the right to bill your credit card or billing information on file with us. If payment is not received when due, then Leap Computing reserves the right to suspend your account and access to the Service until your account balance has been paid in full. Access to the account and the Service will not be restored until payment has been received.
Subject to Section 20, Leap Computing reserves the right to change the monthly payment amount and any other charges at anytime.
14.) Backups and Data Loss
Your use of the Service is at your sole risk. Our backup service runs instantaneously, overwrites any of our previous backups made. This service is provided to you as a courtesy. Leap Computing is not responsible for files and/or data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on Leap Computing servers.
15.) Cancellations and Refunds
LEAP Computing reserves the right to cancel, suspend, or otherwise restrict access to the account at any time with or without notice.
Customers may cancel at any time via the cancellation form provided. Unless specifically requested, the account will remain active until there is a cancellation or this Agreement otherwise expires or terminates. Once we receive your cancellation and have confirmed all necessary information with you via e-mail, we will inform you in writing (typically email) that your account has been canceled. Your cancellation confirmation will contain a ticket/tracking number in the subject for your reference, and for verification purposes. You should immediately receive an automatic "Your request has been received..." email with a tracking number. An employee will confirm your request (and process your cancellation) shortly thereafter. If you do not hear back from us, or do not receive the automatic confirmation email within a few minutes after submitting your cancellation, please contact us immediately via phone. We require that cancellations of service are done through the online form to: (a) confirm your identity; (b) confirm in writing you are prepared for all files/emails to be removed; and (c) document the request. This process reduces the likelihood of mistakes, fraudulent/malicious requests, and ensures you are aware that the files, emails, and account may be removed immediately after a cancellation request is processed.
If you cancel prior to the end of the current billing period, you may continue to use the Service, as provided in this Agreement, until the end of the billing period, at which point you will no longer be billed for the Service.
Except as provided in Section 11 and below, no refunds will be given once the Service is activated. All sales of the Service are final. Invoices that have been paid more than once with multiple Paypal Subscriptions can only be added as credit towards the account and cannot be refunded via Paypal. If you require assistance with this provision, please contact
[email protected].
Notwithstanding the foregoing, purchases of physical products, such as hardware, may be returned in new, unopened and unused condition within ten (10) days of receipt for a full refund, less any return shipping or processing incurred by us.
Exchange rate fluctuations for international payments are constant and unavoidable. All refunds are processed in U.S. dollars, and will reflect the exchange rate in effect on the date of the refund. All refunds are subject to this fluctuation and Leap Computing is not responsible for any change in exchange rates between time of payment and time of refund.
If the account is eligible, any request for a refund will be given on a prorated basis with any previous extended term discount withheld. Refunds are to be determined once the account has been canceled. Payments older than 60 days may require a refund via PayPal or mailed check due to our merchant account policies and procedures.
The following methods of payments are non-refundable, and refunds will be posted as credit to the account:
- Bank Wire Transfers
- Western Union Payments
- Checks
- Money orders
Violations of this Agreement will waive the refund policy.
16a.) Resource Usage
If applicable to the Service set forth in your Order, neither you nor your users may:
1) Use 50% or more of system resources for longer then 90 seconds. There are numerous activities that could cause such problems; these include: CGI scripts, FTP, PHP, HTTP, etc.
2) Run stand-alone, unattended server-side processes at any point in time on the server. This includes any and all daemons, such as IRCD.
3) Run any type of web spider or indexer (including Google Cash / AdSpy) on shared servers.
4) Run any software that interfaces with an IRC (Internet Relay Chat) network.
5) Run any bit torrent application, tracker, or client. You may link to legal torrents off-site, but may not host or store them on our shared servers.
6) Participate in any file-sharing/peer-to-peer activities.
7) Run any gaming servers such as counter-strike, half-life, battlefield1942, etc.
8) Run cron entries with intervals of less than 15 minutes.
9) Run any MySQL queries longer than 15 seconds. MySQL tables should be indexed appropriately.
10) When using PHP include functions for including a local file, include the local file rather than the URL. Instead of include("
http://yourdomain.com/include.php") use include("include.php")
11) To help reduce usage, do not force html to handle server-side code (like php and shtml).
12) Only use https protocol when necessary; encrypting and decrypting communications is noticeably more CPU-intensive than unencrypted communications.
16b.) Backup Limit
If applicable to the Service set forth in your Order, any shared account using more than 20 gigs of disk space will be removed from our off-site backup. All data will continue to be mirrored to a secondary drive which helps protect against data loss in the event of a drive failure.
17.) Bandwidth Usage
If applicable to the Service set forth in your Order, you are allocated a monthly bandwidth allowance. This allowance varies depending on the level of service you purchase. Should your account pass the allocated amount we reserve the right to suspend the account until the start of the next allocation, suspend the account until more bandwidth is purchased at an additional fee, suspend the account until you upgrade to a higher level of package, terminate the account and/or charge you an additional fee for the overages. Unused transfer in one month cannot be carried over to the next month.
18.) Shared (non-reseller accounts) / Semidedicated Servers
If applicable to the Service set forth in your Order, shared accounts may not resell the Service to other people. Semi-dedicated servers are not backed up. You must maintain your own backups.
19.) Dedicated Servers
If applicable to the Service set forth in your Order, Leap Computing reserves the right to reset the password on a dedicated server if the password on file is not current so that we may do security audits as required by our datacenter. It is the responsibility of the client to ensure that there is a valid email address and current root password on file for their dedicated server on file to prevent downtime from forced password resets. Leap Computing reserves the right to audit servers as needed and to perform administrative actions at the request of our datacenter. Dedicated servers are NOT backed up by us and it is the responsibility of the client to maintain backups or have a solution for this. You may purchase an additional hard drive and maintain backups to it as the simplest solution. Please contact
[email protected] if you wish to obtain a secondary hard drive. It is your responsibility to maintain backups.
20.) Price Change
The amount you pay for the Service may increase from the date of purchase with notice provided to you. We reserve the right to implement price changes, and the right to increase or decrease the amount of resources given to service plans at any time unless in violation of an initial Order or promotion.
21.) Coupons
Discounts and coupon codes are reserved for first-time accounts *or first-time customers* only and may not be used towards the purchase of a service unless otherwise specified. If you have signed up using a particular service, you may not resign up for that service using another coupon at a later date. Any account found in violation of these policies will be reviewed by our sales department and the appropriate invoices will be added to the account. Coupon abuse will not be tolerated and may result in the suspension or termination of the account. Coupons or discounts are only valid towards the initial purchase, and do not affect the renewal or recurring price.
22.) Indemnification
Customer agrees that it shall defend, indemnify, save and hold Leap Computing harmless from any and all demands, liabilities, losses, costs and claims, including reasonable attorney's fees asserted against Leap Computing, its agents, its customers, officers and employees, that may arise or result from any service provided or performed or agreed to be performed or any product sold by customer, its agents, employees or assigns. Customer agrees to defend, indemnify and hold harmless Leap Computing against liabilities arising out of (1) any injury to person or property caused by any products or service sold or otherwise distributed in connection with the Service; (2) any material supplied by customer infringing or allegedly infringing on the proprietary rights of a third party; (3) copyright infringement and (4) any defective products or services sold to customers from Leap Computing's server.
23.) Arbitration and Dispute Resolution
By using the Service, you agree to submit to binding arbitration. If any disputes or claims arise against Leap Computing or its subsidiaries or affiliates, such disputes will be handled by arbitration. An arbitrator from the American Arbitration Association or the National Arbitration Forum will be selected in the State of Texas where the arbitration will take place. Arbitrators shall be attorneys or retired judges and shall be selected pursuant to the applicable rules. All decisions rendered by the arbitrator will be binding and final. The arbitrator's award is final and binding on all parties. The Federal Arbitration Act, and not any state arbitration law, governs all arbitration under this Arbitration Clause. Notwithstanding anything herein, we reserve the right to seek injunctive or equitable relief in a court without the need for posting bond because the breach of this Agreement may cause irreparable harm to us, the extent of which would be difficult to ascertain without waiving the rights to arbitrate any and all other disputes.
NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OR CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
YOU MAY NOT BRING A CLAIM ARISING UNDER THIS AGREEMENT MORE THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ARISES.
24.) Disclaimer and Limitation of Liability
SOME JURISDICTIONS DO NOT ALWAYS ENFORCE CLASS ACTION OR JURY WAIVERS, AND MAY LIMIT FORUM SELECTION CLAUSES AND STATUTE OF LIMITATIONS PROVISIONS, AS SUCH, ONLY THE LIMITATIONS THAT ARE LAWFULLY APPLIED TO YOU IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Leap Computing shall not be responsible for any damages you may suffer. Leap Computing makes no warranties of any kind, expressed, statutory or implied for services we provide, including without limitation the Service, all of which are provided "as is." Leap Computing disclaims any warranty or merchantability or fitness for a particular purpose or that our services will be provided without interruption, error free or free of harmful components, or that any of your data or content will be secure or not lost or damaged. We are not responsible for loss of data resulting from delays, no deliveries, wrong delivery, or service interruptions.
WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICE, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE AGREEMENT, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICE FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (c) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES' AND LICENSORS' AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING THE CLAIM.
YOU EXPRESSLY WARRANT AND REPRESENT THAT NO PROMISE, AGREEMENT, REPRESENTATION INDUCEMENT, OR CONDITION WHICH IS NOT HEREIN EXPRESSED HAS BEEN MADE TO YOU BY US OR ANY AGENT OR REPRESENTATIVE OF OURS IN ENTERING INTO THIS OR SUBSEQUENT AGREEMENTS. YOU FURTHER WARRANT AND REPRESENT THAT YOU ARE NOT RELYING UPON ANY STATEMENT OR REPRESENTATION BY US OR ANY AGENT OR REPRESENTATIVE OF OURS IN ENTERING INTO THIS AGREEMENT WITH US. YOU REPRESENT AND WARRANT YOU ARE RELYING SOLELY UPON YOUR OWN JUDGMENT IN FORMING THIS AGREEMENT, AND YOU UNDERSTAND WE ARE RELYING UPON ALL OF YOUR REPRESENTATIONS, INCLUDING THIS DISCLAIMER OF RELIANCE PROVISION, IN ENTERING INTO THIS AGREEMENT.
25.) Repairs and Maintenance.
It may be necessary for us to perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the Service, which may temporarily degrade the quality of the Service or result in a partial or complete outage of the Service. We provide no assurance that you will receive advance notification of such activities or that the Service will be uninterrupted or error-free. Unless otherwise agreed to in writing between you and us, any degradation or interruption in the Service shall not give rise to a refund or credit of any fees paid by you.
YOU AGREE THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SERVICE, INCLUDING COMMUNICATION BY PUBLIC ELECTRONIC COMMUNICATIONS NETWORKS, PRIVATE COMPUTER NETWORKS, AND BY OTHER PUBLIC ELECTRONIC COMMUNICATIONS SERVICE PROVIDERS' NETWORKS, OR TO TRANSMIT INFORMATION, WHETHER OR NOT SUPPLIED BY YOU OR US, CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO OR USE OR OPERATION OF THE SOFTWARE. WE SHALL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF YOUR ACCESS TO OR USE OF THE SERVICE.
26.) Disclosure to Law Enforcement
Leap Computing may disclose any subscriber information to law enforcement agencies without further consent or notification to the subscriber upon lawful request from such agencies. We will cooperate fully with law enforcement agencies.
27.) Export
The Service may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. You will comply with all such regulations. You further represent that any software provided by you and used as part of the Service contains no encryption or, to the extent that it contains encryption, such software is approved for export without a license. You are solely responsible for obtaining any necessary licenses relating to the export of software. We are not liable for delays or failure to deliver the Service resulting from your failure to obtain such license or to provide such certification. Each Party agrees to indemnify, defend and hold the other harmless from any third-party claims, demands, or causes of action against the other due to the indemnifying party's violation or alleged violation of the applicable export laws, regulations or orders.
28.) U.S. Government End User Purchasers
If you are an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Service and other related materials of any kind, including technical data, is restricted in accordance with Federal Acquisition Regulation ("FAR") 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement ("DFARS") 227.7202 for military agencies.
29.) Amendments to this Agreement
We reserve the right to amend these terms or even terminate the Service if necessary. We intend to be transparent and notify you of any material changes so you can decide whether you want to continue using the Service.
30.) Customer Data
In performing the Service, we may have to obtain, receive, or collect data or information, including system-specific data (collectively, the "Data"). In such cases, you grant us a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely to facilitate the performance of the Service by us or your use of the Service. In addition, you grant us a license to aggregate the Data for use in an anonymous manner in support of our marketing and sales activities. You also grant us the right to copy and maintain such material and content on our servers (or the servers of its suppliers) during the term of this Agreement.
31.) Audit
You hereby grant us, or an agent designated by us, the right to perform an audit of your use of the Service during normal business hours; you agree to cooperate with us in such audit; and you agree to provide us with all records reasonably related to your use of the Service. The audit will be limited to verification of your compliance with the terms of this Agreement.
32.) Not For High-Risk Activities
The Service is not fault-tolerant and is not designed or intended for use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines, or any other application in which the failure of the Service could lead directly to death, personal injury, or severe physical or property damage (collectively, "High-Risk Activities"). We expressly disclaim any express or implied warranty of fitness for High-Risk Activities.
33.) Independent Contractor Relationship; Assignment; Subcontracting
The parties are independent contractors. Neither party will have any rights, power, or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement. We have the right to assign, subcontract, or delegate in whole or in part this Agreement, or any rights, duties, obligations or liabilities under this Agreement, by operation of law or otherwise, provided that we shall remain responsible for the performance of the Service under this Agreement. Otherwise, neither party may assign this Agreement without the permission of the other.
34.) Force Majeure
Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, war, embargo, strike, riot, or the intervention of any governmental authority (a "Force Majeure" ). In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party's time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure event lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, this Agreement or the applicable Service by giving written notice to the delayed party.
35.) Survival.
Whether this Agreement is terminated or otherwise expires, Sections 15 (Cancellation and Refund); 22 (Indemnification); 23 (Arbitration and Dispute Resolution); 24 (Disclaimers and Limitation of Liabilities); 26 (Disclosure to Law Enforcement); 30 (Customer Data); 31 (Audit) and 36 (General Terms) will any survive termination of this Agreement.
36.) General Terms.
The waiver of a breach of any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. The headings of sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word 'including' means "including but not limited to." Other than as expressly set out in this Agreement, this Agreement does not create any rights for any person who is not a party to it, and no person who is not a party to this Agreement may enforce any of its terms or rely on any exclusion or limitation contained in it.
37.) Entire Agreement.
This Agreement, including accepted Orders and any amendments hereto, contain the entire agreement of the parties with respect to the subject matter of this Agreement and supersede all previous or contemporaneous communications, representations, proposals, commitments, understandings and agreements, whether written or oral, between the parties regarding the subject matter hereof.
