Terms & Conditions
The following terms and conditions ("T's & C’s") are a part of and shall apply to any entity or person (the "Subscriber") that uses a software application(s), “Lineup®”, of Lineup Management Services, LLC (the Lineup Solution) under an executed Pricing & Order Form (the Pricing & Order Form together with these T’s and C’s and the EULA, the "Agreement") (including any person executing the Agreement on behalf of any entity). Any capitalized terms not defined herein shall have the meanings set forth in the Pricing & Order Form. Lineup Management Services, LLC (“LINEUP”) and the Subscriber are each a "Party" and together, the "Parties" under the Pricing & Order Form and these T's & C's.
1. License. Subject to and conditional on continued compliance with these T's & C's, LINEUP shall provide to Subscriber the right to use the LINEUP Solution identified in the Pricing & Order Form during its term and per the limitations noted therein as well as in accordance with the terms and conditions governing use of the accompanying software as set forth in the End User License Agreement ("EULA) for LINEUP Solution software (as such EULA is amended from time to time by LINEUP with advanced notice to our clients). Both the right to use the LINEUP Solution and the applicability of these T's & C's and the EULA shall be binding upon any end user upon execution of the Agreement. Subscriber must ensure that its use of the LINEUP Solution stays within the defined limits and parameters. LINEUP, however, reserves the right to monitor compliance with the Agreement and to otherwise protect its rights in the LINEUP Solution. Moreover, LINEUP reserves the right, with reasonable notice, to audit or have audited Subscriber's use of the LINEUP Solution, at LINEUP's expense, during Subscriber's normal business hours to verify compliance with the terms of the Agreement. Any use in excess of such limits and parameters shall be subject to the payment of additional fees and any other remedies to which LINEUP may be entitled depending on the circumstances. All rights granted by LINEUP to Subscriber are for the sole purpose of internal business use, and Subscriber may not use the LINEUP Solution or any other LINEUP software, hardware, content, or materials for any other purposes or for the benefit of persons or entities other than Subscriber, whether commercial, developmental, or otherwise. Subscriber acknowledges that LINEUP and/or its licensors (as applicable) own all right, title, and interest, including, without limitation, all intellectual property and proprietary rights, in and to the LINEUP Solution. Accordingly, subject to the license arrangement set forth in the Agreement, nothing herein shall grant to Subscriber any right, title, or interest in and to the LINEUP Solution or any other LINEUP software, hardware, content, or materials, or any intellectual property therefore. LINEUP reserves all other rights. LINEUP™, and all other names, logos, and icons identifying LINEUP’s products and services are proprietary marks of Lineup Management Services, LLC, and any use of such marks without the prior written consent of LINEUP is strictly prohibited.
2. Services. LINEUP shall provide implementation and training services (“Services”) if purchased for an additional fee as set forth on the Pricing & Order Form. LINEUP shall use commercially reasonable efforts to provide the Services. Further details for Service implementation shall be set forth in one or more statements of work as mutually agreed upon (each a “Statement(s) of Work” to be attached to the Pricing & Order Form. To the extent Subscriber requests from LINEUP additional support, training, or other implementation work relating to the LINEUP Solution that is otherwise beyond LINEUP’s stated obligations in this Agreement or in a current Statement(s) of Work, LINEUP may provide such support, training, or programming work, in its sole discretion, at its standard time and materials rates or such other pricing and terms as agreed to by the Parties in writing and subject further to the terms of this Agreement and a new Statement(s) of Work reflecting such mutually agreed upon pricing and terms. The Parties also acknowledge and agree that (a) each Statement(s) of Work shall be deemed to incorporate the terms and conditions of this Agreement, (b) the terms and conditions of this Agreement shall prevail over any inconsistent terms and conditions set forth in any Statement(s) of Work, and (c) the termination of this Agreement shall terminate any and all outstanding Statement(s) of Works. LINEUP has the right to (i) control and direct the means, manner, and method by which the Services are performed, (ii) utilize subcontractors, affiliates, or agents to perform the Services, (iii) perform the Services at any place or location and at such time as LINEUP may determine reasonable, and (iv) have the right to perform services for others during the term of this Agreement. LINEUP will comply with all applicable laws, rules, and regulations in its performance under this Agreement.
3. Authorized Users.
3.2. Access Requirements. Subscriber shall be responsible for obtaining, paying for, and providing any necessary facilities, software, equipment, hardware, or communication services necessary to access the LINEUP Solution. In addition, Subscriber may not (a) use, copy, store, reproduce, transmit, distribute, display, rent, lease, sell, modify, create derivative work of, alter, license, sublicense, market, or commercially exploit the LINEUP Solution in any manner not expressly permitted by this Agreement; (b) erase or remove any proprietary or intellectual property notice contained in or on the LINEUP Solution; or (c) use or permit use of the LINEUP Solution (or any part thereof) for or by any person or entity other than Authorized Users.
4. Availability. LINEUP will manage and monitor the LINEUP Solution and otherwise take all commercially reasonable steps to ensure that the LINEUP Solution will be available for use and accessible by Authorized Users in accordance with this Agreement ninety-nine percent (99%) of the Available Hours (“Uptime Commitment”) during each calendar month of the term. The “Available Hours” for the LINEUP Solution refer to the total number of hours and minutes in an applicable calendar month less (i) downtime caused by scheduled or emergency maintenance or failure of third party networks and communications facilities outside of the control of LINEUP or LINEUP’s vendors and suppliers, (ii) events of force majeure as further set forth in this Agreement, and (iii) downtime requested by Subscriber or caused in whole or in part by Subscriber or its contractors or agents, or the failure of any Subscriber network, equipment, software or hardware. The Uptime Commitment does not include any other times outside of the Available Hours, although LINEUP shall use commercially reasonable efforts to make the LINEUP Solution available at such other times outside the Available Hours unless maintenance is required. LINEUP shall use its commercially reasonable efforts to provide Subscriber at least one (1) week’s advance written notice (email is sufficient) of any scheduled maintenance, and with the exception of emergency maintenance, in no event shall LINEUP provide Subscriber with less than forty-eight (48) hours’ advance written notice of any scheduled maintenance. If, after receiving notice of scheduled maintenance, Subscriber reasonably requests that LINEUP conduct such maintenance at a different date and/or time than proposed by LINEUP, LINEUP shall use its commercial best efforts to accommodate such request to the extent LINEUP can manage such scheduled maintenance specifically for Subscriber. Moreover, LINEUP shall use commercially reasonable efforts to generally schedule all scheduled maintenance for dates and times that are outside of Subscriber’s normal business hours of operation.
5. Subscriber Obligations. In addition to the other T's & C's set forth herein, Subscriber agrees to undertake the following: (a) use the LINEUP Solution in compliance with all applicable laws, regulations, orders, and other restrictions, including, without limitation, with respect to exports, (b) provide LINEUP with reasonable assistance in the implementation and delivery of the LINEUP Solution, (c) take such steps as reasonably necessary to protect the LINEUP Solution from unauthorized use, reproduction, copying, or third party access, and (d) keep LINEUP reasonably informed as to any problems encountered with the LINEUP Solution. LINEUP shall not have any liability for the foregoing.
6. Payment Terms. Any outstanding balances remaining more than 30 calendar days past due shall give rise to a material breach of the Agreement and LINEUP may, in addition to other remedies, terminate immediately the right to use the LINEUP Solution upon providing notice to Subscriber. If mutually agreed upon by the Parties, LINEUP may provide additional solutions or services to Subscriber on a time and materials basis at LINEUP’s then current rates or such other fee agreed upon by LINEUP.
7. Renewal Term & Termination. Following the expiration of the Initial Subscription Term, the Agreement shall automatically renew for successive 12-month periods, unless terminated by either Party upon providing the other Party notice of its intent not to renew the Agreement within 30 days of the end of the Initial Subscription Term or any 12-month renewal period. Notwithstanding the foregoing, either Party may terminate the Agreement if the other Party breaches any material provision of the Agreement and fails to cure such breach within 30 days written notice. In the event that Subscriber is in breach, LINEUP reserves the right during the period of any breach to interrupt access to and use of the LINEUP Solution until such breach is cured within the applicable time limit. Upon termination of the Agreement for any reason, all rights to the LINEUP Solution shall end and Subscriber shall require all Subscribers to purge any and all portions of the LINEUP Solution from any digital information storage media. Moreover, Subscriber will return to LINEUP or destroy all copies of LINEUP’s confidential information, materials, or LINEUP Solution. If requested by LINEUP, Subscriber shall provide written confirmation of its compliance with the obligations set forth in this section. In addition, the provisions concerning proprietary rights, confidentiality, indemnity, disclaimers of warranty, liability, termination, and governing law shall survive the termination of the Agreement.
8. Representations and Warranties. Subscriber represents and warrants that: (a) it is authorized to enter into the Agreement and perform its obligations; (b) the signatory for Subscriber is authorized to execute the Agreement on behalf of Subscriber; (c) it shall ensure that any Subscriber shall agree to abide by these T's & C's and the EULA; and (d) the information, reports, and records provided by Subscriber to LINEUP in connection with the Agreement are accurate. EXCEPT FOR THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LINEUP expressly disclaims all warranties, either express or implied, including, WITHOUT LIMITATION, any warranties of title, AGAINST INTERFERENCE WITH ENJOYMENT OF INFORMATION, OF NON-INFRINGEMENT, OF merchantability, OF QUALITY, OF fitness for a particular purpose, OR ANY WARRANTY THAT THE INFORMATION IS ACCURATE OR COMPLETE. MOREOVER, SUBSCRIBERACKNOWLEDGES AND AGREES THAT LINEUP DOES NOT WARRANT THAT THE LINEUP SOLUTION WILL OPERATE ERROR-FREE, UNINTERRUPTED, OR IN A MANNER THAT WILL MEET SUBSCRIBER’S REQUIREMENTS. THE ENTIRE RISK AS TO THE AVAILABILITY, QUALITY, AND PERFORMANCE OF THE LINEUP SOLUTION IS WITH SUBSCRIBER.
9. Limitation of Liability. Subscriber ACKNOWLEDGES AND AGREES THAT LINEUP, its employees, agents, directors, successors and assigns will not be liable to Subscriber, or anyone claiming under or through a Subscriber, for any indirect, special, punitive or consequential damages (INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS OF BUSINESS, PROFITS, OR INFORMATION), regardless of whether LINEUP was advised of the possibility of such damages. The ENTIRE liability of LINEUP for any claim arising out of or in connection with the Agreement shall not exceed that amount paid to LINEUP by Subscriber under the Agreement by the date on which such claim is made.
10. Indemnification. Subscriber agrees to defend, indemnify, and hold harmless LINEUP and all of its affiliates, employees, agents, directors, officers, employees, shareholders, attorneys, successors, and assigns, from and against any and all third party claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including reasonable attorneys’ fees and litigation expenses), relating to or arising from Subscriber’s breach of its respective express obligations, representations, or warranties in the Agreement. Subscriber shall use reasonable efforts to cooperate with LINEUP in defense of any claim, and Subscriber acknowledges and agrees that LINEUP reserves the exclusive right, in its sole discretion, to participate in any claim and assume, at Subscriber's sole expense or such other cost sharing arrangement agreeable to LINEUP, the control, defense, and/or settlement of any matter otherwise subject to this indemnification obligation.
11. Confidentiality. “Confidential Information” means (a) non-public, sensitive, or confidential business or technical information of either Party including, but not limited to, information relating to either Party’s products, services, plans, designs, costs, pricing, payments made or fees payable pursuant to this Agreement, finances, marketing plans, business opportunities, personnel, research, development or know-how; (b) any information designated by either Party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential; and (c) the terms of this Agreement or a Statement(s) of Work. Confidential Information includes, but is not limited to, the LINEUP Solution, including any associated serial numbers or copy protection keys and any information regarding costs, prices, data, names, finances, marketing plans, business opportunities, personnel, formulas, methods, techniques, processes, computer programs, codes, research, and know-how, whether having existed, now existing, or to be developed or created in the future, whether tangible or intangible, and whether stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing. Confidential Information does not include information that (i) is in or enters the public domain without breach of this Agreement; (ii) the receiving Party lawfully receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation; (iii) the receiving Party lawfully knew prior to receiving such information from the disclosing Party; (iv) the receiving Party develops independently without use of the disclosing Party’s Confidential Information, or (v) the receiving Party must disclose in accordance with applicable law, provided that the receiving Party gives the disclosing Party notice of such disclosure obligation in order to provide the disclosing Party with an opportunity to limit such disclosure or seek a protective order preventing or minimizing such use or disclosure. Each Party agrees it will (a) not disclose to any third party or use the Confidential Information disclosed to it by the other Party except in furtherance of each Party’s respective obligations under this Agreement or as otherwise expressly permitted in this Agreement; and (b) take all reasonable measures to maintain the confidentiality of all such Confidential Information of the other Party in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own Confidential Information and which will limit disclosure and access only to those employees and contractors with a need to know in order to perform each Parties’ respective obligations under this Agreement.
12. Notices. All notices and other communications in connection with the Agreement shall be in writing and shall be sent to the respective Parties at the addresses set forth in the Agreement, or to such other addresses as may be designated by the Parties in writing from time to time in accordance with this section, by registered or certified mail, postage prepaid, by express courier service, service fee prepaid, or by e-mail or facsimile (with confirmation of receipt by the facsimile machine or the computer from which the e-mail was sent). All notices shall be deemed received (a) immediately upon delivery, if hand-delivered, (b) five business days after posting, if delivered by mail, (c) the next business day after delivery by express courier service, if delivered by express courier service, or (d) the day following transmission, if delivered by e-mail or facsimile (provided a copy by first class mail is also sent after the e-mail or facsimile transmission with respect to any complaint, termination, or cancellation notice).
13. Dispute Resolution. This Agreement will be governed by the laws of the District of Columbia. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in the District of Columbia. Accordingly, LINEUP and Subscriber agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such action or proceeding. Prior to either Party commencing any litigation arising out of the performance of this Agreement, the Parties agree to appoint a representative to meet by phone or in person for the purpose of endeavoring to resolve in good faith any disputes between them. If a dispute has not been settled after thirty (30) days of good-faith negotiation, then either Party may commence litigation against the other. Nothing herein, however, shall preclude a Party from seeking at any time emergency injunctive relief in the event of an action or omission by the other Party that is likely to cause irreparable harm to it in the reasonable opinion of the Party seeking the emergency remedy. LINEUP and Subscriber also agree that all such actions shall be tried by the court sitting without a jury and the Parties hereto hereby irrevocably waive their rights to any such trial by jury. In any action or proceeding to enforce, interpret, or determine the applicability or enforceability of any provision of this Agreement, or for monetary or other relief as a result of the alleged breach of this Agreement, or otherwise arising from or under this Agreement, the prevailing Party shall be entitled to recover from the other Party its attorneys' fees and costs incurred in prosecuting or defending such action or proceeding. In accordance with the express limitations on liability set forth in this Agreement, each Party reserves the right to seek all remedies available at law and in equity for violations of this Agreement. The Parties agree that any breach of either Party’s obligations regarding the other Party’s Confidential Information or intellectual property or non-solicitation, would result in irreparable injury for which there is no adequate remedy at law. Therefore, in the event of any breach or threatened breach of a Party’s obligations of the foregoing without the necessity of showing any actual damage or posting a bond, the aggrieved Party will be entitled to seek injunctive relief in addition to any other remedies to which it may be entitled.
14. Miscellaneous. Nothing in the Agreement shall imply any partnership, joint venture, or agency relationship between the Parties and neither Party shall have the right or power to obligate or bind the other except for what is stated in the Agreement. Subscriber shall not assign or transfer the Agreement without the express written approval of LINEUP. The Agreement may be executed in counterparts, all of which taken together will constitute one and the same agreement. The Agreement shall be governed by the laws of the District of Columbia without regard to the conflicts of laws principles. The Parties agree to waive any right to a jury trial in connection with any action or litigation in any way arising out of or related to the Agreement. The Pricing & Order Form, including these T's & C's and the EULA (which are incorporated by reference), and all other schedules thereto constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior agreements and understandings (both written and oral). In the event of any conflict between the Pricing & Order Form, these T’s and C’s and the EULA, the Pricing & Order Form and these T's & C's shall control. The Agreement shall not be modified except by a written agreement signed by both Parties. No waiver of any breach of any provision of the Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach. If any provision of the Agreement shall be found by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining provisions shall remain in full force and effect and the illegal, invalid, or unenforceable clause shall be modified in compliance with applicable law in a manner that most closely matches the intent of the original language.
Last updated: July 1, 2019