LynkState Beta & Labs Hosted Service Terms
(last updated October 2021)

LynkState Inc. (“LynkState”) provides an online software-as-a-service that enables its customers to perform analytics on their network infrastructure performance.

The following terms and conditions (the “Service Terms”) are a legal contract between you (or “Customer” as defined below) and LynkState, and governs the use of and access to the Hosted Service by you, your agents and your individual users whether in connection with a paid or free trial subscription to the Hosted Service. By selecting the “agree” or “accept” option, by mutually agreeing to an Order Form that incorporates these Services Terms by reference, or by otherwise using LynkState’s Hosted Service that are offered subject to these Service Terms, you are agreeing to be bound by these Service Terms. Please read them carefully before proceeding. If you have any questions, please contact us using the contact form set forth in an Order Form, or otherwise at sales@lynkstate.com or LynkState Inc., 340 S Lemon Ave, Suite 1780, Walnut, CA, USA.

  1. PARTIES

    If you are accessing or using the Hosted Services on behalf of a business, entity, or individual, then: (a) you represent and warrant that you are an authorized representative of such business, entity, or with the authority to bind the entity or individual to these Service Terms; and (b) such business, entity, or individual is legally and financially responsible for your access to and use of the Hosted Services as well as for the use of your account by others affiliated with you, including any employees, agents or contractors.  In such a case, all references to “Customer” means you and any entity, business, or individual on whose behalf you are accessing or using the Hosted Services. The customer may not use the Hosted Service unless it accepts these Service Terms and has the power and legal right to form a contract with LynkState.
     

  2. DEFINITIONS.  Capitalized terms used in these Service Terms but not defined here, have the meanings set forth below.

    1. “Agreement” means these Service Terms, an Order Form, and any Statements of Work, if applicable, agreed and entered into by the parties.

    2. “Authorized User” means an individual employee or agent of Customer who has been assigned unique credentials to access and use the Hosted Service, whether that individual is accessing or using the Hosted Service at any particular time.

    3. “Customer Data” consists of data the Customer makes available to configure or enable processing by the Hosted Service and the results of the Hosted Service’s analysis of the Customer Data.

    4. “Hosted Service” means the hosted services for infrastructure performance analysis, to be supplied by LynkState as specified in the Order Form and delivered by LynkState’s cloud platform.

    5. “Implementation Services” has the meaning ascribed to it in Section 3.1.

    6. “Lab Services” means a product, service or functionality provided by LynkState that may be made available to You to try at Your option at no additional charge which is clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description.

    7. “Local Agent(s)” means the measurement reflector software agent, in executable form only, which LynkState makes available for download and installation on Customer-controlled equipment in order to collect telemetry and performance data on Customer’s network, and all updates and revisions of such software.

    8.  “Order Form” means LynkState’s online or written order form or account setup form or other written agreement, as submitted by Customer and accepted by LynkState, that specifies the pricing and any commercial terms for the use of the Hosted Service, and that references these Service Terms.

    9. “Professional Services” has the meaning ascribed to it in Section 3.1.

    10. “Software” means the Local Agent(s) and other LynkState proprietary software and associated documentation, used to provide the Hosted Service.

    11. “Statement of Work” has the meaning ascribed to it in Section 3.1.

    12. “LynkState SDK/API” means any software development kit and application programming interfaces provided by LynkState as a mechanism for access to and utilization of the Hosted Service.

       

  3. HOSTED SERVICE

    1. Professional Services. In order to connect Customer to the Hosted Service, LynkState or its authorized agent will configure the Hosted Service for Customer and provide such other services (the “Implementation Services”) if set forth in the Order Form or in a separately executed Statement of Work (the “Statement of Work”). If Customer desires to engage LynkState to perform additional professional services in the future, the parties will enter into another Statement of Work (such additional services, together with the Implementation Services, the “Professional Services”). 

    2. Authorization to Use. Subject to Customer’s compliance with the Agreement, LynkState will provide Authorized Users with access to and use of the Hosted Service which Customer has purchased and for which Customer pays, solely for Customer’s internal business purposes. Customer’s rights are non-transferable and non-sublicensable. The Hosted Service and LynkState SDK/API may be used only in accordance with the documentation and specifications provided by LynkState.  Customer and its Authorized Users may only access the LynkState SDK/API and Hosted Service using the login credentials and LynkState SDK/API key(s) assigned by LynkState.  LynkState may monitor the use of the Hosted Service to ensure quality, improve LynkState products and services, and verify compliance with the Agreement. The use of the Hosted Service is further subject to any usage limitations indicated in the Order Form or in LynkState’s applicable service description referenced therein or otherwise provided by LynkState.

    3. License to Local Agent(s).  Subject to the terms and conditions of this Agreement, LynkState grants Customer a limited, non-exclusive, non-transferable license to reproduce, install on equipment owned or controlled by Customer, and use the Local Agent(s) only for Customer’s internal use in connection with its ordinary business operations using the Hosted Service.

    4. Maintenance and Support. If the Order Form or LynkState’s associated service description provides for Customer to receive maintenance and/or technical support in connection with the Hosted Service, then (unless otherwise set forth in the Order Form or service description): (a) such maintenance will consist of access to new features or performance improvements in the Hosted Service if and when LynkState makes any such features or improvements generally available to its subscriber base at no additional charge, and (b) such technical support will consist of e-mail, chat or telephone assistance in accordance with LynkState’s then-current policies. 

    5. Restrictions. Customer may not: (a) copy, reproduce, modify, decompile, disassemble, or reverse engineer the Hosted Service, Software or any other associated software or materials (except to the extent that applicable law prohibits or restricts reverse engineering restrictions); (b) provide any third parties with direct access to the LynkState SDK/API, Hosted Service or Software; (c) provide any third parties with access to any of the Hosted Service or Software, or use any of the Hosted Service for time sharing or similar purposes for the benefit of any third party, including without limitation by selling, renting, licensing or otherwise disclosing any elements of the Hosted Service; (d) remove any copyright or proprietary notices contained in the Hosted Service; (e) breach, disable or tamper with, or develop, use or attempt any workaround for, any security measure or monitoring system provided or used by LynkState in connection with the Hosted Service or LynkState SDK/API; (f) access the Hosted Service via any automated system, web crawler or non-human user other than access through and as implemented in the LynkState SDK/API; (g) introduce into the Hosted Service any software, virus, worm, “back door,” Trojan Horse, data security vulnerability, or other harmful code; (h) access or use (or permit a third party to access or use) the Hosted Service for any unlawful purpose, including without limitation to facilitate or promote illegal activity, or distribute illegal content, or for purposes of monitoring the availability, performance or functionality of the Hosted Service or for any other benchmarking or competitive purposes; (i) interfere or attempt to interfere in any manner with the proper workings of the LynkState SDK/API or Hosted Service, or engage in any activities that adversely affect the functionality or performance of the LynkState SDK/API or Hosted Service, (j) use the Hosted Services to infringe upon, misappropriate or violate the rights of any third party, including without limitation any intellectual property, privacy or publicity rights; or (k) use the Hosted Services to communicate with or collect information from children under the age of 16 years.  All rights in the Hosted Service and Software not expressly granted herein are reserved.

    6. Third Party Integrations.  LynkState may offer Customers the option of sending data and information to, and receiving data and information from analytics or other services provided by third parties (“Third Party Integration Providers”).  Such functionality may be subject to the payment of additional fees if not part of LynkState’s standard offering.  If Customer is responsible for establishing a contractual relationship with any such Third-Party Integration Providers, Customer is responsible for complying with the terms of such contractual relationship.  LynkState shall not be responsible or liable for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data or any other harm to Customer or any other party caused by any Third-Party Integration Providers, including without limitation, by LynkState’s integration with such Third-Party Integration Providers and the use of any data or information received from such Third-Party Integration Providers.

    7. Evaluation.  The terms in this Section 3.7 apply if Customer is granted the right to access or use any Hosted Services free-of-charge for evaluation purposes, including trials, proofs of concept, or other demonstrations or tests (“Evaluation Basis”). Customer agrees that it may only access or use any Hosted Services on an Evaluation Basis solely for the purpose of Customer’s internal, non-production, non-commercial evaluation, and interoperability testing of the applicable Hosted Services.  Your right to use the Hosted Services on an Evaluation Basis is time-limited and will expire on the earlier of (a) the end of the free trial period LynkState has identified; (b) the start date of any subscription to such Hosted Service purchased by You; or (c) termination of the trial period by LynkState in its sole discretion. Use of the Hosted Services on an Evaluation Basis may be subject to additional terms and conditions presented in the relevant Order Form or trial/evaluation signup process. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.  LynkState stores Customer Data submitted by Customer during use of the Hosted Service on an Evaluation Basis in the same manner and subject to the same security precautions as Customer Data submitted during paid subscriptions; provided, however, that any Customer Data stored in the Hosted Service, and any configurations or customizations made to the Hosted Service by or for Customer, during use on an Evaluation Basis be permanently lost at the end of the trial or evaluation unless Customer purchases a subscription to the Hosted Service or exports such Customer Data (to the extent such functionality is available), before the end of the trial or evaluation. Customer acknowledges that no warranties, service levels, or specifications set forth in this Agreement apply to any use of the Hosted Service on an Evaluation Basis.  THE PARTIES ACKNOWLEDGE THAT THE HOSTED SERVICES PROVIDED ON AN EVALUATION BASIS ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY WHATSOEVER.

    8. Lab Services.  From time to time, LynkState may make Lab Services available to Customer. Customer may choose to try such Lab Services in its sole discretion. Lab Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Lab Services are not considered a “Hosted Service” under this Agreement; however, all restrictions, disclaimers, LynkState’s reservation of rights and Customer’s obligations concerning the Hosted Services shall apply equally to the use of Lab Services. Unless otherwise stated, any Lab Services evaluation period will expire upon the earlier of (a) twelve (12) months from the trial start date or (b) the date that a version of the Lab Services becomes generally available without the applicable Lab Services designation. LynkState may discontinue or change Lab Services at any time in LynkState’s sole discretion and may never make them generally available. Customer acknowledges that no warranties, service levels, or specifications set forth in this Agreement apply to any use of the Lab Services.  THE PARTIES ACKNOWLEDGE THAT THE LAB SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY WHATSOEVER.

       

  4. CUSTOMER OBLIGATIONS

    1. Responsibilities in Using Hosted Service. Customer is responsible for: (a) maintaining the confidentiality of any user IDs, passwords and other credentials associated with its Hosted Service account, (b) all activities that occur with respect to Customer’s account, (v) Customer’s and its Authorized Users’ use of the Hosted Service and compliance with the Agreement, and (d) the Customer Data, and any other information Customer provides to LynkState through any mechanism.  Customer is and shall remain liable for all actions and omissions of its Authorized Users hereunder or under any applicable separate agreement.

    2. Compliance.  Customer shall use the Hosted Service exclusively for proper and legal purposes.  In connection with its use of the Hosted Service and all instructions to LynkState concerning the processing of data using Hosted Service, Customer will comply with all applicable laws, including applicable data privacy laws, regulations, the rights of others, and all policies of and agreements with the owner or operator of any platform with which Customer integrates (or requests that LynkState integrate) the Hosted Service.

    3. Correction; Suspension. If Customer’s use of the LynkState SDK/API or Hosted Service is deemed by LynkState, in its sole discretion, to violate the terms of the Agreement, LynkState may request that Customer make changes to bring its practices into compliance. If Customer fails to make the necessary changes immediately upon request, and without limiting any of the other remedies available to LynkState at law or in equity, LynkState is authorized to suspend Customer’s access to the Hosted Service, without liability to Customer, until such time as Customer makes such changes. Customer agrees and acknowledges that LynkState shall have the right to monitor Customer’s use of the LynkState SDK/API and Hosted Service from time to time to verify compliance with this Agreement.  LynkState reserves the right to immediately suspend, in whole or in part, Customer’s access to the Hosted Service and LynkState’s provision of the Hosted Service in order to prevent imminent harm to LynkState or a third party.

       

  5. DATA, CUSTOMER LICENSES AND OWNERSHIP

    1. Customer Data.  Customer retains all right, title and interest in and to all the Customer Data. Customer hereby grants to LynkState a royalty-free, worldwide, perpetual, irrevocable and fully transferable right and license to use both (a) internal Hosted Service analytic and log data regarding the processing of Customer Data and use of the Hosted Service, for LynkState’s business purposes, and (b) Customer Data, but solely in an aggregated form, to improve the Hosted Service, including, without limitation, in connection with (i) the improvement of user interface and experience, (ii) the improvement of online performance of the Hosted Service, including for peer operators; and (iii) the creation and development of analytical and statistical analysis tools related to collected data.         

    2. Treatment of Customer Data.  Customer is ultimately responsible for making and keeping current copies of all Customer Data. LynkState will retain Customer Data subject to any time or storage limitations set forth in the relevant Order Form for the Hosted Service, and may delete or decline to store Customer Data older than the prescribed age for deletion, or in excess of the disclosed storage limitation. 

    3. Ownership.  As between LynkState and Customer, LynkState retains all right, title and interest in and to, and all intellectual property rights embodied in or related to the Hosted Service, the Software, Local Agents, LynkState SDKs/APIs and all software, data and technologies embodied in or used to provide the Hosted Service, including data and information that is not Customer Data, including, without limitation, any and all improvements, updates, and modifications thereto made by LynkState or Customer. Except as specifically set forth in the Service Terms, no express or implied license or right of any kind is granted to Customer regarding the Hosted Services, Software, Local Agents or LynkState SDKs/APIs, including, but not limited to, any right to know, use, produce, receive, reproduce, copy, market, sell, distribute, transfer, translate, modify, adapt, disassemble, decompile, or reverse-engineer the Hosted Services, Software or Local Agents or obtain possession of any source code or other technical material relating to the foregoing.

    4. Feedback. Customer and / or authorized Users may choose to submit comments, suggestions, enhancement requests, or recommendations (collectively, “Feedback”) about the Hosted Service or other LynkState offerings. All Feedback becomes the sole and exclusive property of LynkState, and LynkState may use and disclose Feedback in any manner and for any purpose whatsoever, including, without limitation, incorporating any Feedback into the Hosted Service or other LynkState offerings, without further notice or compensation to Customer. Customer hereby assigns to LynkState any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that Customer may have in and to any and all Feedback.

       

  6. TERM AND TERMINATION

    1. Duration and Renewal. Your right to use the Hosted Service under the Agreement shall continue throughout the initial subscription term specified in the Order Form (unless terminated as set forth below). If no initial subscription term is specified in the Order Form, the initial subscription term will be one (1) year from the effective date of the Order Form.  Except as otherwise specified in the Order Form, Customer’s subscription to the Hosted Service will automatically renew for successive one (1) year terms (each, a “Renewal” and together with the initial term, the “Term”) until either party notifies the other of its intent not to renew thirty (30) days prior to the end of the then current or terminates the Agreement under Section 6.2 below.

    2. Termination. A party may terminate this Agreement (a) for a material breach by the other party that remains uncured more than thirty (30) days (or five (5) days in case of delinquent payments) after receiving written notice of the breach; or (b) immediately if the other party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits an appointment of a receiver for its business or assets, becomes subject to any proceedings under any bankruptcy or insolvency law, whether domestic or foreign, or is liquidated, voluntarily or otherwise.

    3. Effect of Termination. Immediately upon the termination of this Agreement for any reason, all of Customer’s rights under this Agreement will cease to exist, and Customer will cease all use of the Hosted Services, Software, Local Agents and LynkState SDK/API.  Any amounts owed to LynkState under these Service Terms, or the applicable Order Form will become due and payable immediately upon such termination.  LynkState may suspend the Hosted Services, or any portion thereof, or this Agreement for material breach including without limitation any breach of the payment obligations, with advance written notice of five (5) business days.  LynkState is not required to refund any fees paid or prepaid after such suspension.  Notwithstanding the contrary, LynkState may retain Customer Data in aggregated form for up to twenty-four (24) months following termination of this Agreement.

    4. Survival. The following provisions will survive expiration or termination of the Agreement: Sections 1, 2, 3.5, 5, 7 (to the extent of any outstanding payments), 8, and 10 through 14.

       

  7. FEES AND PAYMENT

    1. Fees.  In consideration for LynkState providing the Hosted Service and any agreed-upon Professional Services, Customer shall pay to LynkState the corresponding fees set forth in the Order Form.  LynkState may change the fees for the use of the Hosted Service effective at any time after the initial subscription term, and unless otherwise agreed by the parties, any such changes will take effect as of the start of the Renewal after notice of such changes.

    2. Invoices; Payment.  Fees will be calculated and billed according to the Order Form, typically annually in advance. Each invoice is due upon receipt of invoice. Payment shall be made in U.S. dollars.  Overdue payments will accrue interest at the rate of one and one-half percent (1.5%) per month but in no event greater than the highest rate of interest allowed by law. All fees are non-refundable except as expressly set forth otherwise in this Agreement.

    3.  Taxes.  The fees specified in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than LynkState’s U.S. federal and state income taxes. Such Taxes will be itemized in the applicable invoice. 

       

  8. CONFIDENTIALITY

    1. Obligations. “Confidential Information” means (subject to the exclusions below) any and all non-public information relating to or disclosed, either directly or indirectly, in the course of the parties’ respective use and provision of the Hosted Service and marked or identified at the time of disclosure as confidential or which by context should be reasonably understood to be confidential. The Hosted Service and Software are LynkState Confidential Information.  The Customer Data are Customer Confidential Information. Each party agrees to disclose to the other party only that portion of such party’s Confidential Information that is reasonably necessary to enable the other party to perform its obligations under the Agreement. The party receiving Confidential Information (the “Receiving Party”) from the party disclosing Confidential Information (“Disclosing Party”) will not use any Confidential Information of the Disclosing Party for any purpose other than the provision and receipt the Hosted Services under this Agreement.  The Receiving Party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly reserved or granted under these Service Terms. However, the Receiving Party may disclose the Confidential Information of the Disclosing Party only to the employees or contractors of the Receiving Party who have a need to know such Confidential Information for the purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will promptly return or destroy the Disclosing Party’s Confidential Information and permanently erase all electronic copies of such Confidential Information upon the earlier of the request of the Disclosing Party or the expiration or termination of this Agreement.

    2. Exclusions. Confidential Information does not include information that: (a) is or becomes publicly available through no fault of the Receiving Party; (b) was already in possession of the Receiving Party without confidentiality restrictions at the time of receipt from the Disclosing Party, as evidenced by written records; or (c) was independently developed by the Receiving Party without access to, or the use of, the Disclosing Party’s Confidential Information. If a Receiving Party is required to disclose Confidential Information by law, the Receiving Party will promptly notify the Disclosing Party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section 8 on account of making the required disclosure.
       

  9. SERVICE LEVEL AGREEMENT

    1. If Customer’s subscription includes service-level commitments, and the Order Form accordingly specifies that LynkState’s Service Level Agreement applies, Customer will be entitled to the commitments and remedies set forth in such Service Level Agreement as attached to or referenced in the Order Form. The remedies expressly provided in the Service Level Agreement are Customer’s sole and exclusive remedy, and LynkState’s entire obligation, with respect to any service-level violation.
       

  10. DISCLAIMER

    1. EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE SERVICE TERMS (AND WITHOUT LIMITING REMEDIES TO WHICH CUSTOMER MAY BE ENTITLED UNDER THE SERVICE LEVEL AGREEMENT, IF APPLICABLE), THE HOSTED SERVICE AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. LYNKSTATE DISCLAIMS, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, QUALITY, ACCURACY OR FITNESS FOR A PARTICULAR PURPOSE. LYNKSTATE DOES NOT WARRANT THAT THE HOSTED SERVICES ARE ERROR-FREE OR THAT OPERATION OF THE HOSTED SERVICES WILL BE SECURE OR UNINTERRUPTED.

    2. ANY TRIAL OR EVALUATION USE OF THE HOSTED SERVICE OR ANY USE OF LAB SERVICES IS AT CUSTOMER’S OWN RISK.  ANYTHING ELSE IN THE AGREEMENT NOTWITHSTANDING, LYNKSTATE EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS WITH RESPECT TO THE LAB SERVICES, AND THE HOSTED SERVICE WHEN PROVIDED ON A TRIAL OR EVALUATION BASIS, AND WILL HAVE NO LIABILITY FOR ANY CLAIM, HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE LAB SERVICES, OR THE HOSTED SERVICE WHEN PROVIDED ON A TRIAL OR EVALUATION BASIS.

       

  11. INDEMNIFICATION

    1. By LynkState.  LynkState will indemnify, defend, and hold harmless Customer against any damages awarded by a court in connection with claims, demands, suits or proceedings made or brought by a third party (“Claims”) against Customer to the extent based upon an allegation that the Hosted Service, as furnished by LynkState hereunder and used by Customer within the scope of the Agreement, infringes any copyright or any U.S. patent or trademark rights of any third party. THE FOREGOING STATES THE ENTIRE OBLIGATION OF LYNKSTATE WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE HOSTED SERVICE. LynkState shall have no liability under this Section 11.1 to the extent that any Claims are based on (a) any combination of the Hosted Service with products, services, methods, content or other elements not furnished by LynkState, (b) any modification or alteration of any part of the Hosted Services by or on behalf of Customer, (c) continued use of the Hosted Services by or on behalf of Customer after being requested to return the infringing Hosted Services and use a replacement version, or (d) or any use of the Hosted Service in a manner that violates the Agreement or the instructions given to Customer by LynkState.

    2. Mitigation Measures. In the event of any Claim or potential Claim covered by Section 11.1, LynkState may, in its discretion, seek to mitigate the impact of such Claim by modifying the Hosted Service to make them non-infringing, and/or by suspending or terminating Customer’s use of the Hosted Service upon reasonable notice to Customer (provided, in the case of such suspension or termination, that LynkState will refund to Customer a portion of fees prepaid by Customer for the then-current subscription period, prorated to the portion of that subscription period that is affected by the suspension or termination).

    3. Indemnification by Customer. Customer will indemnify, defend and hold LynkState and its assignees and their respective shareholders, officers, directors, employees, agents and representatives harmless from and against any Claims, including without limitation, costs of defense and reasonable attorney’s fees and expenses, arising from or related to (a) any Customer Data, including, without limitation, to the extent based on allegations that the Customer Data infringes any third party’s intellectual property rights or (b) the use of the Hosted Service by Customer or Authorized Users in violation of the Agreement, applicable laws, rules or regulations, or any applicable LynkState documentation or posted policies.

    4. Procedures. Each party’s indemnification obligations are subject to the following: (a) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (b) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle any Claim in a manner that would impair any of the aggrieved party’s rights or interests without prior written consent, which will not be unreasonably withheld); and (c) the aggrieved party will, at the indemnifier’s expense, provide all cooperation, information and assistance reasonably requested by the indemnifier for the defense of such Claim.

       

  12. LIMITATION OF LIABILITY

    1. Waiver of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LYNKSTATE SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THE AGREEMENT OR THE USE OF OR INABILITY TO USE ANY OF THE OFFERINGS TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. LYNKSTATE AND CUSTOMER HAVE AGREED THAT THESE LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

    2. Liability Cap.  THE TOTAL LIABILITY OF LYNKSTATE FOR DAMAGES ARISING FROM OR RELATED TO THE AGREEMENT SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO LYNKSTATE UNDER THE AGREEMENT IN THE 12 MONTHS PRECEDING THE CAUSE OF ACTION FOR THE HOSTED SERVICES TO WHICH SUCH DAMAGES PERTAIN. 

    3. Exceptions. Nothing in this Section 12 shall limit or waive a party’s: (a) liability for any breach of its confidentiality obligations under these Service Terms; (b) liability for its infringement or misappropriation of any proprietary rights of the other party; or (c) indemnification obligations under Section 11.

       

  13. MARKS; PUBLICITY

    1. Identification of Customer. LynkState may identify Customer, by name and logo, as a customer of the Hosted Service, all on LynkState’s website and in LynkState’s other marketing materials.

    2. Case Study. Provided Customer is satisfied with the Hosted Service, LynkState may develop a case study for public dissemination and marketing use by LynkState describing the benefits Customer has derived from the Hosted Service. Customer will reasonably cooperate with such case study. Publishing shall be subject to Customer’s prior written approval, not to be unreasonably withheld.

       

  14. MISCELLANEOUS

    1. Assignment.  Neither party may assign the Agreement without the other party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, each party may transfer these Service Terms together with all Order Forms (and subject to any usage limitations therein) upon written notice to the other party: (a) to any entity controlling, controlled by, or under common control with, the transferring party, where “control” means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity; or (b) to any entity acquiring the transferring party, with which the transferring party is merging or to which the transferring party sells all or substantially all of its assets.  LynkState shall have the right to increase amounts charged to Customer in the event of any transfer by Customer that either increases the cost of providing the Hosted Service or, by virtue of a change in taxes to be paid, reduces the amount received by LynkState.  Any attempt to assign the Agreement except as permitted under this Section 14.1, will be null and of no effect. Subject to the foregoing, these Service Terms will bind and inure to the benefit of each party’s successors and permitted assigns.

    2. Independent Contractor. No agency, partnership or joint venture is created by this Agreement. The parties are and remain at all times independent contractors and not agents or employees of the other party. Neither party has the authority to act for, bind or incur any debts or liabilities on behalf of, the other party in any respect whatsoever.

    3. Government End Users. The Software and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein.

    4. Force Majeure.  LynkState shall not lose any rights hereunder or be liable to Customer for damages or losses on account of failure of performance under this Agreement if the failure is occasioned by war, strike, fire, act of God, earthquake, flood, lockout, embargo, pandemic, epidemic, act of terrorism, governmental acts or orders or restrictions, failure of suppliers or any other reason where failure to perform is beyond LynkState’s reasonable control, including without limitation, failures or fluctuations in electrical equipment.

    5. Export Compliance.  Customer agrees to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Hosted Service, nor any direct product thereof, are: (a) exported or re-exported directly or indirectly in violation of such export laws and regulations; or (b) used for any purposes prohibited by the such export laws and regulations.

    6. Severability.  If any part of the Agreement is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

    7. Waiver.  The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision. 

    8. Notices.  All notices permitted or required under the Agreement shall be in writing, will reference the Agreement, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.

    9. Governing Law.  The Agreement will be governed by the substantive and procedural laws of California, excluding its conflict of law rules and the United Nations Convention for the International Sale of Goods.

    10. Dispute Resolution. The parties shall attempt in good faith to resolve any dispute arising out of or relating to this Agreement promptly by negotiation between executives who have authority to settle the controversy and who are at a higher level of management than the persons with direct responsibility for administration of this Agreement.  If the parties are unable to resolve such dispute after such informal negotiation, then to the maximum extent permitted by law, the parties hereby agree that all matters, claims, or disputes arising out of or in connection with this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be resolved by final and binding arbitration administered by JAMS under its Comprehensive Arbitration Rules and Procedures then in effect.  In the event that JAMS shall no longer exist or if JAMS fails or refuses to accept submission of such dispute, then the dispute shall be resolved by binding arbitration before the American Arbitration Association under its Expedited Procedures of Commercial Arbitration Rules then in effect.  The arbitration and all associated discovery proceedings and communications shall be conducted in English, and the arbitration shall be held in Los Angeles, California.  Judgment on the award rendered by such arbitration may be entered in any court having jurisdiction.  This arbitration clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In the event a dispute is allowed or required under this Agreement to be resolved through arbitration, the parties will maintain the confidential nature of the existence, content, or results of any arbitration hereunder, except as necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial confirmation or challenge to an arbitration award or its enforcement, or unless otherwise required by law or judicial decision.

    11. Class Action and Jury Trial Waiver.  THE PARTIES EXPRESSLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR THE PURPOSES OF LITIGATING DISPUTES HEREUNDER. Each party agrees that any dispute must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiffs, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum in connection with any dispute. If the dispute is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.

    12. Revisions to Service Terms. LynkState may amend these Service Terms and its policies from time to time. We shall inform you of any such material changes by posting the revised version(s) to our website at the same URL as the original version(s), and providing notice to you by email or through the Hosted Service.  If such an amendment materially and adversely affects Customer’s rights herein, Customer will have the right, as its sole and exclusive remedy in connection with such amendment, to terminate this Agreement during the thirty (30) day period after LynkState’s notice of such amendment, by providing written notice of termination to LynkState. Customer’s continued use of the Hosted Services after thirty (30) days of LynkState’s notice of the amendment constitutes Customer’s acceptance of the amendment.

    13. Entire Agreement; Priority. These Service Terms together with the Order Forms and any documents expressly referenced herein constitute the entire agreement and supersedes all prior or contemporaneous oral or written agreements regarding the subject matter hereof. In the event of any conflict between the provisions of these Service Terms concerning evaluation of the Hosted Service and access to Lab Services and the provisions of the remainder of these Service Terms, the terms concerning evaluation of the Hosted Service and access to Lab Services shall prevail.