This Agreement (the “Agreement”) is made by and between
Lynx System Developers, Inc., a Massachusetts corporation (“Lynx”), and the
individual or entity entering into this Agreement (“Buyer” or “You”).
1. Purchase of System. Lynx agrees to sell to
Buyer and Buyer agrees to purchase the system(s) or components, if any (the
“Equipment”), and licenses the Software (as defined below) (the Equipment
and the Software, together referred to as the “System”) pursuant to the
terms and conditions set forth herein. The purchase price excludes all taxes,
fees, customs duties, shipping and insurance costs. If Lynx is required to pay
import duties, levies, imposts or sales, use, property, value-added, or other
federal, state or local taxes with respect licenses granted or Equipment
purchased pursuant to this Agreement, then such import duties, levies, imposts
or taxes shall be billed to and paid by Buyer; provided that this shall not
apply to taxes based solely on Lynx's income. Buyer agrees to remit the
purchase price no later than 30 days after delivery of the System.
2. Delivery & Installation. The System was
shipped to Buyer f.o.b. Lynx, Haverhill, Massachusetts. Installation of the System
shall be the sole responsibility of Buyer. Lynx shall not be liable for any
damage to the System that occurs during installation.
3. Cancellation Lynx may cancel any order placed, or
refuse or delay shipment thereof, if Buyer fails to make prompt payments of
amounts due Lynx, if any acts or omissions of Buyer delay Lynx's performance, or
if Buyer becomes insolvent.
4. Returns. In the event that Buyer did not have the
opportunity to review this Agreement prior to paying for the System, Licensee
may return the System to Lynx within thirty (30) days of the date the System was
delivered to Buyer. If Buyer installs or uses the Software or takes such other
actions that constitutes consent to the terms of this Agreement, then that
conduct shall constitute Buyer’s agreement to be bound by this Agreement and
Buyer shall not be eligible for a refund pursuant to this Section 4.
5. Ownership and License of Software.
a. Ownership of Software. Lynx owns and retains all
title, copyright, trademark, and other proprietary rights in software, firmware
and documentation provided herewith or as otherwise provided by Lynx to Buyer
(collectively, "Software"). Buyer acknowledges that the Software is
the confidential property of Lynx and Buyer will not disclose the Software to
any other person without Lynx's consent.
b. Software License. Subject to the terms and
conditions hereunder, Lynx licenses Buyer to use the Software on any number of
computers at Buyer's site, which may include several different nearby locations,
provided that Buyer discloses such locations to Lynx in writing prior to any
installation or use of the Software in such locations (the “Buyer’s
Site”). Lynx also licenses Buyer to copy the Software and documentation
provided with the System for use at the different locations within the Buyer’s
Site, and for backup purposes. Except as provided under Section 14 below, in no
event does the license granted herein include the right to use the Software in
connection with the provision of off-Site or rental timing services.
c. Term of License. This license shall begin upon
acceptance of this Agreement by Buyer, and shall continue until Buyer returns
the System to Lynx, until Buyer transfers the System under Section 9 of this
Agreement or as otherwise provided hereunder.
d. Termination of License. Notwithstanding Section
5(c) of this Agreement, the licenses granted hereunder will automatically
terminate upon a failure by Buyer to comply with the terms of this Agreement.
Lynx shall notify Buyer of any such failure, and immediately upon receipt of
such notice from Lynx, Buyer shall cease using the Software and return to Lynx
all Software. In the event that preceding terms of this Section 5(d) are not
enforceable, such terms shall not apply and Buyer agrees that notwithstanding
Section 5(c) of this Agreement, Lynx may terminate this license, effective upon
notice to Buyer, if Buyer breaches this Agreement and the breach is not capable
of remedy, or within 30 days of notice if Buyer fails to correct any breach
capable of remedy within such 30 day period. Upon receipt of notice of
termination, Buyer shall immediately cease using the Software and return to Lynx
all Software. Any termination under this Section 5(d) shall be effective without
action by any court.
6. No Right to Reverse Engineer. Buyer will not
remove the Software from the Equipment (if applicable), decompile, or
disassemble the Software, or use the Software for any purpose other than the
operation of the System. If the Site is located in a member state of the
European Community, and Buyer wishes to obtain the information necessary to
achieve interoperability of an independently created computer program with the
Software as permitted under Article 6 of the E.C. Software Directive
("Interoperability Information"), then Buyer shall notify Lynx in
writing, specifying the nature of the Interoperability Information it needs and
the purpose for which it will be used. If Lynx reasonably determines that Buyer
is entitled to such Interoperability Information under Article 6, Lynx shall, at
its option, either (a) provide such Interoperability Information to Buyer or (b)
authorize Buyer to reverse engineer the Software within the limits prescribed by
Article 6, solely to the extent indispensable to obtain such Interoperability
Information. If Lynx elects clause (a), Buyer shall provide all information and
assistance reasonably requested by Lynx to enable Lynx to perform clause (a),
and to the extent allowed by law, Lynx may charge Buyer a reasonable fee,
determined in Lynx's discretion, for making available the requested
Interoperability Information.
7. Unauthorized Use. In the event of any
unauthorized installation, or use of the Software at more than one Site at the
same time, Buyer shall be liable to Lynx for damages and other compensation in
the amount of 25% of the current list price of the System for each such
unauthorized installation or use of the Software.
8. Proprietary Notices. Buyer shall not remove any
copyright, trademark or other proprietary notices embedded in any component of
the System or included on any documentation provided with the System, and shall
reproduce all such notices on any copies of the Software which Buyer may make in
accordance with this Agreement.
9. Transfer of System. Buyer may transfer the
System, including the Software, only if Buyer transfers the System as a whole
and only if the transferee executes a license agreement with Lynx prior to the
transfer. In no event will the warranties contained in this Agreement apply to
any transferee. Buyer shall not retain any component or portion of the System
after such a transfer, including without limitation any Software, including
back-up copies.
10. Warranties
a. Software Warranty. Lynx warrants that the disks
on which the Software is recorded when received from Lynx will be free of
defects in materials or workmanship under normal use for a period of ninety (90)
days after its delivery to Buyer. If a defect occurs within this period, Buyer
may return the defective disk together with a copy of the receipt for Buyer's
purchase of the disk, and Lynx will replace the disk without charge. Lynx will
have no obligation to replace any disk that it did not provide to Buyer or any
disk that is damaged by accident, abuse or misapplication.
b. Lynx Manufactured Hardware Warranty. Lynx
warrants the hardware components of the System that it manufactures against
defects in material and workmanship for a period of one year from the date of
delivery to Buyer. If a defect occurs, Lynx will, at its option, repair, replace
or refund the purchase price of the hardware component at no charge to Buyer,
provided the component is returned to Lynx within the warranty period. In no
event will this warranty apply to hardware that has been modified by Buyer,
damaged by accident, abuse, misuse or misapplication, or hardware that does not
have a Lynx serial number. Any return of a defective disk or hardware component
under Sections 10(a) or 10(b) must be accompanied by an “RMA” number
provided by Lynx for such article. All duties, taxes, insurance, liabilities and
costs of returns are the responsibility of Buyer unless the returned component
is found to be covered by the warranty under this Section 10. Buyer is
responsible for the removal and reinstallation of all returned components.
c. Non-Lynx Manufactured Hardware. Lynx does not
warrant any hardware components that are not manufactured by Lynx, including
without limitation, computer systems and peripherals, camera mountings, lenses,
cables, power supplies and cases. Lynx does agree, however, to transfer or
assign to Buyer those manufacturer's warranties that are transferable or
assignable, if any.
d. Scope of Warranty. The warranties contained in
this Agreement are not transferable and are extended only to Buyer. The
warranties and remedies set forth in this Section 10 are Buyer's only remedies
for breach of warranty. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED. LYNX
EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY
AND OF FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES ARISING FROM COURSE OF
DEALING, CUSTOM OR TRADE USAGE.
11. LIMITATION ON LIABILITY. IN NO EVENT WILL LYNX
BE LIABLE, IN CONTRACT, TORT OR OTHERWISE, FOR INCIDENTAL, PUNITIVE, OR
CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF
DATA, NOR FOR ANY OTHER DAMAGES IN EXCESS OF THE AMOUNT BUYER PAID FOR THE
SYSTEM OR ANY COMPONENT THEREOF.
12. Compliance with Laws. Buyer acknowledges that
shipment of the System is subject to the export laws of the USA and that such
laws could delay or preclude delivery of the System by Lynx to Buyer. Buyer
agrees to comply with all applicable laws, including, without limitation, the
export laws of the USA. Buyer shall not directly or indirectly export or
re-export the System or any Component thereof outside the country in which the
Site is located without first obtaining Lynx's written consent and complying
with all applicable export laws and other laws of the USA and other countries,
including providing Lynx with any required assurances regarding export and
re-export.
13. Approval of Appropriate Government Authorities.
Prior to delivery of the System, Buyer shall apply to the appropriate
governmental authorities and obtain all approvals necessary for Buyer's
execution and the effectiveness of this Agreement and the payment of fees due
hereunder.
If the Site is in Japan, this Agreement shall be effective
only after review and approval by the Japanese Fair Trade Commission. Buyer
agrees that it shall be Buyer's responsibility to submit, and that Buyer shall
submit (as necessary), this Agreement to the Fair Trade Commission in a timely
manner. Lynx shall fully cooperate with Buyer in submitting this Agreement, and
may, at its option, be represented by counsel of its choosing in such endeavors
separately from Buyer. Buyer represents that there is no other Japanese
governmental authorization necessary to make this Agreement effective or to make
Lynx's rights hereunder enforceable or otherwise to protect Lynx's proprietary
rights, or to comply with exchange regulations or other requirements so as to
allow payments to Lynx in connection with this Agreement.
In no event shall either party be required to accept any
term or condition in addition or different from those contained in this
Agreement, and, to the extent that the Fair Trade Commission or any other
governmental body seeks to impose such term or condition, this Agreement shall
be deemed null and void unless and until the party or parties affected by such
term or condition expressly agrees to be bound by it.
14. Timing Service License.
a. License. In addition to the license granted in
Section 5(b) of this Agreement and subject to the terms of this Section 14, Lynx
grants to Buyer a nonexclusive, nontransferable, worldwide license to use the
Software on-Site or off-Site for the sole purpose of providing rental or other
Timing Services. For purposes of this Agreement, "Timing Services"
shall mean the operation of the System by Licensee for a third party in
connection with the timing of athletic or other events hosted by the third
party.
b. Term of License. The license granted in this
Section 14 shall begin upon acceptance of this Agreement, and shall continue
until (i) Buyer returns the System to Lynx, (ii) Buyer transfers the System
under Section 9 of this Agreement, (iii) Buyer fails to comply with any of
Lynx's Timing Service Rules (as defined in Section 14(e) below), (iv) the
license is terminated pursuant to Section 5(d) above or pursuant to the Lynx
Timing Service Rules, or (v) Lynx terminates this license in its sole discretion
with or without cause.
c. Transfer. In no event may Buyer transfer,
sub-license or assign the license granted in this Section 14. A transferee of
the System under Section 9 of this Agreement must be separately authorized by
Lynx to provide rental or other Timing Services.
d. Advertising License. In exchange for the license
granted in this Section 14, Buyer hereby grants to Lynx all right, title and
interest in any and all advertising space normally afforded to computer timing
services at or in connection with the athletic or other events at which Buyer
uses the System. Buyer shall notify Lynx in writing of any such advertising
space at least one month prior to the event at which such advertising space will
be available.
e. Timing Service Rules. In exchange for the license
granted in this Section 14, Buyer shall comply with all reasonable Timing
Service Rules promulgated by Lynx from time to time. Lynx may amend its Timing
Service Rules from time to time, and in such case the new Timing Service Rules
will be effective upon thirty days notice from Lynx (such notice may consist of
posting the new Timing Service Rules at Lynx’s website located at
www.finishlynx.com). Lynx's current Timing Service Rules are as follows: (i)
Unauthorized Timing Services may not advertise themselves as being
"Authorized" or in any other way endorsed by Lynx. (ii) Timing
Services must apply for the status of "Authorized". Application
consists simply of a resume describing the events and situations which the
Timing Service has operated F.A.T. systems, especially FinishLynx. Lynx reserves
the right to reject any application for any reason. (iii) A list of events in
which the System was used over the past year is required annually. Lynx simply
wants to assure that those who will carry the "authorized" tag are
active and competent users of the System. (iv) Authorized Timing Services will
receive a FinishLynx banner and other appropriate advertising gear for use at
events. (v) Lynx will retain its own private "timing team" and will
often be doing certain high profile events for free. Since crews at such events
are often larger than we would employ ourselves, however, it is expected that
members of the Authorized Timing Services would make themselves available for
such events if at all possible. The Timing Services would, of course, be
compensated.
15. System Loans. In the event that Lynx is loaning
the System to Buyer (“Borrower”), the following additional terms and
conditions will apply:
a. Ownership of Hardware. Notwithstanding anything
else in this Agreement to the contrary, the System, including the Equipment,
remains the property of Lynx and must be returned to Lynx in the same condition
in which it was shipped immediately upon receipt of written request by Lynx.
Lynx may request that the System be returned at any time for any reason.
b. Transfer of System. Notwithstanding Section 9
hereunder to the contrary, Borrower may not transfer the System, including the
Software, and its rights and obligations under this Agreement under any
circumstances.
c. Scope of Warranty. Notwithstanding Section 10
hereunder to the contrary, THE SYSTEM IS PROVIDED ON AN “AS IS” BASIS, AND
THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED WITH RESPECT TO THE SYSTEM OR
OTHERWISE HEREUNDER.
d. Software License. The Software License under
Section 5(b) above shall terminate upon the termination of the loan.
e. Purchase Terms. Terms relating to the sale of the
System shall apply with equal force to loans of the System as appropriate, and
subject to the terms of this Section 15.
16. General. (i) This Agreement incorporates the
parties' entire agreement regarding the System and its various components,
including the Software. In the event that Lynx received a purchase order or
other terms and conditions from Buyer with respect to the sale of the System
and/or the license of the Software (a “Buyer PO”), Buyer agrees that this
Agreement shall supercede the Buyer PO and the Buyer PO will be without effect.
(ii) This Agreement is governed by the substantive laws of The Commonwealth of
Massachusetts, without regard to its principles of conflicts of laws or the
United Nations Convention on Contracts for the International Sale of Goods. Any
dispute arising under this Agreement or concerning any transaction contemplated
hereby shall be resolved in a state or federal court located in The Commonwealth
of Massachusetts, USA, and each of the parties hereby agrees to submit itself to
the jurisdiction and venue of such courts for such purposes. (iii) Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of this
Agreement shall be prohibited by or invalid under applicable law, such
provisions shall be ineffective only to the extent of such prohibition or
invalidity without invalidating the remainder of such provision or the remaining
provisions of this Agreement.