NOTICE: YOU AGREE THAT BY YOUR USE OF, OR ACCESS TO THIS WEBSITE, OR ANY PART OF THIS WEBSITE (INCLUDING, BUT NOT LIMITED TO THE USE OR DOWNLOADING OF ANY SOFTWARE, ON-LINE PROCESSES, DATA INPUT, AND/OR CAPTURING OF VISUAL IMAGES OR DATA) YOU AGREE AND INTEND FOR BAY CAPITAL HOLDINGS TO RELY ON YOUR AGREEMENT TO ALL OF THE FOLLOWING TERMS AND CONDITIONS IN EXCHANGE FOR ALLOWING YOU USE OR ACCESS TO ITS PRODUCTS AND SERVICES.
WHILE THE FOLLOWING TERMS ARE A CONTRACT BETWEEN YOU AND BAY CAPITAL HOLDINGS, AND APPLY, WHETHER OR NOT YOU READ THEM, FOR YOUR PROTECTION AND UNDERSTANDING, LAUNCH CONTROL RECOMMENDS THAT YOU CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS BEFORE PROCEEDING ANY FURTHER.
DOWNLOADING, INSTALLING OR USING THE LAUNCH CONTROL SOFTWARE THAT ACCOMPANIES THIS SOFTWARE LICENSE AGREEMENT, THE “SOFTWARE-AS-A-SERVICE” DELIVERY SERVICES (“SAAS SERVICES”) THAT MAY BE USED TO PROVIDE ACCESS TO SUCH SOFTWARE, OR ANY ACCOMPANYING DOCUMENTATION (COLLECTIVELY, THE “SOFTWARE”).
“Launch Control” MEANS: Launch Labs, LLC.
“You” (or possessive “Your”) means or refers to the person or entity on behalf of whom any person accesses and/or uses this Website and/or Software.
“WEBSITE” means any computer-based page or screen, or collection of pages or screens, accessed by You, directly or indirectly through any URL owned or operated by Launch Control, including www.LaunchControl.us.
“SOFTWARE” means any software, computer routine, database or other computer-implemented process or data aggregation to which Launch Control provides You access.
THIS WEBSITE USE AND SOFTWARE LICENSE AGREEMENT CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. IF YOU ARE RESIDENT IN THE UNITED STATES, THESE AFFECT YOUR RIGHTS TO RESOLVE A DISPUTE WITH LAUNCH CONTROL, AND YOU SHOULD READ THEM CAREFULLY. FOR EXAMPLE, EXCEPT IF YOU OPT OUT AND EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE “AGREEMENT TO ARBITRATE – U.S. CUSTOMERS” SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND LAUNCH CONTROL WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING.
Launch Control is willing to license Your use of the Website, and Software provided or made available to You to only upon the condition that You represent and warrant that You have accepted all the terms contained in this Agreement. By clicking to accept where indicated anywhere on the Website as a condition for continuing access or used, or by downloading, installing or using Software, You are representing to Launch Control that You understand this Agreement and accept all of its terms. If You are accepting the terms of this Agreement on behalf of a company or other legal entity, You represent and warrant that You have the authority to bind that company or other legal entity to the terms of this Agreement, and, in such event, “You” and “Your” will refer to that company or other legal entity. If You do not accept all the terms of this Agreement, then Launch Control is unwilling to both license use of the Website and use of Software to You and You are prohibited from accessing or using either.
IN CONSIDERATION OF YOUR ACCEPTANCE OF THE TERMS OF THIS AGREEMENT, AND OF YOUR AGREEMENT TO ABIDE BY ALL TERMS APPLICABLE TO YOUR ACCESS OR USE OF THE WEBSITE AND/OR SOFTWARE, INCLUDING PAYMENT OBLIGATIONS TO Launch Control (including by any separate agreement, purchase order, or representation to Launch Control), Launch Control hereby grants You, subject to the terms and conditions of this Agreement, a limited, non-exclusive, non-transferable, non-sublicensable and (at Launch Control’s option) terminable license to access and use the Website and Software made available to You via the Website.
Only During the term of this Agreement, You may access and use the Website and any Software provided to You by way of the Website solely for Your personal use or, if applicable, for the internal business use of the company that You represent, or represented at the time that You accepted this Agreement.
You may not at any time remove or alter any copyright notices of any Launch Control product or work.
You may not provide access or use of the Website or Software on any computer network or allow concurrent use of thereof by more than one individual.
You may not rent, lease or otherwise transfer Software, nor use of, or access to the Website.
Unless permitted by law, despite Your agreement to the contrary, You may not, and You agree not to reverse engineer, decompile, or disassemble the Software, or attempt to do so.
Access and Use of the Website and Software
With respect to Your authorized use of, and access to the Website or Software, including any Software provided as a Software of Service modality (SaaS), Launch Control will use commercially reasonable efforts to make such SaaS Services available to You, subject to downtime for scheduled or emergency maintenance. You may only use the SaaS Services in connection with Your authorized and here-licensed access to the Website and Software and solely for Your internal business purposes.
The Website, all Software, and any portion or subcomponent of either, including any derivative works of either, is/are licensed, not sold, and are licensed solely as provided in this Agreement.
For purposes of this Agreement, any use of terms such as “purchase,” “sell” and the like, and used in any way associated with Your use of the Website and/or Software refers only to a license to use the Software and not to a purchase or sale of title to or ownership of any rights or other interests in the Software. You acknowledge and agree that Launch Control retains ownership of all, and all components of the Website and Software itself and any related data or databases used by Launch Control, including all intellectual property rights therein. The Website and Software are protected by U.S. copyright law and international treaties. You will not delete or in any manner alter the copyright, trademark, and other proprietary rights notices or markings appearing on the Website or Software as, if applicable, delivered to You. Launch Control reserves all rights in the Website and Software not expressly granted to You in this Agreement.
If You provide any ideas, suggestions, or recommendations regarding the Website or Software (“Feedback”), Launch Control will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such Feedback as it sees fit, entirely without obligation or restriction of any kind. By providing Feedback, You grant Launch Control a worldwide, perpetual, irrevocable, sublicensable, fully-paid and royalty-free license to use and exploit in any manner such Feedback. If You are using the Website or Software in a business or for business purposes, You grant Launch Control the right to use Your trade name (and the corresponding trademark or logo) on the Launch Control website and marketing materials to identify You as a customer.
You may terminate the license at any time by: (1) not timely paying charges by Launch Control for access to, or use of Software, as communicated to You from time to time; (2) by notifying Launch Control of Your intent to terminate this Agreement; or (3) by breaching any material terms of this Agreement.
Launch Control may terminate this Agreement by notifying You via an email address provided by You and, if You have paid for a period of use of the Website and Software, for a term that has not, at the time of notice, not yet expired, offering a prorated refund of such payments, along with initiation of a refund process according to Launch Control’s then-current policies and procedures for issuing refunds to its customers.
Upon termination or expiration of this Agreement, Your rights to Access the Website and use Software cease. Sections 3, 5, 9, 10, 11, 13, 14, 15 and 16 of this Agreement will survive any termination or expiration of this Agreement.
The price payable by You is the price stated on the Website, or applicable purchasing documentation (or, if no such price is specified, the price set out in our then-current standard published price list). Launch Control’s prices are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”). If Launch Control issues an invoice to You, all invoices are payable within 30 days of the invoice date unless specified differently in the invoice or purchasing documentation. You are responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made to us, other than any taxes based on Launch Control’s net income. All amounts are payable and charged (i) at the beginning of the subscription, when You place Your order, and, (ii) because each subscription renews automatically until You cancel it in accordance with this Agreement, at the time of each renewal until You cancel. You must cancel Your subscription in accordance with this Agreement before it renews to avoid the billing of the fees for the next subscription period. You will not receive a refund for the fees You already paid for Your current subscription period. You can cancel Your subscription at any time in accordance with this Agreement; see our License Renewal FAQs which can be found on our website (www.launchcontrol.us).
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, EXPRESS OR IMPLIED, ARE DISCLAIMED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES AND CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM Launch Control OR ELSEWHERE WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
Launch Control does not warrant that the Website, Software, or any information or services provided through either will meet Your requirements, that any Software will operate in the combinations, on the operating system or in the environments that You may select for execution, that the operation of Software will be error-free or uninterrupted, or that all Software errors will be corrected.
Launch Control’s TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY WILL BE LIMITED TO AMOUNTS PAID TO Launch Control BY YOU FOR THE SOFTWARE DURING THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT WILL Launch Control BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF DATA, BUSINESS, PROFITS OR ABILITY TO EXECUTE) OR FOR THE COST OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE EXECUTION OR PERFORMANCE OF THE SOFTWARE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT Launch Control HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
The Software is a “commercial item” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. If the Software is being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Software will be only those specified in this Agreement.
(a) Export Laws
You agree to comply fully with all U.S. and other applicable export laws and regulations to ensure that neither the Software nor any technical data related thereto nor any direct product thereof are exported or re-exported directly or indirectly in violation of, or used for any purposes prohibited by, such laws and regulations.
(b) EU Data Protection Laws
Personal Data may be sent to facilities hosted outside of the country where You purchased or utilizes the Website and/or Software. Launch Control will comply with the European Economic Area data protection law regarding the collection, use, transfer, retention, and other processing of Personal Data from the European Economic Area, pursuant to the EU-US Privacy Shield and the E.U. Standard Contractual Clauses for data transfer, where applicable.
(a) Agreement to Arbitrate:
If You are a Launch Control customer and acquired access to the Website and/or Software in the U.S., You (and any company that You represent in entering this Agreement) agree that any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Software (collectively, “Disputes“) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action“). Without limiting the preceding sentence, You will also have the right to litigate any other Dispute if You provide Launch Control with written notice of Your desire to do so by email to firstname.lastname@example.org within 30 days following the date You first access the Website or access or use Software, or agree to the present terms and conditions, whichever is earlier (such notice, an “Arbitration Opt-out Notice“). If You don’t provide Launch Control with an Arbitration Opt-out Notice within such 30 day period, You will be deemed to have knowingly and intentionally waived Your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if You timely provide Client with an Arbitration Opt-out Notice, will be the state or federal courts located in the Middle District of Florida, and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless You timely provide Client with an Arbitration Opt-out Notice, You acknowledge and agree that You and Launch Control are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both You and Launch Control otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this Section will be deemed void. Except as provided in the preceding sentence, this Section will survive any termination of this Agreement.
(b) Arbitration Rules
The arbitration will be administered by the American Arbitration Association (“AAA“) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules“) then in effect, except as modified by this Section. (The AAA Rules are available at www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
(c) Arbitration Process
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a general Demand for Arbitration. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
(d) Arbitration Location and Procedure
Unless You and Launch Control otherwise agree, the arbitration will be conducted in the county where You reside. If Your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that You and Launch Control submit to the arbitrator, unless You request a hearing or the arbitrator determines that a hearing is necessary. If Your claim exceeds $10,000, Your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
(e) Arbitrator’s Decision
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of Section 9 (“Limitation of Liability”) as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If You prevail in arbitration You will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. Launch Control will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys’ fees and expenses if it prevails in arbitration.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
You, and if applicable, any company on whose behalf You are accessing the Website and/or using any Software, HEREBY JOINTLY AND SEVERALLY AGREE to indemnify and hold harmless Launch Control from, and with respect to any claims, causes of action, damages, fines, penalties, sanctions or other liabilities, including the all of Launch Control’s costs and expenses for defending against any of the foregoing, if such claims, causes of action, damages, fines, penalties, sanctions or other liabilities arise in any way arise from, or relate to Your access or use of the Website, Software and/or any data or information provided by, generated by, or otherwise made available to You through such access or use.
Without limiting anything elsewhere contained in this Agreement, You agree to abide by all provisions of the Telephone Consumer Protection Act of 1991 (“TCPA”) – 47 U.S.C. § 227. You agree that you alone are responsible for any communications with third parties in any way associated with information or data that you obtain or generate through use of the Website and/or Software, and the indemnity of the preceding paragraph of this Section 15 shall apply to any actions against Launch Control and/or any entity related to Launch Control, including its successors and assigns, that in any way relate to Your violation or alleged violation of the TCPA. This same prohibition and indemnity obligation shall apply with respect to any act or omission by You that is in violation of any law, regulation, or ordinance relating to privacy, data use, or third party contact, and that results, directly or indirectly, to any claim or defense undertaking by Launch Control.
This Agreement will be governed by and construed in accordance with the laws of the State of Florida without regard to or application of conflict of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply. If You are a U.S. resident, Section 12 (“Agreement to Arbitrate – U.S. Customers”) applies. If You are not a U.S. resident, You agree that any claims or actions regarding this Agreement may be brought solely in the state or federal courts located in the Middle District of Florida, and You waive any right to challenge jurisdiction and venue therein. You may not assign or transfer this Agreement or any rights granted hereunder, by operation of law or otherwise, without Launch Control’s prior written consent, and any attempt by You to do so, without such consent, will be void. Except as expressly set forth in this Agreement, the exercise by either party of any of its remedies under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. All notices or approvals required or permitted under this Agreement will be in writing and delivered by email (we will email You at the email address You provided us when You initially purchased Your license), and in each instance will be deemed given upon receipt. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by authorized representatives of both parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. If any provision of this Agreement is held to be unenforceable or invalid, that provision will be enforced to the maximum extent possible, and the other provisions will remain in full force and effect. This Agreement is the complete and exclusive understanding and agreement between the parties regarding its subject matter, and supersedes all proposals, understandings or communications between the parties, oral or written, regarding its subject matter, unless You and Launch Control have executed a separate agreement. Any terms or conditions contained in Your purchase order or other purchasing document that are inconsistent with or in addition to the terms and conditions of this Agreement are hereby rejected by Launch Control and will be deemed null.
If You have any questions regarding this Agreement, You may contact Launch Control at email@example.com. If You wish to send us a legal notice, please start the subject line of Your email with “Attention: Legal Department”.