WHEREAS, LGEAI is in the business of developing LGTechAssist.com Website (hereinafter referred to as the “Site”);
WHEREAS, Servicer desires to obtain a license to use the Site for its repair service information of LGE products (as defined hereinafter as the "Product"); and
WHEREAS, LGEAI agrees to license and make available to Servicer the Site under the terms and conditions of this Agreement;
NOW, THEREFORE, for and in consideration of the mutual promises contained herein, LGEAI and Servicer agree as follows:
Article 1. License to Use the Site
Subject to the terms and conditions specified herein, LGEAI hereby grants to Servicer a non-exclusive and non-transferable license to use the Site for the sole purpose of the Servicer's repair service information for the Products in the United States.
Article 2. Use of the Site
Servicer agrees not to copy the Site in whole or in part except for the licensed use stated above and for backup and archival storage. Any copies of the Site in part or whole must contain the copyright notices and trademarks appearing in the Site supplied to Servicer. Servicer agrees, unless otherwise specified by LGEAI, not to modify, alter, translate, disassemble or decompile the Site or documentation or any copy, in whole or in part.
Article 3. Warranty Limitations
THE SITE IS LICENSED TO SERVICER ON AN AS-IS BASIS WITHOUT ANY WARRANTY. LGEAI MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE SITE IS ERROR FREE.
LGEAI MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE USE OF THE SITE WILL NOT INFRINGE ANY PATENT, COPYRIGHT OR TRADEMARK OF THIRD PARTIES. IN NO EVENT SHALL LGEAI BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND ARISING OUT OF THE USE OF THE SITE, EVEN IF LGEAI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Article 4. Ownership, Copyrights, Trademarks
All rights, title to and interest in the Site shall belong solely and exclusively to LGEAI and no right, title or interest in the Site will pass to Servicer or any associate, employee, individual or any other entity related to Servicer. LGEAI shall retain full title, ownership and copyright to the Site.
LGEAI may from time to time reasonably specify the wording of and standards for copyright noticed in accordance with such specifications.
Article 5. Indemnification
LGEAI represents that it has sufficient right, title and interest in the Site to enter into this Agreement. LGEAI agrees to defend at its expense any claim, suit or action against Servicer based on a claim that LGEAI does not have sufficient right, title and interest in the Site as furnished by LGEAI, or that the Site infringes on any copyright, patents, licenses, trade secrets or other proprietary rights, and to pay the amount of any settlement, award, or the costs and damages finally awarded after appeal, if any, in any such claim, suit or action, provided that (i) LGEAI is notified promptly in writing of any notice of claim or of threatened or actual suit and (ii) at LGEAI request and expense LGEAI is given assistance by Servicer for the defense of same.
Following notice of a threatened or actual claim, suit or action under this Article 5, LGEAI may, at its option, procure for Servicer the right to continue to use the Site as furnished or replace or modify the Site to make it non-infringing. If LGEAI elects to replace or modify the Site, such replacement or modification shall meet the applicable specifications current as of the date of replacement or modification. The foregoing states the entire liability of LGEAI with respect to the infringement of the Site or any part thereof on any copyrights, patents, licenses, trade secrets or other proprietary rights, and Servicer expressly waives any such other liabilities.
Servicer agrees to defend, at its expense, any claim, suit or action against LGEAI by any third party (including but not limited to Servicer's subsidiaries and customers of Servicer) in connection with the use of the Site or any parts thereof and to pay the amount of any settlement, award, or the costs and damages finally awarded after appeal, if any, in any such claim, suit or action.
Article 6. Limitation of Liability
IN NO EVENT SHALL LGEAI BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, ANY LOST PROFITS, LOST SAVINGS, OR OTHER INCIDENTAL DAMAGES, ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE, OR THE DELIVERY OR FAILURE TO DELIVER, THE SITE, EVEN IF LGEAI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL REMAIN IN FULL FORCE AND EFFECTS REGARDLESS OF WHETHER THE SERVICER’S REMEDIES HEREUNDER ARE DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
Article 7. Non-Disclosure of the Site
7.1 Ratio. LGEAI represents and Servicer agrees that LGEAI's business depends on LGEAI's ability to license the Site and related materials and that disclosure of the Site will give rise to injury to LGEAI and would seriously impair LGEAI's ability to do business. Therefore, Servicer agrees to the following provisions.
7.2 Restrictions. Servicer agrees not to reproduce, duplicate, copy or otherwise disclose, distribute or disseminate either the Site or any other materials indicated by LGEAI to be confidential in nature, except for the purposes as specifically licensed hereunder or for internal use upon Servicer's premises.
7.3 Exceptions. However, the provisions of Article 7.2 shall not apply to any materials with respect to which Servicer can clearly demonstrate that such materials:
(a) are in the public domain or in the possession of Servicer without disclosure restriction at the same time of receipt under this Agreement; or
(b) are used or disclosed with prior written approval of LGEAI; or
(c) are independently developed by Servicer; or
(d) are made available by LGEAI to a third party on an unrestricted, non-confidential basis.
7.4 Derivative Works. Servicer agrees not to distribute any Site derived in part or in whole from the Site or based on techniques revealed by Servicer's inspection of the Site.
7.5 Copies and Access. Servicer agrees to take due care to protect and to make and keep only the minimum number of copies of the Site as may be required for internal technical or archival reasons, and will ensure that each copy is marked with a clearly legible confidentiality notice. Furthermore, Servicer agrees to restrict access to the Site and any other confidential materials to its bona fide, full-time employees who have a bona-fide need for such access.
7.6 Injunction. Servicer agrees to consent to an injunction or other equitable relief if sought by LGEAI from a court of competent jurisdiction against the breach of any of the terms of this Agreement, in addition to any other legal remedies which may be available to LGEAI.
7.7 Surviving Terms. Servicer's obligations under this Article 7 shall survive any termination or expiration of this Agreement and shall extend until the earlier of such time as the information protected hereby is in the public domain through no fault of Servicer or its employees, or five (5) years following termination or expiration of this Agreement.
Article 8. Assignment
8.1 Servicer shall not assign this Agreement except that:
(a) Servicer may assign its rights and obligations under this Agreement, or any part thereof, to any of its majority owned subsidiaries. However, Servicer shall remain primarily responsible to LGEAI for such assignee's performance of its obligations hereunder;
(b) Servicer may assign its rights and obligations under this Agreement with the prior written approval of LGEAI; or
(c) Servicer may assign this Agreement to any purchaser of substantially all of the assets of Servicer's business.
8.2 Servicer shall give at least thirty (30) days advanced written notice of a proposed assignment of this Agreement to LGEAI. In the event of any assignment by Servicer, the assignee shall agree in writing to abide by the conditions of this Agreement and to any other terms that LGEAI may reasonably request.
8.3 LGEAI may assign its rights and obligations under this Agreement to any of the companies affiliated with LGEAI without prior consent of the Servicer.
Article 9. Term of Agreement
This Agreement shall be effective from the date of execution hereof until its termination in accordance with the terms of this Agreement.
Article 10. Termination
10.1 This Agreement may be terminated early by giving written notice in accordance with the following:
(a) by LGEAI, if Servicer fails to perform or comply with this Agreement or any provision thereof;
(b) by LGEAI, if Servicer fails to strictly comply with the confidentiality provisions or copyright notice provisions;
(c) by either party, if the other terminates its business; or becomes insolvent or admits in writing its inability to pay its debts as they mature; or makes an assignment for the benefit of creditors;
(d) by either party, if a petition under any applicable bankruptcy law is filed by the other;
(e) by either party, if such a petition is filed by any third party or an application for a receiver of the other is made by anyone and such petition or application is not resolved favorably within thirty (30) days.
10.2 Termination under clause 10.1 (b) shall be effective three (3) days after the giving of notice. In all other cases termination shall be effective seven (7) days following the giving of notice to Servicer if the occurrence giving rise to the right of termination has not been cured.
10.3 Termination for Convenience. Each Party may terminate this Agreement at any time and for any reason (or no reason), without incurring any penalty or compensation for early termination, by giving the other Party not less than seven (7) days’ prior written notice.
10.3 The rights and remedies of either Party provided in this Article shall not be exclusive and are in addition to any other rights and remedies provided by law or this Agreement. In the event LGEAI files a petition in bankruptcy, or is acquired by another Servicer by means of merger or purchase, this Agreement shall survive said purchase, merger or bankruptcy. In the event of filing of a petition of bankruptcy, the appointment of a receiver for, or the cessation of business by LGEAI, Servicer shall have the right to continue using and distributing the Site in accordance with the provisions of this Agreement.
Article 11. Obligations after Termination of Agreement
If this Agreement is terminated, Servicer shall return all full and partial copies of the Site or any other materials furnished by LGEAI to Servicer and in Servicer's control or possession within seven (7) days following the termination date, including any in-house copies Servicer may have produced. At the termination of this Agreement, Servicer will be deemed to have assigned, transferred, and conveyed back to LGEAI all rights, equities, goodwill, titles, or other rights in and to the Site as it was made available by LGEAI to Servicer.
Termination under this Agreement shall not relieve Servicer of its obligations under this Agreement, including, without limitation, its obligations regarding the confidentiality of the Site and related materials. From and after termination, Servicer will not use internally or employ the Site, document and related materials delivered by LGEAI to Servicer as a part, portion, or basis of any Product which Servicer may use, sell, license, assign, or transfer to any third parties.
Article 12. Notices and Requests
All notices, requests and reports in connection with this Agreement shall be deemed given as of the day they are deposited in the local postal system, postage prepaid, certified or registered, return receipt requested, or to such other address as the party to receive the notice or request so designates by written notice to the other.
This Agreement shall be construed and controlled by the laws of State of Alabama. Any and all disputes arising out of or in connection with this Agreement which cannot be settled amicably shall be solely submitted to the court in Madison County, Alabama.
Article 14. Modification of the Agreement
This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and merges all prior and contemporaneous communication. It shall not be modified except by a written agreement dated and signed on behalf of LGEAI and Servicer by their respective duly authorized representatives.
Article 15. Severability, Waiver, Force Majeure
15.1 If any provision of this Agreement shall be found to be invalid or unenforceable for any reason, the remaining provisions nevertheless shall remain in full force and effect.
15.2 Any waiver on the part of any parties hereto shall not imply the waiver of any other right or interest of such party, or any subsequent waiver.
15.3 The Parties hereto shall not be responsible for any failure or delay in the performance of any obligations hereunder caused by acts of God or the public enemy, flood, fire, natural disaster, war or preclusive acts of any governmental authorities.
Article 16. Binding Effect
Subject to the limitations hereinbefore expressed, this Agreement will inure to the benefit of and shall be binding upon the Parties, their successors, administrators, heirs, and assigns.