Ludex Enterprise Terms and Conditions GENERAL TERMS AND CONDITIONS
Fees; Payments.
Invoices; Payments. All invoices sent out by Ludex must be paid by the due date listed on each invoice or statement (typically thirty (30) days from receipt of such invoice). All invoices not paid by the due date on Customer’s invoice are considered late. The fees shall only be changed through a written amendment to this Agreement. Notwithstanding the above, Ludex shall have the right to reasonably increase the fees should Ludex develop subsequent versions of the Platform.
Late Fees; Failure to Pay. It is Customer’s responsibility to contact Ludex prior to the due date to make alternative payment arrangements and avoid late fees and account suspension. Late fees will be incurred on the first of the month if Customer’s account is more than five (5) days past due. Late fees will continue to accrue until all past due balances are paid in full. Late fees will be applied at the rate of 2% of the total outstanding amount due, with a $50 minimum. If Customer fails to pay any undisputed amount due under this Agreement within thirty (30) days of the date of Ludex’s notice of Customer’s failure to pay, Ludex may, in its sole discretion, (i) terminate this Agreement or the applicable Order Form, (ii) suspend or restrict provision of the Platform, (iii) prospectively discontinue any currently provided discount for the affected Platform and related services, or (iv) withdraw any previously granted, non-standard payment terms.
Taxes. Prices do not include applicable taxes. Ludex will invoice Customer for any applicable taxes, and Customer must pay these taxes. Where applicable, Customer must provide any tax-exemption claim to Ludex before, or contemporaneously, when, placing an order.
License; Customer Responsibilities.
License. Subject to the terms and conditions of this Agreement, Ludex grants Customer a nonexclusive, non-transferable, revocable license for Customer to access and use the Platform during the Term solely for the internal business purposes of Customer. For the avoidance of doubt, this Agreement only applies to the existing Customers pursuant to the Order Form and shall not apply to any material acquisitions, acquired businesses or acquirers of Customers or its assets (except as expressly permitted under this Agreement). Any extension of this license grant to acquired businesses or assets of Customer shall be on terms and conditions (including pricing) mutually agreed upon by the parties.
Customer Requirements. Except as otherwise provided in the Order Form, Customer must provide, at its own expense, the facilities, computers and devices, network, and other equipment required for use of the Platform. Customer must also obtain any consents, authorizations and approvals necessary to enable Ludex to access such facilities, network, and equipment to perform its obligations for Customer under this Agreement. Moreover, Customer is responsible for obtaining, and keeping updated, any third-party materials that may be required to operate and/or use the features and functionality of the Platform, including but not limited to data and database access.
Customer Restrictions. Customer agrees to not: (i) rent, lease, sublicense, time-share, or otherwise distribute the Platform for resale, or to host applications to provide service bureau, time-sharing, or other services to third parties other than any entity or User that is part of Customer, or otherwise make available the Platform to any third parties other than any entity or User that is part of Customer, (ii) reverse-engineer, decompile, disassemble, modify, create derivative works of, or copy all or any part of the Platform, (iii) permit any User or other person to access or use the Platform using another User’s ID, login or password or otherwise make an User’s ID, login or password available to any third party; (iv) bypass any privacy and/or security measures Ludex may use to prevent or restrict access to the Platform (or other accounts, computer systems or networks connected to the Platform), (v) remove any intellectual property, confidentiality or proprietary notices of Ludex and/or any third party which appear in any form on the Platform or otherwise in any Ludex collateral or materials however reproduced, and (vi) allow the Platform and all parts thereof to be subject to unauthorized copying, modification, or disclosure by its Users and other third parties.
Use of Artificial Intelligence. Customer acknowledges and agrees that the Platform provided by Ludex may incorporate the use of artificial intelligence (“AI”) technologies, which may be employed to examine and assess characteristics of Customer’s inventory such and match Customer’s inventory with similar or identical inventory available in the market to facilitate comparison, and generate suggested value range for pricing Customer’s inventory for sale on the Platform based on current market data. Customer understands that while the AI technologies are designed to assist in determining appropriate pricing and marketing positioning, they may have inherent limitations. Factors such as data availability, market fluctuations, and technological constrains may impact or otherwise affect the accuracy or completeness of the AI-generated information. Any reliance on AI-generated information is at Customer’s sole risk. Customer is encouraged to independently verify AI-generated information and compare with available market data before making pricing or sale decisions. Customer retains full responsibility for all final decisions regarding the pricing and sale of Customer’s inventory on the Platform.
Users. Customer may allow its contractors and employees (the “Users”) to access the Platform. Ludex reserves the right to reasonably limit the number of Users. Customer will ensure that all Users are allowed, by Applicable Law to access the Data as defined herein. Each User will be provided with a non-transferable Signed SSL User “Security Certificate” and user account (each a “User Account”). The User Account is for use by only one (1) User and may not be shared or transferred. Customer is solely responsible for selecting each User and ensuring all Users comply with the terms of this Agreement. Ludex is not responsible for Users’ actions in connection with the Platform, and it shall be the responsibility of Customer to develop and enforce Customer’s policies, procedures and agreements with Users and ensure accordance with all Applicable Laws.
Third Party Materials. The Platform may utilize certain software, information, or materials owned or controlled by third parties (“Third Party Materials”) which may have terms and conditions that are separate from the terms and conditions set forth in this Agreement and which may have additional fees associated with such Third Party Materials. Customer is agreeing to comply with those vendors’ separate terms and conditions, and Customer and each User shall abide by such agreements governing the use of the Third Party Materials. Customer acknowledges that Third Party Materials may be (i) delivered by Ludex as part of the Platform or (ii) required to utilize the full features and functionality of the Platform.
Confidentiality.
Definition. “Confidential Information” means, with respect to each party, any business or technical information of or about such party (including, but not limited to a party’s respective product plans, designs, costs, product prices and names, customers, finances, marketing plans, software and documentation, business opportunities, personnel, research, or development) that is (i) disclosed in writing and is designated by the disclosing party as “confidential” or “proprietary” at the time of disclosure or, (ii) orally disclosed, and designated as confidential at the time of the disclosure and is summarized in writing and delivered to the receiving party by the disclosing party within thirty (30) days after such disclosure. Confidential Information also includes the terms of this Agreement. The Confidential Information of Ludex shall include the Platform and Data.
Exclusions. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) is already known by the receiving party at the time of disclosure without restrictions on the disclosure of such information; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; (iv) the receiving party rightfully obtains from a third party without restriction on use or disclosure; or (v) is disclosed with the prior written approval of the disclosing party. The receiving party shall bear the burden of showing that any of the foregoing exclusions applies to any information or materials. A breach of these obligations of confidentiality may cause irreparable harm and injury to the non-breaching party. Accordingly, in the event of a material breach or threatened breach, the non-breaching party shall be entitled to seek preliminary and final injunctive relief and any other equitable remedies it may have. Such remedies shall be in addition to, and not in limitation of, any and all other remedies, which such party, may have at law.
Use and Disclosure Restriction. Neither party shall use or disclose the other party’s Confidential Information except as expressly required or permitted herein. Neither party shall disclose any of such Confidential Information to any of such party’s employees, subcontractors, and licensors except as is reasonably required in connection with the exercise of such party’s rights and obligations under this Agreement, provided that such employees, subcontractors and licensors are subject to binding use and disclosure restrictions at least as protective as those set forth herein, executed in writing by such employees, subcontractors, or licensors. However, each party may disclose Confidential Information of the other party: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the disclosing party gives reasonable notice to the other party to contest such order or requirement; and (ii) on a confidential basis to its legal or financial advisors.
Data Privacy and Compliance.
Privacy; Compliance. Ludex shall collect certain information and data from the Customer, including contact information such, as name, phone number, email, and physical address; behavioral information, such as inventory scanned, inventory collected, preferences, sale/purchase information, and related informational and device data coming from Customer’s device used to access the Platform, such as device type, IP address, and other device and usage information that may be critical to the information safety and quality management and safety systems (the “Data”). Customer represents and warrants that any metadata a Customer is able to access after scanning their inventory in their portfolio’s is Ludex’s property and may be used solely for Customer’s own internal operations and will not use such information other than for Customer’s internal operations. Notwithstanding the above, Data may be shared with federal or state regulatory agencies, accreditation agencies or other governmental authorities.
Data Sharing; Rights; Restrictions. Ludex may share Customer Data to companies that provides a service to Ludex, such as identify verification, fraud monitoring, payment processing storage database maintenance, analytics, and hosting. Ludex may sell Customer Data to data aggregators and data brokers, that may use such Data to match their data products, to sell to adjacent industries, such as sports teams, insurance companies that insure collectibles, and for the purpose of cross-behavioral marketing. For more information about how Ludex collects, uses, shares, and otherwise processes Customer Data, see Ludex’s Privacy Policy, which is incorporated as if fully re-written. Ludex may de-identify, anonymize, and/or aggregate Data, before such Data is incorporated into any collection of other data from various customers of Ludex in a manner reasonably designed to prevent Ludex or others from using, accessing, or analyzing the particular end user characteristics. Customer grants Ludex a non-exclusive, worldwide, paid-up, perpetual and irrevocable right and license to de-identify, extract, copy, aggregate, process and create derivative works of Data for purposes of developing Platform or other software solutions and to otherwise use, execute, reproduce, display, perform, transfer, distribute, and sublicense the such databases and derivative works.
Notice of Disclosure Event. Ludex shall notify Customer immediately, but in no event more than ten (10) days after Ludex learns that here has been any use or disclosure of Data that violates the terms of this Agreement. Customer shall reasonably cooperate with Ludex in investigating and terminating uses of the Data that violate the terms of this Agreement.
Support and Maintenance.
Support. Ludex will provide commercially reasonable support to help Customer Users maintain and use the Platform, subject to: (i) planned downtime for which Ludex shall use commercially reasonable efforts to provide Customer 24 hours’ notice; and (ii) unavailability caused by circumstances beyond Ludex’s reasonable control, including, without limitation, acts of God, acts of government, pandemic, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or internet service provider failures or delays. Ludex shall also use commercially reasonable efforts to provide service desk support during Ludex’s normal business hours, subject to Ludex-recognized holidays.
Reporting of Errors/Complaints. In the event that Customer receives a complaint from a User regarding the Data or Ludex results reports, Customer shall notify Ludex, immediately, and provide Ludex with a copy of the relevant Data or report.
Security. Customer shall ensure that the systems it uses to utilize the Platform are secure with appropriate physical, administrative and technical safeguards to protect the confidentiality, integrity and availability of the Data and to ensure compliance with all Applicable Laws. The parties shall cooperate with any required audit of security measures, including of hardware and software components of each party, as may be required for purposes of Applicable Laws.
Term and Termination.
Term. This Agreement becomes effective on the Effective Date of the Order Form entered into between the parties. Every additional User seat or other feature purchased by Customer during the term will be subject to the terms of this Agreement and shall have the same expiration date, unless as otherwise mutually agreed to by the parties in writing. Thereafter the Agreement will automatically renew for consecutive terms as set forth on the Order Form until terminated unless either party provided notice of non-renewal prior to thirty (30) days from the date of renewal.
Termination for Default. The Agreement may be terminated by written notice for breach by the non-breaching party, including if such party reasonably believes this Agreement is in violation of any Applicable Law, rule or regulation, if the party breaching a material term of the Agreement or violating such Applicable Law, rule or regulation, fails to cure such breach within thirty (30) days following written notice from the non-breaching party specifying in reasonable detail the nature of such breach.
Effect of Termination or Expiration. Upon any termination or expiration of this Agreement, Ludex will terminate the Customer’s (and their Users’) access to the Platform. All of the other terms and conditions contained in this Agreement shall continue to apply to Customer with respect to Data previously viewed and/or stored by Customer or its Users.
Rights to Data; Ownership of Rights.
Ownership. Title to all intellectual property rights, including but not limited to patent, trademark, copyright, design, and trade secrets right in (and title to all copies of and all media bearing) the current and any future version or release of the Platform, including, but not limited to features requested and or designed mutually with Customer, and the program concepts contained in the Platform is retained by Ludex or its applicable third party licensors. For the avoidance of doubt and without limitation, and other than the license granted hereunder, there is no transfer of title or of any proprietary rights or of any intellectual property rights to Customer under this Agreement. Unless specifically stated, in writing, by Ludex to the contrary, Customer has no right to use Ludex’s name, trademarks, or any goodwill now or hereafter associated therewith, all of which is the sole property of and will inure exclusively to the benefit of Ludex. Client will not knowingly use the Platform in a manner that violates any third-party intellectual property, contractual or other proprietary rights.
No Modifications. Unless specifically stated, in writing, by Customer to the contrary, Client agrees not to modify, create derivative works of, adapt, translate, reverse engineer the Platform, or otherwise decompile, disassemble or attempt to discover the source code or any other non-user facing aspects in the Platform. In the event that software modifications, or customizations, are required to allow interfaces with Customer’s system, Customer agrees that said modifications shall remain the sole property of Ludex. Further, said modifications shall not be construed to provide any claim to the underlying software, business rules, analytic rules or source code utilized by the Platform.
Customer or User Feedback. For any comments, submissions or other feedback Customer or its Users may provide to Ludex, at its sole discretion, concerning the functionality and performance of the Platform, including identification of potential errors and improvements, the parties acknowledge that Ludex will be free to use, disclose, reproduce, license or otherwise distribute, and exploit such information as Ludex sees fit, without any obligation or restriction of any kind to Customer. Ludex will review feedback, comments, and submissions made by Customer within a reasonable period of time and there is no obligation to keep any such information confidential.
Limited Warranty; Disclaimer.
Mutual Representations and Warranties. Each party represents and warrants to the other party that: (i) it is duly organized, validly existing, and in good standing as an entity under the jurisdiction of its incorporation or other organization; (ii) it has the full right, power, and authority to enter into, and to perform its obligations and grant the rights and licenses it grants or is required to grant under, this Agreement; and (iii) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party which therefore constitutes a legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
Additional Ludex Warranties. Ludex warrants that the Platform will be delivered utilizing commercially reasonable care and skill, and in accordance with Applicable Law.
Additional Customer Warranties. Customer represents, warrants, and covenants to Ludex that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Data so that, as received by Ludex and used in accordance with this Agreement, they do not and will not violate any Applicable Law, including intellectual property rights of any third party.
Warranty Disclaimer; Limitations. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 11, THE PLATFORM, DATA, AND WORK PRODUCT ARE PROVIDED “AS IS” AND LUDEX HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND LUDEX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LUDEX MAKES NO WARRANTY OF ANY KIND THAT THE PLATFORM OR WORK PRODUCT, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE. LUDEX MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, RELIABILITY, OR COMPLETENESS OF THE ANALYSES, COMPARISON, OR PRICING SUGGESTIONS PROVIDED BY THE AI TECHNOLOGIES. THE DISCLAIMERS OF WARRANTY, LIMITATIONS OF LIABILITY, AND OTHER PROVISIONS STATED HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND APPLY REGARDLESS OF WHETHER ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Third Party Disclaimer. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS, AND LUDEX HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES WHATSOEVER TO CUSTOMER OR ANY THIRD PARTY RELATING TO THE COMPLETENESS OR ACCURACY OF DATA PROVIDED HEREUNDER.
Limitation of Liability. IN NO EVENT WILL LUDEX OR ANY OF ITS LICENSORS, VENDORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR (ii) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, INCLUDING DAMAGES ARISING FROM THE USE OF AI TECHNOLOGIES IN THE PLATFORM. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF LUDEX AND ITS LICENSORS, VENDORS, SERVICE PROVIDERS, AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE AMOUNT PAID TO LUDEX UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Indemnification. Customer agrees to release, indemnify, and hold harmless and, upon Ludex’s request, defend Ludex from any legal claims, demands and damages (including reasonable attorney fees) that arise from or relate to (i) Customer’s access to or use of the Platform, including any inventory sold; (ii) Customer’s breach of the Agreement; (iii) Customer’s violation, misappropriation, or infringement of any rights of another (including someone else’s privacy or intellectual property rights); or (iv) Customer’s violation of applicable laws. If Customer is a California resident, Customer waives California Civil Code Section 1542, which states, “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If Customer is a resident of another jurisdiction, Customer waives any comparable statute or doctrine.
Miscellaneous.
Assignment. Neither party may assign or otherwise transfer this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, (a) either Party shall have the right to assign any of its rights, delegate any of its obligations, or transfer this Agreement without such consent as part of a merger or acquisition of all or substantially all of the assets or business to which this Agreement pertains.
Governing Law. This Agreement will be governed by the laws of the state of Illinois, without regard to conflict of laws rules or principles.
Notices. All notices under this Agreement will be in writing and delivered by courier or overnight delivery service, certified mail with return receipt requested, or confirmed electronic communication, and each instance will be deemed given upon receipt. All communications to Ludex shall be sent to the attention of support@ludex.ai. All communications to Customer shall be sent to the Primary Contact as set forth on the Order Form. Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section.
No Third Party Beneficiaries. Except as specifically provided herein, this Agreement shall not create any additional rights or obligations between or among the parties hereto. Further, this Agreement is not intended to benefit any other parties and shall not create any rights for any other parties (including, without limitation, the Users).
Waiver. 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.
Entire Agreement. This Agreement, including all Exhibits and Attachments hereto, constitutes the complete understanding of the parties regarding the subject matter hereof. It may not be amended or modified except by a writing signed by authorized representatives of the parties.
Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
Survival. The provisions of this Agreement that by their nature should survive the termination of this Agreement shall so survive and continue in force and effect in accordance with their terms.
Applicable Laws. Each party agrees that, in performance of its respective obligations under this Agreement, it shall comply with all Applicable Laws. As used in this Agreement, “Applicable Laws” shall mean any statute, law, ordinance, regulation, requirement, order or rule of the federal government or any federal governmental agency or regulatory body, or any federal governmental or administrative interpretation of any laws, rules or regulations all to the extent applicable to Data or the Services.
