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These Customer Terms and Conditions (these “Terms”) are between LayerNext, Inc., a Delaware Corporation, with its principal place of business located at 235 Berry Street Apt 415, San Francisco, CA 94158("LayerNext"), and the person or entity identified as the “Customer” on the signature block of the applicable Order Form (“Customer”). Customer is purchasing a subscription to use the LayerNext enterprise software products(the “Software”), as specified in a LayerNext order form executed by Customer(“Order Form”) and accepted by LayerNext. These Terms, together with such executed and accepted Order Form, form the Agreement between the parties.
1.1 License Grants.
Subject to the terms and conditions of this Agreement and complete payment of any and all applicable fees, LayerNext agrees to grant, and does hereby grant to Customer during the Subscription Term(as defined in Section 9.1 below) and for the restricted scope of this Agreement, solely for Customer’s internal business operations, a limited, non-exclusive, non-transferable right and license (without the right to grantor authorize sublicenses) to: (i) access and use (SaaS) the object code version of the Software, subject to any applicable quantitative limitations set for thin the applicable Order Form; (ii) use, and distribute internally a reasonable number of copies of the documentation, if any, provided with the Software(“Documentation”), provided that Customer must include on such copies all LayerNext trademarks, trade names, logos and notices present on the Documentation as originally provided to Customer by LayerNext; (iii) permit third party contractors performing services on Customer’s behalf, to use the Software and Documentation as set forth in (i) and (ii) above, provided that such use must be solely for Customer’s benefit, and Customer shall be responsible for all acts and omissions of such contractors in connection with their use of the Software.
1.2 Reservation of Rights; Restrictions.
As between LayerNext and Customer, LayerNext owns all right, title, and interest in and to the Software and any derivative works there of,and except as expressly set forth in Section 1.1 above, no other license to the Software is granted to Customer by implication, estoppel or otherwise. Customer agrees not to: (i) prepare derivative works from, modify, copy or use the Software in any manner except as expressly permitted in this Agreement or applicable law; (ii) transfer, sell, rent, lease, distribute, sublicense, loan or otherwise transfer the Software in whole or in part to any third party; (iii)use the Software for providing time-sharing services, any software-as-a-service offering, service bureau services or as part of an application services provider or other service offering; (iv) alter or remove any proprietary notices in the Software; or (v) make available to any third party any analysis of the results of operation of the Software, including benchmarking results, without the prior written consent of LayerNext.
During the Subscription Term, LayerNext will provide Customer with LayerNext’s standard support services for the Software (“Support Services”). Support Services are provided to Customer solely for Customer’s internal use, and Customer may not use the Support Services to supply any consulting, support or training services to any third party. Customer agrees and acknowledges that Customer is not obtaining any intellectual property right in or to the Support Services or any LayerNext materials other than the rights of use specifically granted in this Agreement.
3.1 General
(a) Defense.
Customer will, at its expense, defend or settle any third-party claim, action or allegation brought against LayerNext and its employees, directors, agents, and representatives (“LayerNext Indemnified Parties”) arising from Customer’s breach of this Agreement and will pay any final judgments awarded or settlements entered into; provided that LayerNext: (a) gives prompt written notice to Customer of any such claim, action or allegation of infringement;(b) gives Customer the assistance, authority and information as Customer may reasonably require to settle or oppose such claims; and(c) gives Customer the authority to proceed as contemplated herein. Customer may not settle or compromise such claim, action or allegation, except with prior written consent of LayerNext.
(b) Indemnification.
Customer will indemnify each of the LayerNext Indemnified Parties against (i) all damages, costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 3.1(a); (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of such a claim); and (iii) if any proceeding under Section3.1(a) is settled, all amounts paid to any third party agreed to by LayerNext in settlement of any such claims.
3.2 Infringement
(a) Defense.
LayerNext will defend Customer and its employees, directors, agents, and representatives (“Customer Indemnified Parties”) from any actual or threatened third party claim that the Software infringes or misappropriates any copyright or trade secret of any third party during the term of this Agreement if: (i) the applicable Customer Indemnified Party gives LayerNext prompt written notice of the claim; (ii) LayerNext has full and complete control over the defense and settlement of the claim; (iii) the applicable Customer Indemnified Party provides assistance in connection with the defense and settlement of the claim as LayerNext may reasonably request; and(iv) the applicable Customer Indemnified Party complies with any settlement or court order made in connection with the claim (e.g.,relating to the future use of any infringing materials).
(b) Infringement Indemnification.
LayerNext will indemnify each of the Customer Indemnified Parties against (i) all damages,costs, and attorneys’ fees finally awarded against any of them in any proceeding under Section 3.2(a); (ii) all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by any of them in connection with the defense of such proceeding (other than attorneys’ fees and costs incurred without LayerNext’s consent after LayerNext has accepted defense of such claim); and (iii) if any proceeding arising under Section 3.2(a) is settled, all amounts paid to any third party agreed to by LayerNext in settlement of any such claims.
(c) Exclusions.
LayerNext will have no obligation under this Section 3.2 for any infringement to the extent that it arises out of or is based upon (i) the combination, operation, or use of the Software if such infringement would have been avoided but for such combination,operation, or use; (ii) designs, requirements, or specifications for the Software required by or provided by Customer, if the alleged infringement would not have occurred but for such designs, requirements, or specifications; (iii) use of the Software outside of the scope of the license granted to the Customer; (iv) Customer’s failure to use the latest release of the Software or to comply with instructions provided by LayerNext, if the alleged infringement would not have occurred but for such failure; (v) any modification of the Software not made by LayerNext where such infringement would not have occurred absent such modification; or (vi) use, reproduction, disclosure, possession, examination involving any part of the Software not expressly authorized under this Agreement. Customer will reimburse LayerNext for any costs or damages that result from these actions.
(d) Exclusive Remedy.
This Section 3.2 states LayerNext’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement of any third party intellectual property right by the Software.
4.1. Fees.
Customer shall pay to LayerNext all fees specified in the Order Form. Payment obligations are non-cancelable and fees paid are non-refundable. LayerNext will invoice Customer as set forth on the Order Form. Invoiced fees are due net 30 days from the invoice date. Any amounts not paid when due will be subject to interest of 1.5% per month, which interest will be immediately due and payable.
4.2. Taxes.
All charges and fees provided for in this Agreement are exclusive of any taxes, duties, or similar charges imposed by any government. Customer shall pay or reimburse LayerNext for all federal, state, dominion, provincial, or local sales, use, personal property, excise or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes on the net income of LayerNext).
Customer agrees to provide LayerNext with such materials,information, access and support which LayerNext deems to be reasonably required to allow LayerNext to successfully provide the Support Services. Customer understands and agrees that LayerNext’s obligations hereunder are expressly conditioned upon Customer providing such information, materials and support. Customer is solely responsible for all data used in connection with Customer’s use of the Software (“Customer Data”). Customer covenants, represents and warrants that it has made all disclosures, provided all notices, and has obtained and will obtain all rights, consents, and permissions necessary for the Customer and the Software to use and process Customer Data as contemplated by this Agreement without violating or infringing applicable laws or regulations, third-party rights, or terms or policies that apply to Customer Data.
6.1 Confidential Information.
“Confidential Information” means any information disclosed by either party to the other party under this Agreement, either directly or indirectly, in writing,orally or by inspection of tangible objects, which is designated as "Confidential," "Proprietary," or some similar designation at the time of disclosure, or otherwise should reasonably be understood to be confidential based on the circumstances of disclosure or nature of the information. LayerNext Confidential Information includes this Agreement, the Support Services, and any business information,technical data, or know-how relating to the Software, and any associated technology or services. Customer Confidential Information includes Customer Data. Confidential Information will not, however,include any information which: (a) was publicly known and made generally available to the public prior to the time of disclosure by the disclosing party; (b) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (c) is already lawfully in the possession of the receiving party at the time of disclosure by the disclosing party; (d) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality; or (e) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.
6.2 Non-use and Non-disclosure.
Each party agrees not to use any Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s employees who do not have a need to know, provided that if Customer gives any third party access to its account on the Software or any third-party software, disclosure of any Customer information to such third party solely by LayerNext’s performance of this Agreement using the Software or third-party software will not be a violation of this provision. Notwithstanding, a receiving party may disclose such Confidential Information that is required by law to be disclosed if the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure. Neither party shall reverse engineer, disassemble or decompile any software or other tangible objects which embody the other party’s Confidential Information and which are provided to it in connection with this Agreement.
6.3 Maintenance of Confidentiality.
Each party agrees that it will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party will take at least those measures that it takes to protect its own most highly confidential information and will ensure that its employees who have access to Confidential Information of the other party are legally bound to protect the Confidential Information in a writing at least as protective as this Agreement, prior to any disclosure of Confidential Information to such employees. Each party will reproduce the other party’s proprietary rights notices on any materials of the other party, in the same manner in which such notices were set forth in or on the original.
6.4 Return of Materials.
Upon the termination or expiration of this Agreement, each party will return all of the other party’s Confidential Information that it may have in its possession or control, or, at the other party’s option, destroy such Confidential Information.
7.1 Mutual Warranties.
Each party represents and warrants to the other that: (i) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; (ii) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; and (iii) the execution, delivery, and performance of this Agreement does not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound.
7.2 Warranty Disclaimer.
EXCEPT AS SET FORTH INSECTION 7.1, THE SOFTWARE AND SUPPORT SERVICES AREPROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, ANDLAYERNEXT MAKES NO OTHER WARRANTIES WHETHEREXPRESS, IMPLIED OR STATUTORY REGARDING OR RELATINGTO THE SOFTWARE, SUPPORT SERVICES OR ANY MATERIALSFURNISHED OR PROVIDED TO CUSTOMER UNDER THISAGREEMENT. TO THE MAXIMUM EXTENT PERMITTED UNDERAPPLICABLE LAW, LAYERNEXT SPECIFICALLY DISCLAIMS ALLIMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR APARTICULAR PURPOSE AND NON-INFRINGMENT WITH RESPECTTO THE SOFTWARE AND THE SUPPORT SERVICES.
8.1 Excluded Damages.
IN NO EVENT SHALL LAYERNEXT BELIABLE FOR ANY LOSS OF PROFITS, LOSS OF USE, BUSINESSINTERRUPTION, LOSS OF DATA, COST OF SUBSTITUTE GOODSOR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL ORCONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTIONWITH OR ARISING OUT OF THE PERFORMANCE OF OR FAILURETO PERFORM THIS AGREEMENT, WHETHER ALLEGED AS ABREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDINGNEGLIGENCE, EVEN IF LAYERNEXT HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES.
8.2 Damages Cap.
IN NO EVENT SHALL LAYERNEXT’STOTAL, CUMULATIVE LIABILITY UNDER THIS AGREEMENTEXCEED THE AMOUNT PAID BY CUSTOMER TO LAYERNEXTUNDER THIS AGREEMENT IN THE TWELVE (12) MONTHSIMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
8.3 Basis of the Bargain.
THE ALLOCATIONS OF LIABILITY INTHIS SECTION 8 REPRESENT THE AGREED AND BARGAINEDFOR UNDERSTANDING OF THE PARTIES, AND THECOMPENSATION OF LAYERNEXT FOR THE SERVICES PROVIDEDHEREUNDER REFLECTS SUCH ALLOCATIONS. THE FOREGOINGLIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TOTHE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVENIF ANY REMEDY FAILS IN ITS ESSENTIAL PURPOSE.
9.1 Subscription Term.
The initial term of Customer’s subscription to the Software and the Support Services shall be as set forth in the applicable Order Form or, if none is specified, for one (1)year. Thereafter, the term of Customer’s subscription shall automatically renew for additional one (1) year periods unless either party gives written notice to the other of its intention not to renew the subscription at least thirty (30) days prior to the expiration of the then-current term. The initial term of Customer’s subscription, plus any subsequent renewal term of Customer’s subscription, shall be the“Subscription Term”. Upon the expiration or termination of the Subscription Term, Customer shall immediately cease using the Software and return to LayerNext, or destroy the same.
9.2 Termination.
Each party may terminate this Agreement upon giving notice in writing to the other party if the non-terminating party commits a breach of this Agreement and has failed to cure such breach within thirty (30) days following a request in writing from the notifying party to do so.
9.3 Survival.
Upon the expiration or termination of this Agreement, (i) Customer shall have no further rights to use the Software or receive the Support Services; and (ii) any payment obligations accrued under Section 4, as well as the provisions of Sections 3, 6, 7, 8, 9.3 and 10 of this Agreement will survive.
10.1 Assignment.
Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party,provided that no such consent will be required to assign this Agreement in its entirety to a successor in interest in connection with a merger, acquisition or sale of all or substantially all of the assigning party’s assets. Any assignment in violation of this Section 10.1 shall be void, ab initio, and of no effect. Subject to the foregoing, this Agreement is binding upon, inures to the benefit of and is enforceable by, the parties and their respective successors and assigns.
10.2 Customer Identification.
Customer consents to LayerNext’s identification of Customer as a user of the Software and the Support Services, on its website, through a press release issued by LayerNext and in other promotional materials.
10.3 Force Majeure.
LayerNext will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond LayerNext’s reasonable control, so long as LayerNext uses all commercially reasonable efforts to avoid or remove such causes of non-performance.
10.4 Governing Law.
This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws principles, and not including the 1980 UN Convention on Contracts for the International Sale of Goods. All suits hereunder will be brought solely in Federal Court for the Northern District of California, or if that court lacks subject matter jurisdiction, in any California State Court located in San Francisco County. The parties hereby irrevocably waive any and all claims and defenses either might otherwise have in any such action or proceeding in any of such courts based upon any alleged lack of personal jurisdiction, improper venue, forum nonconveniens or any similar claim or defense. A breach by either party of Section 6 may cause irreparable harm for which the non-breaching party shall be entitled to seek injunctive relief.
10.7 Notices.
Any notice or other communication under this Agreement given by either party to the other will be deemed to be properly given if given in writing and delivered in person or by e-mail, if acknowledged received by return e-mail or followed within one day by a delivered or mailed copy of such notice, or if mailed, properly addressed and stamped with the required postage, to the intended recipient at its address specified below the signatures on this Agreement. E-mail notices sent to LayerNext should be sent tobuddhika@layernext.ai. Either party may from time to time change its addresses for notices under this Section by giving the other party notice of the change in accordance with this Section 10.7.
10.8 Non-waiver.
Any failure of either party to insist upon or enforce performance by the other party of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be interpreted or construed as a waiver or relinquishment of such party’s right to assert or rely upon such provision, right or remedy in that or any other instance.
10.9 Severability.
If any provision of this Agreement is held to be invalid or unenforceable, the remaining portions will remain in full force and effect and such provision will be enforced to the maximum extent possible so as to give effect to the intent of the parties and will be reformed to the extent necessary to make such provision valid and enforceable.
10.10 Entire Agreement; Amendment.
This Agreement, together with the Order Form executed by the parties, constitutes the entire agreement between the parties concerning the subject matter hereof,and it supersedes, and its terms govern, all prior proposals,agreements, or other communications between the parties, oral or written, regarding such subject matter. For the avoidance of doubt, the parties hereby expressly acknowledge and agree that if Customer issues any purchase orders or similar documents in connection with its purchase of a subscription to the Support Services, it shall do so only for its own internal, administrative purposes and not with the intent to provide any contractual terms. By entering into this Agreement,whether prior to or following receipt of Customer’s purchase order or any similar document, the parties are hereby expressly showing their intention not to be contractually bound by the contents of any such purchase order or similar document, which are hereby deemed rejected and extraneous to this Agreement, and LayerNext’s performance of this Agreement shall not amount to: (i) an acceptance by conduct of any terms set out or referred to in the purchase order or similar document; (ii) an amendment of this Agreement, nor (iii) an agreement to amend this Agreement. This Agreement shall not be modified except by a subsequently dated, written amendment that expressly amends this Agreement and which is signed on behalf of LayerNext and Customer by their duly authorized representatives.
LayerNext Inc. will provide technical support to the Customer via both telephone and email on weekdays from 9:00 AM to 5:00 PM Central Time, excluding statutory holidays ("Support Hours").
The Customer may initiate a helpdesk ticket during Support Hours by calling +1 (844) 685 5260, or at any time by emailing support@layernext.ai.
LayerNext Inc. will use commercially reasonable efforts to respond to all helpdesk tickets within one (1) business day.