IMPORTANT! THIS LEXMARK CLOUD PLATFORM WEB SITE (THIS "SITE") IS PASSWORD PROTECTED. YOU MAY ONLY USE THIS WEB SITE IF YOU HAVE BEEN GRANTED SPECIFIC ACCESS BY LEXMARK INTERNATIONAL, INC. ("LEXMARK") OR ITS AUTHORIZED RESELLER, BY ISSUANCE OF A LOGIN ID AND PASSWORD. ANY OTHER USE OF OR ACCESS TO THIS SITE IS STRICTLY PROHIBITED.
This Lexmark Cloud Services Agreement is a legal agreement between you (either an individual or a single entity) and Lexmark International, Inc. and/or Lexmark International Technology Sarl ("Lexmark") that, to the extent your access is not otherwise subject to a written agreement between you and Lexmark ("Lexmark Agreement"), governs your access to and use of this Site. By "you" or "your", we mean the individual or entity (such as a company or organization) that has been granted access to this Site for the purpose of downloading, accessing and/or using the Materials contained herein. For purposes of this Lexmark Cloud Services Agreement, "Materials" shall mean the downloadable and/or redistributable firmware, software applications, updates and upgrades (collectively, the "Licensed Software"); device management tools; documentation related to any of the foregoing and any other materials accessible to you on this Site.
1. ACCOUNTS. You agree that you will not misuse or abuse account access and passwords. Your right to use the Site is not transferable, provided, however, if you are a Lexmark authorized reseller, you may grant access to this Site to your customers provided they agree to this Lexmark Cloud Services Agreement. You agree that you (i) will not use the Site password of another party, (ii) will not share your password with any other party, and (iii) will take all reasonable precautions to protect its secrecy. You agree to accept responsibility for all activities that occur under your account or password.
2. SOFTWARE DOWNLOADING. If you are authorized to download, distribute and/or install software applications, updates and upgrades from this Site, you agree to comply with the following terms and conditions when downloading, distributing and/or installing such Licensed Software:
2.1. Any Licensed Software that is available through the Site for download, distribution or installation is the copyrighted work of Lexmark and/or its licensors. Subject to the terms and conditions of this Lexmark Cloud Services Agreement, Lexmark grants you a personal, nonexclusive, non-transferable license (and if you are Lexmark authorized reseller, the right to sublicense to your customers), to distribute the Licensed Software to end users for use on or in connection with Lexmark products.
2.2. Copying or reproducing the Licensed Software to any other server or device for further reproduction or redistribution is prohibited except in accordance with this Lexmark Cloud Services Agreement.
2.3. Licensed Software and the corresponding software license may be downloaded using a device monitoring agent downloaded from the Printer Enrollment Tool, the use of which is subject to its own end user license agreement.
2.4. Your customers may only distribute a copy of the Licensed Software to their end user devices if they accept this Lexmark Cloud Services Agreement and follow all of Lexmark's direction and procedures for downloading and distributing the Licensed Software.
2.5. Neither you nor your customers shall create derivative works of the Licensed Software or attempt to decompile or reverse-engineer the Licensed Software, except as and only to the extent expressly permitted to do so by applicable law for the purposes of inter-operability, error correction, and security testing. If you or your customers have such statutory rights, you will notify Lexmark in writing of any intended reverse engineering or decompilation.
2.6. You shall (i) obtain the express authorization of each end user to have such Licensed Software installed on their printers or other devices, and (ii) provide a copy of the applicable end user software license to all end users concurrent with the distribution of the Licensed Software. Use of the Licensed Software is subject to the license terms of the license agreement that is to accompany or be provided with the Licensed Software. If you or your customer fails to obtain the express authorization of or provide such software license to end users, you agree to indemnify, defend and hold Lexmark harmless from any damages, claims, causes of action and expenses (including attorneys' fees) ("Claims") to the extent such Claims would not have occurred had you or your customer obtained such authorization or provided such software license to end users.
2.7. Although it is not obligated to do so, in the event Lexmark provides or makes available any error corrections or updates to the Licensed Software, you agree to provide, or have your customer provide, such error corrections or updates to end users in accordance with Section 2.6.
2.8. Lexmark reserves the right to terminate your or your customer's right to distribute the Licensed Software without liability to you or your customer in the event Lexmark, in its sole opinion, believes (i) Licensed Software distribution is not in accordance with this Lexmark Cloud Services Agreement or (ii) an infringement claim appears likely or is made about the Licensed Software.
3. YOUR CONTENT; DATA AND SECURITY
3.1. YOUR CONTENT. You acknowledge and agree that any and all information, data, images, text, photographs, fonts, typefaces, illustrations, graphics, audio clips, works of authorship, video clips, trademarks or other content provided to Lexmark, its affiliates and their respective agents by you or on behalf of your customer, for use in connection with this Site ("Content") is your sole responsibility, and you will be solely responsible for any damage to any party resulting therefrom. This means that you, and not Lexmark, are entirely responsible for your Content. Under no circumstances will Lexmark be liable in any way for any user or third party Content, including, but not limited to, any errors or omissions in any such Content, for any loss or damage of any kind incurred relating in any way to the use of any such Content posted, emailed or otherwise transmitted via this Site, for any claims of intellectual property infringement or misappropriation related to any Content, including your Content, or for any unauthorized access to or use of such Content by third parties.
3.2. PROTECTED DATA WARRANTY. You represent and warrant that you have obtained and will maintain compliance with applicable laws, including relevant data protection laws and data privacy laws, for the use, processing and transfer of Content provided to Lexmark under this Agreement. By providing personal data to Lexmark, you represent and warrant that you have obtained all requisite consents from data subjects, have provided data subjects all information required by applicable laws with respect to such personal data, have obtained any necessary authorizations from competent authorities, and particularly accept and confirm that Lexmark may collect, process and store such personal data.
3.3. DATA TRANSFER. You agree that Lexmark may transfer your information to the United States or other countries for processing in accordance with this Section. Any transmissions or transfers of such information and data to or from you will be in accordance with the Lexmark's Privacy Notice found at Lexmark.com/privacy https://www.lexmark.com/en_us/privacy-policy.html. For the purposes of processing and transferring of personal data in jurisdictions governed by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation), the Parties shall enter into a data processing addendum in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms.
4. INTELLECTUAL PROPERTY
4.1. The Materials available on this Site, other than your Content (defined above) are owned by Lexmark and/or its licensors and suppliers and are protected by copyright, trademark, patent and/or other intellectual property laws, and any unauthorized use of the Materials may violate these laws. Except as expressly provided herein (or in the case of downloadable software, in the applicable EULA), Lexmark and its licensors and suppliers do not grant any other express or implied rights to access, distribute or use the Materials.
4.2. The trademarks, logos, and service marks ("Marks") displayed on this Site are the property of Lexmark or other third parties. You are not permitted to use the Marks without the prior written consent of Lexmark or such third party that may own the Marks. Lexmark and the Lexmark logo are the trademarks or registered trademarks of Lexmark in the United States and/or other countries. All other trademarks are the property of their respective owners.
5. TERMINATION. Unless your other Lexmark Agreement(s) provide(s) otherwise, Lexmark may terminate this Lexmark Cloud Services Agreement and access to this Site with or without cause at any time.
6. WARRANTY; DISCLAIMERS
6.1. ANY WARRANTY THAT MAY APPLY TO THE MATERIALS THAT YOU ACCESS ON THIS SITE SHALL BE AS SPECIFIED IN THE APPLICABLE EULA AND SUCH WARRANTY IS THE SOLE WARRANTY GIVEN BY LEXMARK IN CONNECTION WITH SUCH MATERIALS. LEXMARK EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF A THIRD PARTY'S RIGHTS. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PERFORMANCE OF THE SOFTWARE. RESELLER SHALL MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, ON BEHALF OF LEXMARK.
6.2. Except as provided otherwise in an applicable Lexmark Agreement, this Site and the Materials contained herein are provided "AS IS." Lexmark makes no representations or warranties, either express or implied, of any kind with respect to this Site, its operations, contents, information or the Materials contained herein. LEXMARK EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND WITH RESPECT TO THIS SITE OR ITS USE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6.3. You understand and agree that Lexmark may, in its sole and absolute discretion, modify or discontinue offering any Materials on this Site at any time with or without notice or edit or delete information appearing on this Site.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL LEXMARK, ITS AFFILIATES, OR ITS SUPPLIERS AND LICENSORS, BE LIABLE TO YOU FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR ANY DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER OR NOT LEXMARK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND ON ANY THEORY OF LIABILITY, ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH THE USE OF THIS SITE, DOWNLOADING AND/OR USE OF ANY SOFTWARE, OR OF ANY SITE REFERENCED OR LINKED TO FROM THIS SITE.
8. INDEMNIFICATION. By using this Site, you agree to indemnify Lexmark, its parent company, subsidiaries, and affiliates, and each of their directors, officers, agents and employees ("Lexmark Indemnified Parties") and hold them harmless from and against any and all claims, regulatory actions, damages, liabilities, fines, penalties, costs and expenses, including attorney's fees, arising from or related to your violation of this Lexmark Cloud Services Agreement or use of the Materials or this Site. By using this Site, you hereby release the Lexmark Indemnified Parties from any and all claims, demands, debts, obligations, damages (actual or consequential), costs, and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, that you may have against them arising out of or in any way related to this Site.
9. Service Interruptions. You understand and agree that the unavailability of the downloading and other services provided by the Site may occur from time to time. Lexmark agrees to exercise reasonable care to prevent such occurrences, however, under no circumstances will Lexmark be held liable for any financial or other damages due to such unavailability except as may be otherwise provided in an applicable Lexmark Agreement.
10. ORDER OF PRECEDENCE; MODIFICATION. In the event of any conflict between any applicable Lexmark Agreement and this Lexmark Cloud Services Agreement, the applicable Lexmark Agreement shall take precedence to the extent of such conflict with respect to your use of this Site and Materials covered by the applicable Lexmark Agreement. If you do not agree to this Lexmark Cloud Services Agreement, you should not make any use of this Site or access or download any Materials. If you breach any of the terms and conditions of this Lexmark Cloud Services Agreement, your authorization to use this Site automatically terminates, and to the extent you are not an end user, you must immediately destroy and/or discontinue the use of any downloaded or printed Materials. Lexmark reserves the right to change this Lexmark Cloud Services Agreement without notice to you. Your use of the Site is subject to the most current version of the Lexmark Cloud Services Agreement posted on the Site at the time of such use, and you should read the current Lexmark Cloud Services Agreement each time that you access the Site.
11. AGREEMENT TO CONTRACT ELECTRONICALLY; AUTHORITY TO CONTRACT. You and Lexmark agree to form this Lexmark Cloud Services Agreement electronically. This means that by pressing the Accept button and accessing this Site, you (i) acknowledge your agreement to this Lexmark Cloud Services Agreement and that you are doing so with the intent to "sign" a contract with Lexmark; and (ii) represent that you are of the legal age of majority in the place you accept this Lexmark Cloud Services Agreement and, if applicable, you are duly authorized by your employer or principal to enter into this Lexmark Cloud Services Agreement.
12. MISCELLANEOUS PROVISIONS. If you are accessing this Site in a country which is a member of the European Union, the laws of that country shall govern the interpretation of this Lexmark Cloud Services Agreement and any claims arising hereunder, regardless of choice of laws principles of any other jurisdiction. If you are accessing this site in any other country, the laws of the Commonwealth of Kentucky, United States of America, shall govern the interpretation of this Lexmark Cloud Services Agreement and any claims arising hereunder, regardless of choice of laws principles of any other state. The UN Convention on Contracts for the International Sale of Goods shall not apply. Should any part of this Lexmark Cloud Services Agreement be held invalid or unenforceable, that portion shall be construed consistent with applicable law and the remaining portions shall remain in full force and effect. To the extent that anything in or associated with the Site is in conflict or inconsistent with this Lexmark Cloud Services Agreement, this Lexmark Cloud Services Agreement shall take precedence with respect to your use of this Site. Lexmark's failure to enforce any provision of this Lexmark Cloud Services Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision.
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