End User License Agreement
THIS IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR AN ENTITY, AS DEFINED BELOW) AND ONBATCH, LLC (THE “COMPANY”), WHICH GOVERNS YOUR USE OF THE SOFTWARE (AS DEFINED HEREIN). THE “SOFTWARE” or “Software” SHALL MEAN THE CLOUD BASED, HOSTED SOFTWARE USED BY YOU ON A SOFTWARE AS A SERVICE (“SaaS”) BASIS AS PROVIDED IN THIS AGREEMENT. BEFORE ACTIVATING AND/OR OTHERWISE USING THE SOFTWARE PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT AND ANY OTHER TERMS AND CONDITIONS THAT MAY BE INCORPORATED HEREIN BY REFERENCE (COLLECTIVELY, the “EULA”). BY ACCEPTING THESE TERMS AND/OR ACCESSING THE SOFTWARE, YOU ARE AGREEING THAT YOU HAVE READ, AND THAT YOU AGREE TO COMPLY WITH AND TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA AND ALL APPLICABLE LAWS AND REGULATIONS IN THEIR ENTIRETY WITHOUT LIMITATION OR QUALIFICATION. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS EULA, DO NOT ACTIVATE OR OTHERWISE USE THE SOFTWARE. IF YOU ARE AN INDIVIDUAL REPRESENTING AN ENTITY, YOU ACKNOWLEDGE THAT YOU HAVE THE APPROPRIATE AUTHORITY TO ACCEPT THESE TERMS AND CONDITIONS ON BEHALF OF SUCH ENTITY AND THAT THE COMPANY HAS THE RIGHT TO RELY ON SUCH ACTUAL OR APPARENT AUTHORITY. FOR CLARITY The term “you” OR “YOUR” means either you individually or your corporation, partnership, sole proprietorSHIP, or other business entity ON WHOSE BEHALF YOU ARE ACTING as contemplated by the preceding sentence.
1. Seats. A “Seat” shall mean the one individual with access to the Software, whether You, as an individual, or one person within your business entity, if you are acting for such an entity (the “Entity”). This EULA gives you the right for 1 person to have access to the Software at the same time, each person with access being a Seat.
2. License. Subject to the terms, conditions and limitations of this EULA, Company hereby grants you a limited, nonexclusive, nontransferable, non-assignable license, without rights to sublicense, to use the Software, in object code on Company’s server(s) only for Your internal purposes. Update or Upgrade of the Software (as defined below), unless such Update or Upgrade is accompanied by or references a separate license agreement in which case the terms and conditions of that agreement will govern. If this EULA governs your use of an Update or Upgrade, such Update or Upgrade shall be considered Software for purposes of this EULA. Unless earlier terminated as provided herein, the term of each individual license granted under this EULA begins on the date of acceptance of this EULA and shall terminate only as otherwise set forth herein, regardless of Updates or Upgrades incorporated into the Software. Each party recognizes that Company grants no licenses except for the license expressly set forth in this EULA.
3. Updates and Upgrades. An “Update” shall mean corrections, updates, patches, hotfixes, and similar releases that do not significantly change the functionality of the Software. Updates are indicated by a change in the version number to the right of the period. Usually, there is no charge for Updates. An “Upgrade” shall mean a software release made available to you by the Company from time-to-time, that, at Company’s sole discretion, materially changes the form and/or functionality of the Software. Upgrades are indicated by a change to the number to the left of the decimal place in the version number, and incur additional charges payable to the Company.
4. Add-Ons. Company may from time-to-time provide additional software that provides new functionality, but is not an Update to the Software including, without limitation any mobile application (or “app”), or tablet point-of-sale application (each, an Add-On”). To the extent that an Add-On is not covered by a separate end user license agreement, such Add-On shall be treated as part of the Software, subject to all terms of this EULA.
5. License Limitations. You may not make any copy the Software or allow any third party to do so. You may not modify or remove any titles, trademarks or trade names, copyright notices, legends, or other proprietary notices or markings on or in the Software. The rights granted herein are limited to Company's and its licensors' intellectual property rights in the Software and do not include any other third party’s intellectual property rights. In the exceptional event that the Software is provided to you on removable media (e.g., CD, DVD, or USB drive), you may own the media on which the Software is recorded but Company, Company's licensor(s) and/or supplier(s) retain ownership of the Software itself and all related intellectual property rights. You are not granted any rights to any trademarks or service marks of Company. This EULA does not apply to (i) any third-party software that is not included in the Software, or that is included in the Software, but under a license that cannot be passed on to you by Company, and (ii) is required to use the Software. You must obtain any licenses required for the proper operation of the Software at your expense.
6. Rights Reserved. THE SOFTWARE IS LICENSED, NOT SOLD. Except for the license expressly granted in this EULA, Company, on behalf of itself and its licensors, retains all right, title, and interest in and to the Software and in all related content, materials, copyrights, trade secrets, patents, trademarks, derivative works and any other intellectual property and proprietary rights, including registrations, applications, renewals, and extensions of such rights (the "Works"). The rights in these Works are valid and protected in all forms, media and technologies existing now or hereinafter developed and any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, display, re-publication or performance of the Works, except as specifically permitted herein, is strictly prohibited. Company, on behalf of itself and its licensors, retains all rights not expressly granted herein.
7. Restrictions. Except as otherwise provided herein or expressly agreed by Company, you may not, and will not allow a third party to: (A) provide, make available to, or permit use of the Software in whole or in part by, any third party, including contractors, without Company's prior written consent (B) sell, lease, license, sublicense, assign, distribute or otherwise transfer or encumber in whole or in part the Software; (C) decompile, disassemble, reverse engineer, or otherwise attempt to derive source code (or underlying ideas, algorithms, structure or organization) from the Software program, in whole or in part or to allow any third party to do so; (D) copy, reproduce, republish, upload, post, transmit or distribute the Software in any way other than as provided herein; (E) modify or create derivative works based upon the Software; (F) use the Software on a service bureau, rental or managed services basis or permit other individuals or entities to create Internet "links" to the Software or "frame" or "mirror" the Software on any other server or wireless or Internet-based device; or (G) use the Software to: (i) create a competitive offering, (ii) build a product using similar ideas, features, functions or graphics of the Software, or (iii) copy any ideas, features, functions or graphics of the Software. You may not use the Software for any illegal or unauthorized purpose. In addition, you may not share the results of any benchmarking activities without Company’s prior written consent.
8. Other Governmental and Export Restrictions. You shall comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations, the International Traffic in Arms Regulations and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control in connection with your use of the Software.
9. Support and Subscription Services Not Included. Company Shall provide email support at email@example.com and phone support at (800) 920-1967 during normal business hours, Monday through Friday from 9:00 AM to 5:00 PM Eastern Time.
10. Term and Termination. The term of this EULA shall be for one month from the date it is first accessed by you. It shall automatically renew each month as long as you pay the required monthly fee within five (five) business days of its falling due. Company may terminate this EULA immediately and without prior notice if you fail to comply with any term or condition of this EULA, or in its sole discretion for any reason or for no reason. In the event of termination of this EULA, all licenses granted hereunder shall automatically terminate and you must immediately cease use of the Software. You may terminate this EULA at any time by ceasing use of the Software and informing Company via email, but no prepaid amounts shall be refunded in such case.
11. Survival. The parties recognize and agree that their obligations under Sections 12,13,14,15,16,17,18,19,20,21,22,23 of this EULA survive the cancellation, termination, and/or expiration of this EULA, and/or the license granted hereunder.
12. Disclaimer of Warranties. YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK. THE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) COMPANY DOES NOT WARRANT UNDER THIS EULA THAT (i) THE SOFTWARE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE, OR THAT KNOWN OR DISCOVERED ERRORS WILL BE CORRECTED; OR (iii) WILL MEET YOUR EXPECTATIONS.
(c) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY’S EMPLOYEES OR AGENTS, OR THROUGH OR FROM THE USE OF THE SOFTWARE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
13. Limitation of Liability. COMPANY WILL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS EULA AND/OR THE SOFTWARE. COMPANY SHALL HAVE NO LIABILITY FOR THE FOLLOWING: (A) LOSS OF REVENUE, INCOME, PROFIT, OR SAVINGS, (B) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF SYSTEM(S) OR NETWORK(S), OR THE RECOVERY OF SUCH, (C) LOSS OF BUSINESS OPPORTUNITY, (D) BUSINESS INTERRUPTION OR DOWNTIME, (E) LOSS OF GOODWILL OR REPUTATION, OR (F) SOFTWARE NOT BEING AVAILABLE FOR USE OR THE PROCUREMENT OF SUBSTITUTE SOFTWARE OR GOODS OR (G) ANY PENALTY OR CHARGE OF ANY KIND IMPOSED BY A GOVERNMENTAL AGENCY, INCLUDING, WITHOUT LIMITATION, THE U. S. ALCOHOL AND TOBACCO TAX AND TRADE BUREAU OR ANY STATE LIQUOR AGENCY, DUE TO ACCURATE OR INACCURATE INFORMATION FROM THE SOFTWARE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS EULA, COMPANY’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS EULA AND/OR THE SOFTWARE SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY COMPANY FOR THE SOFTWARE GIVING RISE TO SUCH CLAIM(S).
THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY, REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE, FOR ANY CLAIM. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LIABILITY. IN NO EVENT WILL THIS LIMITATION APPLY TO AMOUNTS DUE FOR SOFTWARE.
COMPANY SHALL NOT BE LIABLE TO YOU FOR ANY CLAIM BROUGHT MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
14. Indemnification. Company shall defend and indemnify you against any third-party claim or action that the Software infringes or misappropriates that third party’s patent, copyright, trade secret, or other intellectual property rights (“Indemnified Claims”). In addition, if Company receives prompt notice of an Indemnified Claim that, in Company’s reasonable opinion, is likely to result in an adverse ruling, then Company shall at its sole discretion, (A) obtain a right for you to continue using such Software; (B) modify such Software such that it is non-infringing; or (C) replace such Software with a non-infringing substitute. Notwithstanding the foregoing, Company shall have no obligation under this Section for Indemnified Claims resulting or arising from: (i) modifications of the Software that were not performed by or on behalf of Company; or (ii) your use of the Software, or the combination or operation of the Software in connection with a third-party product, software, or service (the combination of which causes the claimed infringement) (collectively, “Excluded Indemnified Claims”). Company’s duty to indemnify and defend is contingent upon: (a) you providing Company with prompt written notice of the third-party claim or action, (b) Company having the right to solely control the defense and settlement of such claim or action, and (c) your cooperation with Company in defending and resolving such claim or action. This section states your exclusive remedies for any third-party claim or action, and nothing in this EULA or elsewhere will obligate Company to provide any greater indemnity to you.
You, at your expense, shall defend, indemnify and hold Company, its subsidiaries, affiliates, directors, officers, agents, employees, advertisers and partners (collectively the “Company Indemnified Parties”) harmless from and against any and all claims, liabilities, damages, losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims against a Company Indemnified Party relating to your use of the Software, any violation of this EULA or any Excluded Indemnified Claims. In the event of such claim, the Company will provide you notice of the claim, suit or action and the relevant contact information, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
15. Confidentiality. You agree to: (A) refrain from using Confidential Information except as necessary to exercise the rights herein and (B) use best efforts to preserve and protect the confidentiality of the Confidential Information. "Confidential Information" means any oral, written, graphic or machine-readable information disclosed by Company that is (i) identified as confidential; (ii) designated in writing to be confidential or proprietary; or (iii) should be reasonably understood to be confidential. Confidential Information includes the Software and its trade secrets, including but not limited to source code, the development status of the Software, the appearance, content and flow of the user interface of the Software, and the content and documentation of the Software. Confidential Information does not include information that is (a) publicly available other than through a breach of this EULA; (b) known to you prior to such disclosure; or (c) subsequently lawfully obtained by you from a third party that has no obligations of confidentiality. You agree that, without Company’s prior written consent, you will not grant access to any Company Confidential Information to any persons or entities except for your employees and agents who have a business need to have such access and who are obligated to maintain the confidentiality thereof as set forth herein. In some, limited circumstances, Company may need to engage a third party to fulfill its obligations to you under this license. By using the Software you agree that Company may provide your information to such third party for that purpose.
16. Suspension of Service. Company may suspend, terminate, withdraw, or discontinue all or part of the Software or your access to the Software upon receipt of a subpoena or law-enforcement request, or when Company believes, in its sole discretion, that you have breached any term of this EULA or are involved in any fraudulent, misleading, or illegal activities. Company may modify the Software at any time with or without prior notice to you. Company may perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the Software which may temporarily degrade the quality of the Software or result in a partial or complete outage of the Software. Updates, patches or alerts may be delivered from Company servers, which may be located outside of your country. Company provides no assurance that you will receive advance notification of such activities or that your use of the Software will be uninterrupted or error-free.
17. Injunction. You agree that money damages would be an inadequate remedy for Company in the event of a breach or threatened breach by you of the provisions set forth in this EULA; therefore, in the event of a breach or threatened breach of any such provisions, Company may, in addition to any other remedies afforded to it by law or equity, immediately obtain and enforce an injunction from any court of law or equity prohibiting you from breaching such provisions. All rights and remedies afforded Company by law shall be cumulative and not exclusive.
18. Governing Law. THIS EULA HAS BEEN NEGOTIATED, EXECUTED AND DELIVERED AT, AND SHALL BE DEEMED TO HAVE BEEN MADE IN, GEORGIA. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF GEORGIA, WITHOUT REFERENCE TO CHOICE OF LAW OR CONFLICT OF LAWS PRINCIPLES THAT DIRECT THE APPLICATION OF THE LAWS OF A DIFFERENT STATE.
19. Disputes. All disputes arising out of this Agreement shall be subject to the jurisdiction of the state and federal courts located in Jackson County, Georgia, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts.
20. No Waiver. No waiver of breach or failure to exercise any option, right, or privilege under the terms of this EULA on any occasion shall be construed to be a waiver of a subsequent breach or right to exercise any option, right, or privilege.
21. No Assignment. You may not assign or transfer your interests, rights or obligations under this EULA by written agreement, merger, consolidation, operation of law or otherwise, without the prior written consent of an authorized executive officer of Company. Any attempt to assign this EULA by you shall be null and void.
22. Entire Agreement. Unless you have entered into another written agreement with respect to the Software which has been signed by you and an authorized representative of Company and which conflicts with the terms of this EULA, you agree that this EULA supersedes all prior written or oral agreements, warranties or representations, including any and all other click-wrap, shrink-wrap or similar licenses or agreements, with respect to the Software. No amendment to or modification of this EULA, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any term of this EULA is found to be invalid or unenforceable, the remaining provisions will remain effective. You agree that any principle of construction or rule of law that provides that an agreement shall be construed against the drafter shall not apply to the terms and conditions of this EULA. You represent that you have read this EULA, have had the opportunity to review it with local counsel, understand it, and agree to bound by all terms and conditions stated herein.
23. Notices. Notices that are required by this Agreement shall be delivered to the parties at the addresses set forth in the introductory paragraph of this Agreement or by electronic mail or facsimile transmission. If a notice is delivered to a party by United States Mail, then the party shall be deemed to have received the notice five (5) days after it was mailed. Notice delivered by electronic mail or by facsimile transmission shall be deemed delivered upon transmission with proof of successful transmission.
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