End User License Agreement (EULA)
This End User License Agreement ("Agreement") is a binding agreement between you ("you" or "Licensee") and GBS Americas LLC, a United States corporation formed in the state of Delaware and having its principal executive offices located at 2295 Towne Lake Parkway, Suite 116-290, Woodstock, GA 30189 and its Affiliates (the "Licensor"). This Agreement governs your use of FewClix (including all related documentation, the "Software"). The Software is licensed, not sold, to you.
BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE, YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR'S SOFTWARE.
a. "Activation" or "Activates" means the action of the User entering a License Key or Activation Key in the Software, followed by the Software validating the License Key or Activation Key with the User's email address, and if validated storing the License Key or Activation Key for the purpose of uniquely identifying the User as the Authorized User of the Software.
b. "Affiliate" means any entity owned by, owning, or under common control with Licensor or Licensee, as the case may be.
c. "Authorized User" means either a Named User or an External User who may Use the Licensed Material, subject to the terms of this Agreement and to Licensee's having paid the applicable licensee fee for each Authorized User.
d. "Effective Date" means the date on which the Software is installed on the User's computer
e. "External User" means an employee or agent of a designee of Licensee who may Use the Licensed Material solely to further the internal business purposes of Licensee, subject to the terms of this Agreement and to Licensee's having paid the applicable license fee for each External User.
f. "Current Version" means the version of the Software available as of the Effective Date or later provided by Licensor to Licensee under the Maintenance Agreement or otherwise.
g. "Customized Software" means modifications to the Software made by, or for, Licensee.
h. "Documentation" means the manuals and technical materials delivered with the Licensed Materials.
i. "Error" means a defect in the Software that prevents the Licensed Material from functioning in substantial conformity with the specifications contained in the Documentation.
j. "Features" mean specified functions of Products that are licensed to Licensee for Use by Authorized Users, subject to the terms of this Agreement.
k. "License Key or Activation Key" means a set of characters (numbers and alphabets) generated by the Licensor that is unique to a User's email address.
l. "Licensed Material" means Features, Products or Supporting Software licensed to Licensee for Use by Authorized Users, subject to the terms of this Agreement.
m. "Licensor" means GBS Americas LLC., and its Affiliates.
n. "Maintenance Agreement" means the Error fixes and upgrades to the Software that are to be provided by Licensor to Licensee under the terms of the Maintenance Exhibit attached hereto.
o. "Named Users" means employees of Licensee who may Use the Licensed Material solely to further the internal business purposes of Licensee, subject to the terms of this Agreement and to Licensee's having paid the applicable license fee for each Named User.
p. "Order" means any order for Products or Maintenance placed by Licensee after the Effective Date of this Agreement. If the terms of the Order are set forth in an Exhibit that Exhibit shall be treated in all respects as a part of this Agreement and shall supersede that particular Order. If not so set forth in an Exhibit, the Order shall itself function as an Exhibit and the Products specified in the Order will be subject to all of the terms and conditions of this Agreement.
q. "Party" means Licensee or Licensor, as the case may be, and together the "Parties."
r. "Product" means any one of Licensor' products specified in an Exhibit or Order.
s. "Software" means the computer code for the Licensed Material and the Supporting Software.
t. "Source Code" means the Software in human-readable form. A Source Code version of the Licensed Material and Supporting Software will be provided to Licensee. Licensee's Use thereof is subject to the terms and conditions of this Agreement.
u. "Supporting Software" means Software supplied to the Licensee solely for the purpose of enabling the Licensee to Use the Licensed Material. Licensee's Use of the Supporting Software is subject to the terms contained in Section 2.b of this Agreement. In the case of Features, the Supporting Software consists of that portion of the Product or Products that are not licensed to Licensee hereunder as Licensed Material but supplied to Licensee so that Licensee may Use the Features. In the case of a Product, the Supporting Software consists of another Product not licensed to Licensee hereunder as Licensed Material but is supplied to Licensee so that Licensee may Use the licensed Product.
v. "Use" or "Used" means to directly or indirectly install, load, execute, access, employ, utilize, store, or display the Software.
a. Grant of License: Subject to the terms and conditions of this Agreement, Licensor hereby grants to Licensee a worldwide, nonexclusive, irrevocable (except as provided in this Agreement) license to Use the Licensed Material and the Documentation.
b. Limitations on License: The Licensed Material shall be Used solely for Licensee's internal business purposes. Nothing in this Agreement shall be construed as granting to Licensee the right to distribute, sell, rent, loan, lease, license or otherwise transfer or dispose of the Licensed Material or Documentation in whole or in part. If the Licensed Material consists of Features or otherwise requires the Use of Supporting Software for its operation, then Licensee acknowledges that the Supporting Software is supplied to Licensee solely for the purpose of enabling Licensee to Use the Licensed Material, and for not any other Use. Any Use of the Supporting Software except for the enabling Use of Licensed Material shall, in addition to being a default under this Agreement, subject Licensee to payment in full of the license fee for the Supporting Software as if it were Licensed Material.
3. Assignability. This Agreement is not assignable by Licensee, except to a parent or wholly-owned subsidiary entity or to a successor entity by merger or by purchase of substantially all of the assets of Licensee, but only upon receipt by Licensor of assignee's written agreement to be bound by the provisions of this Agreement. Any other attempted assignment of this Agreement shall be null and void ab initio (i.e., from the beginning).
4. Copies. Licensee may make and distribute copies of the Licensed Material, Supporting Software and Documentation to Authorized Users for Use in accordance with the provisions of this Agreement. Licensee shall limit the number of such copies to the maximum number of Authorized Users for whom the applicable license fees have been paid.
a. Terms: By accepting this Agreement or Using the Software, the Authorized User agrees to the transmission of certain information during activation. The information shared includes, but is not limited to, the User's name, email address, Media Access Control (MAC) address of the licensed computer and any other information required to successfully complete the activation process.
b. Activation Process: Activation associates the use of the software with the licensed computer each time a user Activates a License or an Annual Subscription. The user cannot activate the Software in more than one (1) computer. During activation, the Software will automatically contact Licensor to confirm that the activation details are associated with the licensed computer. This process is called "activation." Because activation is meant to identify unauthorized changes to the licensing or activation functions of the software, and to otherwise prevent unlicensed use of the Software, the Authorized User has no right to use the Software after the time permitted for activation and may not bypass or circumvent activation. If the Authorized User has not entered a License Key or Activation Key during the time permitted for activation, most features of the Software will stop running.
6. Delivery & Installation.
a. Delivery: Licensor will deliver to Licensee media to be used to install the Licensed Material and Supporting Software within thirty (30) days of the Effective Date. Documentation will either be contained in or provided together with media.
b. Installation: Licensee agrees to install and to Use the Software on compatible platforms and devices. Installation of the Licensed Material and Supporting Software shall be Licensee's responsibility.
7. Maintenance Agreement. Licensor agrees to provide maintenance for the Software to the extent, and during the period of time, set forth in the Maintenance Exhibit or in any Order.
8. Licensee Fee & Taxes.
a. License Fee: As consideration for the licenses granted hereunder, Licensee shall pay to Licensor the license fees set forth in any subsequent Exhibit or Order.
b. Taxes: Licensee is responsible for the payment of all taxes (except for taxes based on Licensor's income) that may be levied or assessed in connection with Licensee's purchase or Use of the Software.
a. Termination for Cause: In the event that either Party materially defaults in the performance of any of its duties or obligations under this Agreement and such default is not cured within thirty (30) days after written notice to the defaulting Party of such default, then the non-defaulting Party may forthwith terminate this Agreement, effective immediately.
b. Termination of License; Survival: Upon termination, Licensee will immediately cease Use of all copies of the Software and Documentation and will return them to Licensor. Licensee will delete all copies of the Software that are resident in the memory of any of its computer equipment or in any storage media. Within ten (10) days after termination, Licensee will provide Licensor written confirmation that this has been accomplished. The provisions of Sections 10, 11, 12, 13, 14.i and this Section 9.b shall survive termination of this Agreement.
10. Proprietary Information.
a. Licensor's Proprietary Rights: Licensor owns and shall retain all Intellectual Property Rights in and to, the Software and Documentation and all copies thereof.
b. Licensee's Proprietary Rights: Licensee owns, and shall retain all Intellectual Property Rights in and to, the Software and all copies thereof, provided, however, that Licensee shall have no ownership interest in the Software to the extent that it is incorporated, in whole or in part, in the Customized Software. Notwithstanding the preceding sentence, Licensor shall be entitled to Use the general knowledge and methodologies it gains and develops in the course of preparing the Customized Software for Licensee and shall be free to Use such knowledge and methods in preparing customizations for, or delivering services to, others, provided that Licensor preserves all of Licensee's rights in Confidential Information as set forth in Section 9 hereof in so doing.
c. Further Limitations on Licensee: Licensee shall not remove or destroy any proprietary markings or restrictive legends placed upon or contained within the Software or the Documentation. Licensee may make one backup copy of the Software in accordance with its standard backup procedures and make copies as provided in Section 4.
d. Customization: Licensee may customize the Software or hire a third party to customize the Software, provided that any such third party shall be bound by the terms of Sections 10 and 11 of this Agreement.
11. Warranty, Limitation of Warranty; Limitation of Remedies.
a. Warranty of Performance: Licensor warrants that for ninety (90) days from the date of delivery to Licensee, the Licensed Material will perform substantially in accordance with the Documentation. Licensor does not, however, warrant that the operation of the Licensed Material will be uninterrupted or error free.
b. No Warranty for Customized Software: Licensor shall have no liability to Licensee or any third party for the Customized Software, unless such customization shall have been performed by Licensor and then only to the extent provided in the agreement between the Parties for such customization.
c. Exclusive Remedy: Licensee's exclusive remedy for any breach of warranty under Section 11.a shall be the repair or replacement of the Licensed Material by Licensor. In the event that Licensor cannot repair or replace the Licensed Material, Licensor shall refund the license fee.
d. Limitation of Liability: TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
i. IN NO EVENT WILL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ii. IN NO EVENT WILL LICENSOR'S AND ITS AFFILIATES', INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS' AND SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENTOR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE THAT IS THE SUBJECT OF THE CLAIM.
iii. THE LIMITATIONS SET FORTH ABOVE SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
12. Export Regulation. The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Licensee shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software or Documentation available outside the US.
13. US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, LICENSEE shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
14. Confidentiality. By virtue of this Agreement, the Parties may have access to the other Party's proprietary and non-public information ("Confidential Information"). A Party's Confidential Information shall not include information which: (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the other Party's lawful possession prior to disclosure by the disclosing Party; (iii) is lawfully disclosed to the other Party by a third party without restriction on disclosure; or (iv) is independently developed by the other Party without any Use, or reference to, Confidential Information of the disclosing Party. Each Party agrees not to make Use of the other Party's Confidential Information, except as may be permitted by this Agreement. Each Party agrees that it will not make the Confidential Information of the other Party available in any form to any third party. Each Party agrees to take all reasonable steps to ensure that Confidential Information of the other Party is not used, disclosed or distributed by its employees or agents in violation of the provisions of this Agreement.
15. Proprietary Rights Indemnification.
a. Licensor Indemnification: Licensor agrees to defend, at its expense, any action brought against Licensee based on a claim that the Use of the Software within the scope of this Agreement infringes any patent, trade secret, trademark or copyright. Licensor will pay any costs and damages finally awarded against Licensee in such action that are attributable to such claim and will reimburse Licensee for attorneys' fees reasonably incurred in connection therewith, provided that Licensee promptly notifies Licensor of the claim in writing, allows Licensor to control the defense, and does not agree to any settlement without Licensor's prior written consent. Licensee agrees to provide, at Licensor's expense, such information and assistance as Licensor requests. This indemnity shall not apply to any claim of infringement resulting from Licensee's (i) Use of other than the Current Version of the Software, if such infringement could have been avoided by the Use of such Current Version; (ii) changes to the Software or Use of the Software with software, hardware or other materials not provided or approved by Licensor; or (iii) Use of Customized Software to the extent that the Customized Software gives rise to the infringement. Should the Software become, or in Licensor's opinion is likely to become, the subject of a claim of infringement of a patent, trade secret, trademark or copyright, Licensor may (i) procure for Licensee the right to continue to Use the Software, (ii) replace or modify the Software to make it non-infringing, or (iii) if neither of the foregoing is reasonably available or practical, terminate this Agreement and refund that portion of the licensee fee representing the value of the terminated portion of the license granted hereunder.
a. Entire Agreement: This Agreement, including any Exhibits or schedules hereto, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior agreements. This Agreement may only be modified by a written agreement signed by authorized representatives of both Parties.
b. Force Majeure. Licensor will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond Licensor's reasonable control.
c. Notices: All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail of a PDF document (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the [third] day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses as may be designated by a party from time to time in accordance with this Section.
d. Assignment: Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor's prior written consent, which consent Licensor may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Licensor's prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
e. No-Third Party Beneficiaries: This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
f. Amendments; Waivers: This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
g. Severability: If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
h. Headings: The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
i. Governing Law; Arbitration:
i. This Agreement shall be governed by the laws of the State of Georgia, without regard to its conflict of laws principles. Any dispute that cannot be settled amicably by conciliation between the Parties shall be heard, settled and decided as follows. If the Licensee's address, as stated in the preamble of this Agreement, is outside North America, then the dispute shall be heard, settled and decided under the American Arbitration Association rules by a single arbitrator appointed in accordance with such rules. Service of any matters in reference to such arbitration shall be given in English and shall be in writing and given by registered airmail, cable, or telex which is acknowledged by answer back addressed to the parties at the addresses immediately below their respective signatures hereto, or to such other address as either party may advise the other in writing. Such arbitration shall be conducted in English, shall be subject to the procedural rules of England and shall be held in London, unless the parties shall otherwise mutually agree. If the Licensee's address, as stated in the preamble of this Agreement, is within North America, then the dispute shall be heard, settled and decided under the Commercial Arbitration rules of the American Arbitration Association by a single arbitrator in accordance with such rules. Such arbitration shall be subject to the substantive and procedural rules of New York and shall be held at New York City, unless the parties shall otherwise agree. The award in any arbitration shall be final and enforceable in any court of competent jurisdiction.
ii. Pending the issuance of a decision or award, the operation or activities that may have given rise to the arbitration need not be discontinued. However, on a showing of potential for substantial and irreparable injury, the arbitrator shall have the power to indicate any provisional conservation or relief measures to be taken to preserve the respective rights of either Party.
iii. The Parties agree that the arbitration proceedings must be instituted within one (1) year after the claimed breach or other violation occurred and that the failure of either party to commence arbitration proceedings within such period shall constitute an absolute bar to the institution of any proceedings and a waiver of all such claims.
Terms for Maintenance and Support are as follows: This Agreement will commence from the date of software purchase and continue in full force and effect for the agreed period. After completion of the agreed period, this Agreement may be renewed on the anniversary of the Effective Date for one (1) additional year, by the User by paying the fee for Maintenance and Support.
If Licensee does not wish to renew maintenance, Licensee must notify Licensor in writing at least 60 days prior to maintenance renewal date.
If Licensee chooses to renew maintenance at a later date, the cost to renew will be the then current list price of maintenance plus the Maintenance Reinstatement Fee. This Fee is the list price of maintenance for the time period that has lapsed since expiration.
If Licensee has paid the above fee for Maintenance and Support, it will receive the following: Licensor Maintenance and Support Overview
The Licensor Support Center operates Monday through Friday, 7 AM to 5 PM GMT.
Maintenance provides access to the Licensor Support Center via email, web or telephone. Maintenance also entitles customers to all product updates. There are two types of updates: Service Releases and Base Releases. Service Releases are incremental enhancements to the software, including fixes and patches. Base Releases represent a "full" release of the software with enhancements. Major upgrades and upgrading of specific customization is not included with maintenance.
All services other than those covered by Maintenance and Support are billable at current consulting services rates.
Support becomes effective upon receipt of payment for software purchase or maintenance. Satisfactory completion of training prerequisites for Users is required.