End User License AgreementFebruary 27, 2019
IF YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, PLEASE CLICK ON THE BUTTON ON THIS PAGE LABELED “I ACCEPT,” AT WHICH TIME YOU MAY ACCESS AND USE THE SOFTWARE, SUBJECT TO THE TERMS OF THIS AGREEMENT.
The Software that you are about to access was developed by Activated Apps LLC, a California limited liability company (“Vendor”) to allow you to provide your customers the ability to save and manage their online shopping carts for greater convenience and efficiency. This Agreement sets forth the terms under which you, as an individual or entity authorized by Vendor (or, for entities, any employee you authorize to use the Software) (“you”), may use the Software.
Access to and use of the Software is by permission of Vendor only, and only for applicants who accept this Agreement. Vendor may grant or withhold approval in its sole discretion.
Based on the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, you and Vendor agree as follows:
1. Nature of Agreement. This Agreement is a legal contract made between you and Vendor. This Agreement contains the terms and conditions that you must comply with if you wish to access and use the Software.
2. License Grant. Vendor hereby grants to you a nonexclusive, nonassignable, nonsublicensable license, for your internal use only, for the term of this Agreement, to access and use the Software and any user’s guides, specifications, and other related documentation available online (the “Documentation”), subject to the terms and conditions of this Agreement. The licenses granted herein are conditioned upon payment in full for the Software in accordance with Section 5 (“Your Obligations”) below.
3. Ownership of Software. Vendor retains all rights to the Software, the Site, and the Documentation not specifically granted in this Agreement. Vendor owns the Software, the Site, and the Documentation and all copyright and other intellectual property rights therein, and this Agreement does not transfer to you any title to or any proprietary or intellectual property rights in or to the Site, the Software, any updates or derivative works thereto, or the Documentation, or any copyrights, patent rights, or trademarks embodied or used in connection therewith, except for the rights expressly granted in this Agreement. The Software, the Site, and the Documentation are protected by United States laws and international treaty provisions.
YOU MAY NOT USE, COPY, OR MODIFY THE SOFTWARE, IN WHOLE OR IN PART, EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT.
4. Restrictions. To the maximum extent permitted by law, you shall not (a) modify, reverse engineer, decompile, disassemble, or attempt to derive the source code of the Software; (b) rent, lease, loan, sell, sublicense, distribute, transmit, or otherwise transfer the Software access to any third party; (c) make any copy of or otherwise reproduce the Software (or any of the browser screens comprising the Software user interface) except for those copies necessarily made by the personal computer and Internet browser that are running the Software; or (d) disclose your User ID or Password to any third party. You agree to take all reasonable steps to safeguard your User ID and Password for the Software so as to ensure that no unauthorized person will have access to it, and that no persons authorized to have access will make any unauthorized use. You shall promptly report to Vendor any unauthorized use of the Software of which you become aware and shall take such further steps as may reasonably be requested by Vendor to prevent unauthorized use thereof.
5. Your Obligations.
5.1 System Requirements. You shall be solely responsible for the following: (a) providing all hardware, software, and communications capabilities required for use of the Software, including, without limitation, personal computers equipped with Internet access and a Java-enabled browser; (b) generating, providing, and loading your data into the Software; and (c) providing and maintaining, at all times during the term of this Agreement, the Internet access necessary for your use of the Software.
5.2 Payments and Refunds. You shall pay Vendor those fees set forth on the Site or any App Sites (the “Subscription Fees”), for each applicable term during which your license to use the Software is active, whether on a subscription basis or otherwise. Vendor will not be required to refund the Subscription Fees under any circumstances. You understand that Vendor does not offer any refunds with respect to any Subscription Fees and that all sales are final. However, if you no longer wish to use the Software and you no longer wish to pay for such use, you may uninstall the Software and cancel any relevant subscription to use the Software consistent with Section 6 (“Term and Termination”) below.
5.3 Taxes. Amounts due under this Agreement are payable to Vendor without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source. If applicable law requires withholding or deduction of such taxes or duties, you shall separately pay Vendor the withheld or deducted amount. However, the prior two sentences do not apply to taxes based on Vendor’s net income.
6. Term and Termination. The license granted in this Agreement is effective until terminated. The term of this Agreement and the license grant herein shall commence on the date you agree to this Agreement and download or otherwise install the Software. You may terminate the license and this Agreement at any time on 30 days’ prior written notice to Vendor. Vendor may terminate the license and this Agreement at any time on written notice to you that you or your agent has failed to pay any amount due to Vendor under this Agreement. This license shall also terminate automatically on your failure to comply with any of the other terms of this Agreement. On termination of this Agreement, you agree to promptly destroy all printed copies and delete all electronic copies of any documentation that you have downloaded, printed, or created relating to the Software, and to ensure that no copies of any of the Software screens, data, or other content remain archived or otherwise stored on your computers. Notwithstanding termination, the provisions of Sections 3, 6, 7, 8, 9, and 10 of this Agreement shall survive and continue to apply.
7. Confidentiality. You agree that you shall not disclose to any third party any technical, product, or business information, or any information that Vendor identifies as confidential, or any information which you knew, or reasonably should have known, was confidential in nature (collectively, “Confidential Information”) related to the Software without the prior written consent of Vendor. You shall maintain the confidentiality of all Confidential Information and shall not use it for any purpose other than the performance of this Agreement.
Notwithstanding the foregoing, Confidential Information does not include information that you can demonstrate was (a) publicly available at the time of disclosure, or later became publicly available through no act or omission by you; (b) in your possession before disclosure by Vendor; or (c) disclosed to you by a third party not in violation of any obligations of confidentiality to Vendor or to any third party.
8. Limitation of Liability. You are not entitled to receive damages from Vendor for any cause relating to this Agreement, to your use of the Software, to any services provided by Vendor under this Agreement, or to any services provided by any third party in connection with your use of the Software. In addition, in no event shall you be entitled to obtain any injunctive relief or otherwise enjoin, restrain, or otherwise interfere with Vendor or with the distribution, operation, development, or performance of the Software or any related products.
IN NO EVENT SHALL VENDOR BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER ARISING OUT OF YOUR USE OF, OR INABILITY TO USE, THE SOFTWARE. IN NO EVENT SHALL VENDOR BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR LOST BUSINESS OPPORTUNITIES, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. AS SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
9. Limited Warranty and Disclaimer. Vendor hereby represents and warrants that the Software will, at the time you purchase the Software and for a period of 14 days thereafter, substantially conform to the Documentation in effect on the date of purchase of the Software when given normal, proper, and intended usage in compliance with Vendor’s instructions. In the event of a nonconformance during such period, you agree to promptly report such nonconformance along with all information required by Vendor. Vendor shall investigate any such reported nonconformance and shall use commercially reasonable efforts to remedy such nonconformance. If Vendor is unable to remedy such nonconformance within 30 days after the date Vendor has received all relevant information with respect to such nonconformance from you, your sole remedy under this Agreement is to return or uninstall the Software, delete all copies and all Documentation from your systems, and receive a refund of the amounts paid prior to such uninstallation.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, VENDOR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES ALLEGED TO HAVE ARISEN FROM CUSTOM, USAGE, OR THE COURSE OF DEALING BETWEEN THE PARTIES. VENDOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. IN ADDITION, VENDOR DOES NOT WARRANT OR GUARANTEE THAT YOU WILL BE ABLE TO ACCESS THE SOFTWARE AT ALL TIMES. YOU UNDERSTAND AND ACKNOWLEDGE THAT INTERNET CONGESTION AND OUTAGES, AS WELL AS MAINTENANCE, DOWNTIME, AND OTHER INTERRUPTIONS, MAY INTERFERE AT TIMES WITH YOUR ABILITY TO ACCESS THE SOFTWARE.
10. Governing Law. This Agreement shall in all respects be governed by and be construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions.
11. Force Majeure. If the performance of Vendor under this Agreement is prevented, hindered, or otherwise made impractical by reason of flood, strike, war, acts of government, or any other casualty or cause beyond the control of Vendor, then Vendor shall be excused from its performance to the extent and so long as it is prevented, hindered, or delayed by such event(s).
13. No Assignment. You may not assign this Agreement or any of the rights granted by Vendor hereunder, in whole or in part, without the prior written consent of Vendor, and any attempt to do so shall be void. This Agreement is binding on and shall inure to the benefit of the parties and their respective successors and permitted assigns.
14. Export Control. You agree to obey and comply with any and all applicable United States laws, rules, and regulations governing the export of software.
15. ACKNOWLEDGEMENT AND EXCLUSIVITY. YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS. YOU FURTHER AGREE THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN YOU AND VENDOR, AND THAT IT SUPERSEDES ANY PROPOSAL, PRIOR AGREEMENT, OR UNDERSTANDING, ORAL OR WRITTEN, AND ANY OTHER COMMUNICATION BETWEEN YOU AND VENDOR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THIS AGREEMENT MAY NOT BE CHANGED, ALTERED, OR MODIFIED EXCEPT BY A WRITING SIGNED BY THE PARTIES.