End user agreement for Userful Desktop Pay and Surf
End User License Agreement
USERFUL CORPORATION ("USERFUL") IS WILLING TO LICENSE THE SOFTWARE YOU ARE ABOUT TO USE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS END USER LICENSE AGREEMENT AND SUPPLEMENTAL LICENSE TERMS (COLLECTIVELY "AGREEMENT"). PLEASE READ THE AGREEMENT CAREFULLY. THIS IS A BINDING AGREEMENT BETWEEN YOU (THE "CUSTOMER") AND USERFUL CORPORATION, ("USERFUL"). YOU MUST AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT IN ORDER TO USE THE SOFTWARE OR SUBSCRIBE (EITHER AS A PURCHASER OR FOR A TRIAL PERIOD) TO USERFUL SERVICES. BY PROCEEDING TO RUN THIS SOFTWARE, YOU ACCEPT THE TERMS OF THE AGREEMENT. INDICATE ACCEPTANCE BY SELECTING THE "I AGREE" BUTTON AT THE BOTTOM OF THE AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY ALL THE TERMS, SELECT THE "I DO NOT AGREE" BUTTON AT THE BOTTOM OF THE AGREEMENT AND THE PROGRAM WILL NOT RUN.
No-Charge 30 Day Trial License
TRIAL LICENSE: Userful grants you a no-charge trial license to use the software selected solely for evaluation purposes for a period of 30 days. You may not use the Software for any commercial or production purpose. You must purchase a full-use license if you wish to do any of the following: (a) use the Software after the end of the 30-day trial period, or (b) use the Software for any commercial or production purpose, or (c) distribute the Software for any such use.
In this Agreement,
1.1. "Software" means the object code version of the computer software licensed by Customer under this Agreement.
1.2. "Documentation" means such manuals, documentation and any other supporting materials relating to the Licensed Software as are currently maintained by Userful and generally provided to its licensee.
1.3. "Products" means hardware, Software, documentation, accessories, supplies, parts and upgrades that are determined by Userful to be available from Userful upon receipt of Customer's order.
1.4. "Reseller" means a dealer Licensed by Userful to sell its products.
1.5. "Customer Agreement" means the agreement between the Customer and the Reseller setting out the type of License, Number of Terminals and License Fee for the service provided.
1.6. "Terminal" means any terminal (monitor combined with input devices such as keyboard, mouse, or touch screen) attached to a computer running the Software.
1.7. "License" means the Software and Support License or Evaluation License granted for the appropriate number of Terminals, License Fee and Term of Validity as set out in the accompanying Customer Agreement
1.8. "License Fee" means the fee or fees designated by Userful or the Reseller for Software and Support. Different License Fees apply depending on the type of License: number of Terminals: the duration of the License; and the nature of the support.
1.9. "Term of Validity" means the period set out in the accompanying Customer Agreement throughout which Customer may use the software either on the basis of an Evaluation License or a Software and Support License.
2. LICENSE TERMS
2.1. Software is owned and copyrighted by Userful and/or by third party suppliers. Customer's Software and Support License confers no title or ownership and is not a sale of any rights in the Software. Third party suppliers shall have the rights to protect its own proprietary rights to the Software in the event of any infringement.
2.2. Unless otherwise permitted by Userful, Customer may only make copies of the Software for archival purposes or when copying is an essential step in the authorized use of the Software on a backup device, provided that copies are used in no other manner and provided further that the use on the backup device is discontinued when the original or replacement device becomes operable.
2.3. Customer may not use more terminals than stipulated in the License, nor may the software be used if it is not within the Term of Validity of the most recent License or Support Agreement with the Customer.
2.4. Customer will not modify, disassemble or decompile the Software without Userful's prior written consent. Where Customer has other rights under statute, Customer will provide Userful with reasonably detailed information regarding any intended disassembly or decompilation. Customer will not decrypt the Software unless necessary for legitimate use of the Software. In addition Customer will take all reasonable steps to ensure that users of Userful's software in Customer's possession do none of the aforementioned.
2.5. The customer shall not:
2.5.1. Remove any product identification, copyright notices, or other notices or proprietary restrictions from the Software;
2.5.2. Disclose results of any benchmark tests of the Software to any third party without Userful's prior written approval
2.6. Userful may terminate Customer's License upon notice for failure to comply with any applicable License terms.
2.7. If Customer does not renew a license agreement with Userful by the termination date all Userful software must be immediately removed from the Customer's computers at the Customer's expense.
3. LICENSE GRANT
3.1. Subject to timely payment of the License Fee and the terms and conditions of this Agreement, Userful grants Customer a non-exclusive and non-transferable license to use the Software during the Term of Validity of the License in conformance with:
3.1.1. The terms set forth herein;
3.1.2. Use restrictions and authorizations for the Software specified in the Customer Agreement;
3.2. Many of the Software Programs included in Userful's software are distributed under the terms of agreements with Third Parties ("Third Party Agreements") that may expand or limit Customer's rights to use certain Software Programs as set forth in Section 2. Certain Software Programs may be licensed (or sublicensed) to Customer under the GNU General Public License and other similar open source license agreements ("OSLAs") which, among other rights, permit Customer to copy, modify and redistribute certain Software Programs, or portions thereof, and have access to the source code of certain Software Programs, or portions thereof. In addition, certain Software Programs, or portions thereof, may be licensed (or sublicensed) to Customer under terms stricter than those set forth in Section 2. Please visit and review www.userful.com/support/licenses for the on-line documentation that accompanies certain Software Programs, or portions thereof, for the applicable Third Party Agreements. To the extent any Third Party Agreements require that Userful provide rights to use, copy or modify a Software Program that are broader than the rights granted in Section 2, then such rights shall take precedence over the rights and restrictions granted in this Agreement solely for such Software Programs.
3.3. Unless the Customer is a Userful authorized reseller, Customer may not sublicense the Software unless otherwise agreed to by Userful in writing.
4. LIMITED WARRANTY
4.1. Userful warrants that the Software will perform substantially in accordance with administrator manual or readme file of the Licensed Product during the Term of Validity of the most recent License.
4.2. Userful's and its licensors' entire liability and Customer's exclusive remedy shall be, at Userful's option, either:
4.2.1. Return the prorated License Fees for the current period, or
4.2.2. Replacement of Software that does not meet Userful's Limited Warranty.
This Limited Warranty is void if failure of the Software has resulted from accident, abuse, or misapplications.
4.3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, USERFUL AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE, WITH REGARD TO THE SOFTWARE AND THE ACCOMPANYING ITEMS.
5. FEES AND TAXES
5.1. All fees payable to Userful are due at the commencement of the License Period. Customer agrees to pay any sales, value-added or similar taxes imposed by applicable law that Userful must pay based on the services that Customer ordered.
6.1. Userful shall defend, at its sole discretion, or settle any action, claim or demand brought against Customer on the basis of infringement of any copyright, trademark, trade secret or patent (the "Intellectual property Rights") by the Software or use thereof. Userful shall pay any final judgment entered into against Customer in such action provided that Userful has the sole control of the defense and/or settlement and Customer promptly notifies in writing of such claim and provides all information known to the Customer relating thereto, and Customer cooperates with Userful in the defense and/or settlement. Should the Software become or in Userful's opinion may become the subject of infringement of any Intellectual Property Rights, Userful may, at its expense do one of the following:
6.1.1. Replace the Software or affected part with non-infringing programs;
6.1.2. Modify the Software or affected part to make it non-infringing;
6.1.3. Procure for Customer the right to use the Software; or
6.1.4. If none of the alternatives are commercially reasonable, Userful may refund the prorated License Fees received from Customer for the current Term of Validity.
6.2. Userful shall have no indemnification obligation to the extent a claim is based upon:
6.2.1. The combination, operation or use of the Software with any products or services not provided by Userful; or
6.2.2. The use of the Software in a manner not authorized by this Agreement.
6.3. THIS SECTION PROVIDES THE ENTIRE OBLIGATION OF USERFUL AND EXCLUSIVE REMEDY OF CUSTOMER WITH RESPECT TO THE INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
7. Indemnification by Customer
7.1. Customer agrees that it shall fully indemnify and completely save harmless Userful and any of its directors, officers, employees, agents, representatives of and from any and all liabilities, claims, expenses, damages including reasonable legal fees and disbursements arising out of any claims or suits for damage or injury to person in connection with, directly or indirectly, in whole or in part, (i) any negligent act or omission of the Customer's employees, agents, contractors, directors, officers or any person for whom it has a legal responsibility or (ii) the failure of Customer to comply with any municipal, provincial or federal law or (iii) any act or omission which is, or can be determined to be, a breach of any term or condition of this Agreement.
8.1. The Software and other proprietary information provided by Userful hereunder contain and constitute trade secrets, information and data proprietary to copyrighted by Userful. Customer shall use a reasonable degree of care to protect the confidentiality of the Software and shall not cause or permit such confidential information or data to be disclosed to third parties or duplicated except as permitted in this Agreement. Customer acknowledges and agrees that unauthorized disclosure, use or copying of the Software may cause Userful irreparable injury. Accordingly, in the event of any unauthorized disclosure, use or copying of the Software, Customer agrees that Userful shall have the right to seek injunctive or other equitable relief. Each party will not disclose or use any business and/or technical information of the other designated in writing or orally (and promptly confirmed in writing) as "Confidential" ("Confidential Information") without the prior written consent of the other party. Such restrictions do not extend to any item of information which
8.1.1. Is or becomes available in the public domain without the fault of the receiving party;
8.1.2. Is disclosed or made available to the receiving party by a third party without restriction and without breach of any relationship of confidentiality;
8.1.3. Is independently developed by the receiving party without access to the disclosing party's Confidential Information,
8.1.4. Is known to the recipient at the time of disclosure, or
8.1.5. Is produced in compliance with applicable law or court order, provided that the disclosing party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production.
8.2. Upon termination of this Agreement, each party shall upon request return all copies of Confidential Information received from the other party.
9. LIMITATION OF LIABILITY
9.1. IN NO EVENT SHALL USERFUL OR ITS LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE SOFTWARE EVEN IF THE COMPANY OR ANY OF ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. Any action against Userful must be brought within eighteen (18) months after the cause of action arises. For purposes of this Section, "Userful" includes its directors, officers, employees, subcontractors, agents and suppliers.
10. TERM AND TERMINATION
10.1. The Software and Support License is subject to renewal at the end of the License Period. Unless renewed under an extension of the Customer Agreement, the License to use the Software will terminate.
10.2. This Agreement may be terminated if either party fails to perform any of its duties or obligations hereunder and fails to substantially cure such default within ten (10) days after written notice is given to the defaulting party. Upon an event of default, the non-defaulting party may terminate this Agreement by providing written notice of termination to the defaulting party, reserving unto the non-defaulting party all other rights and remedies it may have under this Agreement. If Customer is in default, Userful reserves the right, in addition to all other rights and remedies it may have, to withhold further performance of its obligations under this Agreement and may repossess the Software and Documentation.
10.3. Upon termination of any license granted hereunder, Customer will promptly remove all Software from all memory locations, return all copies of the Software and Documentation to Userful, and execute and deliver to Userful a certificate stating that all copies of the Software have been removed and returned or destroyed.
11.1. Customer may not assign any rights or obligations hereunder without prior written consent of Userful, which consent can be unreasonably withheld.
11.2. Customer who exports, re-exports or imports Userful Hardware and Licensed Software, technology or technical data purchased hereunder, assumes responsibility for complying with applicable laws and regulations and for obtaining required export and import authorizations. Userful may suspend performance if Customer is in violation of any applicable laws or regulations.
11.3. If any term or provision herein is determined to be illegal or unenforceable, the validity or enforceability of the remainder of the terms or provisions herein will remain in full force and effect
11.4. Except as specifically provided in Section 3.1.2, these Userful Software and Support License Terms supersede any previous communications, representations or agreements between the parties, whether oral or written, regarding transactions hereunder. Customer's additional or different terms and conditions will not apply. These Userful Software and Support License Terms may not be changed except by an amendment signed by an authorized representative of each party.
12. GOVERNING LAW
12.1. This Agreement shall be governed by and interpreted in accordance with the laws of Alberta, Canada, without reference to conflict of law principles. Customer and Userful agree to the exclusive jurisdiction of the courts located in Calgary, Alberta.
13. PARTIAL INVALIDITY.
13.1. Both parties to this Agreement hereby acknowledge that neither of them intends to violate any public policy, statutory or common laws, rules, regulations, treaties, or decisions of any government agency or executive body of any country or community or association of countries.
For inquiries please contact: Userful, 928 6th Ave S.W., Calgary, Alberta, T2P 0V5, Canada, 403-289-2177
Copyright (c) 2005 Userful Corporation