End user agreement for Flooring Manager
Flooring Manager Consumer Edition: END USER LICENSE
By accepting this Agreement and/or using Software and Services, LICENSEE
agrees to be bound by the terms of this Agreement. For purposes of this
Agreement, the term LICENSEE shall include individuals, the subscribing
company and its officers, directors, shareholders, employees, agents and
1. Software and Services To Be Provided. Subject to the terms of this
Agreement, Bizportz Inc (hereinafter Bizportz) agrees to provide LICENSEE,
directly or through Bizportz subcontractors and affiliates, with the use
of the Software and supporting Services specified on the reverse side of
2. Other Rights And Limitations. During the term of this Agreement:
2.1 Use. The use of the Software and Services is for a single
installation, personal use only. Commercial use is prohibited (e.g.
sales, installers, etc.)
2.2 Compliance with Law. LICENSEE will use the Software and Services
offered by Bizportz in a manner consistent with all applicable local,
state and federal laws and regulations.
3. Ownership And Disclosure Of Intellectual Property.
3.1 Services and Software. Bizportz and its licensors have and will
retain all right, title, and interest and ownership in and to the
Software, Services and products. LICENSEE acknowledges that the Software
and Services constitute proprietary information and trade secrets of
Bizportz and its licensors, whether or not any portion thereof is or may
be the subject of a valid copyright or patent. The Software and Services
are protected under international copyright, trademark and trade secret
and or patent laws.
3.2 LICENSEE has no right to or interest in the Software and Service
(including all associated patents, copyrights, trademarks, trade names,
trade secrets, or other intellectual property rights.) Furthermore,
LICENSEE's right to use the Software and Services under this Agreement
does not give LICENSEE any right to receive, use or examine any source
code or design documentation relating to the software used to provide use
of the Software and Services. LICENSEE may not modify, translate,
decipher, decompile, disassemble or otherwise reverse engineer or attempt
to reconstruct or discover any source code or underlying ideas or
algorithms or file formats or programming or interoperability interfaces
of the Software and Services by any means whatsoever. LICENSEE may not
(or allow any third party to) modify or incorporate any portion of the
software used to provide the Software and Services into any other software
or create a derivative work, or develop any other product or allow any
third party to access the Software and Services, or the software
associated therewith. LICENSEE is solely responsible for the content of
any transmission across LICENSEE's network from, to, by, on behalf of, or
for LICENSEE's benefit, including all electronic data transmitted to
Bizportz ("User Content").
4. Indemnification And Limited Warranties
4.1 DISCLAIMER. LICENSEE acknowledges and agrees that LICENSEE has
independently determined whether the Software and Services are appropriate
for LICENSEE's specific purposes for which LICENSEE intends to use them,
and that LICENSEE did not rely upon the skill or judgment of, nor any
representations by Bizportz, its employees, agents, intermediaries,
materials suppliers or distributors or any other entity in such selection.
LICENSEE acknowledges the risks associated with the open structures of the
Internet and the transmission of data through such means. LICENSEE
assumes the entire risk related to the use and resulting output of the
Software and Services. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
Bizportz DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED (STATUTORY OR
OTHERWISE), INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY OF THE COMPUTER PROGRAM, INFORMATION CONTENT, FITNESS FOR
LICENSEE'S PURPOSE, SYSTEM INTEGRATION AND NON-INFRINGEMENT, CONCERNING
THE SOFTWARE AND SERVICES AND THE TRAINING, APPLICATION, OPERATION OR USE
THEREOF. However, an express limited warranty is granted to the extent
the Software shall function in a stable environment without error
rendering the Software unusable.
FURTHERMORE, LICENSEE IS WHOLLY AND EXCLUSIVELY RESPONSIBLE FOR OBTAINING
ALL REQUIRED OR RECOMMENDED ARCHITECTURAL, ENGINEERING OR OTHER CODE
ADHERING APPROVALS PRIOR TO CONSTRUCTION OF ANY CONSTRUCTION ESTIMATED USING
THE SOFTWARE AND SERVICES. LICENSEE FURTHER UNDERSTANDS AND ACKNOWLEDGES
THAT NEITHER Bizportz OR ITS SOFTWARE AND SERVICES MAKE ANY
REPRESENTATIONS OR CLAIMS AS TO THE STRUCTURAL, ENGINEERING, ARCHITECTURAL
OR OTHER FITNESS OF ANY STRUCTURE OR ANY OF THE MATERIALS LISTED IN
ESTIMATES GENERATED BY THE SOFTWARE.
4.2 LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, IN NO EVENT WILL Bizportz OR ITS LICENSORS BE LIABLE TO LICENSEE OR
ANY THIRD PARTY FOR ANY DAMAGES ARISING OUT OF THE SUBJECT MATTER OF THIS
AGREEMENT, FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES, OR FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF GOODWILL, OR
OTHERWISE, OR FOR LOSS OF OR CORRUPTION OF DATA, OR FOR COST OF
PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, IRRESPECTIVE OF WHETHER
SUCH LOSS OR DAMAGE IS FORESEEABLE BY Bizportz, AND EVEN IF Bizportz HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. In any the cumulative
liability of Bizportz or its licensors to LICENSEE for all claims related
to the Software and Services and this Agreement shall not exceed the total
amount LICENSEE paid to Bizportz for the Software and Services provided
under this Agreement.
4.3 Indemnification. Bizportz shall have the right, but not the
obligation, to defend or settle, at its option, any suit arising from a
claim that the Software and Services under this Agreement infringe any
third party's patent, copyright, or trade secret rights. LICENSEE agrees
to provide Bizportz with written notice of any such claim within ten (10)
days of LICENSEE's notice thereof and provide Bizportz with all
information and assistance Bizportz requests in connection any defense or
settlement of such claim. Bizportz's agreement to indemnify LICENSEE
hereunder is limited in amount to the service fee paid by LICENSEE to
BIZPORTZ under this Agreement. Bizportz shall have complete discretion and
control over such defense and all negotiations for a settlement or
compromise, unless it declines to defend or settle, in which case LICENSEE
is free to pursue any alternative LICENSEE may have.
LICENSEE shall defend, indemnify and hold Bizportz harmless from and
against any and all claims, losses, liabilities and expenses (including
attorney's fees) related to or arising out of the User Content or
LICENSEE's use of the Software and Services, including without limitation,
claims made by third parties (including LICENSEE's customers) related to
any false advertising claims, liability claims for products or services
sold by LICENSEE, claims for patent, copyright or trademark infringement,
or claims due to disruption or malfunction of Software and Services
provided hereunder, except for those related to the negligence of
Bizportz. This provision will survive the termination of this Agreement.
5. Term And Termination. Either party may terminate this Agreement only
after completion of the minimum term as specified on the reverse side of
this Agreement. Bizportz may terminate this Agreement at any time, and
without notice, upon LICENSEE's breach or violation, whether actual or
threatened, of any term of this Agreement.
6. Taxes. LICENSEE is responsible for the payment of all applicable
service, sales, and other taxes (other than income taxes payable by
Bizportz) that may be assessed or imposed as a result of LICENSEE's use of
the Software and Services provided pursuant to this Agreement. Software
sales are FOB destination.
7. Export Restriction. LICENSEE acknowledges that the Software and
Services, object code, source code and all related documentation is
subject to United States export control laws as well as applicable
regulations issued by, among others, the U.S. Departments of Commerce,
State and Treasury. LICENSEE will comply with all such laws and
8. U.S. Government Restricted Rights. The Software and Services, and any
associated software or documentation, are provided with RESTRICTED RIGHTS.
Use, duplication or disclosure by the Government is subject to
restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in
Technical Data and Computer Software clause at DFARS 252.227-7013 or
subparagraphs (c)(1) and (2) of the Commercial Computer Software-
Restricted Rights at 48 CFR 52.227, as applicable, or the current
equivalents of the cited paragraphs. As provided in 48 C.F.R. 227.7202-3,
the rights of the Department of Defense regarding its use, reproduction
and disclosure are as set forth in this Agreement. Manufacturer is
Bizportz, Inc., 4840 W. 15th Street, Lawrence, Kansas 66049.
9. Audit. Bizportz reserves the right to periodically monitor LICENSEE's
access to the Software and Services at reasonable times and dates to audit
for authorized access, number of users and authorized use. LICENSEE agrees
to provide Bizportz with such other information relating to LICENSEE's use
of the Software and Services as Bizportz deems necessary or desirable.
LICENSEE agrees to notify Bizportz if LICENSEE's address, email address or
telephone number changes.
10. Miscellaneous Provisions
10.1 Invalid, Illegal or Unenforceable Provisions. In the event that any
provision of this Agreement is held to be invalid or unenforceable by a
court of competent jurisdiction, each invalid or unenforceable provision
of the Agreement will be treated by the tribunal as modified to the least
extent necessary to rectify its invalidity or unenforceability and shall
be enforced as so modified, and the remainder of the provisions of this
Agreement shall be unimpaired and remain in full force and effect.
10.2 Binding Effect: Assignment. This Agreement and all of the terms,
provisions and conditions hereof are binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted
assigns. Bizportz may assign any or all of its rights or obligations
hereunder in its free, sole and unfettered discretion.
10.3 Governing Law. This Agreement is governed by, and construed in
accordance with, the internal laws of the State of Kansas, USA, without
regard to its conflict of laws provisions. LICENSEE agrees to submit to
the exclusive jurisdiction of and exclusive venue in the state and federal
courts of Kansas in connection with any suit or action related to the
Software and Services or this Agreement.
10.4 Attorney's Fees. If suit is brought or an attorney retained by
Bizportz to enforce the terms of, collect any monies due under, or collect
damages for breach of, this Agreement or any contemporaneously executed
agreement related hereto, Bizportz is entitled to recover, in addition to
any other remedy, reimbursement for reasonable attorney fees, court costs
and other related expenses incurred in connection therewith.
10.5 Change of Terms and Conditions. Portions of the terms and conditions
herein may be governed by posted or distributed guidelines, rules or other
terms and conditions. Such guidelines, rules and other terms and
conditions are hereby incorporated into this Agreement by reference. In
the event of any conflict between such other guidelines, rules and other
terms and conditions and this Agreement, this Agreement shall control.
Further, Bizportz reserves the right to change the terms and conditions of
this Agreement as needed. Use of our Software and Services by LICENSEE
after any such changes constitutes acceptance of those new terms and
conditions. If LICENSEE does not agree to the new terms and conditions,
LICENSEE may terminate this Agreement in accordance with the provisions of
10.6 Entire Agreement. This Agreement constitutes the entire agreement
between LICENSEE and Bizportz and supersedes all prior or contemporaneous
proposals or communications, whether in writing, oral or electronic, with
respect to the Software and Services.