End user agreement for SmarterTrack
END USER LICENSE AGREEMENT
SmarterTools, Inc. Software License Terms
It is important to read and understand all of the terms, limitations, and conditions contained in this End User License Agreement prior to installing and using the Software that accompanies it because they affect certain rights. This End User License Agreement applies to:
* This Software
* Future Versions of this Software
* Updates to this Software that may or may not be available going forward
* Services, support, advice, and recommendations related to this Software that may be Internet, documentation, or telephone-based
* Any and all Technical Support Services
The terms “You”, “Your”, and “Licensee” refer to the legally licensed users of this Software and the respective owners of the License. The terms “SmarterTools” and “Licensor” refer to SmarterTools, Inc. and its successors. Licensee and Licensor may be referred to collectively as “Parties”. The term “Agreement” refers to this End User License Agreement. The term “License” refers to Your legal, limited right to install and use this Software. The term “Software” refers to the Software itself (including future versions of this Software and updates that may or may not be available going forward) and any accompanying documentation, materials, and/or products.
2. Legal Agreement.
This Agreement is a legal agreement between You and SmarterTools. By agreeing to these terms and conditions and/or installing or using the Software, You are consenting to be bound by the terms of this Agreement. If, prior to using the Software, You decide that You are unable or unwilling to agree to the terms of this Agreement, promptly return the Software and any accompanying items (including any written materials) to SmarterTools (if applicable) and/or promptly and completely uninstall and destroy any electronic copies of the Software and accompanying items. Returns made in accordance with this Agreement within 15 days of purchase are eligible for a refund of the purchase price upon approval by SmarterTools.
Subject to the terms and conditions of this Agreement, SmarterTools hereby grants You a revocable, non-exclusive, non-transferable License to use the Software. You may not use or allow the use of the Software other than for Your own internal or personal purposes. This License does not imply any rights to future upgrades or updates of the Software. However, if SmarterTools does provide You with any upgrades or updates to the Software, such updates or upgrades shall be subject to the terms and conditions of this Agreement or such agreement which may accompany such upgrades or updates and obtaining such updates or upgrades may be subject to additional payments, if applicable. Your License to use the Software as provided herein is conditional upon payment of all related fees and other amounts due to SmarterTools in connection with Your purchase of the License. If any fees or amounts are not paid when due it shall constitute a breach of this Agreement and shall entitle SmarterTools to terminate Your License. This Agreement does not constitute a sale of the Software or any portion thereof to You and any reference to the sale or price of the Software or any copy thereof refers to the License or License fee thereof, respectively.
All rights to and in the Software—including, but not limited to, copyrights, trademarks, and trade secrets—belong to Licensor and Licensor holds title to each and every copy of the Software. Licensee shall not transfer or distribute the Software to others and this Agreement shall automatically terminate in the event of such a transfer or distribution. The Software is activated and new features are enabled by the use of a license key. Licensee shall not copy, distribute, or modify the Software or license key with the exception that Licensee may create one copy of the Software for the sole purpose of backup as long as all copyright and other notices are reproduced and included on the backup copy.
4. Reassign to Another Device.
You may reassign this Software to a different device any number of times for any reason. SmarterTools reserves the right to require reauthorization, re-registration, or another form of authentication at no additional charge and at the discretion of SmarterTools in order to preserve Software licensing rights.
This Agreement is effective until terminated. Licensee may terminate this Agreement by returning the Software to Licensor (if applicable) and/or by completely and wholly destroying any and all electronic versions of the Software stored by Licensee regardless of the location of the stored version. Licensor may terminate this License if Licensee breaches any of the terms and conditions of the Agreement. Upon termination of this License for any reason, Licensee shall return the Software to Licensor (if applicable) and/or destroy the Software. All provisions of this Agreement relating to disclaimers, indemnifications, warranties, limitation of liability, remedies, or damages, and Licensor's proprietary rights shall survive any termination.
6. Object Code.
The Software is delivered in object code only. You shall not nor shall You permit anyone else, directly or indirectly, to:
* Copy, reproduce, modify, or distribute the Software in whole or in part.
* Reverse engineer, reverse assemble, disassemble, decompile, or otherwise attempt to discover the source code or structure, sequence, and/or organization of the Software in whole or in part (except where the foregoing is required by applicable local law, and then only to the extent so permitted).
7. Limited Warranty.
Licensor does not warrant that the functions contained in the Software will meet Licensee's requirements or that the operation of the Software will be uninterrupted or error-free. Licensor does warrant that the media on which the Software is furnished will be free from defects in materials and workmanship under normal use for a period of fifteen (15) days from the date of delivery ("Warranty Period"). Any 3rd-party and/or supplemental software and/or any hardware furnished with or accompanying the Software is not warranted by Licensor. Licensee's exclusive remedy under this limited warranty is the replacement of any defective physical media on which the Software is furnished, as provided below. To receive a replacement for defective media under this limited warranty, return the defective media to Your supplier during the Warranty Period, with proof of payment (if applicable). Any Software delivered electronically, via email, FTP download, HTTP (secured or unsecured) download, or any other means is not warranted beyond subsequent electronic re-delivery.
Except as provided above, the Software is provided "as is" without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose, and the entire risk as to the quality and performance of the Software is with Licensee.
8. Limitation of Liability.
Licensor's sole obligation and/or liability under this Agreement is the replacement of defective media according to the limited warranty above (see Section 7, above). In no event shall Licensor be liable for any consequential, incidental, or indirect damages; including (without limitation) any loss of data, loss of profits, loss of savings, loss of time or convenience, or additional cost arising out of the use of or inability to use the Software, documentation, or any 3rd-party and/or supplemental software and/or any hardware furnished with or accompanying the Software; even if Licensor has been advised of the possibility of such damages, or for any claim by any third party.
Currently, SmarterTools provides technical support for the Software via SmarterTools personnel, documentation, and Internet resources. Depending on Your purchase agreement, pricing, volume, Software version, and/or the number of licenses You purchased—a certain amount of technical support may be included at no additional charge. Otherwise, technical support may be available for an additional charge on a per incident, per call, per time-frame, or in other support packages for an additional charge. The amount of these charges may vary from time to time. The granting and/or purchase of technical support does not affect the warranty period stated in Section 7 (above), nor does it affect limitations of liability stated in Section 8 (above).
SmarterTools provides no guarantee, expressed or implied, regarding the continuation of technical or other support for this Software or particular version of this Software for any length of time and SmarterTools may choose to discontinue such support at any time and for any reason.
You shall defend, indemnify, and hold harmless SmarterTools and its suppliers, licensors, successors, affiliates, agents, employees, executives, and assigns (hereafter "SmarterTools Indemnified Party") from any claims, damages, losses, or expenses (including without limitation attorney fees and costs) incurred in connection with any and all losses, claims, suits, judgments, and/or causes of action for:
* The infringement of patents, intellectual property, or proprietary rights arising from combining with or using any device, system, or service in connection with the Software or any portion thereof;
* Damages arising from Your breach of this Agreement;
* Any and all claims made by third parties against SmarterTools Indemnified Parties arising from or related to the use of the Software or any portion thereof;
* Any and all loss, misdirection, or inaccuracy of any and all data, message, and/or information (partial or complete) by or directed to You, Your affiliates, Your customers, Your vendors, Your assignees, and/or any related third party and from any action, inaction, or consequence arising out of such loss, misdirection, or inaccuracy of any data, message, and/or information;
* Any and all misuse, abuse, hostile transmission, fraud, and/or unlawful action arising from or related to the use of the Software or any portion thereof by or directed at You, Your affiliates, Your customers, Your vendors, Your assignees, and/or any related third party;
* Any and all unforeseen claim, damage, loss, and/or expense related to the installation, quality, use, operation, functionality, transfer, and/or un-installation of the Software.
In any and all cases where SmarterTools and/or the SmarterTools Software may be found liable for any loss, damages shall not exceed a refund of the purchase price of the Software or replacement thereof as stated in Section 8, Limitation of Liability, above.
11. General Rights, Rules, Transfers, and Jurisdiction.
Any attempt to sublicense, assign, or transfer any of the rights, duties, or obligations hereunder is null and void unless Licensee has been granted "Reseller" or “Partner” status by Licensor in writing under a separate agreement. This Agreement shall be governed by and interpreted in all respects under the laws of the State of Arizona, United States of America, without regard to conflicts of provisions.
In the case that Licensee is an agency or entity of the United States Government, the following additional terms apply:
* The Software qualifies as Restricted Computer Software, as defined in the Rights in Data-General clause at Federal Acquisition Regulations 52.227-14.
* 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.
Licensee shall pay the total fee(s) in accordance with the terms of payment set forth by Licensor. Licensee shall pay all invoices rendered by Licensor within thirty (30) calendar days after the invoice date, or within another time frame set forth by Licensor in writing in a separate agreement. All payments shall be made in United States Dollars ($). If Licensee fails to pay any amount due within the above timeframe, Licensee shall be responsible to pay to Licensor late charges equal to 1.5% per month or the highest interest rate allowable by applicable law (whichever is lesser), together with all related expenses and collection costs, including reasonable attorneys' fees, incurred by Licensor in enforcing the Agreement. Licensee shall reimburse Licensor for any out-of-pocket expenses incurred in connection with duties performed by Licensor hereunder. Upon request, Licensor shall provide Licensee with reasonable documentation evidencing the out-of-pocket expenses incurred by Licensor, if any.
13. Initial Licensing of the Software.
Upon payment and initial download of the Software, the Licensee is granted a License to use the Software for a limited number of users, profiles, devices, and/or domains as specified at the time of purchase for an unlimited amount of time. Licensee may purchase an additional License(s) to acquire a version(s) of the Software that provides larger limits than those initially provided as long as additional versions are supported by Licensor during the normal life-cycle of the Software.
14. Limitations to Customization.
Should You choose to alter the appearance and/or user interface of the Software (the “skin”) by using the custom style and/or skin options included in certain versions of the Software or by using a third-party process to alter the appearance and/or interface of the Software, the following requirements must be met:
* You shall maintain and not remove or obscure any proprietary notices in the Software. The SmarterTools name must remain in the header information that displays upon opening and using the Software. The SmarterTools name may be displayed in any font type and/or style, but it must be displayed no smaller than an 8 point font. The name of the Software shall remain visible to the naked eye and free from any clutter or similar color scheme (e.g. black font on a black or similarly dark background that would preclude the user from easily identifying the Software). The usage of the quantifiers "powered by" and “provided by” are allowed (e.g. “Powered by SmarterMail”). Any deviation from these limitations must be approved in writing by SmarterTools in advance of implementation and may result in additional license fees, if applicable.
* All applicable copyright and trademark information will remain visible to the naked eye, free from any clutter or similar color scheme, and can be displayed in any font type and/or style no smaller than 8 point font.
SmarterTools reserves the right to restrict the usage of the Software (up to and including the termination of this License) if, in the opinion of SmarterTools, any of the above requirements have not been satisfied. SmarterTools shall assume no liability resulting from a Licensee’s choice to alter the appearance and/or interface of the Software (see Section 10, “Indemnification” above).
15. Transmission of Information and Communication.
From time to time the computers, servers, and/or other electronic devices on which You install and operate this Software may use the internet or other means to contact or be contacted by computers, servers, and/or other electronic devices owned by SmarterTools in order to maintain licenses, communicate updates, track the location/install base of the Software, gauge performance, or to exchange other information as is needed to properly maintain, protect, and/or update the Software. Acceptance of this Agreement indicates Your acceptance of this communication and Your assumption of the incumbent risks associated with such communication.
16. Intellectual Property, Trademarks, and Copyrights.
Title, ownership rights, and intellectual property rights in and related to the Software and any copies or portions thereof shall remain owned by SmarterTools and its suppliers, licensors, and/or successors respectively. The Software and all documentation are protected by the copyright laws of the United States of America and international treaties. This Agreement does not grant You any rights not expressly stated herein. All trade-names and trademarks mentioned, displayed, or written within the Software, its documentation, support structure, code, and this Agreement remain the property of their individual owners even if a registered trademark symbol or “tm” are not included or are not clearly visible.
17. Export Controls.
You agree to comply with all export laws, restrictions, and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and/or other governing agency or authority of competent jurisdiction either foreign or domestic. You hereby represent and affirm that:
* To the best of Your knowledge You are eligible to receive the Software under applicable law;
* You shall not install or use the Software, or cause the Software to be installed or used, in any prohibited country or territory in violation of applicable law; and,
* You shall not transfer, export, or re-export; or allow any other person or entity to transfer, export, or re-export the Software to a prohibited country or territory in violation of applicable law.
In the event that any or several item(s) or portion(s) of this Agreement is found to be invalid, null, void, unenforceable, or in violation of any governing law or regulation, that item(s) or portion(s) shall be severed from this Agreement and all remaining items and portions shall remain in full effect.
This Agreement includes the entire and complete Agreement by and between the Parties and no further agreement or license exists. This Agreement can only be modified, amended, expanded, reduced, or otherwise altered by an instrument in writing, agreed to and signed by SmarterTools.
Thank You for choosing SmarterTools Software.