End user agreement for SIMMS Express Inventory Software
Kornyk Computer Solutions International, Inc.
End-User License Agreement
Important: Kornyk Computer Solutions International, Inc. at Unit#201 31234 Wheel Ave, Abbotsford, BC V2T 6G9; Phone: 604-504-7936 (herein after referred to as “KCSI”) licenses the enclosed Software to you only upon the condition that you accept all of the terms contained in this End-User License Agreement (“this Agreement”). Please read these terms carefully, because opening this package or clicking on the “I accept” button indicates your acceptance of them. If you do not agree with these terms, then you do not have a license to use the Software.
For the purpose of purchasing products and/or services from KCSI, I agree and acknowledge that I have read and fully understand the terms and conditions of this agreement; I also agree to be bound by the following terms and conditions:
1. Definitions. The following terms are defined as used in this Agreement:
(a) Distributor–company from which your reseller has chosen to buy the Software. Distributor is an independent party and is not an agent of KCSI.
(b) Reseller–the company from which you have purchased the software. Reseller is an independent party and is not an agent of KCSI.
(c) Developer–the company that developed this program, in this case Kornyk Computer Solutions International, Inc. or KCSI.
(d) Manufacturer–the company that manufactured this program and in this case means Kornyk Computer Solutions International, Inc. or KCSI.
(e) KCSI–Kornyk Computer Solutions International, Inc..
(f) Documentation–the specifications for the Program set forth in the help files of the Program and the Release Notes accompanying the Program.
(g) Program–the computer program recorded on the media accompanying this Agreement, together with any update or modification to such Program subsequently supplied to you directly or indirectly.
(h) Software–the computer software recorded on the media accompanying this Agreement, including the Documentation.
(i) Hardware–any non-software or non-labor Merchandise with Documentation.
(j) Customer–the end user, purchasing company or individual.
2. Grant of License. KCSI hereby grants to you a limited, non-exclusive, non-transferable (except as set forth in Section 5(d) below) license to use the Software on the terms and conditions set forth in this Agreement; provided that updates or modifications to the version of the Software accompanying this Agreement may have additional or different license terms and/or conditions, and your license for such updated or modified Software is subject to any such additional or different terms and conditions as are contained in the agreement accompanying such update or modification. The Software is protected by Canadian copyright laws and international treaty provisions. KCSI own all copyrights and other proprietary rights on the Software.
3. You may :
(a) Install copies of the Program onto hard disk drives or similar storage devices only as necessary for use of the Program by the number of users for which you have bought a SIMMS Express license from either your Distributor, Reseller or KCSI, and,
(b) Make and maintain one (1) backup copy of the Program (in addition to the original copy of the Program), provided that this copy is used only for backup purposes and that you keep possession of the backup copy at all times and you reproduce on any copy all copyright and trademark notices and any other confidentiality or proprietary legends that are on the original copy of the Program.
4. You may not:
(a) Make copies of the Software, except as specifically authorized above;
(b) Use the Software except as expressly provided in this Agreement;
(c) Rent, lease, lend, sublicense, time-share or otherwise permit any other party to use the Software or to exercise your rights under this Agreement, except that you may allow another party to load the Program onto a server not owned by you if you will be the only party with access to the Program on such server;
(d) Alter, modify, translate, decompile, disassemble or reverse-engineer the Software, or make any attempt to undo or bypass the encryption of the Software code, or create any derivative work based upon the Software;
(e) Remove or obscure any copyright or trademark notices; or
(f) Load the server part of the Program on more than one server.
5. Additional Restrictions.
(a) The report writing software contained within the Program may only be used to access data that is created by, or used by, the Program. Accessing data that is not created by, or used by, the Program with the report writing functions contained in the Program is a violation of this Agreement.
(b) Any upgrade of, or modification to, the Software subsequently supplied indirectly or directly by KCSI may be used only upon the destruction of the prior version of the Software and is subject to the terms and conditions of this Agreement, as may be supplemented by any additional term or condition contained in any additional license agreement sent with any such upgrade or modification. Unless covered by separate agreement, KCSI is under no obligation to provide you with any updated or modified version of the Software, except as set forth in Section 7(a);
(d) You may not sell, assign or otherwise transfer the Software to another party. A transfer of the Software to a party that purchases all, or substantially all, of the assets of your business shall not be deemed a transfer in violation of this Agreement, provided that you notify KCSI in writing of such sale prior to the transfer of the Software, the other party reads and accepts (in writing to KCSI) the terms and conditions of this Agreement, and you do not retain a copy of the Software. Additional restrictions may apply to any such transfer, and,
(e) Export of the Software is restricted by Canadian export regulations and you may not export the Software without the appropriate Canadian and foreign government approvals. Contact KCSI for information regarding exportation of the Software.
6. Canadian Government Restricted Rights. The Software is provided with Restricted Rights. Use, duplication or disclosure by the Government is subject to restrictions as set forth in paragraphs (a) – (d) of the Commercial Computer Software - Restricted Rights clause at 48 CFR 52.227-19, or Section 227.7202 of the DFARS. Contractor/Manufacturer is Kornyk Computer Solutions International, Inc., 31157 Creekside Dr. Abbotsford, British Columbia, V2T 5J9, Dominion of Canada.
7. Limited Warranty .
(a) I/We (Customer) agree to advise KCSI of any defective product(s) and or disputed invoice(s) in writing within 2 Days of receipt. Failure to notify KCSI of any disputed and/or defective goods constitutes a complete waiver of any and all such disputes.
(b) I/We (Customer) agree with KCSI’s policy that because KCSI offers a 15-day trial version of SIMMS Express software for customers to have adequate opportunity to assess the value of products prior to purchase. Therefore, KCSI does not accept returns or provide refunds on its products purchased directly from KCSI once they have either been shipped from our warehouse or downloaded from our website; or indirectly through KCSI or SIMMS Express Business Partners. THERE ARE NO EXCEPTIONS TO THIS POLICY.
(c) I/We (Customer) agree with KCSI’s policy that KCSI does not accept returns on its services - technical support contracts, Maintenance plan fees, professional services, and product customizations - that are sold to customers.
(d) No product may be returned, whether as defective or for exchange, without a return authorization number obtained from your Account Manager. All return authorization numbers expire ten days after issuance. Products returned without a return authorization number will be refused.
The following states your SOLE AND EXCLUSIVE REMEDY for any breach of this warranty:
(a) KCSI warrants the media on which the Program is recorded to be free from defects in materials and workmanship under normal use and service for a period of fifteen (15) days from the date the Software is first delivered to you (and not to any transferee). Your SOLE AND EXCLUSIVE REMEDY under this warranty is limited to replacement of defective media, and,
(b) Other than the express, limited warranties stated above in this section, neither KCSI nor its suppliers make any other warranty of any kind, either express or implied, including but not limited to the implied warranties of merchantability or fitness for a particular purpose, with respect to the use of or inability to use the software or media. Any such implied warranties shall in any event be limited in duration to the fifteen (15) day period specified above. I/We (Customer) understand and agree that: (1) software is like any other product and will not last forever, (2) you must regularly upgrade software for a fee, and (3) KCSI provides no customer support for non-current versions of KCSI’s software, and (4) you must have an active maintenance plan in order to receive any updates for SIMMS Express Software and/or key codes for any version past or present.
8. Limitation of Liability. Because software is inherently complex and may not be free from errors, you are advised to verify the work produced by the Program. Neither KCSI nor its suppliers shall be liable for any special, indirect, incidental or consequential damages resulting from any defect in the Software or media, even if KCSI has been advised of the possibility of such damages. This means KCSI is not responsible or liable for damages or costs incurred as a result of loss of time, loss of data, loss of anticipated profits or benefits resulting from use of the Software or loss of use of the Software, nor for damages or costs incurred in connection with obtaining substitute software, claims by others or similar costs. In no event shall KCSI’s liability to you arising out of or in connection with the software or this agreement, whether in contract, tort or otherwise, exceed the license fee actually paid to KCSI by your distributor for your copy of the software.
9. Other Limitations. KCSI will have no responsibility under these limited warranties for any Software or media that has been modified, lost, stolen or damaged by accident, abuse or misapplication. No employee, agent or representative of KCSI, nor any reseller (including your Distributor) or any other third party, is authorized to make any representation or warranty with respect to the Software, except those expressly stated in this Agreement, and you may not rely on any such unauthorized representation or warranty. You acknowledge and agree that you have chosen your Distributor, and that such Distributor is an independent party, and not an agent or partner of KCSI.
10. Allocation of Risk. You acknowledge and agree that this Agreement allocates risk between you and KCSI as authorized by the Uniform Commercial Code and other applicable law, and that the pricing of KCSI’s products reflects this allocation of risk and the limitations of liability contained in this Agreement. If any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth in this Agreement shall remain in full force and effect.
11. Term. This Agreement is effective from the date you accept the terms of this Agreement, and continues in effect until superseded by a new agreement supplied with a newer version of SIMMS Express Software purchased or upgraded by the customer. This Agreement and the license granted herein will terminate automatically and without notice if you fail to comply with any term or condition of this Agreement. You agree upon termination to return the original Software to KCSI and to destroy all other Software copies in your possession. Any provision in this Agreement which when reasonably read is intended to survive the termination of this Agreement shall survive, including without limitation, the disclaimer of warranties and limitations on liability.
12. General. This Agreement represents the complete and exclusive understanding between you (customer) and KCSI regarding the Software, and supersedes any prior purchase order, confirmation, advertising, representation or other communication. This Agreement may not be modified except by a written agreement signed by an authorized KCSI representative. If any provision of this Agreement is found to be void, invalid or unenforceable, it shall be severed from and shall not affect the remainder of this Agreement, which shall remain valid and enforceable. Any such severed provision shall be replaced with a similar provision that conforms to applicable law and embodies as closely as possible the original intent of the parties. This Agreement shall be governed by the internal laws of the Province or British Columbia, without regard to the conflict of laws provisions thereof. In the event of any legal action to enforce this Agreement, KCSI shall be entitled to recover its attorney’s fees and costs, in addition to any other legal and equitable relief granted.
13. Indemnification. If you receive notice of any claim that your use of any part of the Software infringes the rights of a third party in or to any patent, copyright, trademark or trade secret, or violates any other intellectual property right, KCSI shall defend, and shall indemnify and hold you harmless by paying any resulting costs and damages finally awarded by a court with respect to any such claim provided that you:
(a) Notify KCSI in writing promptly upon becoming aware of the claim,
(b) At customer’s request and expense, give KCSI such information and assistance as is reasonable under the circumstances, and,
(c) Give KCSI the right, at KCSI’s sole discretion, to settle the claim at the customer’s expense. This indemnification does not extend to any claim based upon any alleged infringement arising from the combination of the Software with other elements not under KCSI’s sole control, or arising from any part of the Software that you or a third-party modify, or that incorporates specifications, designs or formulas that you provide. If you are prevented from using the Software because of an actual or claimed infringement, then at KCSI’s option, KCSI shall promptly obtain for you the right to continue using the affected part of the Software, replace or modify the affected part of the Software so that it becomes non-infringing. This section sets out the entire exposure of KCSI for any intellectual property claims or actual infringements relating to the software.
14. Payment .
(a) Any amount due and not paid by the due date, shall be charged a service charge calculated at the rate of 2% per month, compounded monthly.
(b) All products shipped remain the property of KCSI until paid in full. Upon request from KCSI, I agree to immediately relinquish and return all unpaid equipment and/or software in its original condition and all original packaging materials to KCSI.
(c) Any payment made in respect of a credit transaction shall be first applied to the accumulated service charge, and thereafter to the principle amount of the outstanding debt.
(d) Company will assess a handling charge in the amount of $75.00 for any dishonored check received from the applicant.
"This Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia which shall be deemed to be the proper law hereof. The Courts of British Columbia shall have jurisdiction to entertain and determine all disputes and claims, whether for specific performance, injunction, declaration or otherwise howsoever both at law and in equity, arising out of or in any way connected with the construction, breach, or alleged, threatened or anticipated breach of this Agreement and shall have jurisdiction to hear and determine all questions as to the validity, existence or enforceability thereof."
I/We (Customer) hereby agree to indemnify KCSI for all collection fees, legal fees and all other costs and expenses that KCSI incurs, should my account be in arrears.