This End User License Agreement (this
"Agreement"), is a binding
agreement between PLAN SPLIT, LLC ("Licensor")
and the person or entity downloading, installing or using the Software as the
licensee of the Software ("Licensee").
LICENSOR PROVIDES THE SOFTWARE SOLELY ON
THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT
LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CLICKING THE "ACCEPT"
BUTTON YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND
BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE
OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT; AND (II) IF LICENSEE
IS A CORPORATION, GOVERNMENTAL ORGANIZATION, OR OTHER LEGAL ENTITY, YOU HAVE
THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF
LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE
TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO
LICENSEE AND YOU MUST NOT DOWNLOAD/INSTALL/USE THE SOFTWARE OR DOCUMENTATION.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT OR YOUR OR LICENSEE'S ACCEPTANCE OF THE TERMS AND CONDITIONS OF
THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR
OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY
RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT
IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR'S SOFTWARE.
1. Definitions. For purposes
of this Agreement, the following terms have the following meanings:
"Authorized Users" means the
licensee’s employees and Persons performing services for the licensee
authorized to use the Software pursuant to the license granted under this
Agreement.
"Documentation" means user manuals,
technical manuals, and any other materials provided by Licensor, in printed,
electronic, or other form, that describe the installation, operation, use, or
technical specifications of the Software.
"Intellectual Property Rights"
means any and all registered and unregistered rights granted, applied for, or
otherwise now or hereafter in existence under or related to any patent,
copyright, trademark, trade secret, database protection, or other intellectual
property rights laws, and all similar or equivalent rights or forms of
protection, in any part of the world.
"Licensee" has the meaning set
forth in the preamble.
"License Fees" means the license
fees, including all taxes thereon, paid or required to be paid by Licensee for
the license granted under this Agreement.
"Licensor" has the meaning set
forth in the preamble.
"Person" means an individual,
corporation, partnership, joint venture, limited liability company,
governmental authority, unincorporated organization, trust, association, or other
entity.
"Software" means the software
programs for which Licensee is purchasing a license.
"Term" has the meaning set forth in
Section 11.
"Third Party" means any Person
other than Licensee or Licensor.
"Update" has the meaning set forth
in Section 7(b).
2. License Grant and Scope.
Subject to and conditioned upon Licensee's payment of any License Fees and
Licensee's strict compliance with all terms and conditions set forth in this
Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable,
non-sublicensable, limited license during the Term to use, solely by and
through its Authorized Users, the Software and Documentation, solely as set
forth in this Section 2 and subject to all conditions and limitations set forth
in Section 4 or elsewhere in this Agreement. This license grants Licensee the
right, exercisable solely by and through Licensee's Authorized Users, to:
(a) Download, copy, and install in
accordance with the Documentation the Software on computers owned or leased,
and controlled by, Licensee. In addition to the foregoing, Licensee has the
right to make one copy of the Software solely for archival purposes and one
copy of the Software solely for backup purposes, provided that Licensee shall
not, and shall not allow any Person to, install or use any such copy other than
if and for so long as any copy installed in accordance with the preceding
sentence is inoperable and, provided, further, that Licensee uninstalls and
otherwise deletes such inoperable copy(ies). All copies of the Software made by
the Licensee:
(i) will be the exclusive property
of the Licensor;
(ii) will be subject to the terms
and conditions of this Agreement; and
(iii) must include all trademark,
copyright, patent, and other Intellectual Property Rights notices contained in
the original.
(b) Use and run the Software as
properly installed in accordance with this Agreement and the Documentation,
solely as set forth in the Documentation and solely for Licensee's internal
business purposes.
(c) Download or otherwise make one
(1) copy of the Documentation per copy of the Software permitted to be
downloaded and installed in accordance with this Agreement and use such
Documentation, solely in support of its licensed use of the Software in
accordance herewith. All copies of the Documentation made by Licensee:
(i) will be the exclusive property
of Licensor;
(ii) will be subject to the terms
and conditions of this Agreement; and
(iii) must include all trademark,
copyright, patent, and other Intellectual Property Rights notices contained in
the original.
(d) Transfer any copy of the
Software from one computer to another, provided that:
(i) the number of computers on
which the Software is installed at any one time does not exceed the number
permitted under Section 2(a); and
(ii) Licensee notifies Licensor in
writing of each such transfer, including in such notice the information
required under this EULA for each computer on which the Software is installed.
3. Third-Party Materials. The
Software may include software, content, data, or other materials, including
related documentation, that are owned by Persons other than Licensor and that
are provided to Licensee on licensee terms that are in addition to and/or
different from those contained in this Agreement ("Third-Party Licenses"). A list of all materials, if any,
included in the Software and provided under Third-Party Licenses set forth on
Schedule A to this Agreement, and the applicable Third-Party Licenses are
accessible via links therefrom. Licensee is bound by and shall comply with all
Third-Party Licenses. Any breach by Licensee or any of its Authorized Users of
any Third-Party License is also a breach of this Agreement.
4. Use Restrictions. Licensee
shall not, and shall require its Authorized Users not to, directly or
indirectly:
(a) use (including make any copies
of) the Software or Documentation beyond the scope of the license granted under
Section 2;
(b) provide any other Person,
including any subcontractor, independent contractor, affiliate, or service
provider of Licensee, with access to or use of the Software or Documentation;
(c) modify, translate, adapt, or
otherwise create derivative works or improvements, whether or not patentable,
of the Software or Documentation or any part thereof;
(d) combine the Software or any
part thereof with, or incorporate the Software or any part thereof in, any
other programs;
(e) reverse engineer, disassemble,
decompile, decode, or otherwise attempt to derive or gain access to the source
code of the Software or any part thereof;
(f) remove, delete, alter, or
obscure any trademarks or any copyright, trademark, patent, or other
intellectual property or proprietary rights notices provided on or with the
Software or Documentation, including any copy thereof;
(g) except as expressly set forth
in Section 2(a) and Section 2(c), copy the Software or Documentation, in whole
or in part;
(h) rent, lease, lend, sell,
sublicense, assign, distribute, publish, transfer, or otherwise make available
the Software, or any features or functionality of the Software, to any Third
Party for any reason, whether or not over a network or on a hosted basis,
including in connection with the internet or any web hosting, wide area network
(WAN), virtual private network (VPN), virtualization, time-sharing, service
bureau, software as a service, cloud, or other technology or service;
(i) use the Software or
Documentation in, or in association with, the design, construction,
maintenance, or operation of any hazardous environments or systems, including:
(i) power generation systems;
(ii) aircraft navigation or
communication systems, air traffic control systems, or any other transport
management systems;
(iii) safety-critical applications,
including medical or life-support systems, vehicle operation applications, or
any police, fire, or other safety response systems; and
(iv) military or aerospace
applications, weapons systems, or environments;
(j) use the Software or
Documentation in violation of any law, regulation, or rule; or
(k) use the Software or
Documentation for purposes of competitive analysis of the Software, the
development of a competing software product or service, or any other purpose
that is to the Licensor's commercial disadvantage.
5. Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software
and Documentation through access thereto provided by Licensee, directly or
indirectly. Specifically, and without limiting the generality of the foregoing,
Licensee is responsible and liable for all actions and failures to take
required actions with respect to the Software and Documentation by its
Authorized Users or by any other Person to whom Licensee or an Authorized User
may provide access to or use of the Software and/or Documentation, whether such
access or use is permitted by or in violation of this Agreement.
6. Compliance Measures.
(a) The Software may contain
technological copy protection or other security features designed to prevent
unauthorized use of the Software, including features to protect against any use
of the Software that is prohibited under Section 4. Licensee shall not, and
shall not attempt to, remove, disable, circumvent, or otherwise create or
implement any workaround to, any such copy protection or security features.
(b) During the Term, Licensor may,
in Licensor's sole discretion, audit Licensee's use of the Software to ensure
Licensee's compliance with this Agreement, provided that (i) any such audit
shall be conducted on not less than 10 days' prior notice to Licensee, and (ii)
no more than 4 audits may be conducted in any 12 month period except for good
cause shown. Licensor also may, in its sole discretion, audit Licensee's systems
within 4 months after the end of the Term to ensure Licensee has ceased use of
the Software and removed the all copies of the Software from such systems as
required hereunder. The Licensee shall fully cooperate with Licensor's
personnel conducting such audits and provide all reasonable access requested by
the Licensor to records, systems, equipment, information, and personnel,
including machine IDs, serial numbers, and related information. Licensor shall
only examine information directly related to the Licensee's use of the
Software. Licensor may conduct audits only during Licensee's normal business
hours and in a manner that does not unreasonably interfere with the Licensee's
business operations.
(c) If any of the measures taken or
implemented under this Section 6 determines that the Licensee's use of the
Software exceeds or exceeded the use permitted by this Agreement then Licensee shall, within 10 days following the date
of Licensor's written notification thereof, pay to Licensor the retroactive
License Fees for such excess use and, unless Licensor terminates this Agreement
pursuant to Section 11, obtain and pay for a valid license to bring Licensee's
use into compliance with this Agreement. In determining the Licensee Fee
payable pursuant to the foregoing, (x) unless Licensee can demonstrate
otherwise by documentary evidence, all excess use of the Software shall be
deemed to have commenced on the commencement date of this Agreement or, if
later, the completion date of any audit previously conducted by Licensor
hereunder, and continued uninterrupted thereafter, and (y) the rates for such
licenses shall be determined without regard to any discount to which Licensee
may have been entitled had such use been properly licensed prior to its
commencement (or deemed commencement).
Licensor's
remedies set forth in this Section 69(c) are cumulative and are in addition to,
and not in lieu of, all other remedies the Licensor may have at law or in
equity, whether under this Agreement or otherwise.
7. Maintenance and Support.
(a) Subject to Section 7(c), the
license granted hereunder entitles Licensee to the basic software maintenance
and support services.
(b) Maintenance and support
services will include provision of such updates, upgrades, bug fixes, patches,
and other error corrections (collectively, "Updates") as Licensor makes generally available free of charge
to all licensees of the Software then entitled to maintenance and support
services. Licensor may develop and provide Updates in its sole discretion, and
Licensee agrees that Licensor has no obligation to develop any Updates at all
or for particular issues. Licensee further agrees that all Updates will be
deemed Software, and related documentation will be deemed Documentation, all
subject to all terms and conditions of this Agreement. Licensee acknowledges
that Licensor may provide some or all Updates via download from a website
designated by Licensor and that Licensee's receipt thereof will require an
internet connection, which connection is Licensee's sole responsibility. Licensor
has no obligation to provide Updates via any other media. Maintenance and
support services do not include any new version or new release of the Software
that Licensor may issue as a separate or new product, and Licensor may
determine whether any issuance qualifies as a new version, new release, or
Update in its sole discretion.
(c) Licensor reserves the right to
condition the provision of maintenance and support services, including all or
any Updates, on Licensee's registration of the copy of Software for which
support is requested. Licensor has no obligation to provide maintenance and
support services, including Updates:
(i) for any but the most current or
immediately preceding version or release of the Software;
(ii) for any copy of Software for
which all previously issued Updates have not been installed;
(iii) if Licensee is in breach under
this Agreement; or
(iv) for any Software that has been
modified other than by or with the authorization of Licensor, or that is being
used with any hardware, software, configuration, or operating system not
specified in the Documentation or expressly authorized by Licensor in writing.
8. Collection and Use of Information.
(a) Licensee acknowledges that
Licensor may, directly or indirectly through the services of Third Parties,
collect and store information regarding use of the Software and about equipment
on which the Software is installed or through which it otherwise is accessed
and used, through:
(i) the provision of maintenance
and support services; and
(ii) security measures included in
the Software as described in Section 6.
(b) Licensee agrees that the
Licensor may use such information for any purpose related to any use of the
Software by Licensee or on Licensee's equipment, including but not limited to:
(i) improving the performance of
the Software or developing Updates; and
(ii) verifying Licensee's compliance
with the terms of this Agreement and enforcing the Licensor's rights, including
all Intellectual Property Rights in and to the Software.
9. Intellectual Property Rights. Licensee acknowledges and agrees that the Software and
Documentation are provided under license, and not sold, to Licensee. Licensee
does not acquire any ownership interest in the Software or Documentation under
this Agreement, or any other rights thereto, other than to use the same in accordance
with the license granted and subject to all terms, conditions, and restrictions
under this Agreement. Licensor and its licensors and service providers reserve
and shall retain their entire right, title, and interest in and to the Software
and all Intellectual Property Rights arising out of or relating to the
Software, except as expressly granted to the Licensee in this Agreement.
Licensee shall use commercially reasonable efforts to safeguard all Software
(including all copies thereof) from infringement, misappropriation, theft,
misuse, or unauthorized access. Licensee shall promptly notify Licensor if
Licensee becomes aware of any infringement of the Licensor's Intellectual
Property Rights in the Software and fully cooperate with Licensor, at Licensor's
sole expense, in any legal action taken by Licensor to enforce its Intellectual
Property Rights.
10. PAYMENT. All License Fees and Support
Fees are payable in advance and are non-refundable, except as may be expressly
set forth herein. Any renewal of the license or maintenance and support
services hereunder shall not be effective until the fees for such renewal have
been paid in full.
11. Term and Termination.
(a) This Agreement and the license
granted hereunder shall remain in effect until terminated as set forth herein
(the "Term").
(b) Licensee may terminate this
Agreement by ceasing to use and destroying all copies of the Software and
Documentation.
(c) Licensor may terminate this
Agreement, effective upon written notice to Licensee, if Licensee, materially
breaches this Agreement and such breach: (i) is incapable of cure; or (ii)
being capable of cure, remains uncured twenty (20) days after Licensor provides
written notice thereof.
(d) Licensor may terminate this
Agreement, effective immediately, if Licensee files, or has filed against it, a
petition for voluntary or involuntary bankruptcy or pursuant to any other
insolvency law, makes or seeks to make a general assignment for the benefit of
its creditors or applies for, or consents to, the appointment of a trustee, receiver,
or custodian for a substantial part of its property.
(e) Upon expiration or earlier
termination of this Agreement, the license granted hereunder shall also
terminate, and Licensee shall cease using and destroy all copies of the
Software and Documentation. No expiration or termination shall affect
Licensee's obligation to pay all Licensee Fees and Support Fees that may have
become due before such expiration or termination, or entitle Licensee to any
refund, in each case.
12. Limited Warranties, Exclusive Remedy, and
Disclaimer/Warranty Disclaimer.
(a) Solely with respect to Software
for which Licensor receives a License Fee, Licensor warrants that, for a period
of sixty (60) days following the license date:
(i) any media on which the Software
is provided will be free of material damage and defects in materials and
workmanship under normal use; and
(ii) the Software will substantially
contain the functionality described in the Documentation, and when properly
installed on a computer meeting the specifications set forth in, and operated
in accordance with, the Documentation, will substantially perform in accordance
therewith.
THE FOREGOING
WARRANTIES DO NOT APPLY, AND LICENSOR STRICTLY DISCLAIMS ALL WARRANTIES, WITH
RESPECT TO ANY THIRD-PARTY MATERIALS.
(b) The warranties set forth in
Section 12(a)(i) and Section 12(a) (ii) will not apply and will become null and
void if Licensee breaches any provision of this Agreement, or if Licensee, any
Authorized User, or any other Person provided access to the Software by Licensee
or any Authorized User, whether or not in violation of this Agreement:
(i) installs or uses the Software
on or in connection with any hardware or software not specified in the
Documentation or expressly authorized by Licensor in writing;
(ii) modifies or damages the
Software, or the media on which it is provided, including abnormal physical or
electrical stress; or
(iii) misuses the Software, including
any use of the Software other than as specified in the Documentation or
expressly authorized by Licensor in writing.
(c) If, during the period specified
in Section 12(a), any Software covered by the warranty set forth in such
Section fails to perform substantially in accordance with the Documentation,
and such failure is not excluded from warranty pursuant to the Section 12(b),
Licensor will, subject to Licensee's promptly notifying Licensor in writing of
such failure repair or replace the
Software, provided that Licensee provides Licensor with all information
Licensor requests to resolve the reported failure, including sufficient
information to enable the Licensor to recreate such failure; or
If Licensor
repairs or replaces the Software, the warranty will continue to run from the
initial date specified, and not from Licensee's receipt of the repair or
replacement. The remedies set forth in this Section 12(c) are Licensee's sole
remedies and Licensor's sole liability under this Agreement.
(d) EXCEPT FOR THE LIMITED WARRANTY
SET FORTH IN SECTION 12(a), THE SOFTWARE AND DOCUMENTATION ARE PROVIDED TO
LICENSEE "AS IS" AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF
ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON
ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE
LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER
EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND
DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY
ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE
PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO
WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE
LICENSED SOFTWARE WILL MEET THE LICENSEE'S REQUIREMENTS, ACHIEVE ANY INTENDED
RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS,
OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY
STANDARDS OR BE ERROR FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE
CORRECTED.
13. Limitation of Liability. TO
THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
(a) IN NO EVENT WILL LICENSOR OR
ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE
PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION,
DELAY, OR INABILITY TO USE THE SOFTWARE; LOST REVENUES OR PROFITS; DELAYS,
INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF
DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR
SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION;
FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR
PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM
SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL,
OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE,
REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR
WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT WILL LICENSOR'S AND
ITS AFFILIATES', INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS' AND
SERVICE PROVIDERS', COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH
THIS AGREEMENTOR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY,
INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY,
AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS
AGREEMENT FOR (i) THE SOFTWARE OR (ii) UP TO TWELVE (12) MONTHS OF THE SPECIFIC
SERVICES, THAT IS OR ARE THE SUBJECT OF THE CLAIM.
(c) THE LIMITATIONS SET FORTH IN
SECTION 13(a) AND SECTION 13(b) SHALL APPLY EVEN IF THE LICENSEE'S REMEDIES
UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
14. Export Regulation. The
Software and Documentation may be subject to US export control laws, including
the Export Control Reform Act and its associated regulations. The Licensee
shall not, directly or indirectly, export, re-export, or release the Software
or Documentation to, or make the Software or Documentation accessible from, any
jurisdiction or country to which export, re-export, or release is prohibited by
law, rule, or regulation. The Licensee shall comply with all applicable federal
laws, regulations, and rules, and complete all required undertakings (including
obtaining any necessary export license or other governmental approval), prior
to exporting, re-exporting, releasing, or otherwise making the Software or
Documentation available outside the US.
15. US Government Rights. The
Software is commercial computer software, as such term is defined in 48 C.F.R.
§2.101. Accordingly, if the Licensee is the US Government or any contractor
therefor, Licensee shall receive only those rights with respect to the Software
and Documentation as are granted to all other end users under license, in
accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with
respect to the Department of Defense and their contractors, or (b) 48 C.F.R.
§12.212, with respect to all other US Government licensees and their
contractors.
16. Miscellaneous.
(a) All matters arising out of or
relating to this Agreement shall be governed by and construed in accordance
with the internal laws of the State of Florida without giving effect to any
choice or conflict of law provision or rule. Any legal suit, action, or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby shall be instituted in the federal courts of the United
States of America or the courts of the State of Florida in each case located in
the County of Volusia, and each party irrevocably submits to the exclusive
jurisdiction of such courts in any such legal suit, action, or proceeding.
Service of process, summons, notice, or other document by mail to such party's
address set forth herein shall be effective service of process for any suit,
action, or other proceeding brought in any such court.
(b) Licensor will not be
responsible or liable to Licensee, or deemed in default or breach hereunder by
reason of any failure or delay in the performance of its obligations hereunder
where such failure or delay is due to strikes, labor disputes, civil
disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist
attack, embargo, natural disaster, acts of God, flood, fire, sabotage,
fluctuations or non-availability of electrical power, heat, light, air
conditioning, or Licensee equipment, loss and destruction of property, or any
other circumstances or causes beyond Licensor's reasonable control.
(c) All notices, requests,
consents, claims, demands, waivers, and other communications hereunder shall be
in writing and shall be deemed to have been given: (i) when delivered by hand
(with written confirmation of receipt); (ii) when received by the addressee if
sent by a nationally recognized overnight courier (receipt requested); (iii) on
the date sent by facsimile or email (with confirmation of transmission) if sent
during normal business hours of the recipient, and on the next business day if
sent after normal business hours of the recipient; or (iv) on the third day
after the date mailed, by certified or registered mail, return receipt
requested, postage prepaid. Such communications must be sent to the respective
parties at the addresses as may be designated by a party from time to time in
accordance with this Section16(c).
(d) This Agreement, together with
all annexes, schedules, and exhibits attached hereto and all other documents
that are incorporated by reference herein, constitutes the sole and entire
agreement between Licensee and Licensor with respect to the subject matter
contained herein, and supersedes all prior and contemporaneous understandings,
agreements, representations, and warranties, both written and oral, with
respect to such subject matter.
(e) Licensee shall not assign or
otherwise transfer any of its rights, or delegate or otherwise transfer any of
its obligations or performance, under this Agreement, in each case whether
voluntarily, involuntarily, by operation of law, or otherwise, without
Licensor's prior written consent, which consent Licensor may give or withhold
in its sole discretion. For purposes of the preceding sentence, and without
limiting its generality, any merger, consolidation, or reorganization involving
Licensee (regardless of whether Licensee is a surviving or disappearing entity)
will be deemed to be a transfer of rights, obligations, or performance under
this Agreement for which Licensor's prior written consent is required. No
delegation or other transfer will relieve Licensee of any of its obligations or
performance under this Agreement. Any purported assignment, delegation, or
transfer in violation of this Section 16(e) is void. Licensor may freely assign
or otherwise transfer all or any of its rights, or delegate or otherwise
transfer all or any of its obligations or performance, under this Agreement
without Licensee's consent. This Agreement is binding upon and inures to the
benefit of the parties hereto and their respective permitted successors and
assigns.
(f) This Agreement is for the sole
benefit of the parties hereto and their respective successors and permitted
assigns and nothing herein, express or implied, is intended to or shall confer
on any other Person any legal or equitable right, benefit, or remedy of any
nature whatsoever under or by reason of this Agreement.
(g) This Agreement may only be
amended, modified, or supplemented by an agreement in writing signed by each
party hereto. No waiver by any party of any of the provisions hereof shall be
effective unless explicitly set forth in writing and signed by the party so
waiving. Except as otherwise set forth in this Agreement, no failure to
exercise, or delay in exercising, any right, remedy, power, or privilege
arising from this Agreement shall operate or be construed as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power, or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power, or privilege.
(h) If any term or provision of
this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such
invalidity, illegality, or unenforceability shall not affect any other term or
provision of this Agreement or invalidate or render unenforceable such term or
provision in any other jurisdiction.
(i) For purposes of this Agreement,
(a) the words "include," "includes," and
"including" shall be deemed to be followed by the words "without
limitation"; (b) the word "or" is not exclusive; and (c) the
words "herein," "hereof," "hereby,"
"hereto," and "hereunder" refer to this Agreement as a
whole. Unless the context otherwise requires, references herein: (x) to
Sections, Annexes, Schedules, and Exhibits refer to the Sections of, and
Annexes, Schedules, and Exhibits attached to, this Agreement; (y) to an agreement,
instrument, or other document means such agreement, instrument, or other
document as amended, supplemented, and modified from time to time to the extent
permitted by the provisions thereof and (z) to a statute means such statute as
amended from time to time and includes any successor legislation thereto and
any regulations promulgated thereunder. This Agreement shall be construed
without regard to any presumption or rule requiring construction or
interpretation against the party drafting an instrument or causing any
instrument to be drafted. All Annexes, Schedules, and Exhibits referred to
herein shall be construed with, and as an integral part of, this Agreement to
the same extent as if they were set forth verbatim herein.
(j) The headings in this Agreement
are for reference only and do not affect the interpretation of this Agreement.
Annex 1
AUTHORIZED
USER TERMS OF USE
These Software Terms of Use ("Terms of Use") govern your use of
the PlanSplit software (the "Software"),
including all user manuals, technical manuals, and any other materials provided
by Licensor, in printed, electronic, or other form, that describe the Software
or its use or specifications (the "Documentation")
provided to you ("you" or
"your") for use pursuant
to and subject to a software license agreement (the "Software License Agreement") between PLAN SPLIT, LLC ("Licensor") and your employer or
other person or entity who owns or otherwise lawfully controls the computer on
which the Software is installed ("Licensee").
BY CLICKING THE "ACCEPT"
BUTTON/CHECKING THE "ACCEPT" BOX YOU: (i) REPRESENT THAT YOU ARE DULY
AUTHORIZED BY LICENSEE TO ACCESS AND USE THE SOFTWARE; AND (ii) ACCEPT THESE
AUTHORIZED USER TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THEM. IF YOU DO
NOT AGREE TO THESE TERMS OF USE, DO NOT CLICK THE "ACCEPT"
BUTTON/CHECK THE "ACCEPT" BOX AND YOU WILL HAVE NO LICENSE TO, AND
MUST NOT ACCESS OR USE, THE SOFTWARE.
1. License
Grant. Subject to your strict compliance with
these Terms of Use, Licensor hereby grants you a non-exclusive,
non-transferable, non-sublicensable, limited license to use the Software solely
in accordance with the Documentation, as installed on the equipment provided by
Licensee and for Licensee's internal business purposes. The foregoing licensee
will terminate immediately on the earlier to occur of:
(a) the expiration or earlier termination
of the Software License Agreement between Licensor and Licensee; or
(b) your ceasing to be authorized by
Licensee to use the Software for any or no reason.
2. Use
Restrictions. You shall not, directly or
indirectly:
(a) use the Software or Documentation
except as set forth in Section 1;
(b) copy the Software or Documentation, in
whole or in part;
(c) modify, translate, adapt, or otherwise
create derivative works or improvements, whether or not patentable, of the
Software or any part thereof;
(d) combine the Software or any part
thereof with, or incorporate the Software or any part thereof in, any other
programs;
(e) reverse engineer, disassemble,
decompile, decode, or otherwise attempt to derive or gain access to the source
code of the Software or any part thereof;
(f) remove, delete, alter, or obscure any
trademarks or any copyright, trademark, patent, or other intellectual property
or proprietary rights notices included on or in the Software or Documentation,
including any copy thereof;
(g) rent, lease, lend, sell, sublicense,
assign, distribute, publish, transfer, or otherwise provide any access to or
use of the Software or any features or functionality of the Software, for any
reason, to any other person or entity, including any subcontractor, independent
contractor, affiliate, or service provider of Licensee, whether or not over a
network and whether or not on a hosted basis, including in connection with the
internet, web hosting, wide area network (WAN), virtual private network (VPN),
virtualization, time-sharing, service bureau, software as a service, cloud, or
other technology or service;
(h) use the Software or Documentation in,
or in association with, the design, construction, maintenance, or operation of
any hazardous environments or systems, including:
(i) power
generation systems;
(ii) aircraft
navigation or communication systems, air traffic control systems, or any other
transport management systems;
(iii)
safety-critical applications, including medical or life-support systems,
vehicle operation applications, or any police, fire, or other safety response
systems; and
(iv) military or
aerospace applications, weapons systems, or environments.
(i) use the Software or Documentation in
violation of any law, regulation, or rule; or
(j) use the Software or Documentation for
purposes of competitive analysis of the Software, the development of a
competing software product or service, or any other purpose that is to the
Licensor's commercial disadvantage.
3. Compliance
Measures.
(a) The Software may contain technological
copy protection or other security features designed to prevent unauthorized use
of the Software, including features to protect against use of the Software:
(a) beyond the scope of the license granted
to pursuant to Section 1; or
(b) prohibited under Section 2.
You shall not, and shall not attempt to,
remove, disable, circumvent, or otherwise create or implement any workaround
to, any such copy protection or security features.
4. Collection
and Use of Information.
(a) Licensor may, directly or indirectly
through the services of others, collect and store information regarding use of
the Software and about equipment on which the Software is installed or through
which it otherwise is accessed and used, by means of (i) providing maintenance
and support services and (ii) security measures included in the Software as
described in Section 3.
(b) You agree that the Licensor may use
such information for any purpose related to any use of the Software by you,
including but not limited to: (i) improving the performance of the Software or
developing updates; and verifying compliance with the terms of this Agreement
and enforcing Licensor's rights, including all intellectual property rights in
and to the Software.
5. Intellectual
Property Rights. You acknowledge that the
Software is provided under license, and not sold, to you. You do not acquire
any ownership interest in the Software under this Agreement, or any other
rights to the Software other than to use the Software in accordance with the
license granted under this Agreement, subject to all terms, conditions, and
restrictions. Licensor and its licensors and service providers reserve and
shall retain their entire right, title, and interest in and to the Software and
all intellectual property rights arising out of or relating to the Software,
subject to the license expressly granted to the Licensee in this Agreement. You
shall use commercially reasonable efforts to safeguard all Software (including
all copies thereof) from infringement, misappropriation, theft, misuse, or
unauthorized access.
6. Disclaimer
of Liability. IN NO EVENT WILL LICENSOR OR ITS
AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS,
BE LIABLE TO YOU FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE
SOFTWARE. YOU ARE PROVIDED THE SOFTWARE PURSUANT TO THE SOFTWARE LICENSE
AGREEMENT BETWEEN LICENSOR AND LICENSEE, SOLELY FOR THE BENEFIT OF LICENSEE AND
AT LICENSEE'S DISCRETION. YOU ACKNOWLEDGE THAT YOU HAVE NO RIGHTS UNDER THAT
AGREEMENT INCLUDING ANY RIGHTS TO ENFORCE ANY OF ITS TERMS. ANY OBLIGATION OR
LIABILITY LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR LICENSORS OR
SERVICE PROVIDERS, MAY HAVE WITH RESPECT TO YOUR USE OR INABILITY TO USE THE
SOFTWARE SHALL BE SOLELY TO LICENSEE PURSUANT TO THAT AGREEMENT AND SUBJECT TO
ALL LIMITATIONS OF LIABILITY SET FORTH THEREIN.
7. Export
Regulation. The Software may be subject to US
export control laws, including the US Export Administration Act and its
associated regulations. You shall not, directly or indirectly, export,
re-export, or release the Software to, or make the Software or Documentation
accessible from, any jurisdiction or country to which export, re-export, or
release is prohibited by law, rule, or regulation. You shall comply with all
applicable federal laws, regulations, and rules, and complete all required
undertakings (including obtaining any necessary export license or other
governmental approval), prior to exporting, re-exporting, releasing, or
otherwise making the Software available outside the US.
8. Governing
Law. These Terms of Use are governed by
and construed in accordance with the internal laws of the State of Florida
without giving effect to any choice or conflict of law provision or rule
(whether of the State of Florida or any other jurisdiction) that would cause
the application of Laws of any jurisdiction other than those of the State of
Florida.
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