TERMS OF USE
aboveo, a Georgia Corporation (“Company”) has developed and licenses to users its software program either partial or full version; or either online or traditional methods (the "Licensed Software"). Licensee desires to utilize a copy of the combined Licensed Software with the specified modules as agreed (the “Software Modules”) and on the Hardware described marketed under the name mercury|one.
SECTION 1. DELIVERY
After receipt of all initial fees payable by Licensee on the Effective Date pursuant to Section 6 below, Company shall promptly deliver to Licensee a copy of the load executable form of the Licensed Software, hardware to run the software if rented by the Company (“Loaned Hardware”), remote access (“Web Access”) to Licensee, and the documentation (the “Documentation”, which shall consist of “Confidential Documentation” and “Non-Confidential Documentation”), each in the tangible form that Company in its sole discretion, deems appropriate.
SECTION 2. OWNERSHIP
Licensee acknowledges that the Licensed Software and the Documentation are proprietary products of Company and that ownership of the Licensed Software, the Documentation, all patents, copyrights, mask work rights, trademarks, trade names, trade secrets and other proprietary rights relating to or residing therein shall remain with Company. Licensee understands and agrees that this Agreement does not constitute a sale of any such proprietary rights. Licensee shall promptly notify Company of any actual or threatened misappropriation or infringement of Company’s proprietary rights which comes to Licensee’s attention.
A. LICENSE GRANT.
Subject to the terms and conditions of this Agreement and upon payment of the agreed fees, Company grants to Licensee a non-exclusive, non-transferable limited license to use the Licensed Software, rented hardware if any and the Documentation in the in the United States of America as set forth in this Agreement.
B. RESTRICTIONS.
Licensee is granted right to install and use one copy of Software on a single computer at a time, one web access ID and shall not modify, copy, duplicate, reproduce, license or sublicense the Software, or transfer or convey the Software or any right in the Software to anyone else without the prior written consent of Company. Additionally, the Licensee shall not engage in, cause or permit others to engage in, the reverse engineering, disassembly, de compilation or similar manipulation of the Licensed Software to obtain the source code thereto, nor the modification, alteration, translation or other change of the Licensed Software.
C. TRANSFER:
Licensee may not rent, lease, lend or sublicense the Licensed Software. Licensee may, however, make a one-time permanent transfer of all of the license rights to the Licensed Software to another party with prior consent from the Company, provided that: (a) the transfer must include all of the Licensed Software, including all its component parts, original media, printed materials, Loaned Hardware, and this License; (b) you do not retain any copies of the Licensed Software, full or partial, including copies stored on a computer or other storage device; and (c) the party receiving Licensed Software reads and agrees to accept the terms and conditions of this License. All components of the Licensed Software are provided as part of a bundle and may not be separated from the bundle and distributed as standalone applications.SECTION 3.
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SECTION 4. SUPPORT SERVICES
Licensee is mandated to and shall continue to subscribe for software support at all times from the Effective Date. Licensor shall notify Company in writing if it desires not wish to receive the support services, at which time the Licensee’s right to use the Licensed Software is void and Licensee agrees to return the Licensed Software, Loaned Hardware and all other related documentation to the Company. Company shall provide to Licensee the following support services for the Licensed Software and the Loaned Hardware during the service period.
A. SOFTWARE SUPPORT:
Company shall maintain a software support staff accessible by Licensee via telephone at numbers to be disclosed or live chat or e-mail to Licensee on or prior to the Effective Date. Company staff shall respond to Licensee’s how to questions with regard to the use of the Licensed Software. Company’s response staff shall include reasonably acceptable answers or suggested approaches to solving problems if known, or, If not then known, an answer as soon as practical. Licensee agrees to exercise reasonable restraint in accessing Company’s software support staff. If needed, Licensee can schedule and made available Company’s onsite support staff at then current hourly rate plus trip charge.
B. HARDWARE SUPPORT:
Company shall maintain basic hardware support staff accessible by Licensee via telephone at numbers to be disclosed to Licensee on or prior to the Effective Date for the Loaned Hardware. Company’s response staff shall include reasonably acceptable answers or suggested approaches to solving problems if known, or, If not then known, an answer as soon as practical. If issue is unresolved, and is not a result of Licensee’s gross negligence, Company will make its best efforts to resolve the issue in a timely manner. If Company determines the cause to be of gross negligence by the Licensee, Licensee agrees to pay the Company fees to resolve the issue at then current hourly rate plus trip charge plus cost of replaced parts.
C. INSTALLATION and AUTO-UPDATE.
The Licensed Software's installation and auto-update processes transmit a limited amount of data to Company or its service provider about those Licensee specific processes to help Company understand and optimize them. Company does not associate the data with personally identifiable information. Company shall provide the initial setup and installation of the Licensed Software.
D. WEB ACCESS:
Company cannot guarantee web access through all browsers available in the market. Company believes based on test data, Microsoft IE 9.0 and above, Firefox and Google Chrome to perform the best.
SECTION 5. OWNERSHIP OF DATA; LICENSEE.
Subject only to the limited license expressly granted hereunder, as between Company and Licensee, Company acquires no right, title, or interest from Licensee or Users under this Agreement in or to Users Data, including any intellectual property rights therein. Licensee is solely responsible for Users Data that Users upload, publish, display, link to or otherwise make available on the Service, and Licensee agrees that Company is only acting as a passive conduit and Data Processor for the online distribution and publication of Users Data which Licensee controls. Licensee hereby grants to Company a worldwide non-exclusive, royalty-free, transferable license to use, reproduce, and display the User Data and de-identified User Data, including but not limited to, providing the Services to Licensee, for use in Company marketing materials, members affiliated association, and as necessary for continued product development. Company will not review, share, distribute, or reference any User Data except as provided herein or as may be required by law.
SECTION 6. DISCLAIMER OF WARRANTIES LIMITATIONS OF LIABILITY
A. DISCLAIMER OF WARRANTIES.
Licensee expressly acknowledge and agree that use of the software and web access is at your sole risk and that the entire risk as to satisfactory quality, performance, accuracy and effort is with you. Except to the maximum extent permitted by applicable law, the company software is provided “as is”, with all faults and without warranty of any kind. Company hereby disclaim all warranties and conditions with respect to the software, either express, implied or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, of accuracy, of quiet enjoyment, and non-infringement of third party rights. Company does not warrant against interference with your enjoyment of the software, that the functions contained in the software will meet your requirements, that the operation of the software will be uninterrupted or error-free, or that defects in the software will be corrected. No oral or written information or advice given by company or a company authorized representative shall create a warranty. Should the software prove defective, you assume the entire cost of all necessary servicing, repair or correction. Some jurisdictions do not allow the exclusion of implied warranties or limitations on applicable statutory rights of a consumer, so the above exclusion and limitations may not apply to you.
B. LIMITATION OF LIABILITY.
To the extent not prohibited by law, in no event shall company be liable for personal injury, or any incidental, special, indirect or consequential damages whatsoever, including, without limitation, damages for loss of profits, loss of data, business interruption or any other commercial damages or losses, arising out of or related to your use or inability to use the company software, however caused, regardless of the theory of liability (contract, tort or otherwise) and even if company has been advised of the possibility of such damages. Some jurisdictions do not allow the limitation of liability for personal injury, or of incidental or consequential damages, so this limitation may not apply to you. In no event shall Company’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
SECTION 7. TERMINATION
A. TERMINATION.
This License is effective until terminated. Licensee rights under this License will terminate automatically without notice from the Company if Licensee fail to comply with any term(s) of this License. Upon the termination of this License, Licensee shall cease all use of the Software and destroy all copies, full or partial, of the Licensed Software. Additionally all of the Company’s support services in Section 4 shall be discontinued.
B. TERMINATION FOR INFRINGEMENT.
Either party may terminate this Agreement immediately should any Software become, or in either party's opinion be likely to become, the subject of a claim of infringement of any intellectual property right.
SECTION 8. HARDWARE PURCHASE
A. HARDWARE PURCHASE.
Licensee may procure its own hardware described in Exhibit B at an additional cost to use the Licensed Software. If Licensee uses its own hardware, other than Company supplied to run the Licensed Software, Licensee fully acknowledges that the Company hasn’t tested the Licensed Software on any other hardware other than the Company supplied equipment and the Licensed Software may or may not run, and even if it runs may or may not fully function to the specifications. If Licensee returns the Company supplied rental equipment, Licensee acknowledges that they are responsible to return the equipment to the Company in the same condition it was originally provided minus normal wear and tear. If equipment to be returned either lost, missing, damaged or not in fully working condition regardless of the circumstance, Licensee is responsible for full damages in the amount of four fifty dollars ($450.00).
SECTION 9. LIQUIDATED DAMAGES
If Licensee breaches this agreement, Licensee shall be subject to damages equal to the price of the software and twelve months of maintenance support, plus penalties equal to an additional twelve months of maintenance support for every breach event. For purposes of clarification, each transfer and each computer that uses the Licensed Software without a license constitutes a separate breach event.
SECTION 10. GENERAL
A. NOTICE.
Any notice required by this Agreement or given in connection with it, shall be in writing and shall be given to the appropriate party by personal delivery or by certified mail, postage prepaid, or recognized overnight delivery services. If to Company:
aboveo Inc ,
240 Glen Lake Drive NW,
Atlanta, GA 30327.
If to Licensee: Address on record
B. GOVERNING LAW.
This Agreement shall be construed and enforced in accordance with the laws of the state of Georgia.
C. NO ASSIGNMENT.
Neither this Agreement nor any interest in this Agreement may be assigned by Licensee without the prior express written approval of Company.
D. FINAL AGREEMENT.
This Agreement terminates and supersedes all prior understandings or agreements on the subject matter hereof. This Agreement may be modified only by a further writing that is duly executed by both parties.
E. SEVERABILITY.
If any term of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then this Agreement, including all of the remaining terms, will remain in full force and effect as if such invalid or unenforceable term had never been included.
F. HEADINGS:
Headings used in this Agreement are provided for convenience only and shall not be used to construe meaning or intent.