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productcart:eula [2013/04/29 10:13]
earlyimpact [3.2 Rights on Termination]
productcart:eula [2013/07/12 14:44] (current)
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 ==== 4.1 Warranties ==== ==== 4.1 Warranties ====
  
-EARLY IMPACT ​IS PROVIDING THE SOFTWARE AND THE DOCUMENTATION "AS IS." ​EARLY IMPACT ​DISCLAIMS ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SOFTWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE (WHETHER OR NOT EARLY IMPACT ​KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE) AND ANY WARRANTIES RESPECTING CONDITIONS OF TITLE OR NONINFRINGEMENT,​ WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING. ​EARLY IMPACT ​ALSO EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN LICENSEE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, ​EARLY IMPACT ​DOES NOT WARRANT THAT THE SOFTWARE WILL FUNCTION WITHOUT INTERRUPTION OR BE ERROR FREE, OR THAT EARLY IMPACT ​WILL CORRECT ALL DEFICIENCIES,​ ERRORS, DEFECTS OR NONCONFORMITIES OR THAT THE SOFTWARE WILL MEET YOUR SPECIFIC REQUIREMENTS. +NETSOURCE COMMERCE ​IS PROVIDING THE SOFTWARE AND THE DOCUMENTATION "AS IS." ​NETSOURCE COMMERCE ​DISCLAIMS ALL WARRANTIES, CONDITIONS OR REPRESENTATIONS (WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SOFTWARE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE (WHETHER OR NOT NETSOURCE COMMERCE ​KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE) AND ANY WARRANTIES RESPECTING CONDITIONS OF TITLE OR NONINFRINGEMENT,​ WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY COURSE OF DEALING. ​NETSOURCE COMMERCE ​ALSO EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN LICENSEE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, ​NETSOURCE COMMERCE ​DOES NOT WARRANT THAT THE SOFTWARE WILL FUNCTION WITHOUT INTERRUPTION OR BE ERROR FREE, OR THAT NETSOURCE COMMERCE ​WILL CORRECT ALL DEFICIENCIES,​ ERRORS, DEFECTS OR NONCONFORMITIES OR THAT THE SOFTWARE WILL MEET YOUR SPECIFIC REQUIREMENTS.
 ==== 4.2 Refunds ==== ==== 4.2 Refunds ====
    
-If Licensee purchased the Software from Early Impact, Licensee may request a refund only if Licensee submits a request for refund within 30 days of the date of purchase and complies with the terms of sections 3.2 and 4.3. The purchase amount, minus a restocking fee of 10% of the purchase amount, will be refunded upon receipt of the signed Certificate of Destruction agreement. A return or refund does not release Licensee from liability for any unauthorized use of the Software or any failure to comply with the terms of this Agreement. If Licensee purchased the Software from an Early Impact ​Reseller, Licensee must contact the Reseller directly to request a refund. ​Early Impact ​will issue refunds only to Licensees that purchased the Software directly from Early Impact +If Licensee purchased the Software from NetSource Commerce, Licensee may request a refund only if Licensee submits a request for refund within 30 days of the date of purchase and complies with the terms of sections 3.2 and 4.3. The purchase amount, minus a restocking fee of 10% of the purchase amount, will be refunded upon receipt of the signed Certificate of Destruction agreement, which will be provided to Licensee. A return or refund does not release Licensee from liability for any unauthorized use of the Software or any failure to comply with the terms of this Agreement. If Licensee purchased the Software from an NetSource Commerce ​Reseller, Licensee must contact the Reseller directly to request a refund. ​NetSource Commerce ​will issue refunds only to Licensees that purchased the Software directly from NetSource Commerce.
 ==== 4.3 Certificate of Destruction ==== ==== 4.3 Certificate of Destruction ====
  
-Upon termination or request for refund under the terms of this Agreement, Licensee shall comply with the terms set forth in this section and provide ​Early Impact ​with a Certificate of Destruction. This certificate will be sent to Licensee within ten (10) days of the notification by Licensee of the request for refund. If the request for refund occurs after thirty (30) days from the date of purchase, no refund shall be given. Failure to return Certification of Destruction within a timely fashion shall not affect the rights of Early Impact ​under the terms of this contract to seek remedies, including the right to institute an action for injunctive relief against licensee, and to collect for any damages which result from a continued use of the Software. ​+Upon termination or request for refund under the terms of this Agreement, Licensee shall comply with the terms set forth in this section and provide ​NetSource Commerce ​with a Certificate of Destruction. This certificate will be sent to Licensee within ten (10) days of the notification by Licensee of the request for refund. If the request for refund occurs after thirty (30) days from the date of purchase, no refund shall be given. Failure to return Certification of Destruction within a timely fashion shall not affect the rights of NetSource Commerce ​under the terms of this contract to seek remedies, including the right to institute an action for injunctive relief against licensee, and to collect for any damages which result from a continued use of the Software.
  
 ==== 4.4 Disclaimer. ==== ==== 4.4 Disclaimer. ====
    
-THE WARRANTIES SET FORTH IN SECTION 4.1, ABOVE, ARE IN LIEU OF, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION: (a) ANY WARRANTY THAT THE SOFTWARE IS ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION,​ OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS;​ (b) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY;​ AND <​nowiki>​(c)</​nowiki> ​ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE. +THE WARRANTIES SET FORTH IN SECTION 4.1, ABOVE, ARE IN LIEU OF, AND THIS AGREEMENT EXPRESSLY EXCLUDES, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION: (a) ANY WARRANTY THAT THE SOFTWARE IS ERROR-FREE, WILL OPERATE WITHOUT INTERRUPTION,​ OR IS COMPATIBLE WITH ALL EQUIPMENT AND SOFTWARE CONFIGURATIONS;​ (b) ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY;​ AND (c) ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.
 ===== 5. CONFIDENTIALITY ===== ===== 5. CONFIDENTIALITY =====
  
 ==== 5.1 Confidentiality. ==== ==== 5.1 Confidentiality. ====
    
-Licensee acknowledges that the Software and Documentation,​ and all information relating to the business and operations of the Licensor that Licensee learns or has learned during or prior to the term of this Agreement contains valuable trade secrets and proprietary information belonging to Early Impact. Licensee must keep confidential and protect from unauthorized disclosure all such source code and all information that Early Impact ​expressly designates as confidential or that any reasonable person would understand to be confidential or proprietary. Without limiting the foregoing, during the period this Agreement is in effect, and at all times afterwards, Licensee, and its employees, contractors,​ consultants,​ and agents, will; (a) take reasonable security precautions and safeguard all information with precautions and diligence that are at least as great as the precautions and diligence that Licensee takes to protect its own confidential information;​ (b) maintain the confidentiality of this information ​<​nowiki>​(c)</​nowiki> ​not use the information except as permitted under this Agreement (d) disclose the information described in this section only to Licensee employees or consultants on a need-to-know basis; and (e) require employees or consultants to execute appropriate written agreements sufficient to enable compliance with Licensee’s confidentiality obligations under this Section 5.1. (f) not disseminate,​ disclose, sell, publish, or otherwise make available the information to any third party without the prior written consent of Licensor.+Licensee acknowledges that the Software and Documentation,​ and all information relating to the business and operations of the Licensor that Licensee learns or has learned during or prior to the term of this Agreement contains valuable trade secrets and proprietary information belonging to NetSource Commerce. Licensee must keep confidential and protect from unauthorized disclosure all such source code and all information that NetSource Commerce ​expressly designates as confidential or that any reasonable person would understand to be confidential or proprietary. Without limiting the foregoing, during the period this Agreement is in effect, and at all times afterwards, Licensee, and its employees, contractors,​ consultants,​ and agents, will; (a) take reasonable security precautions and safeguard all information with precautions and diligence that are at least as great as the precautions and diligence that Licensee takes to protect its own confidential information;​ (b) maintain the confidentiality of this information (c) not use the information except as permitted under this Agreement (d) disclose the information described in this section only to Licensee employees or consultants on a need-to-know basis; and (e) require employees or consultants to execute appropriate written agreements sufficient to enable compliance with Licensee’s confidentiality obligations under this Section 5.1. (f) not disseminate,​ disclose, sell, publish, or otherwise make available the information to any third party without the prior written consent of Licensor.
  
 ==== 5.2. Injunctive Relief for Breach. ==== ==== 5.2. Injunctive Relief for Breach. ====
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 ==== 6.2 Damages Limitation. ==== ==== 6.2 Damages Limitation. ====
  
-EARLY IMPACT'S CUMULATIVE LIABILITY FOR ALL CLAIMS OF ANY NATURE ​ +NETSOURCE COMMERCE'S CUMULATIVE LIABILITY FOR ALL CLAIMS OF ANY NATURE RELATED TO THE SOFTWARE OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION IN CONTRACT, TORT OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL SOFTWARE LICENSE FEES, EXCLUDING SUPPORT FEES, THAT NETSOURCE COMMERCE ​MAY RECEIVE FROM LICENSEE, AN AUTHORIZED ​NETSOURCE COMMERCE ​RESELLER OR LICENSEE’S HOSTING PROVIDER IN CONNECTION WITH USE OF THE SOFTWARE. NEITHER ​NETSOURCE COMMERCE ​NOR ANY OF ITS SUPPLIERS SHALL BE LIABLE FOR ANY CONSEQUENTIAL,​ INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR FOR ANY LOSS OF PROFITS EVEN IF NETSOURCE COMMERCE ​OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. ​
-RELATED TO THE SOFTWARE OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION IN CONTRACT, TORT OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL SOFTWARE LICENSE FEES, EXCLUDING SUPPORT FEES, THAT EARLY IMPACT ​MAY RECEIVE FROM LICENSEE, AN AUTHORIZED ​EARLY IMPACT ​RESELLER OR LICENSEE’S HOSTING PROVIDER IN CONNECTION WITH USE OF THE SOFTWARE. NEITHER ​EARLY IMPACT ​NOR ANY OF ITS SUPPLIERS SHALL BE LIABLE FOR ANY CONSEQUENTIAL,​ INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OR FOR ANY LOSS OF PROFITS EVEN IF EARLY IMPACT ​OR ANY SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. ​+
  
 ===== 7. EXPORT CONTROLS AND RESTRICTED RIGHTS ===== ===== 7. EXPORT CONTROLS AND RESTRICTED RIGHTS =====
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 Licensee may not assign, sublicense, or transfer Licensee'​s rights or delegate its obligations under this Agreement without Licensor'​s prior written consent, which will not be unreasonably withheld. This Agreement shall be binding upon the successors and assigns of the parties to this Agreement. Licensee may not assign, sublicense, or transfer Licensee'​s rights or delegate its obligations under this Agreement without Licensor'​s prior written consent, which will not be unreasonably withheld. This Agreement shall be binding upon the successors and assigns of the parties to this Agreement.
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 ==== 8.2. Entire Agreement. ==== ==== 8.2. Entire Agreement. ====
    
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 This Agreement may not be modified or amended except in a writing signed by an authorized officer of each party. The failure of either party to enforce any provision of this Agreement shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision. This Agreement may not be modified or amended except in a writing signed by an authorized officer of each party. The failure of either party to enforce any provision of this Agreement shall not be deemed a waiver of the provisions or of the right of such party thereafter to enforce that or any other provision.
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 ==== 8.4. Notices. ==== ==== 8.4. Notices. ====
    
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 Without the prior written consent of the other party, neither party shall disclose the terms and conditions of this Agreement, except disclosure may be made as is reasonably necessary to the disclosing party'​s bankers, attorneys, or accountants or except as may be required by law. Without the prior written consent of the other party, neither party shall disclose the terms and conditions of this Agreement, except disclosure may be made as is reasonably necessary to the disclosing party'​s bankers, attorneys, or accountants or except as may be required by law.
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 ==== 8.6. Governing Law and Jurisdiction. ==== ==== 8.6. Governing Law and Jurisdiction. ====
    
-This Agreement shall be governed by and construed in accordance with the laws of the State of California.+This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.
  
 ==== 8.7. Severability. ==== ==== 8.7. Severability. ====
  
 In case any provision of this Agreement is held to be invalid, unenforceable,​ or illegal, the provision will be severed from this Agreement, and such invalidity, unenforceability,​ or illegality will not affect any other provisions of this Agreement. In case any provision of this Agreement is held to be invalid, unenforceable,​ or illegal, the provision will be severed from this Agreement, and such invalidity, unenforceability,​ or illegality will not affect any other provisions of this Agreement.
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 ==== 8.8. Attorney'​s Fees. ==== ==== 8.8. Attorney'​s Fees. ====
  
 In the event of any dispute between the parties arising out of this Agreement, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable attorney'​s fees and costs. In the event of any dispute between the parties arising out of this Agreement, the prevailing party shall be entitled, in addition to any other rights and remedies it may have, to recover its reasonable attorney'​s fees and costs.

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