END USER LICENSE AGREEMENT
Effective Date June 1, 2021
This End User License Agreement (“EULA”) is a binding agreement between KlickTrack, Inc., (“Licensor” or “us”) and you as identified in the Terms of Service (“TOS”).
We provide our Software on the terms and conditions set forth in this EULA and the TOS. The License is provided to you after you click the “accept” button or by checking the “accept” box. By using the Software, you agree that you have read, understand, and agree to be bound by the EULA.
1. Definitions. For purposes of this Agreement, the following terms have the following meanings:
1.1“Authorized Users” means those employees or authorized representatives of Licensee as identified in you Order Form. You are to train your Authorized User consistent with all Documentation and our TOS.
1.2 “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.
1.3 “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.
1.4 “License Fees” means the license fees, including all taxes paid or required to be paid by Licensee for the license granted under this Agreement.
1.5 “Licensee” has the meaning set forth above.
1.6 “Licensee Content” means any data, information and other material provided or uploaded directly to Licensor or to the Software by Licensee or Licensee’s affiliates, employees, representatives, customers, Authorized Users, and end-users in the course of receiving services from Licensor and in the course of receiving or using the Software.
1.7 “Licensor” has the meaning set forth above and includes KlickTrack personnel providing Licensee with services including marketing, customer experience and information technology.
1.8 “Open Source Components” means any Software that is, or that contains or is derived in any manner (in whole or in part) from any Software that is, distributed as free software, open source software, copyleft software, or under similar licensing or distribution models, including any computer Software licensed under the Apache License, GNU General Public License, the GNU Library General Public License, the GNU Lesser General Public License, the Affero General Public License, the Mozilla Public License, the Common Development and Distribution License, the Eclipse Public License, any Creative Commons “sharealike” license or any other license that has been approved by the Open Source Initiative.
1.9 “Order Form” means the order form or proposal submitted by Licensor and accepted by Licensee as set forth in the TOS for Licensee’s purchase of the license for the Software granted under this Agreement.
1.10 “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
1.12 “Privacy Laws” means all applicable laws governing the receipt, collection, compilation, use, storage, processing, sharing, safeguarding, security, disposal, destruction, disclosure or transfer of Personal Information, including the Fair Credit Reporting Act/ Fair and Accurate Credit Transactions Act of 2003, the EU-U.S. Privacy Shield, the EU General Data Protection Regulation, the California Online Privacy Protection Act, the Payment Card Industry Data Security Standard, the CAN-SPAM Act and all laws governing breach notifications.
1.13 “Software” means the point-of-sale software program set forth in your Order Form for which you are purchasing a license.
1.14 “Term” has the meaning set forth in the TOS.
1.15 “Third Party” means any Person other than Licensee or Licensor.
2. License Grant and Scope.
2.1 Subject to Licensee’s payment of the License Fees and your compliance with all terms and conditions set forth in this EULA and the TOS, Licensor hereby grants to you a non-exclusive, non-transferable, non-assignable, non-sublicensable, revocable limited license during the Term to use, solely by and through its Authorized Users at one (1) physical retail location, the Software and Documentation within the terms of this EULA and the TOS.
This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to:
2.1.1 Download, copy, and install in accordance with the Documentation one (1) copy of the Software on your Authorized Terminals set forth on the Order Form and TOS subject to the terms and conditions of this Agreement; and must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
2.1.2 Use and run the Software properly installed in accordance with this Agreement and the Documentation for Licensee’s retail business purposes. Use is limited to the Authorized Terminal as set forth on the Order Form and not through remote access.
2.1.3 Transfer a copy of the Software from one computer to another, provided that the number of computers on which the Software is installed at any one time does not exceed the number permitted in the Order Form. You will notify us in writing of each such transfer, including serial numbers or MAC identifiers for each computer.
2.2 The Software includes Open-Source Components licensed under the Massachusetts Institute of Technology (MIT) permissive free license initiative, a copy of which can be found at https://opensource.org/licenses/MIT. Any use of the Open-Source Components by Licensee is governed by, and subject to, the terms and conditions of the MIT Open-Source License.
2.3 The Software may include paid software, content, data, or other materials, including related documentation, owned by Persons other than us and that are provided to Licensee on license terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). Licensor’s use of any Third-Party Software is proprietary and confidential.
3. License Compliance Measures.
3.1 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 3. 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. Licensor may suspend access or prohibit uses of the Software (or disable content or data) if it reasonably believes Licensee to be in violation of this Agreement.
3.2 During the Term we may reasonably access and review your use of the Software to ensure your compliance with this Agreement. You agree to reasonably cooperate with our personnel. You authorize KlickTrack to collect and analyze data and other information relating to the use and performance of various aspects of the Services and related systems and technologies. This includes KlickTrack’s (i) use of such information and data to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and other KlickTrack products, and (ii) use and disclose such data for marketing purposes and otherwise in connection with its business. conducting such audits and provide all reasonable access requested by KlickTrack.
3.3 If any of the measures taken under this Section 3 determine that your use of the Software exceeds or exceeded the use permitted by this Agreement, then Licensee shall promptly pay Licensor all costs incurred in conducting the audit. We also have the right to terminate this Agreement in addition to all other damages or remedies the Licensor may have at law or in equity.
3.4 We may in our discretion make available future updates to the software. Updates may not necessarily include all existing software features or new features that we release for other licensees. The terms of this license will govern any software updates provided by us provided to you by us that replace and/or supplement the original Services unless such update is accompanied by a separate license in which case the terms of that license will govern.
4. Consent To Use Data.
4.1 You agree that we may collect and use technical data and related information including information collected at your device, technical information about your device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services to you. We may use this information, if it is in a form that does not personally identify you, for its own use, to improve its products or to provide services or technologies to you or the general public.
5. Intellectual Property Rights.
5.1 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. You do have the right to use the Software in accordance with the license granted and consistent with the TOS. and subject to all terms, conditions, and restrictions under this Agreement. We retain our entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of the Software, except as expressly granted to you.. You shall safeguard all Software including copies, from infringement, misappropriation, theft, misuse, or unauthorized access. You shall promptly notify us if you are aware of any infringement of our Intellectual Property Rights in the Software. You will cooperate with us in any legal action taken by Licensor to enforce its Intellectual Property Rights.
5.2 As between the parties, Licensee Content will be owned by you. You are responsible for the accuracy, quality, integrity, and legality of Licensee Content. You grant to us a non-exclusive, irrevocable, royalty-free, perpetual, transferrable, worldwide license to use Licensee Content to: (i) provide the Software; (ii) for other development, diagnostic and corrective purposes in connection with the Software, improving the performance of the Software, developing Updates, and other Licensor offerings; (iii) use and disclose such data as-is or in aggregated or de-identified form in connection with Licensor’s business or commercial purposes; (iv) for any purpose related to any use of the Software or Licensor's business, including but not limited to the provision of maintenance and other services; (v) 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; and (vi) the purposes described in Section 7. Licensee represents and warrants that it has full legal right to grant the foregoing license to Licensor and that Licensor Content has been acquired in compliance with all laws including Privacy Laws.
6. Term and Termination.
6.1 This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until earlier terminated as set forth herein (the “Term”).
6.2 Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation and notifying Licensor of the same and will remain responsible for any open orders, contract requirements, and Service payments.
6.3 Licensor may terminate this Agreement consistent with the TOS and effective upon notice to Licensee.
6.4 We may terminate this Agreement, effective immediately if you file, or has against you, 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.
6.5 Upon expiration or termination of this Agreement, the license granted in the EULA is terminated and you shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect your obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund, except as set forth in Section 11.
6.6 Upon termination, Licensee has the right to historical data consistent with the TOS.
7. Disclaimer of Warranties. Licensor shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Software in a manner which minimizes errors and interruptions.
7.1 LICENSEE EXPRESSLY UNDERSTANDS AND AGREES THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SOFTWARE IS AT YOUR RISK, AND LICENSOR’S SOFTWARE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. LICENSOR EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7.1.1 Inventory. The Software is not intended to, and does not, replace Licensee’s own inventory management policies and procedures as may be required by applicable laws, rules, and regulations. Licensee is solely responsible for Software data entry and maintaining accurate inventory counts. Licensor is not responsible for theft, miscounts, errors in data entry or any other aspect of data corruption due to human error on the part of Licensee or any Third Party. Although Licensor will use commercially reasonable efforts designed to ensure that the compliance procedures and other information made available via Software are accurate and in accordance with the applicable laws of Licensee’s state, Licensor does provide legal or regulatory compliance advice. Licensee hereby releases Licensor and waives any claims, damages, losses, and liabilities against Licensor for any errors or omissions related to such inventory functionality.
7.1.2 Express Disclaimers. Licensor makes no warranty, representation, or condition that: (1) Software will meet Licensee’s requirements; (2) Licensee’s use of Software will be uninterrupted, timely, secure, or error-free; (3) the results that may be obtained from use of Software will be accurate or reliable; or (4) any errors in the Software will be corrected.
7.2 Software is accessed at your own risk, and you are solely responsible for any damage to your property or person, including, but not limited to, computer systems and any device used to access Software, or any other loss that results from accessing content.
7.3 From time to time, Licensor may offer new "beta" features or tools with which its licensees may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind and may be modified or discontinued at Licensor’s sole discretion. The provisions of this section apply with full force to such features or tools.
8. Limitation of Liability. To the fullest extent permitted under applicable law:
8.1 Disclaimer of Certain Damages. Licensor agrees to maintain its systems related to the functionality of the Software and take commercially reasonable steps to avoid Software outages but Licensee understands and agrees that in no event shall Licensor or its affiliates, or any of their respective licensors or service providers be liable 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 or not Licensor has been advised of the possibility of such damages, or for any damages for personal or economic injury arising out of or in connection with the Software under any theory of liability, resulting from: (1) the use or inability to use Software; (2) the cost of procurement of substitute goods or services resulting from any goods, (3) unauthorized access to or alteration of Licensee’s transmissions or data; (4) statements or conduct of any third party within the Software; or (5) any other matter related to Software, whether based on warranty, copyright, contract, tort (including negligence), strict liability, product liability or any other legal theory.
8.2 CAP ON MONETARY LIABILITY. UNDER NO CIRCUMSTANCES WILL LICENSOR BE LIABLE TO LICENSEE FOR MORE THAN THE AMOUNT RECEIVED BY LICENSOR AS A RESULT OF LICENSEE’S USE OF SOFTWARE. IF LICENSEE HAS NOT PAID LICENSOR, LICENSOR'S SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00).
8.3 Exclusion of Damages. Certain jurisdictions do not allow the exclusion or limitation of certain damages. If these laws apply to you, some or all of the above exclusions or limitations may not apply to you, and you might have additional rights.
8.4 Basis of the Bargain. The limitations of damages set forth above are fundamental elements of the basis of the bargain between the parties.
9. Indemnification. Licensee agrees to defend and indemnify and hold Licensor its directors, officers, employees, agents, permitted assigns, and members harmless from any and all claims, demands, suits, losses, liabilities, actions, judgments, settlements, awards, interest, fines, expenses, costs and damages of every kind and description, including attorneys’ fees, resulting from, related to, or arising out of negligence, willful misconduct, breach of this Agreement, violation of Privacy Laws, violation of applicable state or local laws, or any act or omission of Licensee or its employees, agents, or subcontractors. Licensee will not enter into any settlement agreement related to any of the foregoing without Licensor’s prior written consent.
10.1 Amendments. Licensor reserves the right to change or modify portions of this Agreement at any time by providing written notice, such as email notice, notice through the Software, or other reasonable notice to Licensee no less than fourteen (14) days before the effective date of such amendment. Any such changes will become effective no earlier than fourteen (14) days after notice is delivered, except those changes addressing new functions of the Software or changes made for legal reasons may become effective immediately. Licensee’s continued use of the Software after the date any such changes become effective constitutes acceptance of the newly amended Agreement.
10.2 Import/Export. You may not use or otherwise export or re-export the Software except as authorized by United States law and the laws of the jurisdiction in which the Software was obtained. In particular, but without limitation, the Software may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Software, you represent and warrant that you are not located in any such country or on any such list.
10.3 Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, all rights to payment of License Fees, collection and use of information, warranty disclaimers, and limitations of liability.
10.4 Electronic Communications. The communications between Licensee and Licensor may be electronic. You (1) consent to receive communications from Licensee in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Licensor provides to Licensee electronically satisfy any legal requirement that such communications would satisfy if in writing. The foregoing does not affect statutory rights.
10.5 Assignment. The Agreement and Licensee’s rights and obligations hereunder, may not be assigned, subcontracted, delegated, or otherwise transferred, without Licensor's prior written consent, and any such attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void except an assignment to a successor entity in the case of a merger or other corporate reorganization in which Licensee is not the surviving entity. Licensor may freely assign, subcontract, delegate and transfer this Agreement, in whole or in part.
10.6 Force Majeure. Licensor shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, earthquakes, explosions, fires, floods, accidents, national or regional emergencies, strikes or shortages of transportation facilities, fuel, energy, labor, or materials.
10.7 Limitations Period. THE PARTIES AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE, DOCUMENTATION MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
10.8 Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within King County, Washington for such purpose.
10.9 Governing Law. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Washington, consistent with the Federal Arbitration Act, without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any other jurisdiction.
10.10 Notice. After Licensor requires that Licensee provide an e-mail address or other contact information, including the Order Form, Licensee is responsible for keeping Licensor updated about any changes to such contact information during the Term. In the event that the most recent contact information provided to Licensor is not valid, or for any reason is not capable of delivering any notice required or permitted by this Agreement, Licensor’s dispatch of such notice to the most recent e-mail provided by Licensee will nonetheless constitute effective notice. Licensee may give notice to Licensor at the following address: 9727 Coppertop Loop Suite 202 Bainbridge Island, WA 98110. Such notice shall be deemed given when received by Licensor by letter delivered by nationally recognized overnight delivery service or first- class postage prepaid mail at the above address.
10.11 Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
10.12 Severability. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of the Agreement will remain enforceable, and the invalid or unenforceable provision will be deemed modified to the minimum extent necessary to be valid and enforceable to the maximum extent permitted by law.
10.13 Consumer Complaints. In accordance with California Civil Code §1789.3, California licensees and users may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.