END USER SOFTWARE LICENSE AGREEMENT
PLEASE READ THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT BEFORE CONTINUING WITH THE PROGRAM INSTALL.
BY CLICKING THE "I ACCEPT" BUTTON AT THE END OF THIS LICENSE AGREEMENT, YOU ARE AGREEING TO CONTRACT ELECTRONICALLY AND BE LEGALLY BOUND BY THE TERMS OF THIS LICENSE.
This license agreement ("License") is between SparkBase Inc., an Ohio corporation ("Us" or "We"), the distributor of the Paycloud (TM) software ("Software") licensed pursuant to this Agreement, and "You" as the licensee of the Software.
If You do not agree to the terms of this License, click the "I DO NOT ACCEPT" button at the end of this License Agreement.
SCOPE OF LICENSE
You are granted a limited, non-exclusive, non-transferable license to use the Software only on equipment that You own or control. This License does not allow You to use the Software on any equipment that You do not own or control and You may not distribute or make the Software available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute, sublicense, cause or permit reverse compilation or reverse assembly of all or any portion of the Software. If You breach this restriction, You may be subject to prosecution and damages.
The terms of this License will govern any upgrades provided by Us that replace and/or supplement the original Software, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern. You agree to retain all copyright and proprietary information notices that are part of the Software.
The Software and all related technical information, documents and materials are subject to export controls under the United States Government Export Regulations. You agree to comply with all legal requirements established under these controls and cooperate fully with Us in any official or unofficial audit or inspection that relates to these controls. You may not export or transfer the Software, directly or indirectly, outside of the United States.
CONSENT TO COLLECT, USE AND SHARE DATA
You agree that We may collect, use and share technical data, personal information about You that You provide to Us, and related information, including but not limited to technical information about Your device, system and application software, and Your location, contact information, and related information, that We gather periodically to facilitate the provision of Software updates, product support and other services to You related to the Software. We may use this information and share it with our affiliates, service providers and other third parties with whom We share information, to improve the products or to provide services or technologies to You. You acknowledge that the collection, use and sharing of such information is an integral part of the Software.
SOLICITATION AND OPT OUT POLICY
You authorize Us, our affiliates, service providers and other third parties with whom We share information, to communicate with, solicit and/or market to You via regular mail, telephone, text message, email and facsimile in connection with the provision of goods or services and will hold Us, our affiliates and other third parties harmless against any and all claims pursuant to the federal CAN-SPAM ACT of 2003 (Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003), the Telephone Consumer Protection Act (TCPA), and any and all other state or federal laws relating to transmissions or solicitations by any of the methods described above. You may opt out of receiving communications from Us, our affiliates, services providers and other third parties at any time by notifying Us via email at email@example.com, and indicating the names of the specific entity or entities from which You no longer wish to receive communications or solicitations. If You decline to receive solicitations or communications from a certain participant in the Paycloud program, You will continue to receive solicitation and communications from Us, our affiliates, service providers and other third parties with whom We share information, unless You specifically notify Us in writing of the other entities from which You no longer wish to receive communications or solicitations.
YOU ACKNOWLEDGE THAT USE OF THE SOFTWARE IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE ("SERVICES") ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND WE HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE SOFTWARE AND ANY SERVICES, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMIED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABLITY, OF SATIFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. WE DO NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE SOFTWARE, THAT THE FUNCTIONS CONTAINED IN, OR SERVICES PERFORMED BY, THE SOFTWARE WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE SOFTWARE OR SERVICES WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR AUTHORIZED AGENTS SHALL CREATE A WARRANTY.
LIMITATION OF LIABLITY
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL WE 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 SOFTWARE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall our liability to You for all damages (other than as may be required by applicable law) exceed, in the aggregate, the amount of $50.00.
In connection with the Services, We will provide Your information to merchants ("Merchants") that are registered with Us and to whom You direct Us to provide Your information. We do not review or approve information that Merchants send to You after You direct Us to provide Your information to such Merchant(s), nor are We responsible for any communication, act, omission, or negligence of any such Merchants. You agree to indemnify, defend, and hold Us, Our employees, directors, shareholders, officers and agents harmless from and against any loss, liability, damage, penalty or expense which may be claimed as a result of: (i) actions, inactions, statements, promises, or offers of a Merchant; or (ii) any alleged or actual violations by Merchant of any laws, regulations or rules, including but not limited to violations of the CAN-SPAM Act of 2003, Regulation E, or the Card Accountability Responsibility and Disclosure Act of 2009.
The Software is owned by Us and licensed to You by Us. The License gives You no title to, or ownership in, the Software and is not a sale of rights in the Software. You are prohibited from attempting to duplicate or otherwise attempting to reverse engineer any equipment or software provided by Us to You.
The Software contains valuable proprietary information and trade secrets belonging to Us. You agree that the Software and any other information marked "confidential" are confidential and will not be disclosed, orally or in writing to any third party without our prior written consent. You will protect the Software with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which You use for Your own confidential information that You do not wish to be disclosed to the public. You are responsible for use of the Software and compliance with this License by all persons that You allow to use and access the Software.
These obligations of confidentiality do not apply to information which is or becomes a part of the public domain through no act or omission of the receiving party, was in such party's lawful possession prior to the disclosure and had not been obtained by such party either directly or indirectly from the disclosing party, is lawfully disclosed to such party by a third party without restriction on disclosure, is independently developed by such party, or is required to be disclosed by applicable law.
The parties agree that if You breach any of Your obligations of confidentiality, We may be irreparably harmed and in addition to all other remedies which We may have, We may be entitled to relief in equity without the necessity of proof of actual damages.
This License is effective until terminated by Us or You. Your rights under this License will terminate automatically without notice if You fail to comply with any term of this License. Upon termination You will cease all use of the Software.
The provisions concerning the parties' rights and obligations which by their terms operate after termination or which are necessary to enforce any right of Our rights will survive termination of this License. All obligations of confidentiality and limitations on liability will survive termination of this License, and will inure to the benefit of Us.
The laws of the State of Ohio without reference to its choice of law provisions will govern this License. All terms and conditions of this License shall be deemed enforceable to the fullest extent permissible under applicable law. If a provision of this License is held invalid under any applicable law, such invalidity will not affect any other provision of this License and such invalid provision shall be deemed modified to the extent necessary to make it valid and enforceable or, if such provision cannot be so modified, it shall be deemed deleted from this License.
The failure of either party to enforce the other party's strict performance of any provisions of this License will not constitute a waiver of its rights to subsequently enforce such provision or any other provision of this License.
If our performance is delayed or prevented at any time due to circumstances beyond our control, including, without limitation, those resulting from any communications failures, computer system failures, labor disputes, fire, floods, riots, civil disturbances, weather conditions, control exercised by a governmental entity, unavoidable casualties or acts of God or a public enemy, performance will be excused until such condition no longer exists.
This License constitutes the entire agreement between the parties concerning the Software, the license to use the Software, and the rights and obligations of the parties concerning the Software and supersedes all previous proposals (both oral and written), negotiations, representations, commitments, writings, agreements, and all other communications between the parties. This License may be amended by Us at any time. Your continued use of the Software after our amendment of the License will be deemed your consent to any revised terms.
Any action or claim against Us under this License must be brought within twelve (12) months after the cause of action accrues or it will be deemed barred.
By clicking the "I Accept" button below, You are agreeing to be legally bound to the terms of this License. If You do not wish to accept this License, please click "I Do Not Accept" and the installation process will terminate.