LICENSED APPLICATION SUBSCRIBER AGREEMENT
THIS IS A LEGAL AGREEMENT BETWEEN YOU AND Red Funnel Consulting, LLC (“Developer” or “Red Funnel”) STATING THE TERMS THAT GOVERN YOUR USE OF THE FatStax™ APPLICATION AND ACCOMPANYING SERVICES (SUCH APPLICATION AND SERVicES COLLECTIVELY REFERRED the “Licensed Application”). THIS AGREEMENT, TOGETHER WITH ALL UPDATES, ADDITIONAL TERMS, SOFTWARE LICENSES, AND ALL OF RED FUNNEL’S RULES AND POLICIES, COLLECTIVELY CONSTITUTE THE “AGREEMENT” BETWEEN YOU AND RED FUNNEL. BY INSTALLING THE LICENSED APPLICATION YOU ARE INDICATING THAT YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS DO NOT INSTALL OR USE THE APPLICATION. YOU MUST ACCEPT AND ABIDE BY THESE TERMS AS PRESENTED TO YOU. CHANGES, ADDITIONS, OR DELETIONS ARE NOT ACCEPTABLE, AND RED FUNNEL MAY REFUSE ACCESS TO THE LICENSED APPLICATION FOR NONCOMPLIANCE WITH ANY PART OF THIS AGREEMENT.
Therefore, the parties agree as follows:
The Licensed Application is licensed, not sold, to Subscriber for use only under the terms of this License. Developer reserves all rights not expressly granted to Subscriber. This License is limited to a non-transferable license to use on hardware Subscriber or its Users controls or owns as permitted by any usage rules of said hardware. Subscriber may not distribute or make the Licensed Application available over a network where it could be used by multiple hardware devices at the same time. Subscriber may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application to any one but a User. A “User” shall be defined as an individual employed by or contract with Subscriber for whom Subscriber has licensed the use of the Licensed Application. The terms of the License will govern any upgrades provided by Developer that replace and/or supplement the original Licensed Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
2. Price and Term.
If Subscriber subscribes to service, Subscriber agrees to pay the amount as agreed to by both parties. The License is effective from date of installation of the Licensed Application until terminated by Subscriber or Developer.
Subscriber’s rights (or any individual User’s rights) under this License will terminate automatically without notice from the Developer if Subscribers or any account subscribers fail to comply with any term(s) of this license, including payment obligations. Further, Developer may terminate this License for the Subscriber or one or more of the Subscriber’s Users for any action taken by such Subscriber or User that in the sole opinion of the Developer believes is an inappropriate use of the Licensed Application even if not specifically detailed by the terms of this Agreement.
4. Proprietary Nature of Licensed Application
The Licensed Application is proprietary to, and a valuable trade secret of Developer. Subscriber and Users acknowledge the Licensed Application contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, trademark, and service marks and that neither Subscriber nor Users will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. The Licensed Application is entrusted to Subscriber only for the purpose set forth in this License. Subscriber nor User will not, without Developer’s prior written consent reverse engineer, duplicate, translate, modify, copy, printout, disassemble, decompile or otherwise tamper with the Licensed Application or any software provided therewith.
The parties acknowledge that any violation of this provision will cause irreparable harm to Developer. As a consequence, the parties agree that if Subscriber fails to abide by the terms of this License, Developer will be entitled to specific performance, including immediate issuance of a temporary restraining order or preliminary injunction enforcing this License, and to judgment for damages caused by such breach, and to any other remedies provided by the Uniform Trade Secret Act and all other applicable law. In addition, in the event an arbitration, suit or action is brought by Developer under this License to enforce any of its terms, or in any appeal therefrom, it is agreed that the Developer shall be entitled to reasonable attorneys fees from the Subscriber to be fixed by the arbitrator, trial court, and/or appellate court.
5. Services; Data and Materials.
The Licensed Application may enable access to Developer’s, user’s and third party services and web sites (collectively and individually, “Services”). Use of the Services may require Internet access and that Subscriber and User accept additional terms of service. Services may display, include or make available content, data, information, applications or materials from third parties, including data of the Subscriber (“Data and Materials”) or provide links to certain third party web sites. By using the Services, Subscriber and User acknowledge and agree that the Developer is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright or trademark compliance, legality, decency, quality or any other aspect of such Data and Materials. The Developer does not warrant or endorse and does not assume and will not have any liability or responsibility to Subscriber or any other person for any Data and Materials. To the extent Subscriber choose to access such Services, Subscriber does so at Subscriber’s own initiative and is responsible for compliance with any applicable laws, including but not limited to applicable local laws. The Developer, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will the Developer be liable for the removal of or disabling of access to any such Services. The Developer may also impose limits on the use of or access to certain Services, in any case and without notice or liability. Subscriber agree to use the Services at Subscriber’s sole risk and that the Developer shall not have any liability to Subscriber for content that may be found to be offensive, indecent, or objectionable.
6. Consent to Use of Data.
Subscribers agree that Developer may collect and use technical data and related information, including but not limited to technical information about Subscriber’s and user’s device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, Licensed Application support and other services to Subscriber (if any) related to the Licensed Application. Developer may use this information to improve its Licensed Applications or to provide services or technologies to Subscriber.
7. Disclaimer of Warranty
SUBSCRIBER EXPRESSLY ACKNOWLEDGEs AND AGREEs THAT USE OF THE LICENSED APPLICATION IS AT SUBSCRIBER’s SOLE RISK. DEVELOPER cannot and DOES NOT WARRANT THE LICENSED APPLICATION WILL MEET SUBSCRIBER’s REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION OR SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION OR SERVICES WILL BE CORRECTED. As such, the Subscriber shall not rely exclusively on Licensed Application for any reason.
THE LICENSED APPLICATION AND ANY SERVICES PERFORMED OR PROVIDED BY THE LICENSED APPLICATION (“SERVICES”) ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND DEVELOPER HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION AND ANY SERVICES, 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. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY DEVELOPER OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY.
8. Limitation of Liability
Developer shall not be responsible for any loss or damage to Subscriber or any third parties caused by Licensed Application or information contained in Licensed Application. Subscriber waives any and all claims Subscriber may have against Company arising out of the performance or nonperformance of Licensed Application. Subscriber specifically waives any and all claims Subscriber may have against Developer as a result of incorrect Licensed Application information content DISPLAYED in Licensed Application or changes to content MADE by Subscribers/users. DEVELOPER SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGE, WHETHER BASED ON CONTRACT OR TORT OR ANY OTHER LEGAL THEORY, ARISING OUT OF ANY USE OF LICENSED APPLICATION OR ANY PERFORMANCE OF THIS AGREEMENT, 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 SUBSCRIBER’s USE OR INABILITY TO USE THE LICENSED APPLICATION, EVEN IF DEVELOPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Developer’s total liability to Subscriber for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of $50.00 The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
9. No Rights Granted
This License does not constitute a grant or an intention or commitment to grant any right, title or interest in Licensed Application or Developer’s trade secrets to Subscriber. Subscriber may not sell or transfer any portion of Licensed Application to any third party. Subscriber shall not identify Licensed Application as coming from any source other than Developer.
10. No Assignments
This License is personal to Subscriber. Subscriber shall not assign or otherwise transfer any rights or obligations under this License. Subscriber shall be permitted to assign the use of the Licensed Application to Users consistent with Subscriber’s License. Subscriber agrees to advise its Users regarding the terms of this Licenses and agrees to indemnify Developer for any breach of this Agreement by any Users.
11. General Provisions
(a) Relationships: Nothing contained in this License shall be deemed to constitute either party a partner, joint venturer or employee of the other party for any purpose.
(b) Severability: If a court finds any provision of this License invalid or unenforceable, the remainder of this License shall be interpreted so as best to effect the intent of the parties.
(c) Integration: This License expresses the complete understanding of the parties with respect to the subject matter and supersedes all prior proposals, agreements, representations and understandings. This License may not be amended except in a writing signed by both parties.
(d) Waiver: The failure to exercise any right provided in this License shall not be a waiver of prior or subsequent rights.
(e) Attorney Fees and Expenses: In a dispute arising out of or related to this License, the prevailing party shall have the right to collect from the other party its reasonable attorney fees and costs and necessary expenditures.
(f) Governing Law: This License shall be governed in accordance with the laws of the State of Indiana, USA.
(g) Jurisdiction: The parties consent to the exclusive jurisdiction and venue of the federal and state courts located in Hamilton County, Indiana, USA in any action arising out of or relating to this License. The parties waive any other venue to which either party might be entitled by domicile or otherwise.
SUGGESTIONS AND FEEDBACK
Red Funnel welcomes feedback or inquiries about our Licensed Applications. If you elect to provide any feedback or comments of any nature to Red Funnel, all of such feedback and comments shall be the sole and exclusive property of Red Funnel, and Red Funnel shall have the right to use such feedback in any manner and for any purpose in Red Funnel’s discretion without remuneration, compensation or attribution to you, provided that Red Funnel is under no obligation to use such feedback.
Red Funnel Consulting, LLC
484 E. Carmel Drive
Carmel, IN 46032-2812
COPY OF LATEST TERMS AVAILABLE AT
Updated June 26, 2012