End User License Agreement (EULA)
Revisions to this Agreement were made November 1, 2021 and are effective immediately.
Introduction
This End User License Agreement (the “License”) is made and entered by and between you and Intellisoft Solutions, Inc. (“Developer” or “Intellisoft” ).
1. Definitions
1.1 “Agreement” or “License” or “EULA” refers to this End User License Agreement.
1.2 “You” or “Your” or “Customer” means or refers to the individual or legal entity entering into this Agreement with Developer, whether or not such terms are capitalized in this Agreement.
1.3 “Software” means the computer programs listed on Developer’s commercial price list to which You acquire a license under a monthly subscription agreement, together with any software code relating to the foregoing that is provided to You pursuant to a support and subscription service contract and that is not subject to a separate license agreement.
1.4 “Subscription Agreement” or “Subscription Plan” refers to the arrangement of a monthly, quarterly or annual recurring fee for the use of the software by You.
1.5 “Sales Agreement” or “Purchase Agreement” or “Invoice” all refer to the official electronic document provided to You as receipt and acknowledgment of a legally binding arrangement You entered into with Developer.
1.6 “Services” means the technical support services provided by Developer in connection with the Subscription Agreement whether such services are provided via email, telephone, website (including without limitation any software documentation, Frequently Asked Questions or online videos located on the website) or by any other means.
1.7 “Telephone Support” means the Services provided by Developer related to the Software over the telephone to individuals or entities with an ongoing subscription agreement.
1.8 “Online Support” means the Services provided by Developer via email correspondence, live web chat service, or website to individuals or entities with an ongoing subscription agreement.
1.9 “Updates” means any new software releases, fixes, patches and other modifications of the Software provided by Developer to individuals or entities with an ongoing subscription agreement.
1.10 “Incident” means a request by You for telephone support or online support in addressing a single technical problem relating to the Software. Developer shall make the final determination as to what constitutes an “Incident” at its sole discretion.
1.11 “Database” means an electronic collection of personal information organized on a computer including, but not limited to, customer mailing lists, vendor contact information, employee information, inventory price lists, notes, sales/purchase histories, and financial data.
1.12 “Custom Programming” means a request by You for enhancements and other modifications of the Software. Custom programming is a non-exclusive and non-refundable service provided by Developer, unless otherwise stated in writing.
1.13 “Legacy License” refers to any historical license that is no longer offered which customers purchased prior to the current monthly subscription plan licensing model.
1.14 “Single-User” has the meaning given in the section titled “Single-User Software Licensing.”
1.15 “Multi-User” has the meaning given in the section titled “Multi-User Software Licensing.”
1.16 “Remote Support” has the meaning given in the section titled “Remote Support Service.”
1.17 “Validation” has the meaning given in the section titled “Software Validation.”
1.18 “Software Intellectual Property” means computer code or software protected by law under either a copyright, trademark, trade secret, or software patent.
1.19 “Third Party Web Services” refers to any software intellectual property or specialized data content which has been integrated for optional use into the Software to offer additional functionality to the program. Third Party Web Services make itself available over the internet and use a standardized messaging system to communicate and provide its services to You. Third Party Web Services are owned, operated and belong to their own respective entity.
1.20 “Econnect” or “Ecommerce Interface” or “Shopping Cart Integration” all refer to a separate Software module which allows the computer program to communicate with a web site utilizing ecommerce technology. This functionality provides integration to third party web services for the purpose of allowing an end user to order good and services with a web shopping cart application.
2. License Grant
Subject to the terms and conditions of this License, the Developer hereby grants to You, and You, by taking delivery of the Software, accept a non-exclusive, non-transferable license to use the Software in machine readable, object code form only.
IMPORTANT-READ CAREFULLY: BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE, YOU (THE INDIVIDUAL OR LEGAL ENTITY) AGREE TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“EULA”). IF YOU DO NOT AGREE TO THE TERMS OF THIS EULA, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE. THIS LICENSE AGREEMENT REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SOFTWARE BETWEEN YOU AND DEVELOPER, AND SUPERSEDES ANY PRIOR AGREEMENT, PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES.
3. EULA Term
The term of this EULA begins on the notice of availability for electronic download or the initial purchase of the Software, whichever comes first. This Agreement will remain in effect until You cancel the subscription to the Software or until the Agreement is terminated. This Agreement shall automatically renew itself for the same renewal period as agreed upon in your purchase agreement. Either party may terminate the Agreement at any time for any reason and should provide a written notice consistent with the EULA provision in section titled “Notices.”
4. Restrictions; OWNERSHIP.
4.1 License Restrictions. Without Developer’s prior written consent, You must not, and must not:
(a) assign, pledge, share, sub license, rent, lease, or transfer in any manner whatsoever any portion of the Software, in whole or in part;
(b) reverse engineer, decompile, disassemble, modify, translate, or make any attempt to discover the source code of the Software;
(c) disable, modify, remove, prohibit or make any attempt to circumvent the technical protection measure (“validation process”) that accompanies the Software;
(d) use the provided software activation code to install and register more software licenses than originally stated on your sales agreement;
(e) use the software to create computer programs with similar appearance or logic;
(f) disclose any valuable trade secrets, confidential information, or ideas of the software to other parties;
(g) use Developer trademarks in any manner whatsoever without the express written consent of Developer;
4.2 Ownership. The Software and Documentation, all copies and portions thereof, and all improvements, enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein, are and shall remain the sole and exclusive property of Developer and its licensors. Your rights to use the Software shall be limited to those expressly granted in this EULA. No other rights with respect to the Software or any related Intellectual Property Rights are implied. You are not authorized to use (and shall not permit any third party to use) the Software, Documentation or any portion thereof except as expressly authorized by this EULA. Developer reserves all rights not expressly granted to You. Developer does not transfer any ownership rights in any Software.
5. Additional Terms
From time to time, Developer may update, revise, supplement, modify or amend these terms and the most current version will always be posted on the Developer commercial web site. Such updates, revisions, supplements, modifications, and additional rules, policies, terms, and conditions (collectively referred to in this Agreement as “Additional Terms”) will be effective immediately and incorporated into this Agreement. If a revision, at Developer’s sole discretion, is material, Developer will notify You (by, for example, sending an email to the email address associated with your applicable account). If you do not agree to the Additional Terms, You must stop using the software. Otherwise, the new terms will apply to you.
6. Fees & Payment
(a) Subscription Fees. You authorize Developer to use your selected card payment method, to collect payment for all applicable fees related to your software license. The fees paid by You are paid in consideration of the Software Subscription Plan granted hereunder. These authorized charges do not have to be signed by You to be valid and enforceable. Fees are non-refundable except as required by law. You are responsible for providing complete and accurate billing and contact information to Developer for such fees. Developer, at its sole discretion, may (i) suspend or terminate the Software if fees are overdue; or (ii) impose an administrative fee to reinstate any subscription plan which was interrupted due to non-payment.
(b) Auto-renewal. Fees for this software subscription agreement will automatically renew and be charged on a recurring monthly, quarterly, or annual basis. Your selected payment method will be charged at least 15 days in advance for the next renewable period and is final and NON-REFUNDABLE. Developer, at its sole discretion, may revise the Fees for this software subscription agreement at any time, but not more than once per calendar year.
(c) License Reactivation Fees. Developer, at its discretion, may grant You the option to reactive a prior suspended, terminated, or cancelled software license. Regardless of the reason, purpose or intent, any software license reactivation request will be subject to an upfront annual subscription fee at the current website advertised rate and may include additional fees for past due charges, and other delinquent or administrative penalties imposed on the terminated software license.
7. Demo, Evaluation, Beta, and Custom Software
(a) Demo and Evaluation Software. If Developer designates the Software as a “Demo” or “Evaluation” version, then Your use of the Software is only permitted in a non-production environment and for a limited period, as stated by the software. Unregistered use of the Software beyond the evaluation period violates Developer’s rights, as described above, including but not limited to Developer’s rights under the United States Copyright Act. You acknowledge that any Demo or Evaluation version is merely a technology demonstration that may not be at the level of performance or compatibility of generally available Software products. Demo or Evaluation versions are provided strictly on an “AS IS” basis.
(b) Beta Software. Developer may provide features or products that we are still testing and evaluating. These products and features are identified as alpha, preview, early access, beta feature or evaluation (or words or phrases with similar meanings) (collectively “Beta Software”). Notwithstanding anything to the contrary in this Agreement, the following terms apply to all Beta Software: (i) you may use or decline to use any Beta Software; (ii) Beta Software may be changed at any time without notice to you; (iii) Beta Software may not be as reliable as the general Software released to all customers; and (iv) DEVELOPER WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SOFTWARE – USE AT YOUR OWN RISK.
(c) Custom Software. Any software customization performed by Developer on your behalf will be deemed to be the same as Beta Software and should be treated in the same manner.
8. Software Updates
Pursuant to the original invoice between You and Developer, your subscription agreement will provide you unlimited software updates via an internet download only. It is Your sole responsibility and decision to periodically check for these updates. Developer reserves the right to reject technical support if your software license is a minimum of (12) months out-of-date from the current software release.
9. Single-User Software Licensing
When developer classifies its product as a “Single-User” license, it means that the delivered computer program is to be installed only one time on any given computer. Furthermore, each time an instance of the software is launched from a computer, a session (also known as a “User” license) is said to be running. A Single-User license permits only one session running at any one moment. It is your responsibility to purchase the correct amount of “User” licenses to be in compliance. The program will enforce your allotted “User” license limit by prohibiting excessive concurrent Software applications from being launched.
10. Multi-User Software Licensing
When developer classifies its product as a “Multi-User” license, it means that the delivered computer program is to be installed only one time on any given computer or single network server environment and a certain concurrent session limit is allowed to run the software. This session limit is determined by your software purchase. Each time an instance of the software is launched from a computer or single network server environment, a session (also known as a “User” license) is said to be running. Your purchased User license limit is based on the number of concurrent sessions running at any one moment. It is your responsibility to purchase the correct amount of “User” licenses to be in compliance. The software will enforce your allotted “User” license limit by prohibiting excessive concurrent Software applications from being launched.
11. Remote Support Service
You expressly understand that remote support service refers to a third party software technology integrated into Your software and is used by Developer to remotely take control of Your computer(s) for purposes of assisting You with your software. This remote support service requires an internet connection and Your approval for Developer to connect to Your computer. You acknowledge that use of this remote support service is at Your own risk and that Developer is not familiar with interconnections, settings, or special applications on Your computer or all purposes to which Your computer is used for or for which the computer is connected to. This service also requires a separate acceptance of the Remote Support Standard Terms and Conditions.
12. Telephone Support Service
Developer will provide You with telephone technical assistance on the software during its regular business hours only. At Developer’s discretion, resolution of any technical support matter may require Remote Support Service to be available upon Developer’s request. Developer reserves the right to revoke, cancel, suspend or discontinue telephone support services, and/or charge additional fees for telephone support.
13. Online Support Service
Developer will provide You with an electronic form of technical assistance on the software during its regular business hours only. At Developer’s discretion, resolution of any technical support matter may require Remote Support Service to be available upon Developer’s request. Online support is typically a slower support resolution matter which may take 2 or more business days for response. Developer reserves the right to revoke, cancel, suspend or discontinue Online support services, and/or charge additional fees for Online support.
14. Third Party Web Services
Developer has integrated one or more optional Third Party Web Services into the Software which compliment capabilities of the Software. Third Party Web Services such as ShipStation, WooCommerce, Active Campaign, Barcode Lookup, and Clickatell contain Intellectual Property trademarked to their respective owner and perform enhanced data services over the internet for automation of shipping packages, online ordering, email marketing, product verification and SMS messaging. Developer does not warrant that any of these third party web services will perform to your expectations or that they will operate defect-free. These third party web services are not required to operate the Software and use of these third party web services is at your own risk.
15. Legacy License Renewal
Some Software licenses issued prior to January 1, 2017 are considered legacy licenses and are no longer offered. Legacy licenses are provided an optional annual service plan (referred to in this Agreement as “legacy subscription plan”) which provide telephone technical support and software updates on an annual basis to a perpetual software license. The software will notify the license holder in advance of the legacy subscription plan termination period. It is the Legacy License holder sole responsibility to renew the legacy subscription plan prior to the termination period. Regardless of the circumstances for an expired subscription plan, a legacy license holder in need of support services will need to relinquish the perpetual license and be subject to the current subscription plan fees as outlined in this EULA under section titled “Fees & Payments.”
16. Software Backup
You are solely responsible for the proper backup and protection of the software and data.
17. Service Restrictions
Developer reserves the right to deem any support service to You as “excessive” based on the frequency of support telephone calls in relation to your user license. A reasonable support service limit of ten (10) monthly incident calls may be imposed for technical support of the license. Developer, at its sole discretion, may provide consultation, recommendation, assistance, instruction or advice on accounting practices, operating system use, third party software, external backup, virus removal, and computer networking administration, which are provided AT YOUR OWN RISK. Terms, conditions, procedures, and support availability are subject to change at any time without notice. Developer reserves the right to revoke, cancel, suspend or discontinue support services for any reason and may include, but are not limited to (i) Use of the service in an irregular, excessive, abusive or fraudulent manner; (ii) Use of the Software in conjunction with third party software that is determined to be incompatible; (iii) Requests involving consultation on accounting/bookkeeping practices; and (iv) Discussion of issues that are not related to the software.
18. Card Chargeback
You agree that you permanently and irrevocably waive any and all right to cause a “chargeback” (that is, a disputed, reversed or contested charge) for any reason whatsoever against Developer, effective as soon as you make a payment. You agree that, if you institute such a “chargeback”, it constitutes a material violation of this license. You expressly understand, in the event of such a “chargeback”, to pay all costs incurred by Developer as a result of a chargeback.
19. Software Validation
The software covered under this license has been copy protected to prevent unauthorized use of the software. During the initial activation of the software license and from time to time, the Software will electronically verify whether the installed copy of the software is properly licensed by transmitting non-sensitive information about the software and your computer to Developer (referred to as “validation”). This validation process will send information including, but not limited to, your company name, registration information provided at the time of activation, product serial number, the Internet protocol address of the computer and information derived from the hardware configuration of the computer. This information is not sold or used for any other purpose than to verify the authenticity of Your software license and to confirm your installation and acceptance of this license agreement.
You understand that this software is intentionally designed to interrupt its usage if the validation process determines the software to be counterfeit, improperly licensed, not in compliance with this license agreement, or is unable to perform the validation process. In the event that Your software license encounters a software validation warning/failure, the Developer can be contacted to remedy any false positive validation errors. Developer reserves the right to revoke, cancel, suspend or discontinue Your software license if the Developer confirms the software license to be counterfeit, improperly licensed, or not in compliance with this license agreement.
20. Database Conversion
You expressly understand that Developer may optionally provide a database conversion service from popular competing products in the marketplace and a separate non-refundable fee may be involved for this type of service. With respect to a Database Conversion, You acknowledge that:
(a) Database conversion is a complex process of electronically extracting and manipulating data from a third party product for use within the Developer’s software. The data extraction process is “AS IS” and does not imply, suggest, assert or claim that all extracted data will be converted.
(b) Developer does not warrant that the database conversion will meet Your requirements or be error-free.
(c) Your sole remedy in the event the data conversion does not meet Your requirements will be that Developer will, at its sole option, adjust the database conversion process to better suit your needs or you will need to manually input part or all of the data into the software.
21. Database Standard of Care
Under special circumstances, You may request Developer to evaluate Your database or may be asked by Developer to provide Your database for review.
You acknowledge that Developer is unaware of the actual sensitivity of your database and cannot be held accountable for protecting your personal information in a manner which may be required by various federal and state privacy and data security laws, such as the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HITECH), the Fair Credit Reporting Act (FCRA) and the Children’s Online Privacy Protection Act (COPPA). Developer does NOT represent or warrant that its collection, access, use, storage, disposal and disclosure of Personal Information complies with all applicable federal and state privacy and data protection laws, as well as all other applicable regulations and directives. In recognition of the foregoing, Developer will make reasonable efforts to use the same degree of care as with its own personal information, which shall be at least a reasonable standard of care, to prevent disclosure of any personal Information, except to its officers and employees, to the extent necessary to permit them to assist in evaluating Your database.
22. Corporate Licensing
When the software is licensed for use by a U.S. corporation, then administrative rights of the software will be granted to the corporate officers of such business. As long as the software license is in good standings, administrative rights will include, but not be limited to, requests for technical assistance of the software, requests for technical assistance on backing up, restoring and/or transferring the software to another computer, and request for technical assistance on overriding a security password (if possible) in the software which may have been created by another corporate officer / administrator.
23. Customer Notification
You consent to Developer providing you all notifications about the software, including, but not limited to, the sales agreement, via the email address you specified when you purchased the software. Notices emailed to you will be deemed given and received when the email is sent. If you don’t consent to receive notices electronically, you must stop using the software. Changes required to your email address should be updated via our website portal or by contacting customer service.
24. Assignment and Transfer
Developer may assign this agreement, in whole or in part, at any time without notice to you. You may not assign this agreement or transfer any rights to use the software.
25. No Warranty
THE SOFTWARE IS LICENSED “AS IS.” If the Software does not perform according to documentation, You must tell Developer in writing and assuming Developer can verify such nonconformity, Developer will use reasonable efforts to correct any deficiencies in the Software. Developer does not warrant that the Software will meet Your requirements or that operation of the Software will be uninterrupted or that the Software will be error-free or that content loss won’t occur. No oral or written information or advice given by Developer, its dealers, distributors, agents or employees shall create a warranty and you may not rely on any such information or advice.
26. Limitation of Liability
TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT WILL DEVELOPER BE LIABLE TO YOU OR ANY THIRD PARTY IN ANY ACTION RELATED TO THE SUBJECT MATTER OF THE LICENSE OR OTHERWISE, UNDER CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER THEORY, FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR SIMILAR DAMAGES, INCLUDING ANY LOST PROFITS OR LOST DATA OR INACCURATE DATA ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE EVEN IF DEVELOPER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL DEVELOPER’S CUMULATIVE LIABILITY EXCEED A ONE MONTH SUBSCRIPTION LICENSE FEE YOU PAID FOR THE SOFTWARE. THE DISCLAIMERS AND LIMITATIONS SET FORTH ABOVE WILL APPLY REGARDLESS OF WHETHER YOU ACCEPT THE SOFTWARE AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
27. Further Limitations
Developer’s licensors shall have no liability of any kind under this EULA and Developer’s liability with respect to any third party software embedded in the Software shall be subject to section titled “Limitation of Liability.” You may not bring a claim under this EULA more than six (6) months after the cause of action arises.
28. Severability
Each term and provision of this agreement shall be valid and enforceable to the fullest extent permitted by applicable law and any invalid, illegal or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid, illegal or unenforceable term or provision.
29. Contract Interpretation
The headings of sections of this EULA are for convenience and are not to be used in interpreting this EULA. As used in this EULA, the word ‘including’ means “including but not limited to”.
30. Order of Precedence
In the event of conflict or inconsistency among the clickwrap agreement upon software installation, this EULA and terms and conditions on the purchase agreement, the following order of precedence shall apply: (a) this EULA as displayed publicly on Developers commercial web site, (b) the clickwrap agreement which appears upon software installation, (c) the terms and conditions as stated on the purchase agreement. With respect to any inconsistency between this EULA and terms and conditions on the purchase agreement, the terms of this EULA shall supersede and control over any conflicting or additional terms and conditions of any purchase agreement, acknowledgment or confirmation or other document issued by You.
31. Waiver
The waiver by one party of the performance of any covenant, condition, obligation, representation, warranty or promise in this agreement shall not invalidate this agreement or be deemed a waiver by any party of the time for performing any act or condition hereunder and does not constitute a waiver of the act or condition itself.
32. Publicity
Either party may disclose the fact that an agreement exists between the parties for use of the software. However, neither party will disclose the specific terms of this agreement, including pricing, which the parties agree to maintain as confidential.
33. Disputes
(a) Informal Resolution. Developer wants to address your concerns without resorting to a formal legal case. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the legal notice procedures in section titled “Notices.” If a dispute is not resolved within 30 days of notice, You or Developer may bring a formal proceeding.
(b) Agreement to Arbitrate. You and Developer agree to resolve any claims relating to this Agreement or the Software through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in Hillsborough County, Florida.
(c) Exception to Agreement to Arbitrate. Developer may bring a lawsuit in the federal or state courts of Hillsborough County, Florida solely for injunctive relief to stop unauthorized use or abuse of the Software or infringement of Software Intellectual Property Rights without first engaging in the informal dispute notice process described above. You consent to venue and personal jurisdiction there.
(d) NO CLASS ACTIONS. You may only resolve disputes with Developer on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed.
34. Notices
Any Notices or communications required or permitted to be given by this Agreement must be sent via United States Postal Service (USPS) certified mailed, airmail or overnight courier and are deemed given when received. Notices to You may also be sent to the applicable account email address and are deemed given when sent. Notices to Developer must be sent to: Intellisoft Solutions, Inc., 2114 N Flamingo Rd, #1121, Pembroke Pines, FL 33028.
35. U.S. Government Restricted Rights
RESTRICTED RIGHTS LEGEND. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in sub-paragraph (c) (1) (ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or sub-paragraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights clause at 48 CFR 52.227-19, as applicable through the notice procedures in section titled “Notices.”
Now that You have read the terms and conditions of this end user license agreement, You may only continue to use the SOFTWARE upon acceptance and in accordance with these terms and conditions.
