By downloading, installing, or using the Software, you agree to be bound by the terms of this Agreement. If you do not agree to these terms, you must not download, install, or use the Software, and you must delete or return the unused Software.
This End User License Agreement (the “Agreement”), as of the date that you place your order with Smargasy Inc (“Effective Date”), is entered into and agreed upon by you, either an individual or an entity, and its Affiliates (“You” or “Company”) and Smargasy Inc (“Smargasy”) for the Software.
Subscription license. Upon payment of the fees and continuous compliance with this Agreement, Smargasy Inc grants you a limited, nonexclusive, nontransferable license for the applicable term to use the Software and Documentation. For each Software license obtained, you may use the Software on any single Computer unless the Documentation clearly indicates otherwise, and copy the Software for back-up and archival purposes provided any copy contains all of the original proprietary notices and a notice that it will not be used for transfer, distribution or sale.
The Software is in use on a Computer when it is loaded into temporary memory or installed in permanent memory. You agree to use reasonable efforts to prevent and protect the contents of the Software and Documentation from unauthorized use or disclosure, with at least the same degree of care you use to protect your own confidential information and in no event less than a reasonable degree of care. You agree to register the Software only with Smargasy Inc and to install only a Software license key obtained directly from Smargasy Inc.
Perpetual license legacies. Upon payment of the fees and continuous compliance with this Agreement, Smargasy Inc grants you a limited, perpetual, nonexclusive, nontransferable license to use the Software and Documentation on the same terms as the subscription license set out above.
Evaluation or beta license. Where the Software is provided for evaluation or beta purposes, Smargasy Inc grants a nonexclusive, limited, royalty-free, nontransferable evaluation license for evaluation prior to purchase. The Evaluation License should not be used for production, and terminates at the end of the pre-determined evaluation period or immediately upon notice from Smargasy. Software provided under an Evaluation License is provided “as is” without indemnification, support or warranty of any kind.
Usage restrictions. You may not permit other individuals to use the Software or Documentation except under the terms above; modify, translate, reverse engineer, decompile, disassemble, create derivative works or attempt to derive the source code; copy, reproduce, republish, upload, post or transmit the Software or Documentation except for back-up or archival purposes; license, sell, rent, lease, transfer, sublicense or distribute rights to the Software or Documentation; remove any proprietary notices or labels; or license the Software if you are a direct competitor of Smargasy for benchmarking or competitive purposes. Any forbidden use immediately terminates your license. The Software is intended only for use with public domain or properly licensed third party materials, and obtaining any necessary third party licenses is your responsibility.
Your responsibilities. The Software and Documentation are protected by the intellectual property laws of the United States and international laws and treaties. You agree to use them solely in a manner that complies with all applicable laws in the jurisdictions in which you access or use them, and you are responsible for your compliance with this Agreement, the Documentation and Order Forms, and for the accuracy, quality and legality of any data you use with the Software.
Smargasy trademarks. You may not delete, remove, hide, move or alter any trademark, logo, icon, image or text representing the Smargasy company name, any derivation of it, or anything likely to be confused with it. All representations of the Smargasy name or mark must remain as originally distributed.
Export restrictions. The Software and Documentation are subject to U.S. and Canadian export control laws and regulations, and may also be subject to the import and export laws of the jurisdiction in which they were accessed. You shall abide by all applicable export control laws and will not export, re-export or transfer the Software or Documentation to any country, person or entity subject to export restrictions.
Term. Unless terminated earlier, the subscription term begins on the first day of the full month after the Effective Date and continues for twelve months unless otherwise agreed. You authorize Smargasy to automatically renew the subscription for an additional twelve month term upon expiration.
Termination by Company. After the Initial Term, you may terminate by providing Smargasy with ninety (90) days’ prior written notice, commencing on the first day of the full month after receipt of the notice.
Termination by Smargasy. Smargasy may terminate upon thirty (30) days’ prior written notice, or immediately if you become subject to bankruptcy or insolvency proceedings, infringe or misappropriate Smargasy’s intellectual property, breach the license restrictions, or fail to make any payment due.
Account type. You may upgrade your subscription at any time, effective immediately and billed for the additional fees due less amounts already paid for the applicable Term. After the Initial Term you may downgrade upon thirty (30) days’ prior written notice. Downgrading may cause loss of content, features or capacity, and Smargasy accepts no liability for that loss.
The Software and Documentation are licensed, not sold. Use of the word “purchase” in conjunction with licenses, license keys, the Software or Documentation does not imply a transfer of ownership. Except as conveyed in this Agreement, no rights, title or interest in the Software, Documentation, trademarks, service marks, trade secrets or corresponding intellectual property are granted, and all such rights remain the property of Smargasy, its suppliers, or are publicly available. All title and interest in content accessed through the Software is the property of the respective owner. Smargasy agrees that data and information generated by the Software from your proprietary data and information shall be and remain your sole property.
You agree that Smargasy will collect and track technical and related information about you and your use of the Software, which may include your internet protocol address, hardware identifying information, operating system, application software, peripheral hardware and Software usage statistics, to assist with the operation and function of the Software, the provision of updates, support, invoicing, marketing and research and development. The Smargasy Privacy Statement is published on the Smargasy website and may be updated from time to time.
Smargasy warrants that for a period of thirty (30) days following the initial purchase and delivery of the Software, the Software will perform substantially in conformance with the Documentation. Smargasy does not warrant that the Software will meet all of your requirements or that use will be uninterrupted or error-free. The warranty applies only to failures reproducible in standalone form and does not apply to Software modified or altered without authorization, Software operated in violation of this Agreement or contrary to the Documentation, or failures caused by other software or hardware products.
As Smargasy’s entire liability and your exclusive remedy for breach of this warranty, Smargasy will at its sole option repair or replace the Software or, if unable to do so, refund the applicable license fees paid. The warranty is void if failure has resulted from accident, abuse or misapplication. Any replacement Software is warranted for thirty (30) days.
Except as expressly stated in this section, and to the maximum extent permitted under applicable law, Smargasy provides and licenses the Software “as is” without warranty of any kind, either express or implied, including the implied warranties of merchantability, title, non-infringement, and fitness for a particular purpose.
Smargasy Inc will indemnify and hold you harmless from any third party claim that the Software, as provided and used within the scope of this Agreement, infringes or misappropriates any U.S. patent, copyright, trademark, trade secret or other intellectual property right, provided your use conforms with the Agreement and Documentation, the infringement is not caused by modification of the Software, and the infringement is not caused by combination with products not supplied by Smargasy. These obligations are contingent on you promptly notifying Smargasy in writing, granting Smargasy sole control of counsel, defense and settlement, and providing reasonable assistance. This states Smargasy’s entire liability and your sole and exclusive remedy with respect to indemnification.
To the maximum extent permitted by applicable law, in no event will Smargasy, its directors, officers, agents, suppliers and licensors be liable to you, whether in contract, tort including negligence, or otherwise, for more than the amount of license fees you have paid to Smargasy in the preceding twelve months for the applicable Software, or for any indirect, incidental, consequential, special, punitive or exemplary damages, including lost profits, lost business opportunities, loss of use, loss of goodwill, business interruption, loss of data, lost savings or other economic damage, even if advised of the possibility of such damages.
To the extent the Software is bundled with third party software programs, those programs are governed by their own license terms, which may include open source or free software licenses. Nothing in this Agreement limits an end user’s rights under, or grants rights that supersede, the terms of any such third party software.
This Agreement shall be governed by the laws of the State of Florida and of the United States, without regard to conflict of laws provisions, except that the United Nations Convention on the International Sale of Goods shall not apply. The parties agree that the Uniform Computer Information Transactions Act shall not apply. You consent to the jurisdiction of the state and federal courts of Florida.
If executed by the parties, this Agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument. The parties may exchange signature pages by email, and such signatures shall effectively bind the parties.
This Agreement, the Smargasy Support and Maintenance Agreement, and the Smargasy Software Services Agreement, where applicable, constitute the entire agreement between the parties and supersede all prior or contemporaneous communications, agreements and understandings, written or oral, including the terms of any purchase order issued in connection with this Agreement. If any provision is held unenforceable, that shall not affect the enforceability of the remaining provisions. This Agreement shall not be amended or modified except in a writing signed by authorized representatives of each party.
Questions about this document
Call (239) 214-8592 or email [email protected]. Smargasy Inc, 12551 New Brittany Blvd, Fort Myers, Florida 33907.