This End User License Agreement (this “EULA”) is between IT BY Design, Inc. (“Licensor”) and you _______________ (“you” or “your”).  This EULA governs your use of the Software and Documentation, and you agree to be bound by the terms of the EULA by using the Software.  By clicking the box indicating your acceptance or by submitting an Order Form you agree to the terms of this EULA.

Definitions

For the purposes of this EULA, the following definitions shall apply:

“Software” means any software program owned or licensed by Licensor that is made available or accessible to you, including but not limited to the software application Team GPS, as well as any updates, revisions, modifications, patches, and derivative works of any of the foregoing.

“Documentation” means any information owned or distributed by Licensor and which is provided to you pursuant to your licensure of the Software, regardless of the form or format of that information, that comprises, is contained in, or accompanies the Software or that is meant to aid or assist end users in the use of the Software.  This includes, but is not limited to any user manuals, guide books and brochures, feature description(s), FAQ content, templates, “how to” videos, technical support information, and any related materials.

“Services” means any services provided or facilitated by Licensor to allow or enable you to access and use the Software and Documentation. In no event shall Services include the provision of internet access required to use the Software or any computer equipment needed to access or use the Software.

“License Keys” are the license keys used to access and use the Software or Documentation.

Other defined terms in this EULA shall have the meaning ascribed to them in the text of this document.

Grant of License

Subject to your compliance with the terms of this EULA and payment of all applicable fees, Licensor hereby grants to you a limited, non-exclusive, non-transferable, non-assignable, revocable, worldwide right to use the Software and Documentation(“Licensed Materials”) during the period of time for which you have paid the applicable license fees to Reseller or, if you are acquiring license(s) directly from Licensor, then during the period of time indicated in the applicable purchase or order form between Licensor and you (“Order Form”). If you are a corporate entity, you are only permitted to use the Licensed Materials solely for your internal business purposes.  If you are an individual, then you may use the Licensed Materials for your personal use only.  In any event, you must purchase a License for each person using the Software.

Ownership

Licensor is, and at all times shall remain, the owner of the Licensed Materials.  This EULA does not transfer, assign, or otherwise convey any title, intellectual property rights, or ownership rights in the Licensed Materials to you or to any third party. You acknowledge and agree that the Licensed Materials and all improvements, revisions, corrections, updates, patches, modifications, enhancements, derivations, and releases of the Licensed Materials are Licensor’s sole and exclusive property.

Scope of EULA

This EULA governs your use of: (i) the Software as it is made available to you by Licensor or by one of Licensor’s authorized resellers; (ii) the License Keys; (iii) the Documentation; and (iv) the Services.

Resellers and Sublicense Agreements

If you are a business entity and you are acquiring License Keys from a third-party reseller (“Reseller”) under an agreement between you and that Reseller (“Sublicense Agreement”), then the terms of the Sublicense Agreement will govern your use of the Licensed Materials and Services but only to the extent that your Sublicense Agreement does not contradict or violate the terms of this EULA.  In the event of any conflict between a Sublicense Agreement and this EULA, the terms of this EULA will control. As such, you acknowledge and agree that (i) any terms of the Sublicense Agreement that are inconsistent with this EULA will not be enforceable; (ii) the limitations of liability set forth in the EULA will apply to Licensor, its affiliates, and suppliers regardless of any contradictory or inconsistent provisions in any Sublicense Agreement; and (iii) you acknowledge that Licensor is a third party beneficiary of the Sublicense Agreement entitled to exercise and enforce all Reseller’s rights and benefits under that Sublicense Agreement.

Permitted License Key Sharing

You may allow a third party to use your License Key to access and use the Licensed Materials (a “Permitted Licensee”) provided that (i) the simultaneous use of a single License Key by more than one person is strictly prohibited and, if discovered, may result in the immediate suspension and/or termination of that License Key; and (ii) you agree to be responsible for all activities (including but not limited to data access, deletion, and account configuration) occurring through the use of your License Key.

Terms of Use/User Restrictions

You agree to the following restrictions in your access and use of the Licensed Materials:

1. You will not make or permit anyone to make copies of the Licensed Materials unless copying is expressly permitted by law. You agree to maintain records of the location and use of each copy, and agree to reproduce and apply the proprietary notice of Licensor to all copies.
2. You shall not modify, remove, or obscure any proprietary notices that appear in, on, or through the Licensed Materials. For avoidance of doubt, you shall not modify the Licensed Materials without Licensor’s express written consent.

• You shall not permit any user, including but not limited to any Permitted Licensee, to breach any security measures or use the Licensed Materials in violation of any applicable law or rule.

1. You shall not sell, loan, rent, lease, license, sublicense, or distribute the Licensed Materials or the Services, nor shall you use the Software or Services on a service bureau, rental, or managed services basis.
2. You shall not copy, transmit, distribute, transfer, modify, decompile, disassemble, reverse engineer, create derivative works or otherwise attempt to derive source code from the Software. You shall not use the Licensed Materials or Services to make a product or solution that is competitive with the Software.
3. You shall not use the Software or Services for high-risk activities, including without limitation online control systems, or use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, life support, weapons systems or in any other device or system in which function or malfunction of the Software could result in death, personal injury or physical or environmental damage.
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Licensor reserves the right to suspend your use and/or access to the Licensed Materials and the Services if you or any Permitted Licensee act in violation of the terms of this EULA.  Recurring fees for License Keys shall continue to accrue during the period of any such suspension.

Term & Termination

This EULA is effective upon the earlier of your acceptance of this EULA or your initial use of the Licensed Materials, whichever occurs first.  This EULA automatically terminates at the end of your applicable License subscription period, unless sooner terminated pursuant to the terms of a Reseller Agreement or this EULA.   Licensor may terminate this EULA for cause if you or a Permitted Licensee commit a material breach of this EULA and fail to cure such breach within ten (10) days following your receipt of notice of the breach. This EULA may also be terminated for cause if Licensor or Reseller does not receive timely payment for the License and you fail to cure such breach within ten (10) days following your receipt of notice of outstanding payment obligations. Upon the termination of this EULA, all licenses granted automatically terminate and your use of the Licensed Materials must immediately cease. Any outstanding payments obligations you owe Licensor shall become immediately due and payable and shall survive termination of this EULA.

Disclaimer of Warranties

YOU EXPRESSLY AGREE THAT YOUR ACCESS AND USE OF THE LICENSED MATERIALS AND THE SERVICES IS AT YOUR OWN AND SOLE RISK. YOU UNDERSTAND AND AGREE LICENSOR DOES NOT WARRANT OR GUARANTEE THAT THE LICENSED MATERIALS WILL WORK IN AN ERROR-FREE MANNER WITH THIRD PARTY SOLUTIONS.  LICENSOR MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE LICENSED MATERIALS OR SERVICES, WHICH ARE PROVIDED FOR USE “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS.” LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE LICENSED MATERIALS AND SERVICES, OR YOUR ABILITY OR INABILITY TO ACCESS OR USE THE LICENSED MATERIALS OR SERVICES. WE DO NOT WARRANT OR GUARANTEE THAT THE LICENSED MATERIALS OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE LICENSED MATERIALS OR SERVICES ARE FIT FOR ANY PARTICULAR PURPOSE OR THAT YOUR USE OF THE LICENSED MATERIALS OR THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE CONTENT OR THE SERVER THAT MAKES THE LICENSED MATERIALS AVAILABLE IS FREE OF VIRUSES, WORMS, TROJAN HORSES, CANCELBOTS OR OTHER HARMFUL COMPONENTS.

Limitations of Liability

You agree that neither we nor any of our licensors, agents, suppliers, or service providers shall be liable to you, or any other third party, for any direct, special, indirect, incidental, consequential, exemplary, or punitive damages that may arise from your use, misuse, or inability to use the Licensed Materials or Services even if we have been advised of the probability of such damages. This limitation applies for any matter arising out of or relating to this EULA and your use of the Licensed Materials or Services, whether such liability is asserted on the basis of contract, negligence, or tort.  In no event shall Licensor’s maximum total aggregate liability hereunder for all damages in the aggregate exceed the amounts that you paid under the Reseller Agreement or pursuant to an Order Form (as applicable) in the six (6) month period immediately preceding the earliest date on which the first applicable claim accrued.  This provision is intended by Licensor and you to be enforced to the maximum extent permitted by law.

Indemnification

You agree to defend, indemnify, and hold harmless Licensor and Licensor’s officers, directors, employees, independent contractors, telecommunication providers, and agents, from and against any and all claims, actions, loss, liabilities, expenses, costs, or demands, including without limitation legal and accounting fees, for all damages (collectively “Losses”) resulting or allegedly resulting from your (i) use or inability to use the Licensed Materials or Services, or (ii) negligent or willful act or omission, or (iii) breach of any federal or state law related to personally identifiable information or personal data, or  (iv) violation of any applicable law or regulation.

In the event Licensor seeks indemnification under this agreement, Licensor shall provide notice in writing of such claim provided that the failure to give such notice shall not excuse your obligation except to the extent prejudice is caused by such failure.  Upon notice of such claim, you may not settle any claim unless the settlement unconditionally releases Licensor of all liability and does not diminish any rights or increase any obligations or otherwise require the Licensor to make any admission.  If you assume control of the defense, Licensor may nonetheless participate at its own expenses in the defense of such claim.  If you do not assume control of the defense, you understand and agree you will remain responsible for paying all legal fees in addition to all other Losses.

Confidentiality

Obligations.   A party receiving Confidential Information (defined below) disclosed by the other Party (“Recipient” and “Discloser”, respectively) shall use Discloser’s Confidential Information solely to perform its obligations and/or enforce its rights hereunder and not for any other purpose.  Recipient shall not disclose Discloser’s Confidential Information to any third party without Discloser’s prior written consent and shall protect Discloser’s Confidential Information against unauthorized use or disclosure using at least those measures that Recipient takes to protect its own Confidential Information of a similar nature, but in no event using less than reasonable care. Notwithstanding the foregoing, and for the avoidance of doubt, the Parties understand and agree that a Recipient may disclose a Discloser’s Confidential Information to its respective directors, officers, employees, and/or agents who have a bona fide need to know to the information in order to administer this EULA or to fulfill its obligations under this EULA.

The foregoing obligations will not restrict either party from disclosing the other party’s Confidential Information (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body or as may be required by any law or regulation, provided that the party required to make such a disclosure gives as much prior notice to the Discloser as is practicable under the circumstances to enable Discloser to contest such order or requirement at Discloser’s sole cost and expense, and (ii) on a confidential basis to its legal or professional financial advisors.  The parties agree that in the event of a breach of the foregoing, the non-breaching party could suffer irreparable harm, that the total amount of monetary damages for any injury to the non-breaching Party may be difficult or impossible to ascertain, and that the non-breaching party will thus be entitled to seek, without requirement of posting a bond, the temporary, preliminary and/or permanent injunctive relief against the breaching party, its officers, and/or its employees, in addition to such other rights and remedies to which it may be entitled to at law or in equity.

Confidential Information – Defined.  “Confidential Information” means and refers to any and all non-public information of a party, including, without limitation, (i) any information relating to a party’s current and planned products and services, technology, techniques, know-how, research, engineering, designs, finances, accounts, procurement requirements, manufacturing, customers, customer lists, business forecasts, marketing, and/or other information that should by its nature be reasonably understood as confidential, and (ii) any other information of a party that is disclosed in writing and is conspicuously designated as “Confidential” at the time of disclosure or that is disclosed orally and is identified as “Confidential” at the time of disclosure.   Notwithstanding the foregoing, Confidential Information shall not include information that (i) is or becomes publicly available through no act of the receiving party in breach of this EULA, (ii) was in the possession of the receiving party prior to its disclosure or transfer hereunder as the receiving party can reasonably demonstrate, (iii) is independently developed by the receiving party without reference to the materials comprising the Confidential Information disclosed under this EULA, and/or (iv) is received from another source without any restriction on its use or disclosure.

Arbitration

All issues, claims, disputes, and causes of action arising from or related to this Agreement shall be resolved exclusively and finally by binding arbitration. This means that you waive any right to litigate disputes in a court or before a jury.  This agreement to arbitrate includes all claims whether arising in tort or contract and whether arising under statutory or common law including, but not limited to, any breach of contract, discrimination or consumer claims.  You further agree you shall not be entitled to join, consolidate, or include any claims belonging to or alleged or arising from, by or on behalf of any third party to an arbitration brought hereunder, or to arbitrate any claim as a class action, class representative, class member, or in a private attorney general capacity. Except for undisputed collections actions to recover fees due to us (“Collections”), any dispute, claim or controversy arising from or related to this Agreement, including the determination of the scope or applicability of this agreement to arbitrate, shall be settled by arbitration before one arbitrator who is mutually agreed upon by the parties. The arbitration shall be administered and conducted by the American Arbitration Association (the “AAA”) pursuant to the AAA’s arbitration rules for commercial disputes (the “Rules”).  In the event of any inconsistency between the Rules and the procedures set forth in this paragraph, the procedures set forth in this paragraph will control.  The arbitrator will be experienced in contract, intellectual property, and information technology transactions.  If the parties cannot agree on an arbitrator within fifteen (15) days after a demand for arbitration is filed, the arbitration venue shall select the arbitrator in accordance with the Rules of the AAA.  The arbitration shall take place in New Jersey. The arbitrator will determine the scope of discovery in the matter; however, it is the intent of the parties that any discovery proceedings be limited to the specific issues in the applicable matter, and that discovery be tailored to fulfill that intent.  Initially, the cost of the arbitration shall be split evenly between the parties; however, the party prevailing in the arbitration shall be entitled to an award of its reasonable attorneys’ fees and costs. Any award of the arbitration shall be final and binding immediately when rendered, and judgment on the award may be entered in any court of competent jurisdiction. If any portion of this arbitration agreement is found unenforceable, the unenforceable portion shall be severed and the remaining arbitration terms shall be enforced (but in no event will there be a class arbitration).

Miscellaneous

Privacy.  In addition to the privacy-related provisions in this EULA, you understand and agree that Licensor and its designated third-party solution providers may monitor your use of the Licensed Materials and the Services (i) to ensure your compliance with the terms of this EULA, and (ii) to gain a better understanding of how the Licensed Materials and the Services are used by end users.  You further agree that Licensor and its designated third-party solution providers may use and disclose the information obtained under this paragraph to improve the features and functions of the Licensed Materials and/or the Services; provided, however, such information shall be anonymized and de-identified prior to any such use(s).  Your use of the Licensed Materials and the Services is also subject to the terms of Licensor’s privacy policy, as that policy may be updated from time to time.

Fees to Licensor; Violation of User Restrictions.  The validity of your license to the Licensed Materials is dependent on the payment of all fees and your compliance with all terms of service and user restrictions.  You understand and acknowledge that your failure to pay required fees to Licensor or your violation of any user restriction shall be a material breach.

 

Notices; Electronic Notification.  You consent to receive any privacy or other notices, agreements, disclosures, reports, documents, communications, or other records (collectively, “Notices”) electronically. All Notices provided to you electronically will be deemed to be “in writing.”  You acknowledge and agree that your consent to receive Notices electronically is being provided in connection with a transaction affecting interstate commerce that is subject to the federal Electronic Signatures in Global and National Commerce Act, and that we both intend that the Act apply to the fullest extent possible to validate our ability to conduct business with you by electronic means. Any notices that are required to be sent to Licensor shall be sent by email to _______________________ with a required copy to Bradley Gross, Esq., at brad@bradleygross.com.

Cardholder Data. If Licensor stores, maintains or handles a credit or debit card account number and/or cardholder or authentication information related to a payment, Licensor shall comply with the Payment Card Industry Data Security Standard requirements and any other applicable payment card data security standards.

Independent Contractor.  Licensor is an independent contractor.  Licensor shall not be considered to be your agent, distributor or representative.  This EULA does not create a partnership, franchise, joint venture, or agency relationship, and you shall not act or represent yourself as Licensor’s agent.

No Third-Party Rights Created. Except as otherwise stated in this EULA, this EULA does not confer any right or remedies on any third parties.  You may not assign or delegate any of your rights or obligations under this EULA without the Licensor’s written consent.

Export. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Licensed Materials and the Services. You must comply fully with all relevant export laws and regulations of the United States and other applicable export and import laws to ensure that the Licensed Materials are not exported, directly or indirectly, in violation of applicable laws.

Governing Law. This EULA shall be governed under the laws of the state of New Jersey.  The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act shall not apply to this EULA or any dispute or claim arising from or related to this EULA.

Venue. The sole venue for all claims arising from or related to this EULA shall be Hudson County, New Jersey.  In any action brought to interpret or enforce the terms of this EULA, the prevailing party shall be entitled to an award of its reasonable attorneys’ fees and costs.

Limitation Period. Except as otherwise prohibited by law, any claim or action brought by you under or pursuant to this Agreement (“Claim”) must be filed within one (1) year after the date on which the initial cause of action began to accrue, otherwise the Claim is waived.

Force Majeure.  We shall not be responsible for any failure to perform due to unforeseen circumstances or to causes beyond our reasonable control, including but not limited to: acts or omissions of third parties over which we have no managerial control; acts of God such as fire, flood, earthquakes, hurricanes, tropical storms or other natural disasters; war, riot, arson, embargoes, acts of civil or military authority, or terrorism; fiber cuts; strikes, or shortages in transportation, facilities, fuel, energy, labor or materials; failure of the telecommunications or information services infrastructure; hacking, SPAM, or any failure of a computer, server or software, for so long as such event continues to delay our performance.

Amendment. This EULA may be modified by Licensor by providing no less than sixty (60) days (“Notification Date”) prior written notice to you of the anticipated modifications, and your continued use of the Licensed Materials after the Notification Date will indicate your acceptance of the modified terms.  Except as expressly stated herein, this EULA shall not be amended or modified without Licensor’s prior written consent, which consent may be withheld by Licensor for any reason whatsoever.

Counterpart and Electronic Signatures; Headings.  This EULA may be executed in two or more counterparts, each of which will be deemed an original and will constitute one and the same instrument.  This EULA may be executed by electronic signatures (including click acknowledgments or signatures in PDF or similar format).  Headings used in this EULA are for reference purposes only and are not intended, nor shall be used, as an aid in interpretation.

Survival. The provisions of this EULA intended to continue beyond termination of this EULA shall survive the expiration or termination of this agreement.

Validity. If any provision of this EULA shall be held invalid or unenforceable by any court of competent jurisdiction or as a result of future legislative action, such holding or action shall be strictly construed and shall not affect the validity or effect of any other provision of this EULA.