END USER LICENSE AGREEMENT
This End User License Agreement (“Agreement”) is a binding legal contract between you (either an
individual or a legal entity) and TAO CONNECT, INC., a Florida corporation (“Licensor”). By
installing, accessing or using the software, web-based interface, content within the web-based
interface or software, any associated user manuals and other documentation provided by Licensor
(“Documentation”) and any Enhancements (as defined below) provided with this Agreement
(collectively, the “Software”), you (also referred to herein as “Licensee”) will be bound by the
terms of this Agreement. If you do not agree to the terms of this Agreement, Licensor is not willing
to license any right to use or access the Software to you. In such event, you may not install,
access, use or copy the Software, which explicitly includes (but is not limited to) viewing the
Software on an Internet web browser.
YOU UNDERSTAND AND AGREE THAT LICENSOR DOES NOT PROVIDE MEDICAL, PROFESSIONAL, PSYCHIATRIC,
ACCOUNTING, OR MENTAL HEALTH ADVICE. LICENSOR SOLELY LICENSES THE SOFTWARE FOR YOUR USE AS SET FORTH
IN THE TERMS AND CONDITIONS BELOW, AND LICENSOR IS IN NO WAY RESPONSIBLE FOR, VERIFYING, OR
GUARANTEEING THAT ANY ADVICE COMMUNICATED TO YOU BY OTHERS VIA THE SOFTWARE IS ACCURATE IN ANY
WAY.
THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN SECTION 12 (DISPUTE RESOLUTION)
BELOW GOVERN THE RESOLUTION OF DISPUTES. PLEASE READ THEM CAREFULLY. IF YOU DO NOT AGREE WITH THE
MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN THE TERMS, PLEASE DO NOT USE THE
DOCUMENTATION OR SOFTWARE.
APPLICATION ACCESS AND USE LICENSE
The Software is licensed to you, not sold to you. Except for the limited license granted in this
Agreement, Licensor and its licensors retain all right, title and interest in the Software, all copies
thereof, and all proprietary rights in the Software, including copyrights, patents, trademarks and trade
secret rights.
- GRANT OF LICENSE. This Agreement grants you
the following rights, as applicable:- License. During the term of this Agreement, Licensor
grants you a nonexclusive, nontransferable, revocable (as permitted herein) license
to access and use the Software which will be hosted by Licensor. Licensee
acknowledges and agrees that Licensor may use certain embedded technological and
software controls to enforce any applicable license restrictions. - Enhancements. Licensor reserves the right to upgrade,
enhance, change or modify the Software at any time in its sole discretion
(“Enhancements”). Any Enhancements made available to you by Licensor, if any, will
be subject to the terms of this Agreement, except to the extent that conflicting or
more restrictive provisions are agreed upon in future agreements relating to such
Enhancements. - Third Party Components. The Software and future
Enhancements may contain certain third party components (“Third Party Components”)
which are provided to you under terms and conditions which are different from this
Agreement, or which require Licensor to provide you with certain notices or
information. Your use of each Third Party Component which contains or is accompanied
by its own license agreement will be subject to the terms and conditions of such
other license agreement, and not this Agreement. Notwithstanding the foregoing, the
following terms and conditions apply to all “Third Party Components”: (i) all Third
Party Components are provided on an “AS IS” basis; (ii) Licensor will not be liable
to you or indemnify you for any claims related to the Third Party Components; and
(iii) Licensor will not be liable for any direct, indirect, incidental, special,
exemplary, punitive or consequential damages with respect to the Third Party
Components. Your sole and exclusive remedy with regard to any defect, claim, or
other dispute relating to the Third Party Components is to cease use of such
components. - Intellectual Property Ownership. The Software
contains material that is protected by United States copyright and trade secret law,
and by international treaty provisions. All rights not expressly granted to Licensee
under this Agreement are expressly reserved by Licensor and its licensors. Licensee
shall not modify, remove or destroy any proprietary markings or confidential legends
placed upon or contained within the Software, the Documentation, or any related
materials. All copyrights, patents, trade secrets, trademarks, service marks, trade
names, moral rights and other intellectual property and proprietary rights in the
Software shall remain the sole and exclusive property of Licensor or its licensors,
as applicable. - Beta Software. Licensor may designate certain
Enhancements or new releases of the Software as “Beta Software.” Such Beta Software will not be ready for use in a production
environment. At this early stage of development, operation of the Beta Software may
be unpredictable and lead to erroneous results. You acknowledge and agree that: (i)
the Beta Software is experimental and has not been fully tested; (ii) the Beta
Software may not meet your requirements; (iii) the use or operation of the Beta
Software may not be uninterrupted or error free;(iv) your use of the Beta
Software is for purposes of evaluating and testing the product and providing feedback to
Licensor; (v) you shall inform your employees, staff members, and other users regarding
the nature of the Beta Software; and (vi) you will hold all information relating to the
Beta Software and your use of the Beta Software, including any performance measurements
and other data relating to the Beta Software, in strict confidence and shall not
disclose such information to any unauthorized third parties. Your use of the Beta
Software shall be subject to all of the terms and conditions set forth herein relating
to the Software. You shall promptly report any errors, defects, or other deficiencies in
the Beta Software to Licensor. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT,
ALL BETA SOFTWARE IS PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTIES OF ANY
KIND. You herebywaive any and all claims, now known or later discovered, that you may
have against Licensor and its suppliers/licensors arising out of your use of the Beta
Software.
- License. During the term of this Agreement, Licensor
- TERM. The license will commence on the date
you first use the Software or accept this Agreement, whichever is earlier (the “Effective
Date”), and shall remain in effect for one (1) year thereafter (the “Initial Term”). Upon
expiration of the Initial Term, this Agreement shall automatically renew for successive one
(1) year terms (each a “Renewal Term”) unless either party provides notice of termination or
non-renewal no less than thirty (30) days prior to expiration ofthe then-current
term. The Initial Term and any Renewal Terms are referred to herein collectively as the “Term.” - LIMITATIONS ON LICENSE.
The license granted to you in this Agreement is restricted as follows:- Limitations on Copying and Distribution. You may not
copy or distribute the Software except to the extent that copying is necessary to
use the Software for purposes set forth herein. You may make a single copy of the
Software for backup and archival purposes. - Limitations on Reverse Engineering and Modification.
You may not reverse engineer, decompile, disassemble, modify or create works
derivative of the Software. You may not alter or modify any disabling mechanism
which may be resident in the Software. - Sublicense, Rental, and Third Party Use. You may not
assign, sublicense, rent, timeshare, loan, lease or otherwise transfer the Software,
or directly or indirectly permit any third party to use or copy the Software. - Proprietary Notices. You may not remove any
proprietary notices (e.g., copyright and trademark notices) from the Software. You
must reproduce the copyright and all other proprietary notices displayed on the
Software on each permitted back-up or archival copy. - Use in Accordance with Documentation. All use of the
Software shall be in accordance with its then current Documentation. - Compliance with Applicable Law. You shall be solely
responsible for ensuring that your use of the Software is in compliance with all
applicable foreign, federal, state and local laws, and rules and regulations. - Confidentiality. You acknowledge and
agree the Software and associated Documentation constitute valuable proprietary
and confidential information and intellectual property (collectively, the
“Proprietary Information”) of Licensor. You may not use or disclose the
Proprietary Information without Licensor’s prior written consent, except
disclosure to and subsequent uses by your need-to-know employees and
contractors, provided such employees and contractors have executed written
agreements restricting use or disclosure of Proprietary Information that are at
least as protective as those set forth in this Agreement. You agree to use at
least the same degree of care in protecting the Proprietary Information as you
use to protect your own similar information, but in no event less than
reasonable care. You acknowledge that due to the unique nature of the
Proprietary Information, Licensor will not have an adequate remedy in money or
damages in the event of any unauthorized use or disclosure of its Proprietary
Information. In addition to any other remedies that may be available in law, in
equity or otherwise, Licensor shall be entitled to obtain injunctive relief to
prevent such unauthorized use or disclosure. You shall not use any information
or data disclosed by Licensor in connection with this Agreement to contest the
validity of any Licensor intellectual property. Any such use of Licensor’s
information and data shall constitute a material, non-curable breach of this
Agreement.
- Limitations on Copying and Distribution. You may not
- LIMITATION OF WARRANTIES.
- Exclusive Remedy. The sole and exclusive remedy of
Licensee and the sole and exclusive liability of Licensor for breach of the
foregoing warranties shall be to seek repair or replacement of the non-conforming
Software or reperformance of the relevant services. In the event that such breach
cannot be remedied by repair, replacement, or reperformance, or where a repair or
replacement remedy is not applicable, Licensor shall be liable only for Licensee’s
direct damages in the aggregate up to the limit provided in this Section 4. - Modification of Software. Except as
otherwise agreed in writing by the parties, any modification to the Software by
Licensee or any other third party, or failure by Licensee to implement any
improvements or updates to the Software as supplied by Licensor shall void
Licensor’s warranty obligations and Licensor’s warranties under this Section 4,
to the extent any failure or error results from such
modification.
- Exclusive Remedy. The sole and exclusive remedy of
- FEES. The license fees
payable to Licensor for the rights hereunder are as set forth in the separate
documentation provided by Licensor describing the license fees and any other fees owed
by you, or by the person or entity paying the applicable license fees on your behalf to
enable you to utilize the Software. If these license fees are not timely paid to
Licensor, than Licensor may immediately terminate this Agreement, as well all your
access to the Software, with or without prior notice to you. - INTELLECTUAL PROPERTY INFRINGEMENT.
- Indemnification. Licensor agrees to defend and
indemnify Licensee and to hold it harmless from all damages awarded against
Licensee, and all reasonable expenses (including attorneys’ fees) incurred by
Licensee, for any claim of infringement of a third party’s U.S. patent registered as
of the Effective Date or copyright asserted against Licensee by virtue of Licensee’s
authorized use of the Software as delivered by Licensor; provided that Licensor is
given prompt notice of any such claim and right to control and direct the
investigation, preparation, defense and settlement of each such claim and further
provided that Licensee shall fully cooperate with Licensor in connection with the
foregoing. Notwithstanding the foregoing, Licensor assumes no liability or indemnity
obligation for claims of infringement of intellectual property rights arising from
(i) use of the Software in combination with non-Licensor approved third party
products, including hardware and software, (ii) modifications or maintenance of the
Software by a party other than Licensor, (iii) misuse of the Software, and (iv)
failure of Licensee to implement any improvement or updates to the Software, if the
infringement claim would have been avoided by the use of the improvement or updates.
Licensee shall indemnify and defend Licensor and hold it harmless from and against
any claims, damages, or costs, including reasonable attorneys’ fees, asserted by
third parties arising out of any of the foregoing exceptions; provided that Licensee
is given prompt notice of any such claim and right to control and direct the
investigation, preparation, defense and settlement of each such claim and further
provided that Licensor shall fully cooperate with Licensee in connection with the
foregoing. - Replacement. Should the Software as delivered by
Licensor become or, in Licensor’s opinion, be likely to become, the subject of a
claim of infringement, Licensor may, at its option and expense either (a) procure
for Licensee the right to continue to use the Software as contemplated hereunder, or
(b) replace or modify the Software or modify its use to make its use hereunder
noninfringing, without loss of material functionality. If neither option is
reasonablyavailable to Licensor, then this Agreement may be terminated at the
option of either party hereto without further obligation or liability. - Entire Liability. THE FOREGOING
PROVISIONS OF THIS SECTION 6 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF
LICENSOR AND THE EXCLUSIVE REMEDY OF LICENSEE AND ANY OTHER ENTITY, WITH RESPECT
TO ANY ALLEGED INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
- Indemnification. Licensor agrees to defend and
- TERMINATION.
- Breach of Agreement. Without prejudice to any other
rights, Licensor may terminate this Agreement immediately, without any notice to
you, if you fail to comply with any of the terms and conditions of this
Agreement. - Termination for Convenience. You may terminate this
Agreement at any time by discontinuing use of the Software, complying with your
termination obligations set forth below, providing Licensor written notice, and
returning the Software to Licensor. - Licensee’s Termination Obligations. In the event of
any expiration or termination of this Agreement for any reason, you must remove all
copies of the Software and all of its components from all of your systems, and
destroy all related media and Documentation, if any. The license granted to the
Software will automatically terminate on expiration or termination of this
Agreement.
- Breach of Agreement. Without prejudice to any other
- WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED ON AN
“AS AVAILABLE,” “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, LICENSOR AND ITS
LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, TITLE, MERCHANTABILITY, QUIET
ENJOYMENT, QUALITY OF INFORMATION, AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES
NOT WARRANT THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE
SOFTWARE WILL BE UNINTERRUPTED OR ERROR- FREE, OR THAT DEFECTS IN THE SOFTWARE WILL BE
CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR SHALL CREATE ANY
ADDITIONAL LICENSOR WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF LICENSOR’S
OBLIGATIONS HEREUNDER.
LICENSOR MAKES NO WARRANTY OF ANY KIND,
WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY HARDWARE, PRODUCTS, SOFTWARE, OR PROGRAMMING
OBTAINED BY LICENSOR FROM THIRD PARTIES (COLLECTIVELY, THE “THIRD PARTY ITEMS”). LICENSOR
EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE/NON-INFRINGEMENT, QUALITY OF INFORMATION, QUIET
ENJOYMENT, AND FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE THIRD PARTY ITEMS.
LICENSOR SHOULD CONSULT THE RESPECTIVE VENDORS/MANUFACTURERS OF THE THIRD PARTY ITEMS FOR
WARRANTY AND PERFORMANCE INFORMATION.
THE SOFTWARE MAY BE USED TO ACCESS AND
TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT LICENSOR DOES NOT
OPERATE OR CONTROL THE INTERNET AND THAT: (I) VIRUSES, WORMS, TROJAN HORSES, OR OTHER
UNDESIRABLE DATA OR SOFTWARE; OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO
OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEB SITES, COMPUTERS, OR NETWORKS. LICENSOR SHALL NOT
BE RESPONSIBLE FOR SUCH ACTIVITIES. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND
INTEGRITY OF YOUR DATA AND SYSTEMS. - LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT
PERMITTED BY LAW, IN NO EVENT SHALL LICENSOR OR ITS SUPPLIERS/LICENSORS BE LIABLE TO YOU
OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, INDIRECT
DAMAGES, OR ANY OTHER DAMAGES, WHICH SHALL INCLUDE, WITHOUT LIMITATION, DAMAGES FOR
PERSONAL INJURY, LOST PROFITS, LOST DATA AND BUSINESS INTERRUPTION, ARISING OUT OF THE
USE OR INABILITY TO USE THE SOFTWARE, EVEN IF LICENSOR HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING
NEGLIGENCE), OR OTHERWISE). IN ANY CASE, THE ENTIRE LIABILITY OF LICENSOR AND ITS
SUPPLIERS/LICENSORS UNDER THIS AGREEMENT FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER
SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) SHALL BE
LIMITED TO THE INITIAL LICENSE FEE PAID BY YOU, IF ANY, FOR THE
SOFTWARE.
Some states do not allow the exclusion of incidental or
consequential damages, or the limitation on how long an implied warranty lasts, so some of the
above may not apply to you. - COMPLIANCE AND AUDIT. If requested by Licensor, Licensee will submit an annual
certification, signed by an officer or authorized representative, specifying the number
of users and number and location of all copies of the Software in Licensee’s possession
or use. Licensor may also, once annually, upon reasonable notice and during regular
business hours, gain access to Licensee’s facilities and systems to audit compliance
with the license restrictions set forth herein. - INDEMNITY. You agree to
indemnify, defend and hold harmless Licensor and its parent and their respective
officers, directors, shareholders, agents, affiliates, and licensors from and against
any and all third party claims of any kind (along with attorneys’ fees and litigation
costs) arising out of, resulting from, or in connection with your breach of this
Agreement or your use or misuse of the Software, including any combination of the
Software with any hardware, software, or other intellectual property not provided by
Licensor. - DISPUTE RESOLUTION. This Agreement is
governed by and construed in accordance with the laws of the State of Florida, as applied to
agreements entered into and wholly performed within Florida between Florida residents. This
Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the
International Sale of Goods. If you have any concern or dispute, you agree to first try to
resolve the dispute informally by contacting us. If a dispute is not resolved within 30 days
of receipt by us, any resulting legal actions must be resolved through final and binding
arbitration, including any question of whether arbitration is required, except that you
mayassert claims in small claims court if your claims qualify. Claims related to the
Documentation or Software are permanently barred if not brought within one year of the event
resulting in the claim. JAMS will administer the arbitration in Hillborough Country, Florida,
pursuant to its Comprehensive Arbitration Rules and Procedures. There will be one arbitrator
that you and we mutually select. The arbitration will be conducted in the English language.
Judgment upon the award rendered may be entered and will be enforceable in any court of
competent jurisdiction having jurisdiction over you and us.You may only resolve disputes with us
on an individual basis, and you may not bring a claim as a plaintiff or a class member in a
class, consolidated, or representative action.Notwithstanding the foregoing, in the event of your or others’ unauthorized access to or use of
the Documentation or Software in violation of this Agreement, you agree that we are entitled to
apply for injunctive remedies (or an equivalent type of urgent legal relief) in any
jurisdiction. - GENERAL.
- This Agreement constitutes the entire understanding and agreement
between Licensor and you with respect to the transactions contemplated in this Agreement
and supersedes all prior or contemporaneous oral or written communications with respect
to the subject matter of this Agreement, all of which are merged in this Agreement. In
particular, if you are a current licensee of the Software, this Agreement shall
supersede your existing license agreement and that agreement shall be of no further
force or effect. - This Agreement shall not be modified, amended or in any way altered
except by an instrument in writing signed by authorized representatives of both parties. - In the event that any provision of this Agreement is found invalid or
unenforceable pursuant to judicial decree, the remainder of this Agreement shall remain
valid and enforceable according to its terms. Any failure by Licensor to strictly
enforce any provision of this Agreement will not operate as a waiver of that provision
or any subsequent breach of that provision. - Neither party shall assign this Agreement without the written consent
of the other party, which consent shall not be unreasonably withheld. Notwithstanding
the foregoing, either party may assign this Agreement, without the other party’s
consent, to any Affiliate or subsidiary, or in the event of a merger, acquisition, or
sale of all or substantially all of its assets. “Affiliate” means any entity that
directly, or indirectly through one or more intermediaries, controls, or is controlled
by, or is under common control with the party. - Except for Licensee’s payment obligations, neither party will be
liable for any failure or delay in performance under this Agreement which is due to any
event beyond the reasonable control of such party, including without limitation, fire,
explosion, unavailability of utilities or raw materials, unavailability of components,
labor difficulties, war, riot, act of God, export control regulation, laws, judgments or
government instructions. - The following provisions shall survive any termination or expiration
of this Agreement: Sections 3, 4, 6, 8, 9, 11, 12, 13, 14. Licensor may assign any of
its rights or obligations hereunder as it deems necessary. - IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE
EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL
PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN
SHALL REMAIN IN EFFECT.
- This Agreement constitutes the entire understanding and agreement
- U.S. GOVERNMENT RIGHTS.
The Software is commercial computer software as described in DFARS 252.227-7014(a)(1) and
FAR 2.101. If acquired by or on behalf of any the Department of Defense (“DOD”) or any
component thereof, the U.S. Government acquires this commercial computer software and/or
commercial computer software Documentation subject to the terms of this Agreement as
specified in DFARS 227.7202-3, Rights in Commercial Computer Software or Commercial Computer
Software Documentation. If acquired by or on behalf of any civilian agency, the U.S.
Government acquires this commercial computer software and/or commercial computer software
Documentation subject to the terms of this Agreement as specified in FAR 12.212, Computer
Software. - AUTHORIZATION. By downloading, installing,
accessing, or using the Software, you indicate that you have the authority to bind yourself
and your organization to the terms of this Agreement.
