Software End User License Agreement
This End User License Agreement (this “EULA”) is a binding agreement between Toptech Systems, Inc., a Florida corporation with offices located at 1124 Florida Central Pkwy, Longwood, FL 32750 (“Toptech”) and the person (“User”) identified as the user of Load2Day (the “Software”) during registration.
TOPTECH PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS EULA AND IN THE MASTER AGREEMENT (DEFINED BELOW), AND ON THE CONDITION THAT USER ACCEPTS AND COMPLIES WITH ALL SUCH TERMS AND CONDITIONS. BY CHECKING THE “ACCEPT” BOX ON THE REGISTRATION FORM, YOU ACCEPT THIS EULA AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS. IF YOU DOES NOT AGREE TO THE TERMS OF THIS EULA, TOPTECH WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO YOU AND YOU MUST NOT USE THE SOFTWARE.
1. Definitions. For purposes of this EULA, the following terms have the following meanings:
“Customer” means the Person(s) who is a party to the Master Agreement with Toptech and has designated User as an “Authorized User” under the terms of such Master Agreement.
“Documentation” means the manual that Toptech makes available to User, if any, in any form or medium which describes the functionality, components, features or requirements of the Software, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Master Agreement” means the Software as a Service Agreement (Load2Day) between Toptech and Customer.
“Person” means any individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity.
“Territory” means any country in the European Union, the United Kingdom, the United States and Canada. “Third Party” means any Person other than User, Toptech or the Customer.
2. License Grant and Scope.
Subject to and conditioned upon User’s strict compliance with all terms and conditions set forth in this EULA, Toptech hereby grants to User a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely in the Territory, the Software and Documentation subject to all conditions and limitations set forth elsewhere in this EULA and the Master Agreement. This license grants User the right to use and run the Software in the United States and the countries in the European Union in accordance with this EULA, the Documentation and the Master Agreement.
3. Use Restrictions.
User shall not directly or indirectly:
a. use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;
b. copy, modify or create derivative works or improvements of the Software or Documentation;
c. rent, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Software or Documentation to any Person, including on or in connection with the internet or any time-sharing, software as a service, cloud or other technology or service;
d. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Software or Documentation, in whole or in part;
e. bypass or breach any security device or protection used by the Software or Documentation or access or use the Software or Documentation other than through the use of User’s own then valid access credentials;
f. input, upload, transmit or otherwise provide to or through the Software or Documentation, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code;
g. damage, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services, Toptech Systems or Toptech’s provision of services to any third party;
h. remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Software or Documentation, including any copy thereof;
i. access or use the Software or Documentation in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law, including without limitation access or use of the Services in any way or manner or from a location that may constitute a violation of any applicable import/export laws, data privacy laws, or any other Laws applicable to the use of any Software or Documentation or this EULA;
j. access or use the Software or Documentation for purposes of competitive analysis of the Software or Documentation, the development, provision or use of a competing software service or product or any other purpose that is to the Toptech’s detriment or commercial disadvantage; or
k. otherwise access or use the Software or Documentation beyond the scope of the authorization granted under Section 2.
4. Responsibility for Use of Software.
User is responsible and liable for all uses of the Software and Documentation, directly or indirectly, including without limitation all documents and information uploaded to the Software by User. Specifically, and without limiting the generality of the foregoing, User is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation or by any other Person to whom User may provide access to or use of the Software or Documentation, whether such access or use is permitted by or in violation of this EULA.
5. Disclaimer of Warranties.
ALL SOFTWARE AND DOCUMENTATION IS PROVIDED “AS IS” AND TOPTECH HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND TOPTECH SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, TOPTECH MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE OR DOCUMENTATION WILL MEET USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. If User is also a Customer, the foregoing disclaimer of warranties is not intended to disclaim express warranties, if any, set forth in the Master Agreement.
6. User Indemnification.
User will indemnify, defend and hold harmless Toptech and its subcontractors, affiliates and parent companies from and against any losses to the extent such losses arise out of, involve or relate to any: (a) use by User of the Software or Documentation, (b) materials or information provided to Toptech by or on behalf of User, (c) any breach of this EULA by or on behalf of User, or (d) negligence, recklessness or willful misconduct by User, or any Third Party on behalf of User.
7. Collection and Use of Information.
a. User acknowledges that Toptech may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used.
b. User agrees that the Toptech may use such information for any purpose related to any use of the Software by User or on User’s equipment, including but not limited to:
i. improving the performance of the Software or developing updates; or
ii. verifying User’s compliance with the terms of this EULA and enforcing the Toptech’s rights, including all Intellectual Property Rights in and to the Software.
8. Intellectual Property Rights.
User acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to User. User does not acquire any ownership interest in the Software or Documentation under this EULA, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this EULA. Toptech reserves and shall retain its entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the User in this EULA. User shall safeguard all Software from infringement, misappropriation, theft, misuse, or unauthorized access.
9. Term and Termination.
a. This EULA shall remain in effect for the term set forth in the Master Agreement or until earlier terminated as set forth herein (the “Term”).
b. Toptech may terminate this EULA, effective immediately and without notice, for any reason or no reason.
c. Upon expiration or earlier termination of this EULA, the license granted hereunder shall also terminate, and User shall cease using the Software and Documentation.
10. Limitation of Liability.
a. EXCLUSION OF DAMAGES. IN NO EVENT WILL TOPTECH OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, SUPPLIERS, OR AFFILIATES BE LIABLE UNDER OR IN CONNECTION WITH THIS EULA OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SOFTWARE, (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF TOPTECH AND ITS AFFILIATES UNDER OR IN CONNECTION WITH THIS EULA OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED $1,000 USD. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
c. Exceptions. The foregoing limitations of liability do not apply to Toptech’s gross negligence or willful misconduct.
a. This EULA is governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action or proceeding arising out of or related to this EULA or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Delaware, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
b. Toptech will not be responsible or liable to User, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or User equipment, loss and destruction of property, or any other circumstances or causes beyond Toptech’s reasonable control.
c. This EULA, together with the Master Agreement, constitutes the sole and entire agreement between User and Toptech with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
d. User shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this EULA, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Toptech’s prior written consent, which consent Toptech may give or withhold in its sole discretion.
e. This EULA may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this EULA, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this EULA shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
f. If any term or provision of this EULA is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this EULA or invalidate or render unenforceable such term or provision in any other jurisdiction.