LICENSE AGREEMENT FOR 123PET WINDOWS SOFTWARE
Carefully read the following terms and conditions. By installing this Software, you (the “Licensee”) are consenting to the terms of this agreement and accepting that they will be legally binding on you and any end user who may obtain this Software through you or your company. If you do not agree with the terms of this agreement, or do not wish them to be binding on you and your company, do not install the Software and promptly return the package and its contents together with proof of payment for a refund.
Throughout this document, “Software” refers to items written by DaySmart Software, Inc. (the “Licensor”), including, but not limited to, 123Pet® support software, 123Pet® documentation, and/or all other files included in the 123Pet® total software package.
1. CONSENT FOR INTERNET-BASED SERVICES. DaySmart Software, Inc. may offer Internet-based services that may be used in conjunction with the Software. DaySmart Software, Inc. may change or cancel these services at any time. If you use the on-line process to activate the Software, or if you use an Internet-based service offered by DaySmart Software, Inc., the software automatically contacts a DaySmart Software server over the Internet, and transmits certain information about your computer without separate notice to you. DaySmart Software, Inc. does not obtain personally identifiable information from your computer other than any personal information you specifically enter as part of your usage of the Internet-based service and the Software’s serial number. By using this Software, you consent to the transmission of this information. Optional features for the Software such as messaging services may be available to you for an additional subscription or usage fee. Fees for such optional features may be changed by DaySmart Software, Inc. upon 30 days prior notice. By electing to subscribe to such optional features, you agree that DaySmart Software, Inc. may terminate such optional services immediately and without notice upon your failure to pay the subscription or usage fee when it is due. Termination of the optional features will not affect your license to continue to use the Software.
2. ACCESS FROM A REMOTE LOCATION. Your Software may include certain features that allow you to access the Software on your computer from a remote location either through the Internet via DaySmart Software, Inc. “LiveAccess” or “Remote Access” or through the use of a mobile device application. The use of the Live Access service in conjunction with the Software is governed by the terms of this license. The use of any mobile device applications offered through Licensor will be governed by the terms of a separate license agreement that accompany those applications.
3. LICENSE. In consideration of payment of a license fee as part of the purchase price of this product and while in compliance with the terms and conditions of this license agreement, Licensor grants to Licensee a non-exclusive and nontransferable license to use the Software for Licensee’s internal business purposes with the specific rights to:
• use the Software on any single computer;
• use the Software on a network, provided that each computer accessing the Software through the network has a licensed Software copy or an authorized network multi-user license;
• use the Software on a second computer when the primary shop computer is not being used; and/or
• copy the Software for archival purposes only, provided the copy contains all the original Software’s proprietary notices.
Rights not expressly granted by this section are reserved to DaySmart Software, Inc.
4. RESTRICTIONS ON USE. You may not:
• permit other individuals to use the Software except under the terms listed above;
• permit concurrent multi-computer use of the Software except with a multi-user license;
• modify, translate, reverse engineer, de-compile, disassemble (except to the extent applicable laws specifically prohibit such restriction) or create derivative works based on the Software;
• make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same;
• copy the Software other than as specified above;
• assign the license rights granted above to any other person or entity except with the prior written consent of Licensor and in accordance with Licensor’s requirements as provided in the Licensor’s Transfer of Ownership form.;
• rent, lease, sublicense, grant a security interest in or otherwise transfer rights to the Software; nor
• remove any proprietary notices or labels on the Software or its output.
5. OWNERSHIP. Title, ownership rights, and intellectual property rights in the Software shall remain in DaySmart Software, Inc. The Software is protected by copyright laws and treaties. Title and related rights in the content accessed through the Software is the property of the applicable content owner and may be protected by law. This license gives you no rights to such content. The Licensee owns the disk on which the Software is recorded, while DaySmart Software Inc. retains ownership of the Software program and all copies of the Software.
6. TERM. The license is effective until terminated. You may terminate the license at any time by destroying the Software and all copies and documentation. The license will terminate automatically if you fail to comply with the limitations described in this agreement. For example, if any modifications are made to the Software by the user or the media is subjected to accident, abuse or improper use, the terms of this agreement are violated and this license shall be terminated immediately. Upon termination, you agree to destroy the Software and all copies and documentation.
7. LIMITED WARRANTY. DaySmart Software, Inc. warrants the original disks or CDs on which the Software is furnished to be free from defects for 30 days from date of delivery. This limited warranty does not apply to downloaded Software and is the only warranty made by DaySmart Software, Inc. This time limitation may not apply in some jurisdictions. No dealer, agent or employee of DaySmart Software, Inc. is authorised to make any modifications, extensions or additions to this warranty. This warranty shall not apply to hardware or Software other than the unmodified version of hardware and Software as described in the documentation. If any modifications are made to the Software by the user, or the media is subjected to accident, abuse or improper use, the terms of this agreement are violated and this warranty shall be terminated immediately. If the software does not perform substantially in accordance with the 123Pet® documentation, the entire liability of DaySmart Software, Inc. and your exclusive remedy shall be limited to either, at the Licensor’s option, replacement of the Software or refund of the amount you paid for the Software. If the Software was purchased in conjunction with hardware from DaySmart Software, Inc., any such hardware is sold with the manufacturer’s limited warranty. The warranty period and service varies by manufacturer and product. The return policy applicable to hardware purchased from DaySmart Software, Inc. is available on the following website: www.123petsoftware.co.uk/policies/. DaySmart Software, Inc. warrants that the Software is compatible only when used on hardware and hardware support items (including cables, connectors, interfaces, and adaptors) purchased from DaySmart Software Inc. or that meets the specifications provided by DaySmart Software, Inc. on its website, using the manufacturer’s drivers or direct (serial) connection while Windows is operating in the following default regional setting: “English (US)”.
8. DISCLAIMER. THE FOREGOING LIMITED WARRANTY STATES THE SOLE AND EXCLUSIVE REMEDIES FOR THE LICENSOR’S OR ITS SUPPLIERS’ BREACH OF WARRANTY. DAYSMART SOFTWARE, INC. AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, THE LICENSOR AND ITS SUPPLIERS MAKE NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO ANY OTHER MATTERS, INCLUDING NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR MERCHANTABILITY, FITNESS OR SATISFACTORY QUALITY FOR ANY PARTICULAR PURPOSE. THE TERMS OF THIS SECTION SURVIVE THE TERMINATION OF THIS AGREEMENT IRRESPECTIVE OF THE CAUSE OF THE TERMINATION, BUT DO NOT IMPLY OR CREATE ANY CONTINUED RIGHT TO USE THE SOFTWARE AFTER TERMINATION OF THE AGREEMENT.
9. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE SHALL DAYSMART SOFTWARE, INC. OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL DAYSMART SOFTWARE, INC. BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT DAYSMART SOFTWARE, INC. RECEIVED FROM YOU FOR A LICENSE TO USE THE SOFTWARE, EVEN IF DAYSMART SOFTWARE, INC. SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY OTHER PARTY. DAYSMART SOFTWARE, INC. AND ALL OTHER PARTIES INVOLVED IN THE DEVELOPMENT OF THE SOFTWARE ARE NOT RESPONSIBLE FOR ANY ERRORS, AND/OR FINANCIAL LOSSES, AND/OR PROBLEMS, AND/OR LOSS OF CLIENTS, AND/OR LOSS OF INFORMATION AND/OR DIFFICULTIES THE USERS OF THE SOFTWARE MAY EXPERIENCE AS A RESULT OF ITS USE. ALL CALCULATIONS THE SOFTWARE PERFORMS (INCLUDING, BUT NOT LIMITED TO CALCULATIONS RELATING TO TICKET/SALES INFORMATION, AND/OR TAXES, AND/OR PAYROLL, AND/OR CLIENTS, AND/OR TOTALS, AND/OR SERVICES, AND/OR PRODUCTS, AND/OR MAILINGS, AND/OR COUPONS, AND/OR ORDERS, AND/OR PICTURES, AND/OR GIFT CERTIFICATES, AND/OR REPORTS, AND/OR TAX FILINGS INCLUDING, BUT NOT LIMITED TO, W2 AND 1099 FILINGS) ARE FOR REFERENCE ONLY. ALL CALCULATIONS SHOULD BE PERFORMED AND VERIFIED BY MEANS INDEPENDENT OF THE SOFTWARE. THE LICENSEE ASSUMES FULL RESPONSIBILITY FOR THE SELECTION AND SUITABILITY OF THE SOFTWARE, FOR ITS INSTALLATION AND USE, AND FOR THE RESULTS OBTAINED FROM THE SOFTWARE PROGRAM. IMPORTANT: THE LICENSOR IS NOT RESPONSIBLE FOR ANY LOSS OF DATABASE FILES OF A LICENSEE. THE LICENSEE ALSO ASSUMES FULL RESPONSIBILITY FOR MAKING BACKUP COPIES OF ALL CLIENT DATABASE FILES DEVELOPED WITH THE AID OF THE SOFTWARE. DAYSMART SOFTWARE, INC. STRONGLY ADVISES LICENSEES TO BACK UP THEIR DATABASE FILES PERIODICALLY AS APPROPRIATE AND NOT LESS FREQUENTLY THAN ONCE A DAY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL DAYSMART SOFTWARE, INC. OR ANY OF ITS OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS BE RESPONSIBLE FOR ANY DATA TRANSFERRED TO AND FROM ANY DATA PROCESSING ENTITIES PROMOTED BY DAYSMART SOFTWARE, INC., OR ANY HARDWARE OFFERED BY OR SOLD THROUGH DAYSMART SOFTWARE, INC., FOR ITS USAGE, FOR ANY LOSS OF DATA OR INCOME OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES HOWSOEVER CAUSED.
10. PRODUCT SUPPORT. Although DaySmart Software, Inc. intends to provide advisory support to customers following purchase of the 123Pet® license and disk, the Licensor is not obligated to provide such support and customers and/or any other users of the Software are not guaranteed such support. Any sales and support offered by DaySmart Software will be provided in the English language. The support policies and practices of DaySmart Software, Inc. are subject to change without notice or obligation. The Licensee is solely responsible for applying to its activities any customer support information provided by the Licensor and for any consequences thereof.
a) LANGUAGE AND REGIONAL SETTINGS SUPPORT. For proper functionality, the Windows Operating System setting must be set to “English (US)” default regional setting only. Although DaySmart Software, Inc. has tested the Software in many other settings, it is not able to provide full support unless the Windows Operating System has been configured to the setting noted above. b) HARDWARE SUPPORT. Compatibility with hardware is warranted only with hardware sold by DaySmart Software, Inc. or that meets the hardware specifications listed on the DaySmart Software, Inc. website using the manufacturer’s drivers or direct (serial) connection while Windows is operating in the regional setting described in the “Language and Regional Settings Support” section listed above. Current hardware and hardware support items available from DaySmart Software, Inc. are listed on the hardware page of the DaySmart Software, website at www.123petsoftware.com. For any other hardware or hardware support items DaySmart Software, Inc. will endeavor to provide basic setup information; however, compatibility of the Software with that hardware is not covered by the Software Limited Warranty. In the event that Licensor provides technical support including tanning or troubleshooting through its help desk or by means of a remote access program such as ”Log Me In” or other facility, Licensor does not warrant that such support will resolve Licensee’s problem or be error free. If Licensee allows Licensor to remotely access Licensee’s system to provide such technical support, Licensee agrees to release, indemnify and hold Licensor harmless from any and all liability or damage to Licensee’s computer, system or software, including any loss of or changes to Licensee’s files or data regardless of the cause. Licensee shall be solely responsible for the accuracy and correctness of any changes to files or data made by Licensor at Licensee’s request.
11. AUTOMATED CREDIT CARD CHARGE AUTHORIZATION. If you have signed up to have your credit card charged for support services, subscription service or the extended payment plan for DaySmart software, you hereby authorize DaySmart Software, Inc., (“DaySmart”), to initiate monthly credit card debit entries for payment and to initiate, if necessary, electronic credit entries and adjustments for any monthly credit card entries in error to my account and the credit card listed above to electronically debit and/or electronically credit the same to such account for subscription services you receive from DaySmart. You agree to allow DaySmart to electronically debit your credit card for payment for DaySmart services when due. This Authorization Agreement is to remain in effect until revoked by you in writing and until DaySmart actually receives such notice. You agree that DaySmart shall be fully protected in drawing any such monthly credit card debit or credit. DaySmart reserves the right to cancel the monthly credit card payment program entirely or with respect to a particular credit card 30 days after notification. If any such monthly credit card payment does not clear, and any amounts due DaySmart are not paid in accordance with the terms of the subscription service agreement, the subscription service to my account may be subject to termination.
12. GOVERNING LAW. This license agreement, including its Limited Warranty provisions, shall be governed by the laws of the State of Michigan. All disputes arising under this agreement shall be resolved in the applicable state or federal courts of Michigan. The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
13. EXPORT CONTROLS. You may not export or re-export the Software to any country prohibited by the United States Export Administration Act, or by other similar restrictions or regulations.
14. INTEGRATION. This agreement constitutes the entire understanding of the parties and is intended as the final
expression of their agreement.
Last updated: 09/01/15