THIS SOFTWARE CANNOT BE DEPLOYED UNLESS YOU, THE “LICENSEE” OR “YOU”, ACCEPT THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”). PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING IT. BY INSTALLING, DOWNLOADING OR USING THE SOFTWARE, OR AUTHORIZING OTHERS TO DO SO, YOU, ON BEHALF OF YOURSELF AND THE ENTITY FOR WHOM YOU ARE DOING SO, AGREE TO THESE SOFTWARE LICENSE TERMS AND CONDITIONS AND CREATE A BINDING CONTRACT BETWEEN YOU AND GOOGIFY TECHNOLOGIES INC., LOCATED IN ONTARIO, CANADA, OR THE APPLICABLE GOOGIFY AFFILIATE (“GOOGIFY”). IF, UPON GOOGIFY END-USER LICENSE AGREEMENT REVIEW, YOU CHOOSE NOT TO ACCEPT THE TERMS AND CONDITIONS AS SET FORTH HEREIN, DO NOT DEPLOY AND USE THE SOFTWARE. PLEASE NOTE THAT BY AGREEING TO THESE TERMS AND CONDITIONS, YOU ALSO AGREE TO ENSURE THAT ANY PERSON ENTITLED TO USE THE SOFTWARE, SUCH AS YOUR EMPLOYEES OR END USERS, WILL ALSO ABIDE BY THE TERMS OF THIS LICENSE AGREEMENT, AND YOU WILL INDEMNIFY GOOGIFY AGAINST ANY BREACH OF THIS AGREEMENT BY SAID EMPLOYEES OR END USERS.
PLEASE NOTE THAT TO THE EXTENT THAT THIS SOFTWARE IS FIRST UTILIZED AND/OR CONFIGURED BY AN GOOGIFY AUTHORIZED RESELLER OR DEALER, AND NOT THE END CUSTOMER, THEN SAID AUTHORIZED DEALER/RESELLER UNDERSTANDS AND AGREES THAT IT MUST FIRST OBTAIN THE WRITTEN APPROVAL OF THE END CUSTOMER PRIOR TO DEPLOYING THE SOFTWARE. IN THE EVENT THAT SUCH PRIOR WRITTEN APPROVAL IS NOT OBTAINED BY THE RESELLER/DEALER, SAID RESELLER/DEALER HEREBY AGREES TO ASSUME ALL OF THE OBLIGATIONS AND LIABILITIES OF THE END CUSTOMER. DEPENDING ON THE PRODUCT, GOOGIFY’S SOFTWARE MAY BE PURCHASED ON A SUBSCRIPTION BASIS OR AS A PERPETUAL LICENCE WHICH MAY INCLUDE A PERIOD OF SOFTWARE ASSURANCE. THE PERIOD OF THE SUBSCRIPTION OR ASSURANCE SHALL START UPON THE ACTIVATION OF THE SOFTWARE LICENSE. UNLESS OTHERWISE AGREED TO BY GOOGIFY AND GOOGIFY’S CUSTOMER, IF THE SOFTWARE IS NOT ACTIVATED WITHIN 90 DAYS OF PURCHASE, GOOGIFY RESERVES THE RIGHT TO DEEM THE ACTIVATION TO HAVE STARTED THE LATER OF 90 DAYS AFTER THE DATE OF PURCHASE, OR IF APPLICABLE, THE PROVISION OF THE LICENSE KEY TO GOOGIFY’S CUSTOMER.
This EULA sets out the basis on which Googify makes the Products available to you (“User” or ”You”) and on which You may use them. Googify’s Privacy Policy which can be found on https://www.googify.net/privacy, and Googify Terms and Conditions which can be found on https://www.googify.net/terms-and-conditions, form an integral part of this EULA. By installing or using the Product, You agree to accept and to be bound by (1) this EULA (2) the Privacy Policy; and (3) Googify Terms and Conditions. If You do not agree with one of these, please do not install or use the Product.
LICENSING TERMS AND CONDITIONS Licensee acknowledges that it is licensing the enclosed software and documentation (“Software”) under this end user license agreement (“Agreement”) for its own internal business purposes. Accordingly, subject to full and timely receipt of payment by Googify of all fees owed to Googify in relation to the Software, GOOGIFY grants to Licensee a limited, non-exclusive, personal, non-transferable license to use the Software in accordance with the following terms and conditions: Licensee shall receive physical media or access via download for the Software, and shall be solely responsible for copying (only as permitted hereunder) the Software and responsible for the physical media on which it is copied. Licensee may access and use the Software only within the scope of the License. The scope of the License is defined by the named products and add-on features, if any, that Licensee has purchased from Googify. If you are not certain as to which products and/or add-on features you have purchased, please contact us at support@googify.net. Without Googify’s prior written consent, Licensee may not copy the Software for any purpose. Once consented by Googify, Licensee agrees to reproduce on all permitted copies all proprietary notices of Googify and its third party licensors. The use of this Software can result in the production of readable features such as documentation, reports, menus, audible prompts, and tone sequences. Such Software and features constitute either the copyrighted property of Googify and its third party licensors or the proprietary trade secret information of Googify and its third party licensors, or both, and shall be held in confidence by Licensee. Licensee understands and agrees that unauthorized disclosure of such information could cause irreparable harm and significant injury to Googify and its third party licensors; accordingly, Licensee agrees that Googify shall have the right to obtain an immediate injunction enjoining any such unauthorized disclosure.
The Software and any products embedded therein can only be used as a
whole. Without limiting the generality of other restrictions and
limitations set forth herein, it is specifically forbidden to access,
make stand-alone use or extract any components of the Software for any
use whatsoever. Googify and its third party licensors retain title to
and ownership of the Software (excluding media on which it is
recorded), and any modifications or copies thereof. Except for the
limited license rights expressly granted in these terms, Googify or
its licensors reserve all rights, including without limitation
copyright, trade secret, and all other intellectual property rights,
in and to the Software and any modifications or copies thereof. The
Software contains trade secrets of Googify, its suppliers, or
licensors, including but not limited to the specific design, structure
and logic of individual Software programs, their interactions with
other portions of the Software, both internal and external, and the
programming techniques employed. Licensee understands and agrees that
the systems on which the Software is running must at all times have
internet connection in order to allow the Software to validate the
license with Googify’s licensing server. Such remote validation is
done randomly on a daily basis. Licensee further understands and
agrees that such validation is necessary for the continued use of the
Software and that any failed validation or authentication caused by a
lack of internet connection may cause the Software to cease to
function; provided, however, that the Software will regain
functionality immediately upon restoration of the internet connection.
Licensee acknowledges that certain Software may contain programming
that:
(i) restricts, limits and/or disables access
to certain features, functionality or capacity of such Software
subject to the Licensee making payment for licenses to such features,
functionality or capacity; or
(ii) may rely on a
third party analytics service to collect and generate aggregated user
data which Googify uses to improve product performance and its
functionality. Please refer to the following website for more
information: https://policies.google.com/privacy
By accepting these terms and using this Software, Licensee consents to
the use of such a service to analyze such data. Licensee shall
not:
(i) whether through the use of disassemblers or any
other means whatsoever (including but not limited to manual,
mechanical or electrical means), alter, reverse engineer, decompile,
disassemble or attempt to generate or access the source code of the
Software;
(ii) modify or create derivative works or
enhancements, adaptations, or translations of the Software;
(iii)
sell, sublicense, lease, rent, loan, assign, convey or transfer the
Software except as expressly authorized by Googify in writing, and any
attempt to do so is void;
(iv) distribute, disclose or
allow use of the Software and its license key in any format, through
any timesharing service, service bureau, network or any other similar
means, such as hosting or cloud, except as expressly authorized by
Googify in writing
(v) utilize one license key on more than
one system.
(vi) allow any service provider or other third
party, with the exception of Googify’s authorized maintenance
providers who are acting solely on behalf of and for the benefit of
Licensee, to use or execute any software commands that facilitate the
maintenance or repair of any product;
(vii) gain access to
or the use of any Software or part thereof without authorization from
Googify;
(viii) enable or activate, or cause, permit or
allow others to enable or activate any logins reserved for use by
Googify or Googify’s authorized maintenance providers;
(ix)
publish the results of any tests run on the Software;
(x)
disclose, provide, or otherwise make available to any third party any
trade secrets contained in the Software or Documentation; (xi) use the
Software in a virtualized environment except as expressly authorized
by these Software License Terms, or
(xii) permit or
encourage any third party to do any of the foregoing.
Except as provided herein, neither this license nor any rights granted
hereunder are assignable or transferable, and any assignment or
transfer will be null and void. If Licensee authorizes any other
person to copy the Software, Licensee shall obligate that person in
writing to comply with all conditions of this agreement. Licensee
understands and agrees that if Googify reasonably believes that the
software infringes a third party’s intellectual property rights then
Googify will, at its option,
(i) procure the right for
Licensee to continue using the Software; or
ii) replace or
modify the Software to eliminate the infringement while providing
equivalent functionality.
In the event that Googify has not received full payment for the Software, then Googify shall, at its sole discretion, be entitled to terminate the End User’s access to the Software. In such case, Googify shall have no further obligation to the Licensee. Notwithstanding the forgoing, Googify reserves the right to withhold Maintenance Support Services if payment for such is not received in full, and will re-instate Maintenance and Support Services when payment is received in full.
LIMITED WARRANTY
To be eligible for the Limited Warranty,
Licensee must complete the Warranty Registration within ten (10) days
of the activation of the Software. Depending on product being
licensed, this registration is completed either during the
installation or the purchase process. For Software purchased on a
perpetual license basis which includes The first year of assurance,
Googify warrants that for a period of twelve (12) months from the date
of activation of the License (“Warranty Period”), the Software will
perform substantially in accordance with the documentation for the
Software. If the Software purchased does not include the first year of
assurance, Googify warrants that for a period of ninety (90) days from
the date of activation of the License (“Warranty Period”), the
Software will perform substantially in accordance with the
documentation for the Software. For Software licensed on a
subscription basis, Googify warrants that for the duration of the
remaining paid term of the license, the Software will perform
substantially in accordance with the documentation for the Software,
providing that in no event will any warranty period be longer than the
term purchased and paid for. This warranty shall not apply to software
which is provided without charge. Licensee acknowledges that Googify
does not warrant that the Software will be uninterrupted or error free
or meet Licensee’s requirements or that all errors in the Software
will be corrected. Googify’s sole obligation under this warranty, and
Licensee’s sole and exclusive remedy for problems with the Software or
non-conformance with this warranty shall be, at Googify’s option in
each case, either
(a) to use reasonable efforts to correct
any substantial non-conformity pursuant to Googify’s standard
Maintenance and Support policies; or
(b) replace the
non-conforming Software.
EXCEPT FOR THE EXPRESS WARRANTIES SET FOR IN THIS SECTION, GOOGIFY
EXPRESSLY DISCLAIMS WARRANTIES OF NON- INFRINGEMENT, ANY INDEMNITY
LIABILITY, UNLESS SUCH IS PROVIDED IN YOUR AGREEMENT WITH GOOGIFY, AND
EXPRESSLY DISCLAIMS ALL WARRANTIES EXPRESSED OR IMPLIED, WRITTEN OR
ORAL, ARISING BY LAW, CUSTOMER, PRIOR WRITTEN OR ORAL STATEMENTS BY
GOOGIFY OR OTHERWISE (INCLUDING WITHOUT LIMITATION THOSE OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE.)
LIMITATIONS OF LIABILITY AND REMEDIES. EXCEPT AS SET FORTH IN THE
LIMITED WARRANTY SECTION ABOVE, THE SOFTWARE AND ACCOMPANYING
DOCUMENTATION ARE PROVIDED “AS IS”. EXCEPT FOR PERSONAL INJURY CLAIMS
OR WILLFUL MISCONDUCT, AND TO THE EXTENT PERMITTED UNDER APPLICABLE
LAW, NEITHER GOOGIFY, GOOGIFY AFFILIATES, THEIR LICENSORS OR
SUPPLIERS, NOR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS
SHALL BE LIABLE FOR:
(I) ANY SPECIAL, INCIDENTAL, PUNITIVE,
EXEMPLARY, STATUTORY, INDIRECT OR CONSEQUENTIAL DAMAGES, HOWEVER
CAUSED, OR UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT GOOGIFY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS;
(II)
ANY LOSS OF PROFITS, REVENUE, OR DATA, TOLL FRAUD, OR COST OF COVER OR
PERFORMANCE;
(III) LOSSES, DAMAGES OR EXPENSES WHICH
DIRECTLY OR INDIRECTLY ARISE FROM LICENSEE’S USE OF OR INABILITY TO
USE THE SOFTWARE, EITHER SEPARATELY OR IN COMBINATIONS WITH OTHER
EQUIPMENT OR SOFTWARE, OR FOR COMMERCIAL LOSS OF ANY KIND, OR FOR
PROCUREMENT OF SUBSTITUTE GOODS; OR;
(IV) ANY DIRECT
DAMAGES ARISING UNDER THESE TERMS,IN NO EVENT SHALL GOOGIFY’S
LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNT PAID BY
LICENSEE FOR THE PURCHASE OF THE SOFTWARE GIVING RISE TO SUCH
LIABILITY
IN EXCESS OF THE FEES PAID FOR THE SOFTWARE GIVING RISE
TO
THE CLAIM IN THE SIX MONTH PERIOD IMMEDIATELY PROCEDING THE DATE THE
CLAIM AROSE REGARDLESS OF WHETHER THEY WERE ADVISED, HAD OTHER REASON
TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF AND REGARDLESS OF
WHETHER THE LIMITED REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE. THESE
LIMITATIONS OF LIABILITY IN THIS SECTION WILL APPLY TO ANY DAMAGES,
HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF
CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), OR
OTHERWISE. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE FOREGOING
LIMITATIONS OF LIABILITY ARE ESSENTIAL ELEMENTS OF THE BARGAIN AND
THAT IN THE ABSENCE OF SUCH LIMITATIONS, THE FINANCIAL AND OTHER TERMS
OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
MISCELLANEOUS
Licensee may terminate this Agreement as
authorized above or at any time by uninstalling and if applicable,
destroying, all copies of the Software and accompanying materials. No
refunds are given to Licensee for any termination by Licensee without
cause. Googify may immediately terminate Licensee’s license upon
notice for failure to comply with the terms and conditions of this
Agreement. Upon such termination, Licensee agrees to uninstall and if
applicable, destroy all copies of the Software and accompanying
documents; in the case of subscription-based licenses, Googify shall
block Licensee’s access to, or function of, the Software. Licensee
agrees that a breach of this Agreement will result in irreparable
damages to Googify.
This Agreement is the entire Agreement between Licensee and
Googify with respect to the use and licensing of the Software, and
supersedes all proposals, warranties, prior agreements or any other
communications between the parties relating to the subject matter of
this Agreement. This Agreement will be governed by and construed in
accordance with the laws of the Province of Ontario, Canada. The
United Nations Convention on Contracts for the International Sale of
Goods shall not be applicable to this Agreement. Should Licensee have
any questions concerning this Agreement, it may write to Googify Inc,
support@googify.net, or call its local dealer.
High Risk Activities. The Software is not fault-tolerant and is
not designed, manufactured or intended for any use in any environment
that requires fail-safe performance in which the failure of the
Software could lead to death, personal injury or significant property
damage (“High Risk Activities”). Such environments include, among
others, control systems in a nuclear, chemical, biological or other
hazardous facility, aircraft navigation and communications, air
traffic control, and life support systems in a healthcare facility.
You assume the risks for its use of the Software in any such High Risk
Activities.
Import/Export Control. Licensee is advised that Googify is a
Canadian Company and therefore the Software is subject to export and
import regulations administered by the Trade Controls Bureau of
Foreign Affairs, Trade and Development Canada (DFATD). The Software
also may be subject to applicable local country import/export laws and
regulations. Diversion contrary to Canadian and/ or applicable local
country law and/ or regulation is prohibited. You agree not to
directly or indirectly export, re-export, import, download, or
transmit the Software to any country, end user or for any use that is
contrary to applicable Canadian and/or local country regulation or
statute (including but not limited to those countries embargoed by the
Canadian government). Licensee represents that any governmental agency
has not issued sanctions against the End User or otherwise suspended,
revoked or denied End User's import/export privileges.
Licensee agrees not to use or transfer the Software for any use
relating to nuclear, chemical or biological weapons, or missile
technology, unless authorized by Canada and or any applicable local
government by regulation or specific written license.
Additionally,
Licensee is advised that the Software may contain encryption algorithm
or source code that may not be exported without a license issued by
the Canadian DFATD and any other country's governmental agencies,
where applicable.
FOR REGISTERED USER LICENCEES ONLY
This paragraph applies
only to those Licensees who have purchased a License to use the
Software for a specific number of registered users (“Registered User
Licensee”). The Registered User Licensee may access and use the
Software only within the scope of the Registered User License. The
scope of the Registered User License is determined by the number and
type of users listed in Googify’s licensing engine tool. The
Registered User License is based on renewable one or multi-year terms
(unless otherwise specified on the licensing engine tool).
WRITTEN AGREEMENT The terms and conditions contained in this
Agreement constitute a written agreement between You and Googify. A
printed version of this Agreement, and of any notice given in
electronic form related to this agreement, shall be admissible in
judicial or administrative proceedings to the same extent, and subject
to the same restrictions, as other business contracts, documents, or
records originally generated and maintained in printed form.
Furthermore, You hereby waive any and all defenses You may have based
on the electronic form of this Agreement and the lack of signing by
the parties hereto to execute this Agreement.
Googify's solutions are created by our talented team of
developers. We also leverage some third-party open source software and
commercial third party software (“Third Party Terms”). The open source
software license terms provided as Third Party Terms are consistent
with the license rights granted in this Agreement, and may contain
additional rights benefiting the Licensee, such as modification and
distribution of the open source software. The Third Party Terms shall
take precedence over this Agreement to the extent that this Agreement
imposes greater restrictions on Licensee than the applicable Third
Party Terms.
