EULA – September 27 2013
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Updated: September 27, 2013
THIS END USER LICENSE AGREEMENT (”EULA”) IS A LEGAL AGREEMENT BETWEEN YOU AND LIVELENZ INC. PLEASE READ IT CAREFULLY BEFORE COMPLETING THE DOWNLOAD AND INSTALLATION OF THE SOFTWARE. USING THE SOFTWARE PROVIDES A LICENSE TO USE THE SERVICES WITHIN AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY INSTALLING AND USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, DO NOT INSTALL THE SOFTWARE.
“Content” refers to text, images, audio clips, video clips, and other materials accessed through the use of the Services;
“End User(s)” at all times means customer and user of the Services mentioned herein;
“EULA” means this End User License Agreement;
“Handheld Product” refers to any type of communication device, generally, but not necessarily, of a handheld size, which is capable of running the Software;
“Intellectual Property” means the design, concepts, trade secrets and Services;
“Livelenz” refers to Livelenz Inc, its affiliates, brand names, trade names, and operating names under which it provides the Software and Services;
“Services” refers to the products and benefits provided to End Users including but not limited to the Software;
“Software” means the executable code for the software, graphics, and other content and associated documentation (if any) downloaded for use;
2. Conditions of License
Livelenz hereby grants to the End User a non-exclusive, non-transferable right, to install the Software for internal business purposes, in the number of stores as agreed during the End Users’ registration process. It is agreed and understood that this EULA contains within it certain conditions of license for use of the Services by an End User, such conditions not exhaustive, that Livelenz may from time to time, in its absolute discretion, change, update or modify. This license does not entitle the End User to receive hard-copy documentation, technical support, telephone assistance or enhancements or updates to the Software, nor is the End User permitted to customize the Software in any fashion.
3. General Use
The use of the Services provided under this agreement are intended for general internal business use by End Users and not intended for resale. End Users further acknowledge that Livelenz shall have the right, if, in its sole discretion, it is determined that the Services are not being used for such use, to terminate the Services pursuant to this agreement.
4. RSS Feeds and Data Transfers
Livelenz reserves the right to, and may, restrict the transfer of data to End Users resulting from the use of the Software. Further, Livelenz may terminate use of the Services if it is determined that use of the same contravenes this agreement or any other agreement between Livelenz and the End User. With respect to data transfers, the End User agrees that any fees, charges, rates and the like incurred by the End User from a third party such as a carrier in the use of the Services are not included in its rates and fees / liability obligation to Livelenz pursuant to this agreement, nor shall Livelenz ever be responsible for providing same.
5. Rates and License Fees
End Users must only make use of the Services and Software under this license, which, for greater certainty, requires at all times the End User must have purchased the Services and be fully paid in all ongoing respects for all obligations owed to Livelenz via this agreement, or any other agreement between it and Livelenz. Livelenz reserves the right to change these rates from time to time as it may deem necessary upon thirty (30) day advance notice to the End User.
Consent to this EULA furthers provides Livelenz a perpetual license to use aggregate data anonymouslyfor comparative purposes relative to industry and market trends. To be certain, Livelenz adheres to the privacy requirements for each operator and or franchisor and warrants any business data used anonymously will not identify the End User, the stores for which data has been aggregated, nor the brand for which it represents. Any and all aggregate data will be entirely anonymous for the sole purpose of measuring industry trends (by market) exclusively.
End Users may request in writing to be excluded from the anonymous aggregate data collection and representations. In such case, the End User is not eligible to subscribe to nor benefit from the aggregate data products offered by Livelenz at any time.
7. Copyright Policy
The Software is protected by Canadian, U.S. and international copyright laws. You may not copy, reproduce, distribute, modify or in any other manner duplicate the Software, in whole or in part, except to the extent that copying naturally results from the authorized use of the Software or results in the course of making regular back-ups. Livelenz makes claim of copyright to any and all material associated with the design of the Services, as well as any and all material within the Livelenz website. Further, Livelenz will at all times endeavor to respect the copyright claims associated with any Content accessed and / or viewed through the use of the Services.
8. Acceptable Use of Services
End Users agree not to use the Services in a manner constituting or encouraging conduct that would constitute a criminal offence or give rise to civil liability, to transmit data or content that is protected by copyright, or other intellectual property rights, or derivative works thereof. The End User further agrees not to use the Services in a manner which is contrary to law, or which would adversely impact use of the Services or the Internet by other users, including the posting or transmitting of information or software containing viruses or other disruptive components.
9. Termination of Services/upgrades
Livelenz reserves the right at all times to terminate the Services provide under license pursuant to this agreement without either notice or cause. From time to time Livelenz shall be required to suspend Services to any or all End Users for planned upgrades and maintenance, in such events Livelenz shall attempt to, but shall not be obligated to, provide reasonable advance notice to the End User, typically twenty-four (24) hours. Occasionally, Livelenz may have to suspend Services to the End User due to unforeseen circumstances beyond Livelenz’s control such as emergency redirection/replacement of Software Internet support portals, in these instances data/information point of sale collection will not occur, but will be restored as soon as possible in all instances.
10. Ownership and Proprietary Rights
Use of the Services under this EULA are provided by license only, and in no way whatsoever, can it be understood, inferred, or otherwise implied that use of the Services constitutes ownership of any kind by the End User of the underlying Software and Intellectual Property associated with the Services. For greater certainty, ownership of the underlying Software and Intellectual Property shall at all times be that of Livelenz and End Users acknowledge and agree that the Software may contain valuable trade secrets of Livelenz. In that respect End Users agree to hold any such trade secrets in confidence and further agree not to remove any proprietary notices, labels or marks from the Software. Except to the extent that Livelenz is expressly precluded by law from prohibiting these activities, End Users shall not alter, modify, adapt, create derivative works, decompile, translate, decrypt, deconstruct, disassemble or otherwise attempt to reverse engineer the Software, or permit, authorize or encourage any other party to do the same. It is hereby confirmed all End Users agree with Livelenz should there be a breach of any obligation covenant, warranty or condition by an End User, all rights granted herein to the End User shall formally cease and terminate without prior notice or legal action, in addition to all of the rights and remedies available to Livelenz, it is confirmed for further clarification, in the event of a breach of this agreement by an End User, Livelenz shall have the right to preliminary and permanent injunctive relief to the fullest extent available under the law, at a court of competent jurisdiction of Livelenz’s election, enjoining the End User from engaging in any conduct constituting a breach of this Agreement.This Agreement does not transfer any Intellectual Property or other proprietary rights relating to the Software, including without limitation patents, designs, trademarks, copyright or trade secrets.
11. Limited Warranty and Disclaimer
THE SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES OF ANY KIND. WITHOUT LIMITATION, LIVELENZ DOES NOT WARRANT THE PERFORMANCE, AVAILABILITY, UNINTERRUPTED USE OF OR OPERATION OF THE SERVICES, END USER CONNECTIONS TO THE INTERNET, EQUIPMENT, OR ANY SOFTWARE PROVIDED BY LIVELENZ OR THEIR RESPECTIVE LICENSORS, DISTIBUTORS AND PARTNERS. END USERS BEAR THE ENTIRE RISK AS TO USE OF THE SERVICES AND ANY SOFTWARE, AND THE AVAILABILITY, ACCURACY, RELIABILITY, TIMELINESS, QUALITY, COMPATIBILITY, HARDWARE REQUIREMENTS AND PERFORMANCE OF THE SERVICES, EQUIPMENT, AND ANY SOFTWARE AND THE RESULTS OBTAINED FROM USE OF THE SERVICES, EQUIPMENT AND ANY SOFTWARE. END USERS ARE COMPLETELY RESPONSIBLE ANDLIABLE FOR PASSWORD SECURITY IN RESPCT OF THE SERVICES AND SECURUITY OF WEBSERVICES PROVIDED VIA LIVELENZ FOR THEIR BENEFIT. LIVELENZ DOES NOT WARRANT THAT ANY DATA OR FILES SENT BY OR TO AN END USER (WHETHER BY DATA TRANSFERS OR OTHERWISE) WILL BE TRANSMITTED, TRANSMITTED IN UNCORRUPTED FORM, OR TRANSMITTED WITHIN A REASONABLE PERIOD OF TIME. LIVELENZ INC DOES NOT MAKE EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS (INCLUDING WARRANTIES OF TITLE OR NON-INFRINGEMENT, OR IMPLIED WARRANTIES OF MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE) WITH REGARD TO THE SERVICES, EQUIPMENT, ANY SOFTWARE OR ANY MERCHANDISE, INFORMATION OR SERVICE AVAILABLE ON THE INTERNET OR THROUGH THE SERVICES. ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, ARE EXCLUDED TO THE EXTENT PERMITTED BY APPLICABLE LAW. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM LIVELENZ OR FROM THE SERVICES CREATES ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
12. Limitation of Liability
IN NO EVENT SHALL LIVELENZ, ITS AFFILIATES, SUPPLIERS, LICENSORS, PARTNERS, AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS AND REPRESENTAITIVES, BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH (I) THE USE OR INABILITY TO USE THE SERVICES, SOFTWARE, CONTENT, MATERIALS, INFORMATION OR TRANSACTIONS PROVIDED ON OR THROUGH THE SAME, OR (II) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS, OR OTHER INACCURACIES IN OR CAUSED BY SAME, EVEN IF LIVELENZ OR ITS AUTHORIZED REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR (III) MISUSE OF END USER’S USERNAME /PASSWORDS. IN THE EVENT ANY AWARD OF DAMAGES OR ANY CAUSE IS RENDERED BY ANY COURT IT IS HEREBY AGREED THE MAXIMUM AMOUNT OF SUCH AWARD SHALL NOT EXCEED THE ACTUAL AMOUNT OF FEES PAID BY THE END USER TO LIVELENZ FOR THE SERVCIES.
An End User shall indemnify and hold harmless Livelenz and each of its affiliates, licensors, suppliers and agents (and their respective employees, officers, directors and representatives) from and against any claims, actions, proceedings, suits, liabilities, damages, settlements, penalties, fines, costs and expenses (including, without limitation, reasonable legal fees and other litigation expenses) incurred by Livelenz or each of its affiliates, licensors, suppliers or agents relating to: (a) a breach by an End User of any term, condition, representation or warranty of this Agreement or any applicable policy or guideline; (b) a End User’s use of or inability to use the Services or Software; (c) an End User`s use of any Content, including personal content, or software submitted, displayed, posted or distributed by an End User using the Services; or (d) an End User’s violation, alleged violation or misappropriation of any intellectual property right or non-proprietary right of a third party, or any term of this Agreement.
Unless otherwise stated in this agreement or any other agreement, any notice or other communication required by this EULA may be in writing or delivered electronically by EMAIL (email@example.com) to Livelenz or the End User as applicable. Notices delivered will be effective on the date of such delivery.
All trademarks™ appearing through the use of the Services or the Livelenz website are the property of their respective owners, including but not limited to brand logos, product names, trademarked marketing and other designated information.
The license terms of this Agreement may be terminated by 30 days advance notice to either party, or without notice for failure of the End User to remit as agreed any liability owed to Livelenz. In the event of termination via the forgoing sentence not partial month refund shall be remitted of any payments obligations of the End User. Sections 5, 6, 7, 10, 11, 12, 13, 15, 16, 17, 18, 19, 20, 21 and 22 shall survive termination of this agreement and any other agreement an End User has with Livelenz.
17. Suspension of Services
At the request of an End User, Livelenz may on a case-by-case basis, in its absolute discretion temporarily suspend the Services to that End User. The forgoing discretion maybe exercised in instances such as software conflict in order to allow time for such technical issues to be resolved and thereafter the Services to the End User resume. Livelenz may, but is not obligated, to utilize the forgoing discretion to suspend Services to an End User in the event of non-payment of an obligation to Livelenz for a period in excess of 60days, and may close an account in the event of non payment of an obligation to Livelenz for a period in excess of 120 days.
18. Data & Data Exporting/Retention
To use Livelenz Services Customers are required to pay via a monthly payment for the number of stores enrolled with their account. Livelenz reserves the right at any time to stop accepting debit or credit cards from one or more issuers.
Any services provided by Livelenz in addition to the Services shall be charged by Livelenz in addition to the charges for the Services and the End User shall pay by such method as Livelenz may agree or specify from time to time. Once payment has been made for the use of Services, requests for refunds are purely at the discretion of Livelenz. Livelenz may change the price for using the service any time by giving thirty days’ notice of such change on its website. All prices are stated in USA Dollars.
20. Passwords and Security
Livelenz and the End User hereby agrees to the following:
i. Passwords, Livelenz shall issue to the End User, a password for each user authorized to use End User’s Services, otherwise known as the End User’s account. The End User and of its users are responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized user, is entirely responsible for any and all activities that occur under the End User’s account. The End User agrees to immediately notify Livelenz of any unauthorized use of the End User’s account, including each password of each of its users accessing the Services by means of the End User’s account or any other breach of security known to the End User. Livelenz shall have no liability for any loss or damage arising from the End User’s failure to comply with these requirements nor for any use of such passwords prior to any such notification;
ii. Livelenz has the right to disable any password or user identification code at any time if in its opinion the End User has failed to comply with any provision of this Agreement, or if it has any reason to suspect that the security of the Customer’s account may be compromised, or if any password or user identification code has not been used for a period in excess of six (6) months;
iii. Security – Livelenz will maintain the Services at a reputable third party Internet service provider and hosting facility, where they are subject to commercially reasonable security precautions to prevent unauthorized access. The End User acknowledges that, notwithstanding such security precautions, use of or connection to the Internet can be inherently risky and provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Services and/or Customer Data. Accordingly, Livelenz cannot and does not guarantee the privacy, security or authenticity of any information so transmitted over the Internet.
This EULA, unless other elected in Livelenz’s sole discretion, is to be governed by and construed under the laws of the Province of Nova Scotia. The End User hereby irrevocably waives any objection on the grounds of venue, forum non-conveniens or any similar grounds and irrevocably consents to service of process by mail or in any other manner permitted by applicable law and consents to the jurisdiction of the courts of the Province of Nova Scotia as applicable, or such other jurisdiction as Livelenz may elect. The End User agrees that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this EULA. If any provision of this EULA is void or is declared void, the provision shall be severed from this agreement, which shall otherwise remain in full force and effect. If section 10 is void or declared void, this EULA shall automatically terminate. All questions concerning this EULA shall be directed to: Livelenz Inc., 1597 Bedford Highway, Bedford, N.S. B4A 1E8, Canada, Attention: General Counsel. This EULA shall be governed by the laws of the Province of Nova Scotia Canada.