NOTICE TO USER: PLEASE READ THIS CONTRACT CAREFULLY. BY USING ALL OR ANY PORTION OF THE SOFTWARE YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING, IN PARTICULAR THE LIMITATIONS ON: USE CONTAINED IN SECTION 2. TRANSFERABILITY IN SECTION 4. WARRANTY IN SECTION 6 AND 7. AND LIABILITY IN SECTION 8. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE, DO NOT USE THIS SOFTWARE. THIS AGREEMENT APPLIES TO ANY USER LOCATED ANYWHERE IN THE UNIVERSE, AND SHALL BE HELD AS VALID IN A COURT OF LAW REGARDLESS OF USER LOCATION.
When used in this Agreement, the following terms shall have the respective meanings indicated, such meanings to be applicable to both the singular and plural forms of the terms defined: "Software" means (a) all of the contents of the files, apps, websites, or other media with which this Agreement is provided, including but not limited to (i) PromoTix, Inc., PromoStream, PromoSuite, and PromoJuice, and third party computer information or software, webware, internet applications and mobile applications power by PromoTix, Inc.; (ii) digital images, stock photographs, clip art, sounds or other artistic works ("Stock Files"); (iii) related explanatory written materials or files ("Documentation"); and (iv) fonts; and (b) upgrades, modified versions, updates, additions, and copies of the Software, if any, licensed to you by PromoTix, Inc. (collectively, "Updates").
"Use"or "Using" means to access, install, download, copy or otherwise benefit from using the functionality of the Software in accordance with the Documentation.
“Licensee” means You or Your Company, unless otherwise indicated.
"Permitted Number" means one (1) Account unless otherwise indicated under a valid license (e.g. volume license) granted by PromoTix, Inc.
"Computer" means an electronic device, including mobile phones, that accepts information in digital or similar form and manipulates it for a specific result based on a sequence of instructions.
"Licensor" means PromoTix, Inc., a U.S. Virgin Islands based Corporation.
“Account” means the software and all information within the software, including information entered by You or others, which you may only access after use of login credentials.
2. Software License
As long as you comply with the terms of this End User License Agreement (the "Agreement"), PromoTix, Inc. grants to you a non-exclusive license to Use the Software for the purposes described in the Documentation. Some third party materials included in the Software may be subject to other terms and conditions.
2.1 General Use
You may install and Use a copy of the Software on your compatible devices, for you to access your Account, up to the Permitted Number of Accounts.
2.2 Multiple Devices
You, as the primary user of the computer(s) on which the Software is installed or accessed, may also install the Software on other devices.
(i) You may not customize the Software or Applications beyond it’s intended use by way of reprogramming, copying, or adjusting code. You agree that all requests for such modifications are provided to PromoTix, Inc. for consideration but PromoTix, Inc. is under no obligation to make such customizations. (ii) Such software is licensed and distributed only by PromoTix, Inc., and (iii) You are not authorized to use any plug-in or enhancement that permits you to save modifications.
3. Intellectual Property Rights
The Software and any copies that you are authorized by PromoTix, Inc. to make are the intellectual property of and are owned by PromoTix, Inc. and its suppliers. The structure, organization and code of the Software are the valuable trade secrets and confidential information of PromoTix, Inc. The Software is protected by copyright, including without limitation by United States Copyright Law, international treaty provisions and applicable laws in the country in which it is being used. Parts of the software are also protected under US and/or Global Patents. You may not copy the Software, except as set forth in Section 2 ("Software License") by installing it to devices as originally intended to access your Account.
Any copies that you are permitted to make pursuant to this Agreement must contain the same copyright and other proprietary notices that appear on or in the Software. You also agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Software.
PromoTix, Inc. has the right to impose reasonable conditions and to request a reasonable fee before providing such information. Any information supplied by PromoTix, Inc. or obtained by you, as permitted hereunder, may only be used by you for the purpose described herein and may not be disclosed to any third party or used to create any software which is substantially similar to the expression of the Software. Requests for information should be directed to the PromoTix, Inc. Customer Support Department. Trademarks shall be used in accordance with accepted trademark practice, including identification of trademarks owners' names. Trademarks can only be used to identify printed output produced by the Software and such use of any trademark does not give you any rights of ownership in that trademark. This Agreement does not grant you any intellectual property rights in the Software.
You may not, rent, lease, sublicense or authorize all or any portion of the Software to be copied onto another users computer except as may be expressly permitted herein. You may, however, transfer all your rights to your Account and rights to Use the Software to another person or legal entity provided that: (a) you also transfer each this Agreement, the Software and all other software or hardware bundled or pre-installed with the Software, including all copies, Updates and prior versions, and all copies of font software converted into other formats, to such person or entity; (b) you retain no access to the Account, or Software, including backups and copies stored on a computer; and (c) the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions upon which you legally purchased, or were provided with, a license to the Software.
5. Multiple Environment Software / Multiple Language Software / Dual Media Software / Multiple Copies/ Bundles / Updates
If the Software supports multiple platforms or languages, if you receive the Software on multiple media, if you otherwise receive multiple copies of the Software, or if you received the Software bundled with other software, the total number of Accounts for access to the Software may not exceed the Permitted Number. You may not, rent, lease, sublicense, or lend your Account at any time. However you may transfer your Account as outlined under the terms and conditions of this Agreement. If the Software is an Update to a previous version of the Software, you must possess a valid license and maintain an Account to such previous version in order to Use the Update. You may continue to Use the previous version of the Software on your computer if an update has been released, but PromoTix, Inc. makes no guarantees older versions of the Software shall continue to work as originally intended if they have released an update. PromoTix, Inc.’s ability to support the previous version of the Software may be ended upon availability of the Update.
6. NO WARRANTY
THE SOFTWARE IS BEING DELIVERED TO YOU "AS IS" AND PROMOTIX, INC. MAKES NO WARRANTY AS TO ITS USE OR PERFORMANCE. PROMOTIX, INC. AND ITS SUPPLIERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, PROMOTIX, INC. AND ITS SUPPLIERS MAKE NO WARRANTIES CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE.
7. Pre-release Product Additional Terms
If the product you have received with this license is pre-commercial release or beta Software ("Pre-release Software"), then the following Section applies. To the extent that any provision in this Section is in conflict with any other term or condition in this Agreement, this Section shall supercede such other term(s) and condition(s) with respect to the Pre-release Software, but only to the extent necessary to resolve the conflict. You acknowledge that the Software is a pre-release version, does not represent final product from PromoTix, Inc., and may contain bugs, errors and other problems that could cause system or other failures and data loss. Consequently, the Pre-release Software is provided to you "AS-IS", and PromoTix, Inc. disclaims any warranty or liability obligations to you of any kind. WHERE LEGALLY LIABILITY CANNOT BE EXCLUDED FOR PRE-RELEASE SOFTWARE, BUT IT MAY BE LIMITED, PROMOTIX, INC.'S LIABILITY AND THAT OF ITS SUPPLIERS SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (U.S. $50) IN TOTAL. You acknowledge that PromoTix, Inc. has not promised or guaranteed to you that Pre-release Software will be announced or made available to anyone in the future, that PromoTix, Inc. has no express or implied obligation to you to announce or introduce the Pre-release Software and that PromoTix, Inc. may not introduce a product similar to or compatible with the Pre-release Software. Accordingly, you acknowledge that any research or development that you perform regarding the Pre-release Software or any product associated with the Pre-release Software is done entirely at your own risk and shall remain the intellectual property of PromoTix, Inc. During the term of this Agreement, if requested by PromoTix, Inc., you will provide feedback to PromoTix, Inc. regarding testing and use of the Pre-release Software, including error or bug reports. If you have been provided the Pre-release Software pursuant to a separate written agreement, such as the PromoTix, Inc. Agreement for Unreleased Products, your use of the Software is also governed by such agreement, otherwise all terms in this Agreement shall be final and binding. You agree that you may not and certify that you will not sublicense, lease, loan, rent, or transfer the Pre-release Software. Upon receipt of a later unreleased version of the Pre-release Software or release by PromoTix, Inc. of a publicly released commercial version of the Software, whether as a stand-alone product or as part of a larger product, you agree to return or destroy all earlier Pre-release Software received from PromoTix, Inc. and to abide by the terms of the End User License Agreement for any such later versions of the Pre-release Software. Notwithstanding anything in this Section to the contrary, if you are located outside the United States of America or Canada, you agree that you will return or destroy all unreleased versions of the Pre-release Software within thirty (30) days of the completion of your testing of the Software when such date is earlier than the date for PromoTix, Inc.'s first commercial shipment of the publicly released (commercial) Software.
8. LIMITATION OF LIABILITY
IN NO EVENT WILL PROMOTIX, INC. OR ITS SUPPLIERS BE LIABLE TO YOU FOR ANY DAMAGES, CLAIMS OR COSTS WHATSOEVER OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL DAMAGES, OR ANY LOST PROFITS OR LOST SAVINGS, EVEN IF A PROMOTIX, INC. REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, DAMAGES, CLAIMS OR COSTS OR FOR ANY CLAIM BY ANY THIRD PARTY. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. PROMOTIX, INC.’S AGGREGATE LIABILITY AND THAT OF ITS SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID FOR THE SOFTWARE, IF ANY, WITHIN THE MOST RECENT 3 MONTH SUBSCRIPTION PERIOD. PromoTix, Inc. is acting on behalf of its suppliers for the purpose of disclaiming, excluding and/or limiting obligations, warranties and liability as provided in this Agreement, but in no other respects and for no other purpose. For further information, please see the jurisdiction specific information at the end of this Agreement, if any, or contact PromoTix, Inc.'s Customer Support Department.
9. Export Rules
You agree that the Software will not be shipped, transferred or exported into any country or used in any manner prohibited by the United States Export Administration Act or any other export laws, restrictions or regulations (collectively the "Export Laws"). In addition, if the Software is identified as export controlled items under the Export Laws, you represent and warrant that you are not a citizen, or otherwise located within, an embargoed nation and that you are not otherwise prohibited under the Export Laws from receiving or using the Software or Your Account. All rights to Use the Software are granted on condition that such rights are forfeited if you fail to comply with the terms of this Agreement.
10. Governing Law
This Agreement shall be governed by and interpreted in accordance with the laws of the U.S. Virgin Islands.
11. General Provisions
12. Notice to U.S. Government End Users
The Software and Documentation are "Commercial Items," as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States. For U.S. Government End Users, PromoTix, Inc. agrees to comply with all applicable equal opportunity laws including, if appropriate, the provisions of Executive Order 11246, as amended, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (38 USC 4212), and Section 503 of the Rehabilitation Act of 1973, as amended, and the regulations at 41 CFR Parts 60-1 through 60-60, 60-250, and 60-741. The affirmative action clause and regulations contained in the preceding sentence shall be incorporated by reference in this Agreement.
13. Compliance with Licenses
If you are a business or organization, you agree that upon request from PromoTix, Inc. or PromoTix, Inc. 's authorized representative, you will within thirty (30) days fully document and certify that use of any and all PromoTix, Inc. Software at the time of the request is in conformity with your valid licenses from PromoTix, Inc..
If you have any questions regarding this Agreement or if you wish to request any information from PromoTix, Inc. please use the address and contact information included with this product to contact the PromoTix, Inc. office serving your jurisdiction.
PromoTix, PromoSuite, PromoJuice, and PromoStream are either registered trademarks or trademarks of PromoTix, Inc. in the United States and/or other countries.
14. Collection & Use of your Personal Information
15. INDEMNIFICATION AND HOLD HARMLESS
YOU AGREE BY USE OF THE SOFTWARE, TO USE THE SOFTWARE AT YOUR OWN RISK, TO INDEMNIFY, PROTECT, AND HOLD HARMLESS PROMOTIX, INC., IT'S SUBSIDIARIES, ASSIGNS, SPONSORS, PARTNERS, SHAREHOLDERS, EMPLOYEES, AND BOARD MEMBERS, FROM ANY AND ALL CLAIMS ARISING OUT OF YOUR USE OF THE SOFTWARE WHAT-SO-EVER, INCLUDING BUT NOT LIMITED TO, BUGS WITHIN THE SOFTWARE, DOWNTIME OF SERVERS, CALCULATION ERRORS, DATA LOSS, INABILITY TO ACCESS YOUR ACCOUNT, SPEED OF SERVICES, RESPONSIVENESS, EQUIPMENT FAILURE, CLERICAL ERRORS, BILLING ERRORS, DATA BREACHES, UNAUTHORIZED USE OF YOUR ACCOUNT, USER GENERATED INFORMATION DISPLAYED ON THE WEBSITE, OR OTHER.