BY DOWNLOADING, INSTALLING, COPYING, ACCESSING OR USING THIS SOFTWARE, LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT. IF LICENSEE IS ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR COMPANY OR OTHER LEGAL ENTITY, LICENSEE REPRESENTS AND WARRANTS THAT LICENSEE HAS FULL AUTHORITY TO BIND THAT PERSON, COMPANY OR LEGAL ENTITY TO THESE TERMS.
IF LICENSEE DOES NOT AGREE TO THESE TERMS: DO NOT DOWNLOAD, INSTALL, COPY, ACCESS OR USE THE SOFTWARE, AND RETURN THE SOFTWARE AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM LICENSEE ACQUIRED THEM.
In this End User License Agreement (the “Agreement”), capitalized words and terms have specific meanings that are defined throughout the body of the Agreement. This Agreement is between Licensee and/or Licensee’s Affiliates (“Licensee” or the “Customer”) and Phonecheck based on the country or Phonecheck’s sales region or the country where Licensee has purchased the license to use the Software as indicated in the purchase order.
Unless otherwise stated in the relevant purchase order, a sample of which is annexed hereto and incorporated herein by reference as Exhibit 1, Phonecheck is the only entity that is contracting with Licensee. In the event Phonecheck appoints Master Licensees in various regions around the globe, said Master Licensees are bound by and agree to cause sub-licensees to be bound by the terms of this Agreement.
In the United States and Canada all License Agreements are by and between Licensee and Phonecheck Solutions, LLC.
“Affiliates” means, with respect to a party, any corporation or other business entity Controlled by, Controlling or under common Control with that party; whereby “Control” means the direct or indirect ownership of more than 51% (fifty-one percent) of the equity interest in such corporation or business entity, or the ability in fact to control the management decisions of such corporation or business entity.
“Software” means each Phonecheck software program in object code format licensed by Phonecheck, including any modifications, as indicated in the purchase order.
“Direct Competitor” means Licensee is licensing or selling diagnostic mobile phone software that accomplishes one or more tasks addressed by Phonecheck’s Licensed Software.
1. License grant
Subject to the terms and conditions of this Agreement, Phonecheck hereby grants to Licensee and Licensee’s affiliates and subsidiaries a non-exclusive, non-transferable right to use the Software (for the purpose of this Agreement, use of the Software means to access, install, download, copy or otherwise benefit from using the Software during the license term according to the license type agreed in the purchase order) solely for Licensee’s own internal operations. The Software is owned by Phonecheck and is copyrighted. Phonecheck does not sell its copyrighted software.
Licensee’s obligations: In using the Software, or any part of it, Licensee shall:
2. Support and training
Phonecheck’s policy for providing support in relation to the Software shall be available at www.Phonecheck.com or such other website address as may be modified from time to time. As part of the Software license, Phonecheck will provide the Customer with its standard customer support services during normal business hours in accordance with Phonecheck’s Support Services Policy in effect at the time of the services at no additional cost to the Customer. Phonecheck may amend the Support Services Policy in its sole and absolute discretion from time to time. Licensee may purchase enhanced support services separately at Phonecheck’s then current rates and applicable terms.
Phonecheck shall have the right to update, to provide new functionality or otherwise change the design of any Software or to discontinue the manufacture or sale of any Software in its absolute discretion without any liability to Licensee.
The term of this License is twelve months. Unless terminated in writing at least sixty days prior to the expiration date, this License and the obligations hereunder shall automatically continue for an additional twelve months. Customer shall not be entitled to a credit for any unused licenses at the end of the term.
5. Rollover Licenses
Unless specified in writing by Phonecheck, unused licenses do not roll over after the month they are assigned. Phonecheck is a SaaS business that charges a monthly amount each month for a designated number of licenses good for that month only.
6. Intellectual Property Rights
Licensee acknowledges that all intellectual property rights in the Software and any related services belong to Phonecheck, and Customer shall have no rights in the Software other than the right to use it in accordance with the terms of this license (and/or any related third party license). “Phonecheck” is a registered trademark of Phonecheck, Solutions, LLC and/or its Affiliates. Other Phonecheck related logos, product names, and service names are also trademarks of Phonecheck Solutions, LLC. and/or its Affiliates.
7. Non-Disclosure of Confidential Information and Prohibition on Reverse Engineering
Licensee will not use, copy, extract, decompile, reverse engineer, disseminate, or in any way disclose any of Licensor’s Confidential Information to any person, firm or business, except to the extent necessary for internal evaluations in connection with negotiations, discussions and consultations with Licensor (“Purpose”). Confidential Information may not be loaded into or used in devices by Licensee unless such activity is essential to the Purpose and then only with the express written consent and license from Licensor. Confidential Information may not be used by Licensee to create Derivatives (as defined below) and may not be posted by Licensee to a public network. Furthermore, neither party may disclose the existence of any negotiations, discussions or consultations in progress between the parties to any form of public media without the prior written approval of the other party. Licensee shall treat all of Licensor’s Confidential Information with the same degree of care as Licensee accords to Licensee’s own Confidential Information, but in no case shall Licensee use less than reasonable care. Licensee shall disclose Licensor’s Confidential Information only to those of Licensee’s employees, consultants and contractors who need to know such information. Licensee certifies that each such employee, consultant and contractor will have agreed, either as a condition to employment or in order to obtain Licensor’s Confidential Information, to be bound by terms and conditions no less restrictive than those terms and conditions applicable to Licensee under this Agreement. Licensee shall immediately give notice to Licensor of any unauthorized use or disclosure of Licensor’s Confidential Information. Licensee shall assist Licensor in remedying any such unauthorized use or disclosure of Licensor’s Confidential Information.
8. Third Party Software
The Software may contain freely available and distributable and/or open source software and other copyrighted material by third parties (“Third Party Software”). The Third Party Software shall be governed by their respective license terms and conditions instead of the above license terms which are applicable to the Software.
I- “Confidential Information” means all information (whether written, oral or in electronic form) concerning the business and affairs of either party that the other party obtains or receives as a result of the discussions leading up to or the entering into or the performance of this Agreement.
II- A party receiving Confidential Information (the “Licensee”) shall maintain in strict confidence all such Confidential Information of the other party (the “Licensor”). Both Parties agree in relation to the Confidential Information belonging to the other Party that during this Agreement and for five (5) years afterwards they shall:
a. Maintain such information confidential and shall not disclose it to any third party; and
b. Use such information only in so far as is necessary to perform this Agreement.
III. The Licensee shall be responsible for any unauthorized disclosure or use of the Licensor’s Confidential Information made by any of its employees, officers, agents, representatives or sub-contractors and shall take all reasonable precautions to prevent such unauthorized disclosure or use. The above restriction as to disclosure and use shall not apply to Confidential Information
a. The RecipientLicensee can demonstrate by documentary evidence has been in its possession prior to disclosure by the other party and not subject to any other obligations as to confidentiality;
b. Is required to be disclosed by law, regulation or pursuant to an order of a competent authority, or
c. At the time of receipt by the receiving party, is in the public domain.
The Customer and users shall ensure, and be responsible for, the accuracy of any data, information, submissions, or records provided by them or their authorized users to Phonecheck. The Customer or users warrants that any data, information, submissions, and records provided to Phonecheck by it or its authorized users is to its knowledge accurate and contains no known or suspected material inaccuracy, distortion, or manipulation. The Customer or user shall have secured, and is responsible for obtaining and maintaining, the legal right to provide Phonecheck such data, information, submissions, and records that are in the Customer or user’s control, including data, information, submissions, and records it delivers to Phonecheck that are subject to an interest of a third party. The Customer or user also warrants that it has the right to convey such data, information, submissions, and records delivered to Phonecheck and is under no conflicting obligation not to do so. The Customer or user is responsible for promptly updating any change in such data, information, submissions or records. Phonecheck shall not disclose or distribute any information in a manner that identifies a customer or user. Phonecheck may (but is not obliged to) monitor all data, records, information, or submissions made through the site. Phonecheck may use and publish data, records, information, or submissions in an aggregated and/or anonymized manner, so long as it does not specifically incorporate or disclose any customer data, or customer or user identity.
11. Licensee’s Indemnification of Phonecheck
PLEASE NOTE THAT LICENSEE’S USE OF THE SOFTWARE AND RELATED SERVICES WILL RESULT IN THE ERASURE OF ALL (OR SPECIFIED) DATA AND FILES IN LICENSEE’S HARD DRIVE, COMPUTER SYSTEM, STORAGE OR MOBILE DEVICE AND THAT LICENSEE SHALL HAVE SOLE AND EXCLUSIVE RESPONSIBILITY FOR BACKING- UP LICENSEE’ DATA OR THIRD PARTY DATA UNDER LICENSEE’ CONTROL IN LICENSEE’S HARD DRIVE, SYSTEM, STORAGE OR DEVICE. Phonecheck SHALL NOT BE RESPONSIBLE FOR ANY LOSS OF DATA. Licensee hereby agrees to indemnify, defend and save harmless Phonecheck, its Affiliates and authorized resellers (“Indemnified Parties”) from and against all claims and losses in any way incurred by any Indemnified Parties in respect of any proceedings to which the Indemnified Party is made a party in connection with or arising out of (i) Licensee's WRONGFUL use of the Software or loss of data. (ii) as a result of Licensee’s actions, misuse of the Software, non-compliance with the terms herein or failure to operate the Software in accordance with the authorized Phonecheck documentation provided; or (iii) in connection with or arising out of Licensee’s use of the Software in violation of any applicable laws;
12. Indemnification of Licensee
Phonecheck warrants that any part of the Software shall not, when used by Licensee in accordance with this Agreement infringe any intellectual property rights of a third party in the country of delivery and shall indemnify Licensee against any claims brought by a third party alleging any infringement.
13. Phonecheck Warranties
Phonecheck warrants for a period of ninety (90) days from the date of delivery that each unmodified copy of Software will perform in all material respects in accordance with the accompanied documentation. Licensee agrees that such documentation may be supplied only in the English language, unless the local law requirement says otherwise. Any updates provided by Phonecheck shall be covered by this limited warranty for the remainder of the warranty period or for thirty (30) days from the date of delivery, whichever is longer. For any breach of the warranty, Licensee’s exclusive remedy, and Phonecheck’s entire liability, shall be the correction of the Software errors that cause breach of the warranty. THE WARRANTY ABOVE IS UNIQUE AND IS LIEU OF ALL OTHER WARRANTIES, TERMS OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON- INFRINGEMENT. THE SOFTWARE IS PROVIDED “AS IS” AND Phonecheck DOES NOT WARRANT OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE FAIL SAFE, UNINTERRUPTED OR FREE FROM ERRORS OR DEFECTS OR THAT THE SOFTWARE WILL PROTECT AGAINST ALL POSSIBLE THREATS.
14. Limitation of Liability
IN ANY EVENT, NEITHER Phonecheck OR ITS AUTHORIZED DISTRIBUTORS SHALL HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING ANY LOSS OF PROFITS, REVENUE OR DATA, BUSINESS INTERRUPTION, LOSS RESULTING FROM SUBSTITUTE PURCHASE OF GOODS, OR OTHER SIMILAR LOSS) ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF Phonecheck OR ITS AUTHORISED DISTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHER THEORY) OF Phonecheck, ITS AFFILIATES AND ITS AUTHORIZED
DISTRIBUTORS ARISING OUT OF THE USE OR INABILITY TO USE THE SOFTWARE SHALL NOT EXCEED THE LICENSE FEES PAID BY LICENSEE FOR THE SOFTWARE WHICH GAVE CAUSE TO THE CLAIM.
THESE LIMITATIONS AND EXCLUSIONS SHALL NOT APPLY TO ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW.
Without excusing Licensee’s payment obligations under this Agreement, either party can terminate with 30 day notice for any reason. Phonecheck may terminate Licensee’s license in the event that Licensee materially breaches the terms of this Agreement. Upon such termination, Licensee shall promptly return or destroy all copies of the Software and documentation. In the event Licensee terminates this Agreement all unused licenses shall terminate as well. If Licensee terminates the Agreement for a breach of contract, Licensee shall not be required to make any additional payments to Phonecheck. Prior payments made shall be kept by Phonecheck to the extent that Licensee received full benefit for such payments made to Phonecheck.
If any term or other provision of this Agreement is invalid, illegal or incapable or being enforced by any rule of law or public policy, all other terms and provisions of this Agreement shall still remain in full force and effect as long as its economic and legal intentions are not adversely affecting any party in any manner.
A waiver of any right under this agreement is only effective if it is in writing and such waiver should apply only to the party to whom it is addressed and for such situations.
3. Force Majeure
Phonecheck shall have no liability to Licensee under this Agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, which also include strikes, lock-outs or other industrial disputes (whether involving the workforce of Phonecheck or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. Phonecheck shall notify the Customer of such an event and its expected duration.
4. No partnership or Agency
Nothing in this Agreement is intending to create a partnership between the parties, or authorize either party to act as agent for the other. Neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (which may include the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any
right or power).
Notices in connection with this Agreement by either party will be in writing and will be sent by electronic mail, postal service, or a delivery service (such as UPS, FedEx or DHL). Licensee may not provide notice to Phonecheck of a Phonecheck breach or provide notice of termination of this Agreement by electronic mail. Notices from Phone Check to Licensee will be effective (a) in the case of notices by email, one (1) day after sending to the email address provided to Phonecheck, or (b) in the case of notices by mail or delivery service, five (5) days after sending by regular post or delivery service to the address provided to Phonecheck. Licensee hereby consents to service of process being effected on Licensee by registered mail sent to the address mentioned on the Order Form. Notices from Licensee to Phonecheck will be effective (a) in the case of notices by email, one (1) day after sending to (and receipt by Phonecheck at) the email addresses stated in the Order Form, or (b) in the case of notices by mail or delivery service, when received by Phonecheck at the address stated in the Order Form.
6. Export Control
Licensee acknowledges that the Software may be subject to applicable U.S. and international import and export restrictions, including restrictions imposed by the U.S. Export Administration Regulations as well as end-user, end-use and destination restrictions issued by the U.S. government and the governments of other nations. Licensee agree to comply with all applicable national and international laws that apply to the transport of the Software across national borders or to its use in any such jurisdiction.
7. Entire Agreement
This Agreement specifies the entire agreement between Licensee and Phonecheck relating to the subject matter hereof and it supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered herein. Nothing contained in any purchase order submitted by a party other than order dates, identity, location, quantity and price shall in any way serve to modify or add to the terms of this Agreement.
17. Governing Law and Jurisdiction
Both parties agree to the application of the laws of the State of California to govern, interpret, and enforce all of Licensee’s and Phonecheck’s respective rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply.
All rights, duties, and obligations of the parties are subject to venue in Los Angeles, California.