BREAKFRONT
IMPORTANT:
PLEASE READ CAREFULLY BEFORE USING THE SOFTWARE.
BREAKFRONT
END USER SOFTWARE LICENSE AGREEMENT
This Equilibrium End User Software
License Agreement (the “Agreement”) is entered into by and between you (an
individual or an entity), the end user (“You”), and CompanionCabinet Software
LLC (d/b/a BreakFront) ("CCS"). This Agreement authorizes
You to use the BreakFront Equilibrium Software (in object code format only)
(the “Software”) under the terms and conditions set forth below. This is an agreement on end user license
rights and not an agreement for sale.
CCS continues to own the copy of the Software.
Read this Agreement carefully before
using the Software. By clicking on the
"I Accept" button and/or using the Software, You agree to the terms
and conditions of this Agreement. If You
do not agree to all of the terms and conditions of this Agreement, promptly
click on the "Decline" or "I Do Not Accept" button. YOU AGREE THAT YOUR USE OF THE SOFTWARE
ACKNOWLEDGES THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE
BOUND BY ITS TERMS AND CONDITIONS.
1. LICENSE GRANT. Subject to the terms and conditions of this
Agreement, CCS hereby grants to You, and You hereby accept from CCS, a
non-exclusive, non-transferable and non-sublicensable license to use the Software
and the Software documentation (collectively, the “Licensed Materials”) solely
for Your internal business use.
2. RESTRICTIONS ON USE.
2.1 Limited
Use. Your rights to the Software
are expressly limited to the use of the Software for Your internal business
purposes. The Software is hosted by CCS
on its servers and You shall have no right to a copy of the Software or to load
the Software on Your servers. You may
only access the Software via the website address provided by CCS. Unless otherwise approved by CCS in writing, You
shall permit only Your employees and authorized third party consultants to use
the Software, and You shall be exclusively responsible for the supervision,
management, operation and control of Your use of the Software.
2.2 Reverse
Engineering. You shall not
translate, reverse engineer, decompile, recompile, update or modify all or any
part of the Software or merge the Software into any other software, and You
shall prevent, and not permit, all third parties from doing any of the
foregoing.
2.3 Copying. You may not copy, reproduce or duplicate the
Software or any tangible media containing the Software, in whole or in part. You shall prevent, and not permit, any third
parties from copying, reproducing or duplicating the Software.
2.4
Exporting Files.
The Software includes an accounting export feature that permits You to export and download Your
sales orders and purchase orders (the “Export Feature”).
You are permitted to use the Export Feature to export and download Your sales orders and purchase orders to computers
and other electronic devices that You own or lease.
However, You are prohibited from sending, and You agree not to send, any sales orders or purchase orders that You
export or download using the Export Feature to any third-party without CCS’s written approval.
3. CONFIDENTIALITY. In connection with this Agreement, one party
may have access to certain confidential and proprietary information of the
other party (the “Confidential Information”).
Except as otherwise provided in this Agreement, during and after the term of this Agreement, the parties agree to hold
each other’s Confidential Information in confidence using the same
degree of care that it uses to protect its own Confidential Information (but in
no event less than a reasonable degree of care). Confidential Information shall be limited to
any written information that is clearly identified as confidential, to the Licensed
Materials, and to any information that the recipient should reasonably believe
is confidential to the discloser. A
party’s Confidential Information shall not include information that: (a) is or
becomes a part of the public domain through no act or omission of the other
party; (b) was in the other party’s lawful possession prior to the disclosure
and had not been obtained by the other party either directly or indirectly from
the disclosing party; (c) is lawfully disclosed to the other party by a
third-party without restriction on disclosure; (d) is independently developed
by the other party without the use of the disclosing party’s Confidential
Information; or (e) is required to be
disclosed pursuant to governmental or judicial process, provided that the
notice of such process is promptly provided to discloser in order that it may
have every opportunity to intercede in such process to contest such disclosure.
Notwithstanding the foregoing, the parties shall have the right to use
any ideas, information and understandings retained in the unaided memory of the
receiving party’s employees as a result of their review, evaluation, testing or
access to the information of the disclosing party. An employee’s memory is
unaided if the employee has not intentionally memorized the subject information
for the purpose of retaining and subsequently using or disclosing it.
4. INTELLECTUAL
PROPERTY.
4.1 Ownership of
Intellectual Property. As
between You and CCS, CCS owns, and will retain ownership of, all right, title
and interest in and to the Licensed Materials and derivative works made
therefrom or based thereon, including without limitation all underlying
intellectual property or other proprietary rights therein, whether in the nature
of patent, copyright, trade secret, trade dress, trademark or other legally
recognized rights, and You shall not have or acquire any right, title or
interest in or to the Licensed Materials or any derivative work thereof, except
as expressly granted herein. You shall
not at any time attack the title or any of CCS’s rights in or to the Licensed
Materials or any derivative work thereof, nor shall You attack the license
granted in this Agreement.
4.2 Indicia
of Ownership. You shall not remove from, alter, modify or deface any
copyright notice, trademark, service mark, logo, name, decal or imprint affixed
to or on the Licensed Materials including, but not limited to, those which
identify CCS as the author, owner or source of origin of the Licensed Materials. You shall not take any actions or fail to
take any actions which are likely to confuse anyone into believing that CCS is
not the author, owner and source of origin of the Licensed Materials.
5. YOUR
DATA. With respect to
all data that You input or download into the Software (the “Data”), You hereby
grant CCS a non-exclusive, royalty-free and perpetual license to use the Data
and to disclose the Data to third-parties; provided, however, CCS’s use of the
Data shall comply with all applicable laws and CCS shall not disclose the Data
to any third-party in a manner in which the third-party can identify You as the
source of the Data. You represent and warrant to CCS that You have the right to
grant the license granted pursuant to this Section 5 and that CCS’s use of the
Data will not violate the rights of any third-party.
6. LIMITED
WARRANTY. For a period of 60
days after the date that You first have the right to use the Software, CCS
warrants that the Software will operate in all material respects with its user documentation. If the Software does not operate in all
material respects with its user documentation, and provided You notify CCS in
writing within the 60-day warranty period, CCS shall make commercially
reasonable efforts to promptly repair or replace the non-conforming Software
without charge. If, after a reasonable
opportunity to cure, CCS does not repair or replace the non-conforming
Software, You shall have the right to
terminate this Agreement and receive a refund of the license fee that You paid
for the Software. CCS shall have
no liability under this Agreement for the failure of the Software to conform
with the warranty in this Section 6 if such failure is the result of (a) Your negligence or misuse of the Software or
failure to comply with the user documentation, (b) Your modification or other
change of the Software, other than changes made or authorized by CCS, (c) Your
failure to run the Software using equipment, software and an operating system
meeting the minimum requirements provided by CCS, (d) failure or breakdowns of
any third-party hardware or software or (e) the combination of the Software
with any other system, equipment, hardware or software. The remedy described in this Section 6 is Your
sole and exclusive remedy for breach of the warranty made in this Section 6. THIS LIMITED WARRANTY IS IN LIEU OF ALL
OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATION
OF LIABILITY. IN NO EVENT SHALL CCS
BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR
PUNITIVE DAMAGES, OR FOR DAMAGES FOR LOSS OF DATA, LOSS OF USE, OR LOSS OF
PROFITS, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SOFTWARE, EVEN IF
CCS HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGES. IN ADDITION, NOTWITHSTANDING
ANY OTHER PROVISION OF THIS AGREEMENT, CCS’S LIABILITIES UNDER THIS AGREEMENT,
WHETHER UNDER CONTRACT LAW, TORT LAW, WARRANTY OR OTHERWISE, SHALL BE LIMITED
TO DIRECT DAMAGES NOT TO EXCEED THE AMOUNT OF THE LICENSE FEE PAID BY YOU FOR
THE SOFTWARE.
8. TERM
AND TERMINATION.
8.1 Term. This Agreement shall commence on the date
hereof and continue for the initial term set forth in the quote document signed by You and CCS.
After the initial term, this Agreement shall automatically
renew for successive 12-month terms unless either party provides the other
party with written notice of non-renewal at least 30 days prior to the end of
the then-current term.
8.2 Termination. This Agreement may be terminated as follows:
(a) If You fail to make any payment due
to CCS, then CCS may immediately terminate this Agreement with or without
notice.
(b) If a party materially breaches this
Agreement and fails to cure the breach within 30 days after receiving written
notice describing the breach from the non-breaching party, then the
non-breaching party may terminate this Agreement.
(c) In the event a party hereto (i)
becomes or is declared insolvent or bankrupt, whether voluntarily or
involuntarily, (ii) is the subject of any proceedings relating to its
liquidation, insolvency or for the appointment of a receiver or similar officer
for it, (iii) makes an assignment for the benefit of all or substantially all
of its creditors, or (iv) enters into an agreement for the composition,
extension, or readjustment of all or substantially all of its obligations, then
the other party hereto may, by giving written notice thereof to such insolvent
or bankrupt party, terminate this Agreement as of a date specified in such
notice of termination.
(d) CCS may immediately terminate this
Agreement if You use the Software in any manner not permitted under the terms
of this Agreement, unless You have received prior written consent to do so from
CCS.
(e) If You cease to subscribe to and pay
for CCS’s maintenance and support services for the Software, then CCS may
terminate this Agreement.
8.3 Obligations
Upon Termination. Upon the
termination of this Agreement, You shall immediately cease using the Software. If CCS has the right to terminate this
Agreement, then it may immediately terminate Your license and access to the
Software via electronic means.
9. INFRINGEMENT.
9.1 Infringement
by Third-Parties. You shall
promptly notify CCS in the event that You discover any apparent infringement, misappropriation
or other violation of CCS’s rights in the Software. Any and all action taken to enforce CCS’s
legal rights against infringement, misappropriation or other violation of CCS’s
rights shall be within CCS’s sole discretion.
You agree to provide all reasonable assistance to CCS in investigating
and pursuing any such action against any such infringement, misappropriation or
other violation of CCS’s rights in the Software.
9.2 Third-Party
Infringement Claims. If a third-party claims that Your use
of the Software infringes any
10. FEES. You shall pay CCS the license,
maintenance, services and other fees set forth in the proposal or other
document signed by You and CCS (the “Fee Proposal”). If You and CCS have not signed a Fee
Proposal, or if the term of Your Fee Proposal has expired, then You shall pay
CCS its then-existing license, maintenance and services fees.
11. MISCELLANEOUS.
11.1 Notices. Any notices required or permitted to be given
to CCS under this Agreement shall be emailed to: Legal@BreakFront.com.
11.2 Governing
Law. This Agreement shall be
governed, interpreted and enforced under the laws, other than choice of laws
rules, of the State of
11.3 Jurisdiction and Venue. Unless both parties otherwise agree in writing, the
exclusive venue and jurisdiction for any controversy, dispute or claim arising out of or
relating to this Agreement shall be the United States District Court for the Western
District of North Carolina or in another court of competent jurisdiction located within the
County of Mecklenburg, State of North Carolina, USA. Each party submits to the exclusive
venue and jurisdiction of such courts, agrees that it will not bring any suit or judicial
proceeding in any forum other than such courts, and agrees not to assert any objection
that it may have to the venue or jurisdiction of such courts.
11.4 Entire
Agreement. This Agreement, including the Fee Proposal, if any,
constitutes the entire agreement between the parties and supersedes any and all
prior agreements, negotiations, proposals and representations, oral or written,
relating to the subject matter herein. No provision of this Agreement may be
changed, modified or amended except by an agreement in writing, signed by the
parties hereto. This Agreement shall be
binding on the parties hereto and their respective heirs, successors and
permitted assigns.
11.5 Waiver. The waiver of a breach hereunder may be
effected only by a writing signed by the waiving party and shall not constitute
or be held to be a waiver of any other or subsequent breach, or to affect in
any way the effectiveness of such provision or to affect the right of either
party to terminate this Agreement.
11.6 Captions. The captions used in this Agreement have
been inserted only for reference purposes.
The captions and order of such captions shall not be deemed to govern,
limit, modify, or in any manner affect the scope, meaning, or intent of any of
the provisions and/or terms of this Agreement, nor shall any captions be given
any legal effect.
11.7 Relationship. This Agreement does not create a
partnership, joint venture or agency relationship between the parties. Neither You nor CCS shall have any right,
power, or authority to act as a legal representative of the other, and neither
party shall have any power to obligate or bind the other, or to make any representations,
express or implied, on behalf of or in the name of the other in any manner for
any purpose whatsoever.
11.8 Equitable
Relief. Each party acknowledges
and agrees that irreparable harm may result from its
breach of this Agreement, that there may not be an adequate remedy at law for
such breach, and that the non-breaching party, in addition to all other
remedies, shall be entitled to seek equitable relief for such breach, including
injunctions and specific performance, in any court of competent jurisdiction.
11.9 Publicity. CCS may issue a press release announcing
that You have licensed the Software.
CCS may also list You as a CCS customer on the CCS website and in CCS
presentations and marketing materials.
End
of Agreement