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Software License Agreement
IMPORTANT - READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE DOWNLOADING THIS SOFTWARE. BY DOWNLOADING OR USING THIS SOFTWARE, WHETHER YOU OBTAINED THIS SOFTWARE ON YOUR OWN BEHALF OR ANOTHER INDIVIDUAL OR ENTITY OBTAINED IT FOR YOU, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS SOFTWARE LICENSE AGREEMENT, YOU UNDERSTAND IT, AND YOU AGREE TO BE BOUND BY ITS TERMS. IF YOU HAVE OBTAINED THIS SOFTWARE LICENSE ON BEHALF OF YOUR EMPLOYER, BY DOWNLOADING OR USING THIS SOFTWARE YOU ALSO REPRESENT THAT YOU HAVE AUTHORITY TO BIND YOUR EMPLOYER TO THE TERMS AND CONDITIONS HEREIN. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AGREEMENT, DO NOT DOWNLOAD OR USE THIS SOFTWARE AND PROMPTLY EXIT THIS PAGE.
1. Definitions. In this Software License Agreement (the "Agreement"), the following definitions shall apply:
"Software" means software, firmware, programs, (and beta, trial or upgraded versions of the foregoing) and related data and services available for Download to Devices; the Software is offered by Elecite and/or the Providers (as defined herein) and is to be used in accordance with the Providers' and/or Elecite's software license and use agreements.
"Carrier" means the wireless telecommunications or Internet service provider providing you telecommunications and/or internet services for the Device or in connection with its use.
"Device" means your electronic communication or computing device.
"Download" and variants thereof refer to the transmission of Software to you through the Internet, over-the-air or otherwise.
"Elecite" means eVeek, LLC, the distributor of the Software available by Download.
"Providers" means the third-parties who own and/or are authorized to distribute the Software through Elecite.
"Website" means www.elecite.com, any Elecite proprietary website or any Provider website.
"You or you" mean the individual or organization who downloads or uses the Software and/or who intends to purchase a license or licenses to the Software (as defined herein);
3. Limited Term and Use. You may not use the Software beyond its intended scope. You may install and use only one copy of the Software on your mobile device or computer. You may not modify or alter the Software for any reason, including but not limited to modifications to increase the scope of its use or otherwise. Further, you may not use any device, process or computer program that increases, directly or indirectly, the scope of use of the Software.
In the event the Software offered in connection with this Agreement is also subject to the subscription terms set forth in this Agreement, the Software will function in material conformity with any applicable, published specifications for so long as the subscription is current and effective. In the event you fail to pay any subscription fees or expenses when and as due, Elecite reserves the right to cancel your subscription and upon cancellation, the Software automatically will cease to operate.
4. Title to Software. You acknowledge that the Software, all enhancements, corrections and modifications to the Software (regardless whether made by Elecite, you or anyone else), all copyrights, patents, trade secrets, trademarks or other intellectual property rights protecting or pertaining to any aspect of the Software (or any enhancements, corrections or modifications) and the Documentation, are and shall remain the sole and exclusive property of Elecite and, where applicable, Providers. This Agreement does not convey title or ownership to you, but instead gives you only the limited rights set forth herein.
5. Purchase. Elecite reserves the right to limit quantities of Software licenses purchased. Software licenses may be purchased only for the personal use of the individuals Downloading them or the internal business use of the organizations represented by such individuals. In no event may any Software be purchased for resale.
6. Prices; Payment Terms; Authorization. You agree to pay all one-time, annual, monthly and/or other periodic fees and applicable taxes relating to your purchase of the Software license (including but not limited to V.A.T, and any other duties and/or assessments) at the rates in effect when the charges were incurred. You agree to provide Elecite with accurate and up-to-date credit card and contact information. Failure to comply may result in the immediate termination of this Software license. You authorize Elecite to automatically bill all fees relating to your purchase of the Software license(s) to the credit card identified by you in the purchase process. Except as permitted by Elecite's return policy as posted on the Website, all fees and charges are nonrefundable. All prices are as shown on the Website and may change at any time. Your rights under this Agreement shall begin immediately upon your downloading of the Software.
7. Additional Terms for Subscription Software: Subscription Fees; Cancellation; Billing Disputes; Modification of Subscription Terms; Email Notification.
a. Subscription Fees. All subscriptions for Software will continue and renew automatically for so long as: (i) your subscription is in place and all applicable fees are timely paid, (ii) until you notify Elecite of your decision to change or otherwise cancel your subscription renewal (as indicated below), or (iii) unless earlier terminated by Elecite. Fees for subscription Software will be billed on a monthly, quarterly or annual basis as follows:
i. Monthly Subscription Fee: Your credit card will be charged at the time of purchase for your first month of use. After this initial payment, your credit card will be automatically charged on the same day of the subsequent month for the use of such Software, until you cancel your subscription.
ii. Quarterly Subscription Fee: Your credit card will be charged at the time of purchase for the entire quarterly subscription amount. After this initial payment, your credit card will be automatically charged on the same date of each subsequent quarter for the use of the Software, until you cancel your subscription.
iii. Annual Subscription Fee: Your credit card will be charged at the time of purchase for the entire annual subscription amount. You will receive an email notification thirty (30) days prior to your annual subscription expiration date that will give you the option to cancel your subscription. If no action is taken, your subscription will automatically renew for an additional one (1) year period.
b. Cancellation. Except as otherwise set forth in this Agreement, you shall immediately discontinue use of the subscription product upon termination of this Agreement (whether by you or Elecite). Your obligation to pay accrued charges and fees shall survive any termination of this Agreement.
i. Cancellation by Elecite. In the event you purchase subscription Software and the credit card provided at the time of purchase is canceled or is otherwise terminated, you must immediately provide Elecite with another valid credit card number or access to your subscription Software will cease. This Agreement will automatically terminate if you fail to comply with any of the terms of this Agreement. No notice shall be required from Elecite to effect such termination.
ii. Cancellation by You. You may cancel your subscription at any time by accessing your Elecite Member Account. Cancellation instructions are available through the "Subscription Product" link on your account. You may also send a cancellation request via email to Elecite's Customer Care department. In the event you signed up for a minimum commitment period, you will responsible for all charges for the entire minimum commitment period, regardless of your cancellation date.
iii. Billing Disputes. You agree to notify Elecite regarding any billing disputes within ninety (90) days after they have been charged. If any issues or disputes are not brought to Elecite's attention within this timeframe, you waive your right to dispute them.
c. Modification of Subscription Terms. Elecite may modify the terms of subscription Software, including but not limited to the price, content or nature of the subscription, upon notice to you by email or by publishing the changes on the Website. Elecite may provide notice to You by email or by publishing the changes on the Website. In the event that Elecite modifies the subscription terms of Software, you may terminate the Software license at any time and will be entitled to receive either: (i) continued use of the subscription Software for the remainder of the subscription period already paid or (ii) a pro-rata refund of the paid subscription amount.
d. Email Notification. To let you know what new subscriptions are available from time to time, or to notify you of a charge to your account, Elecite will send you email correspondence. You agree that as a subscriber, Elecite may send you such email to the address you provide. You will receive this email even if you have opted out of receiving other email from Elecite. If you do not want to receive this email, you may cancel the subscription at any time as provided in this Agreement.
8. Restrictions. You have no right to use, make, sublicense, modify, transfer, rent, lease, sell, display, distribute or copy originals or copies of any Software or Documentation, or to permit anyone else to do so. You may not transmit the Software over any network or between any devices. You may transfer the Software to another cellular telephone or computing device you own (e.g. a new Device) provided that you only use the Software on one cellular telephone or computing device at a time. You may not assign or transfer your rights under this Agreement or your rights to the Software without the prior written consent of Elecite. Upon any such transfer or assignment, you must transfer all copies of the Software and Documentation and assignee must provide its written agreement to all the terms of this Agreement to Elecite.
9. Proprietary Rights. You shall not remove any patent, copyright or trademark or other intellectual property notices that may appear on any part of the Software or the Documentation. You acknowledge that the Software, in its source code form, contains valuable trade secrets belonging to Elecite and, where applicable, Providers. You may not reverse engineer, unencrypt, decompile, disassemble or otherwise translate the Software or allow anyone else to do so. You authorize Elecite or its designee to audit your compliance with this Agreement, as Elecite deems reasonable. You acknowledge that money damages may not be an adequate remedy for any breach or violation of any requirement set forth in this Agreement and that any such breach or violation may leave Elecite without an adequate remedy at law. You therefore agree that, in addition to any other remedies available at law, in equity or under this Agreement, Elecite shall be entitled to obtain temporary, preliminary and permanent injunctive relief, without bond, from a court of competent jurisdiction to restrain any such breach or violation.
10. Maintenance and Support; Updates. You are not entitled to any maintenance or support for the Software or any upgrades or enhancements of such Software under this Agreement. However, any and all upgrades and enhancements made available to you shall become part of the Software and become subject to this Agreement.
12. Confidentiality. You are responsible for maintaining the confidentiality of your password and member account information. You are responsible for all activities that occur in your member account and you agree to notify Elecite immediately of any unauthorized account use. Elecite is in no way responsible for any loss that you may incur as a result of any unauthorized use of your user member account and password.
13. NO WARRANTY; NO RETURNS. ELECITE AND ITS PROVIDER(S) MAKE NO WARRANTY (EXPRESS OR IMPLIED) REGARDING THE SOFTWARE, AND INSTEAD PROVIDE THE SOFTWARE "AS IS." ELECITE AND ITS PROVIDER(S) DO NOT WARRANT THAT THE SOFTWARE IS FREE OF DEFECTS, VIRUSES, TROJAN HORSES, WORMS, TIME BOMBS, LOGIC BOMBS, TRAP DOORS, CANCELBOTS, OR ANY OTHER COMPUTER CODE, FILES OR PROGRAMS DESIGNED TO DISRUPT, INTERRUPT, DISABLE, DAMAGE, DESTROY OR LIMIT THE FUNCTIONALITY OF ANY OF YOUR SYSTEMS. YOU ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT THE SOFTWARE MAY CONTAIN DEFECTS AND/OR ERRORS OR MAY MALFUNCTION.
WITHOUT LIMITING ANY OTHER DISCLAIMER OR LIMITATION HEREIN, ELECITE IS NOT RESPONSIBLE FOR ANY INTERRUPTIONS, CANCELLATIONS, DISRUPTIONS OR INTERFERENCES WITH DOWNLOAD OR USE OF THE SOFTWARE RELATING TO ANY ACT OR OMISSION OF ANY CARRIER OR PROVIDER, OR THE PROVISION, UNAVAILABILITY, OR DELAY OF ANY CARRIER SERVICE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, ELECITE AND ITS PROVIDERS DISCLAIM ALL WARRANTIES OF ANY KIND REGARDING THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ELECITE AND ITS PROVIDERS DO NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET ANY REQUIREMENTS OR NEEDS YOU MAY HAVE, OR THAT THE SOFTWARE WILL OPERATE ERROR OR DEFECT FREE, OR IN AN UNINTERRUPTED FASHION, OR THAT ANY DEFECTS OR ERRORS IN THE SOFTWARE WILL BE CORRECTED, OR THAT THE SOFTWARE IS COMPATIBLE WITH ANY PARTICULAR PLATFORM. SOME JURISDICTIONS DO NOT ALLOW THE WAIVER OR EXCLUSION OF IMPLIED WARRANTIES SO THEY MAY NOT APPLY TO YOU. EXCEPT AS PERMITTED BY ELECITE'S RETURN POLICY AS POSTED ON THE WEBSITE, THE SOFTWARE IS NOT RETURNABLE. YOU AGREE THAT THE SOFTWARE, YOUR PURCHASE OF THE SAME AND ANY SERVICES PROVIDED IN CONJUNCTION WITH THE SOFTWARE ARE SUBJECT TO ELECITE'S RETURN POLICY, WHICH IS SUBJECT TO CHANGE WITHOUT NOTICE TO YOU.
14. Indemnifications. You shall indemnify, defend and hold harmless Elecite, the Providers, and Carriers, and their respective directors, officers, employees and agents from and against any and all loss, cost, liability or expense (including, but not limited to reasonable attorney's fees and expenses) arising out of or relating to (i) the Download, purchase, and/or use of any Software; (ii) any inaccurate, incomplete, or invalid information you provide to Elecite, Providers, and/or Carriers, and/or (iii) any breach by you of this Agreement.
15. Governmental Authorizations; Third Party Charges. You are solely responsible for obtaining any license or other authorizations applicable to your Download, purchase, and use of the Software which may be required by any federal, state, or local government agency of the United States or other jurisdiction of purchase. You, and not Elecite, are responsible for any and all wireless access, messaging, and/or Carrier charges, including without limitation any relating to Downloads or automatic updating of the Software.
16. EXCLUSION; LIMITATION OF LIABILITY. IN NO EVENT WILL ELECITE, ITS PROVIDER(S), AND OR THE CARRIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE PROGRAM, OR FOR ANY CLAIM BY ANY OTHER PARTY, EVEN IF SUCH CLAIMS INCLUDE ALLEGATIONS OF THE NEGLIGENCE OF ELECITE, ITS PROVIDERS, AND/OR THE CARRIERS, AND/OR EVEN IF ELECITE OR ITS PROVIDERS(S) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ELECITE'S AGGREGATE LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION OR OTHERWISE SHALL NOT EXCEED THE AMOUNT OF FIFTY AND NO/100 DOLLARS ($50.00). BECAUSE SOME STATES/COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. NO ACTION MAY BE BROUGHT FOR ANY BREACH OF THIS AGREEMENT OR RELATING TO THE SOFTWARE MORE THAN ONE (1) YEAR AFTER THE ACCRUAL OF SUCH CAUSE OF ACTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
17. EXPORT COMPLIANCE. THIS AGREEMENT IS EXPRESSLY MADE SUBJECT TO ANY LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS ON THE EXPORT FROM THE UNITED STATES OF AMERICA OF THE SOFTWARE OR INFORMATION ABOUT SUCH SOFTWARE WHICH MAY BE IMPOSED FROM TIME TO TIME BY THE GOVERNMENT OF THE UNITED STATES OF AMERICA. YOU SHALL NOT EXPORT THE SOFTWARE, DOCUMENTATION, OR INFORMATION ABOUT THE SOFTWARE AND/OR DOCUMENTATION WITHOUT CONSENT OF ELECITE AND COMPLIANCE WITH SUCH LAWS, REGULATIONS, ORDERS, OR OTHER RESTRICTIONS. YOU AGREE TO COMPLY WITH ALL EXPORT LAWS, REGULATION OR REQUIRMENT WHICH MAY APPLY TO YOUR DOWNLOAD AND/OR USE OF THE SOFTWARE.
18. Termination. You may terminate this Agreement at any time by destroying or returning to Elecite all copies of the Software and Documentation in your possession or under your control. Elecite may terminate this Agreement if the Elecite finds that you have violated any of the terms of this Agreement. Upon termination of this Agreement, you will immediately discontinue use of the Software, destroy or return to Elecite all copies of the Software and Documentation (in whatever form they exist), and certify in writing that all known copies, including backup copies, have been destroyed. All provisions relating to confidentiality, proprietary rights, and non-disclosure shall survive the termination of this Agreement.
19. Governing Law and General Terms. This Agreement shall be construed, interpreted and governed by the laws of the State of Texas without regard to conflicts of law provisions thereof. The exclusive forum for any disputes arising out of or relating to this Agreement shall be an appropriate federal or state court sitting in Dallas County, State of Texas, USA. This Agreement shall constitute the entire agreement between the parties hereto relating to your Download, use and/or purchase of the Software license(s). Any waiver or modification of this Agreement shall only be effective if it is in writing and signed by both parties hereto. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as to reasonably affect the intention of the parties.