END USER LICENSE AGREEMENT

This End User License Agreement (this “EULA”) is made and entered into by and between you (“User”) and Saltworks Solutions, Inc, (“Saltworks” or “Licensor”) a Georgia limited liability company with offices at 114 Townpark Drive, Suite 400, Kennesaw, Georgia 30144, by which Saltworks grants User access to Saltworks’ computer software solutions and any additional products or services provided in connection therewith including updates, upgrades, or newer versions according to the terms and conditions set forth herein.

 

BY CLICKING “I AGREE,” USER IS AGREEING TO THIS EULA. IF USER DOES NOT AGREE TO THE TERMS OF THIS EULA, USER IS NOT PERMITTED TO ACCESS OR OTHERWISE USE THE LICENSED PRODUCT. BY ACCESSING, OR OTHERWISE USING THE LICENSED PRODUCT, INCLUDING ANY UPDATES, UPGRADES, OR NEWER VERSIONS, USER AGREES TO BE BOUND BY THE TERMS OF THIS EULA, REGARDLESS OF WHETHER USER SELECTS THE “I ACCEPT” OR “YES” BUTTON.

1. Definitions. Capitalized terms used in this EULA are defined in this Section or otherwise throughout the body of this EULA.

1.1 “Copy” or “Copies” shall mean the Licensed Product (including the components thereof), any Updates pertaining thereto, and any reproductions of the Licensed Product or Updates thereto.

1.2 “Designated Machine(s)” shall mean the computer(s) or server(s), or any computer that replaces or succeeds such computer, either permanently or temporarily, on which User may use the Licensed Software.

1.3 “EULA” shall mean this End User License Agreement.

1.4 “Intellectual Property Rights” shall mean all proprietary information, patents, patent applications, trademarks, trade names, service marks, certification marks, collective marks, designs, processes, inventions, licenses, copyrights, know-how and trade secrets relating to the origin, design, manufacture, programming, operations, function, configuration, or service of the Licensed Product.

1.5 “License Fees” shall mean those amounts specified and set forth in the Purchasing Agreement and made a part of this EULA.

1.6 “Licensed Documentation” shall mean all technical, repair, marketing and user documentation for the Licensed Software and any succeeding changes thereto, including, without limitation, all specifications as set forth in Licensor’s product manuals; installation, maintenance, operating and customer manuals, instructions and diagnostics; system administrative materials; configuration guides; marketing and sales brochures and literature; and product guides. Licensed Documentation shall include, if applicable, documentation provided to Licensor by its suppliers or licensors to the extent Licensor is authorized by them to provide such material under the terms of this EULA. Documentation may be electronically created and may exist in electronic form

1.7 “Licensed Product” shall mean collectively the Licensed Software and Licensed Documentation.

1.8 “Licensed Software” shall mean Licensor’s software for which User is obtaining this license to use and any Updates thereto. In this EULA, Licensed Software shall refer to the software in Object Code only.

1.9 “Object Code” shall mean machine readable computer programs.

1.10 “Operators” shall mean the employees or agents of User who are permitted access to or use of the Licensed Product.

1.11 “Purchasing Agreement” means the invoice or statement of work between Licensor and User under which User obtained a license to the commercial edition of the Licensed Software.

1.12 “Source Code” shall mean the plain text, readable computer programming code, associated procedural code, and supporting documentation for the Licensed Software and any Updates pertaining thereto.

1.13 “Third Party Software” shall mean software and related materials that are furnished by a third party and may be subject to a separate license agreement between the licensor of that software and the User.

1.14 “Updates” shall mean include updates to the Licensed Software as well as subsequent releases, enhancements, upgrades, bug fixes, patches, error corrections, and/or new features. Updates may also modify or delete in their entirety certain features and functionality.

2. Grant of License.

2.1. Grant.

(a) Licensor grants to User and User accepts a nonexclusive and nontransferable license to download, install, execute, and use the Licensed Product in the United States in the manner described in this EULA. Licensor reserves all rights in the Licensed Product.

(b) User must use the Licensed Product (a) only in a manner and for the purposes for which the Licensed Product was designed and (b) only for User’s internal purposes.

(c) All uses not expressly permitted under this Section 2.1 are prohibited. By way of example and without limitation, User may not: (a) disassemble, decompile, reverse engineer, or modify the Licensed Software; (b) examine the Licensed Software with debugging, memory inspection, or disk inspection tools; (c) rent or sublicense the Licensed Product; (d) permit use of the License Product by a person who is not an Operator; (e) transmit an electronic copy of the Licensed Software by any means; or (f) use the Licensed Software in the operation of a service bureau or time sharing arrangement or to provide outsourcing services.

2.2. License Restrictions. All uses not expressly permitted under this Section 2.2 are prohibited, including:

(a) copying the Licensed Software, except as expressly permitted by this EULA;

(b) permitting use of the License Product by a person who is not an Operator;

(c) using the Licensed Software in the operation of a service bureau or time sharing arrangement or to provide outsourcing services;

(d) modifying, translating, adapting, or otherwise creating derivative works or improvements, whether or not patentable, of the Licensed Software;

(e) reverse engineering, disassembling, decompiling, decoding, or otherwise attempting to derive or gain access to the Source Code of the Licensed Software or any part thereof;

(f) removing, deleting, altering, or obscuring any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;

(g) renting, leasing, lending, selling, sublicensing, assigning, distributing, publishing, transferring, transmitting, or otherwise making available the Licensed Software, or any features or functionality of the Licensed Software, to any third party for any reason, including by making the Licensed Software available on a network where it is capable of being accessed by more than one device at any time; or

(h) removing, disabling, circumventing, or otherwise creating or implementing any workaround to any copy protection, rights management, or security features in or protecting the Licensed Software.

2.3. Ownership. Licensor owns the media on which the Licensed Software is originally or subsequently recorded; provided, however, subject to the terms and conditions of this EULA, User may store and use the Licensed Software in electronic form on the Designated Machine for use solely by User and User’s Operators. As between Licensor and User, Licensor retains all title to the Licensed Software (both as recorded on the original media and on any subsequent media), the Licensed Documentation, and any Copies thereof in any form. This EULA is a license to use, and not a contract of sale for, the Licensed Product. All Intellectual Property Rights in and to the Licensed Product are retained by Licensor or the licensor of Third Party Software, as the case may be. User shall not use either the name of Licensor, the licensor of Third Party Software, or the name of the Licensed Product or Third Party Software licensed under this EULA for any commercial purpose or in any advertising, promotional or public statement without the prior, written consent of Licensor or the licensor of Third Party Software, which consent shall be at Licensor’s or the licensor of Third Party Software’s sole discretion. User agrees not to remove, deface, or destroy any copyright, patent notice, trademark, service mark, other proprietary markings, or confidential legends placed on or within the Licensed Software, the Licensed Documentation, and any Copies thereof in any form.

2.4. Software Provided “As Is”. User acknowledges and agrees that the Licensed Product is being provided “as is” and User accepts it on that basis.

3. Updates. Saltworks may from time to time in its sole discretion develop and provide Updates to the Licensed Software.

3.1 Based on your Designated Machines’ settings, when your Designated Machines are connected to the internet either

(a) the Licensed Software will automatically download and install all available Updates; or

(b) you may receive notice of or be prompted to download and install available Updates.

3.2 You shall promptly download and install all Updates and acknowledge and agree that the Licensed Software or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Licensed Software and be subject to all terms and conditions of this EULA.

3.3 You acknowledge that Licensor shall have no duty to provide software maintenance or Updates or to continue to provide or enable any particular features or functionality.

4. User’s Representations and Warranties.

4.1 Compliance with Terms. User shall monitor the Licensed Product and ensure that it is used only in compliance with the terms of this EULA. User shall be responsible and liable for any and all non-compliance with this EULA by User or by any person or entity who obtains access to the Licensed Product through User.

4.2 Suitability of Licensed Product. User represents and warrants that the Licensed Product is suitable for the use intended by this EULA. User assumes all responsibility and risk of selection, installation, use, efficiency and suitability of the Licensed Product, Licensor shall have no liability therefor.

4.3 Notification of Defects. User shall notify Licensor in writing of any material defect User believes exists in the Licensed Product, and User shall provide to Licensor all information known or reasonably available to User regarding the alleged defect.

4.4 Third Party Material. The Licensed Software may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials”). You acknowledge and agree that Saltworks is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. Saltworks does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties’ terms and conditions.

4.5 User’s Responsibility. User shall be exclusively responsible for the supervision, management, and control of its use of the Software, including, but not limited to (a) assuring proper configuration of equipment or devices; (b) establishing adequate operating methods; and (c) implementing procedures sufficient to satisfy its obligations for security under this EULA, including appropriate action between it and its employees to prevent misuse, unauthorized copying, modification, or disclosure of the Software.

5. No Warranty; Limitation of Liability.

5.1 Disclaimer of Warranties. THE APPLICATION IS PROVIDED TO END USER “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APPLICATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, COMPANY PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APPLICATION WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

5.2 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

5.3 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, HAVE ANY LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR THE CONTENT AND SERVICES FOR:

(a) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES.

(b) DIRECT DAMAGES IN AMOUNTS THAT IN THE AGGREGATE EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION.

5.4 THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

5.5 Sole and Exclusive Remedy. THE PROVISIONS OF THIS SECTION 5 STATE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO USER, AND LICENSOR’S SOLE AND EXCLUSIVE LIABILITY, FOR ANY CLAIM REGARDING THE PERFORMANCE OR NONPERFORMANCE OF THE LICENSED PRODUCT.

6. Indemnity.

6.1 Indemnity by User. User shall be solely responsible for, and shall indemnify, defend, and hold Licensor free and harmless from all damages, liabilities, charges, and expenses, including reasonable attorneys’ fees, from all claims, lawsuits, or other proceedings arising out of or relating to (i) User’s use of the Licensed Product in a manner not permitted by this EULA, not permitted by Licensor, or not in conformance with Licensor written requirements, (ii) the acts or omissions of User, its employees, and agents and all persons or entities who have access through User to the Licensed Product, or (iii) relating to an infringement of any right resulting in any way from the use of the Licensed Software with other software or materials not licensed to User by or not approved by Licensor.

6.2 Remedy for Claimed Infringement. If a claim is made that the Licensed Product, or any portion thereof, infringes any United States patent, copyright, trade secret, or other proprietary right, Licensor, at its sole expense and option, shall either: (i) procure for User the right to exercise the rights and licenses granted hereunder with respect to the Licensed Product; (ii) modify the Licensed Product to make it non infringing but continue to meet the Product Specifications; (iii) replace the Licensed Product with equivalent but non infringing software of like functionality that meet the Product Specifications; or (iv) terminate this EULA and refund the License Fee and, upon the return to Licensor of the Licensed Product; provided, however, that the liability of Licensor pursuant to this Section 6.2 shall be subject to the limitations set forth in Section 5 of this EULA, and Licensor shall have no liability for any claim of infringement based on use of a superseded or altered release of the Licensed Product if the infringement would have been avoided by the use of the most current, unaltered release of the Licensed Product which is available to User.

6.3 Limitation of Indemnity. Licensor shall have no liability to User or any assignee, transferee, or sublicensee of User for any claim of infringement that is based upon any combination of the Licensed Software with software not supplied by or authorized by Licensor if such claim would have been avoided but for such combination; or any modifications to the Licensed Software other than releases provided by Licensor or otherwise approved by Licensor.

7. Term, Termination, and Default.

7.1 Term.

(a) The term of this EULA commences when you first download or install the Licensed Software and will continue in effect until terminated by you or Saltworks as set forth below.

7.2 Termination by Licensor. Licensor may terminate this EULA and the license granted to User upon the occurrence of any of the following events:

(a) User fails to pay Licensor any fee, charge, tax, or other reimbursement when due and the failure to pay is not cured within ten (10) days of User’s receipt of Licensor’s written notice thereof;

(b) User transfers title to or possession of the Licensed Product without Licensor’s prior written consent;

(c) User breaches any material obligation of User under this EULA and such breach is not cured within thirty (30) days of User’s receipt of written notice thereof from Licensor;

(d) User becomes insolvent, or is adjudicated a bankrupt, or voluntarily seeks protection under any bankruptcy or insolvency law; or

(e) User makes an assignment of its assets for the benefit of creditors or any arrangement with its creditors.

7.3 Termination by User. Provided User is not in default under this EULA, the EULA may be terminated by User by deleting the Licensed Software and all copies thereof. Any such termination by User shall be without refund of any License Fee or any other amount paid or then due and payable to Licensor.

7.4 Licensor Remedies Upon Termination. In the event of any termination of this EULA:
(a) User shall cease all further use of the Licensed Product, or any portion thereof, in all forms and on all media and computer memory, and User shall immediately delete or destroy all Copies of Licensed Product, including backup and archival copies;

(b) User shall pay all outstanding fees and amounts owed to licensor as of the date of termination;

(c) Licensor may cease performance of Licensor’s obligations under this EULA, without liability to User;

(d) where such termination is the result of a breach or threatened breach of this EULA by User, Licensor may apply for and obtain injunctive relief against the breach or threatened breach.

7.5 Equitable Relief. The Parties acknowledge and agree that there may be no adequate remedy at law for the failure of the other Party to comply with any of the material terms and conditions of this EULA, including, without limitation, a failure to cease the use of the Licensed Product upon termination of the license, and the Parties agree that, in the event of any such failure, the non-breaching Party shall be entitled to equitable relief by way of temporary restraining order, temporary injunction and permanent injunction and such other and further relief as any court of competent jurisdiction may deem proper.

7.6 Remedies Cumulative. The rights and remedies of Licensor and User in this Section 7 shall be cumulative and in addition to all other rights and remedies available at law and in equity.

7.7 Survival. The provisions of this EULA which by their sense and context should survive any termination or expiration of this EULA, including without limitation Sections 3, 5, 6, 7, 8, and 9 of this EULA, shall survive termination of this EULA and shall remain binding on the Parties.

8. Commercial Edition Terms

8.1 License Fees. As compensation for the license provided in this EULA for each Copy of the Licensed Software, other than any backup or archival copy permitted under this EULA, User shall pay Licensor the License Fees as set forth in the terms of the Purchasing Agreement.

8.2 Audit of Use. Licensor may, at its expense, audit User’s use of the Licensed Product based on the number of contributing developers as defined in the Purchasing Agreement. Audits shall be conducted during regular business hours at User’s place or places of business and shall not unreasonably interfere with User’s business activities. Audits shall be conducted no more than once annually. If, as a result of any such audit, Licensor identifies unauthorized use of the Licensed Software, User shall pay, in addition to a full License Fee for each copy of the Licensed Software in use by User and the reasonable expenses of Licensor in conducting the audit.

8.3 Payment. All License Fees shall be due and payable as set forth in the terms of the Purchasing Agreement.

8.4 Taxes and Other Charges. All License Fees are exclusive of media charges, shipping, handling, custom charges, and all state, local, and other taxes, or other taxes or charges (other than income or franchise taxes payable by Licensor) directly applicable to the licensing, installation, support or use of the Licensed Product. User shall pay all charges or taxes or provide Licensor with an appropriate certificate of exemption within thirty (30) days of the date of any invoice or statement of Licensor or the taxing authorities. If User elects to challenge the applicability of any tax or charge, User shall pay the tax or charge to Licensor or give Licensor evidence of payment to the taxing authorities or charging entity, and User may thereafter challenge such tax or charge and seek a refund.

8.5 Technical Assistance. During the term of this EULA, Licensor shall offer the training and technical assistance services provided in the Purchasing Agreement at the rates provided therein.

8.6 Conflict. To the extent of any conflict between the terms of this EULA and the terms of the Purchasing Agreement between Licensor and User, the terms of the Purchasing Agreement shall control.

9. Miscellaneous.

9.1 Relationship of the Parties. The Parties hereto are and shall remain independent contractors. Nothing herein shall be deemed to establish a partnership, joint venture, joint enterprise, or agency relationship between the Parties. Neither Party shall have the right to obligate or bind the other Party in any manner to any third party.

9.2 Assignment/Sublicense. User shall not, directly or indirectly, by operation of law or otherwise, transfer or assign the Licensed Product or this EULA, or transfer, assign or sublicense any license rights granted hereunder, in whole or in part, without having secured the prior written consent of Licensor, which consent shall be at Licensor’s sole discretion. Any attempted assignment in violation of this Section 9.2 shall be void.

9.3 Export Controls. Each Party to this EULA acknowledges its obligations to control access to Technical Data (as defined by the U.S. Department of Commerce, Office of Export Administration) under the U.S. Export Control Laws and Regulations and agrees to adhere to all applicable U.S. Export Control Laws and Regulations with regard to any Technical Data received under this EULA.

9.4 Compliance with Laws. Each Party shall comply with all applicable state, federal and local laws, executive orders and regulations in the performance of its obligations under this EULA.

9.5 Headings. The headings and captions appearing in this EULA have been inserted for the purposes of convenience and ready reference only and do not purport to and shall not be deemed to define, limit or extend the scope or intent of the provisions to which they appertain.

9.6 Form. Where the context so admits, words and expressions appearing in the singular in this EULA may be interpreted in the plural, and vice versa.

9.7 Integration. This EULA constitutes the entire agreement between the Parties and supersedes all prior agreements and understandings between them, whether written or oral, between them relating to the subject matter of this EULA. This EULA may not be supplemented, explained or interpreted by any evidence of trade usage or course of dealing.

9.8 Modification or Amendment. No modification to, amendment of, or other change in this EULA shall be binding on either Party unless it is in writing and signed by authorized representatives of both Parties.

9.9 Waiver. No waiver of any provision of this EULA shall be effective unless made in writing and signed by the waiving Party, nor shall any such waiver, if made, constitute a waiver of any subsequent breach of the same or of any other provision of this EULA.

9.10 Force Majeure. Neither Party shall be liable to the other by reason of any failure of performance hereunder (except obligations to pay) if such failure arises out of causes beyond such Party’s reasonable control, despite the reasonable efforts, and without the fault or negligence of such Party. A Party experiencing such an event shall give as prompt notice as possible under the circumstances.

9.11 Fees and Expenses. If either Party institutes an action to enforce this EULA or any of its terms, the prevailing Party shall also be entitled to recover all of its costs, expenses and reasonable attorneys’ fees.

9.12 Authority to Contract. Each Party represents that it has the full power and authority to enter into this EULA and to convey the rights herein conveyed.

9.13 Jurisdiction and Venue. Should any claim or controversy arise between the Parties under the terms of this EULA or in furtherance of this EULA, such claim or controversy shall be resolved only in the state courts of the State of Georgia or the federal courts located in the State of Georgia and said state and federal courts shall be the only appropriate jurisdiction and venue therefore. User hereby submits to said jurisdiction and venue.

9.14 Governing Law. This EULA shall be construed in accordance with and governed by the substantive laws of the State of Georgia. The Parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to this EULA.

9.15 Severability. If any provision of this EULA is held invalid or unenforceable under any applicable law, such invalidity or unenforceability will not affect any other provision of this EULA that can be given effect without the invalid or unenforceable provision, and this EULA shall be construed as if said invalid or unenforceable provision had not been contained herein.

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