BEFORE CONTINUING, READ THE FOLLOWING AGREEMENT AND LICENSE CAREFULLY.
THE FOLLOWING DESCRIBES THE TERMS ON WHICH THE KAIMON GROUP, DBA SCRAPRIGHT SOFTWARE (“LICENSOR”) OFFERS YOU USE OF AN APPLICATION ASSOCIATED WITH ITS SCRAPRIGHT SOFTWARE AND ITS ASSOCIATED SERVICES (THE "LICENSED APPLICATION"). IF YOU WISH TO USE THE LICENSED APPLICATION YOU MUST AGREE TO ALL OF THE TERMS OF THIS AGREEMENT. IF ANY OF THE FOLLOWING TERMS, OR ANY UPDATES OR CHANGES TO THE FOLLOWING TERMS, ARE NOT ACCEPTABLE TO YOU DO NOT USE THE LICENSED APPLICATION. YOUR CONTINUED USE OF THE LICENSED APPLICATION IS DEEMED TO BE YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS. BY DOING ANY OF THE FOLLOWING YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND ANY UPDATES OR CHANGES TO THESE TERMS IMPLEMENTED BY THE LICENSOR:
• BY EXPRESSLY ACCEPTING THIS AGREEMENT AT ANY TIME, INCLUDING, BUT NOT LIMITED TO, SELECTING "SET UP," "INSTALL," "I AGREE" OR OTHER PHRASE INDICATING YOUR ASSENT TO THIS AGREEMENT ON ANY SUPPORTED DEVICE; OR
• BY DOWNLOADING THE LICENSED APPLICATION OR ANY UPGRADE TO THE LICENSED APPLICATION; OR
• BY USING THE LICENSED APPLICATION ON ANY DEVICE INCLUDING ANY CONTINUED USE AFTER YOUR NOTIFICATION THAT THESE TERMS HAVE BEEN MODIFIED BY THE LICENSOR.
a. Subject to the terms and conditions of this Agreement, Licensor hereby grants to You a nonexclusive, nontransferable, worldwide license to access and to use the Licensed Application, solely for Your own internal business purposes (the "License"). All rights not expressly granted to You are reserved by Licensor and, where applicable, Licensor’s licensors.
b. This License granted to You for the Licensed Application by Licensor is limited to Your use of the Licensed Application on devices running operating systems which Licensor has approved for use with the Licensed Application (including but not limited to devices running Apple’s iOS, Windows and Chrome) (collectively, “Supported Device(s)”) that You own or control and as permitted by the usage rules set forth for your respective operating system (the “Usage Rules”). This License does not allow You to use the Licensed Application on any Supported Device that You do not own or control, and You may not distribute or make the Licensed Application available over a network in violation of the Usage Rules. You may not rent, lease, lend, sell, redistribute, or sublicense the Licensed Application. You may not copy (except as expressly permitted by this License and the Usage Rules), decompile, reverse engineer, disassemble, unlock, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law). Any attempt to do so is a violation of the rights of the Licensor and its licensors. If You breach this restriction, You may be subject to prosecution and damages.
c. The terms of this License will govern any upgrades provided by Licensor that replace and/or supplement the original Licensed Application, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
d. You may use the Licensed Application only for Your internal business purposes and shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or which violates a third party’s privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (iv) interfere with or disrupt the integrity or performance of the Licensed Application or the data contained therein; or (v) attempt to gain unauthorized access to the Licensed Application or its related systems or networks.
e. You may not use the Licensed Application in connection with any database other than a database associated with Licensor's SCRAPRIGHT software, including but not limited to databases or other software, which compete with Licensor's SCRAPRIGHT software.
f. You may not use the Licensed Application if You are a direct competitor of Licensor, except with Licensor’s prior written consent. In addition, You may not use the Licensed Application for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. .
2. Billing and Payment of Fees.
a. In consideration for the License to use the Licensed Application, any associated services as described herein and other obligations of Licensor expressed in this Agreement, You shall pay to Licensor or its designee (such as a payment processing service engaged by Licensor), at the time of Your purchase of the License for the Licensed Application, an initial license fee which is not refundable, such initial license fee shall be as indicated on the Licensor’s website iscrapright.com. In addition, you shall pay to Licensor the monthly license fee as indicated on Licensor's website iscrapright.com at the time of Your purchase of the License for the Licensed Application (the “Monthly License Fee”).
b. Your Monthly License Fee shall be due and payable each month on the date of Your initial Monthly License Fee. All Monthly License Fees shall be assessed to the credit card account You used to provide your initial Monthly License Fee. Any Monthly License Fees received by Licensor after the due date shall be subject to a late fee equal to one and one-half percent (1.5%) per month, or, if less, the maximum amount allowed by applicable law. You shall pay any collections fees, including reasonable attorney's fees, incurred by Licensor in collections.
c. Licensor reserves the right to adjust the Monthly License Fee at its discretion but shall provide notice of any change in the Monthly License Fee to You no later than sixty (60) days in advance of a change to the Monthly License Fee. In the event You desire to downgrade to a license offering of Licensor which carries a lower monthly License Fee, Licensor may so agree but any such agreed upon downgrade shall require a minimum of three (3) months prior notice to Licensor.
d. You will pay, or reimburse Licensor for, all sales, use, excise, value-added and gross receipts taxes (collectively, “Taxes”) that may be imposed upon the Licensed Application.
3. Your Responsibilities.
You are responsible for all activity occurring under Your user accounts and shall abide by all applicable local, state, national, and foreign statutes, treaties and regulations in connection with Your use of the Licensed Application, including those related to data privacy, international communications, and the transmission of technical or personal data. You shall: (i) notify Licensor immediately of any unauthorized use of any password or account or any other known or suspected breach of security associated with the Licensed Application, and (ii) report to Licensor immediately and use reasonable efforts to stop immediately any unauthorized use, copying, or distribution of the Licensed Application that is known or suspected by You.
4. Intellectual Property Ownership.
a. Licensor (and, where applicable, its licensors) shall exclusively own all right, title, and interest, including all related intellectual property rights including, but not limited to, all copyrights, patents, trademarks, trade secrets or other technology, in and to the Licensed Application, and any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by You or any other party relating to the Licensed Application.
b. You acknowledge that You will not in any way, directly or indirectly, do or cause to be done, any act or thing contesting or which would reasonably be known to impair or tend to impair any part of Licensor’s (and, where applicable, its licensors’) right, title and interest in connection with Licensor’s intellectual property rights in the Licensed Application. You shall not represent that You have any ownership in Licensor’s intellectual property rights in the Licensed Application. You agree that You will not, directly or indirectly, during the term of this Agreement or thereafter, attack the validity of or Licensor's ownership of intellectual property rights in the Licensed Application or attack the validity of the License granted herein.
5. Consent to Use of Data
You agree that Licensor may collect and use technical data and related information, including but not limited to technical information about Your device, system and application software, and peripherals, that is gathered periodically to facilitate the provision of software updates, product support, and other Licensed Applications to You (if any) related to the Licensed Application. Licensor may use this information, as long as it is in a form that does not personally identify You, to improve its products or to provide Licensed Applications or technologies to You.
Licensor agrees to provide You with email-based support service through which Licensor agrees to address Errors in the Licensed Application. "Error" means an error in the Licensed Application which causes a failure of the Licensed Software to conform to the representations made by Licensor and which negatively impacts the performance of the Licensed Application. Licensor shall not be required to provide You with instruction on proper installation, use, or setup of the Licensed Application. Licensor shall use its best efforts to respond to all email inquiries within two business days but makes no representation and does not warrant that it will respond to Your inquiry within any specific period of time.
The Agreement and the License granted herein is effective for one month from the date of Your Monthly License Fee and shall be renewed automatically each month upon Your payment of the Monthly License Fee or until terminated by the Licensor. Your rights under this Agreement will terminate automatically without notice from the Licensor if You fail to comply with any term(s) of this Agreement. Upon termination of the Agreement, You shall cease all use of the Licensed Application and destroy all copies, full or partial, of the Licensed Application.
8. Nonpayment and Suspension.
In addition to any other rights granted to Licensor herein, Licensor reserves the right to suspend or terminate this Agreement and Your license to access and use the Licensed Application and any related services if Your account becomes delinquent. If Licensor initiates a suspension or termination of this Agreement and/or Your license to the Licensed Application, You will not be permitted to access Licensor's servers, interface with SCRAPRIGHT software, or utilize the Licensed Application. In addition, if Licensor initiates a suspension or termination of this Agreement and/or Your license to the Licensed Application any information or data stored on your Supported Device(s) in the Data Base may be permanently lost. In the event your License is terminated or suspended due to the delinquency of your account, You have sixty (60) days to reconnect before Your data is permanently lost.
9. NO WARRANTY
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE LICENSED APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE LICENSED APPLICATION IS PROVIDED "AS IS" AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE LICENSED APPLICATION, EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, AND OF NONINFRINGEMENT OF THIRD-PARTY RIGHTS. LICENSOR DOES NOT WARRANT AGAINST INTERFERENCE WITH YOUR ENJOYMENT OF THE LICENSED APPLICATION, THAT THE FUNCTIONS CONTAINED IN OR PROVIDED BY THE LICENSED APPLICATION WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE LICENSED APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE LICENSED APPLICATION WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR OR ITS AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE LICENSED APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
You shall indemnify and hold Licensor, its licensors and each such Party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys, and agents harmless from and against any and all claims, actions, proceedings, costs, damages, losses, liabilities, and expenses (including attorneys’ fees and costs) (each, a “Claim”) arising out of or in connection with: (i) a Claim alleging that Your use of the Licensed Application infringes the intellectual property rights of, or has caused harm to, a third party; (ii) a Claim, which if true, would constitute a violation by You of Your representations and warranties as expressed herein; (iii) a Claim arising from the breach of this Agreement by You or anyone that uses the Licensed Application on a Supported Device owned or controlled by You; or (iv) a Claim arising from Your misuse of the Licensed Application, or any third party's misuse of the Licensed Application through a Supported Device owned or controlled by You.
11. Limitation of Liability.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR AND/OR ITS LICENSORS BE LIABLE TO YOU OR ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS LICENSED APPLICATION, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE LICENSED APPLICATION, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE LICENSED APPLICATION, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE OR THE CONTENT, EVEN IF THE LICENSOR OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL LICENSOR AND/OR ITS LICENSORS BE LIABLE TO YOU OR ANYONE FOR ANY DAMAGES IN EXCESS OF THE COSTS PAID BY YOU FOR THE LICENSE GRANTED UNDER THIS AGREEMENT DURING THE THREE MONTHS WHICH PRECEDED THE EVENT WHICH GAVE RISE TO SUCH DAMAGES.
12. Internet Delays.
THE LICENSED APPLICATION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. LICENSOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
13. No Export.
You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S.-embargoed countries or (b) to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Licensed Application, You represent and warrant that You are not located in any such country or on any such list. You also agree that You will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.
14. General Terms.
a. Independent Contractor. It is understood and agreed that the Parties will act solely as independent contractors. Nothing in this Agreement will be construed to create an employment relationship, a partnership or a joint venture between You and Licensor. You and Licensor are not agents of each other, and have no authority to bind, represent, or speak for each other or their respective divisions, subsidiaries, or affiliates.
b. No Assignment. You may not assign this Agreement or otherwise sublicense or assign any of the rights granted to You under this Agreement. Any attempted assignment of this Agreement or any of the rights granted to You herein shall be null and void, and shall constitute a material breach of this Agreement.
c. Force Majeure. Licensor or its licensors shall not be liable for any failure of performance of the Licensed Application due to causes beyond its reasonable control, including but not limited to: (i) acts of God, terrorism, fire, flood or other catastrophes; (ii) any statute, order, regulation, direction, action, or request of any governmental entity or agency, or any civil or military authority; (iii) national emergencies, insurrections, riots, wars; (iv) unavailability of Internet connectivity, telephone Licensed Applications or materials; or (v) strikes, lock-outs, work stoppages, or other labor difficulties.
d. Governing Law and Venue. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, U.S.A. without giving effect to its principles of conflicts of laws. The Parties hereby expressly exclude the applicability of the United Nations Convention for the International Sale of Goods if the same would otherwise apply hereto. Such exclusion shall include the United Nations Convention on the Limitation Period in the International Sale of Goods. The Parties hereto irrevocably agree that any legal action or proceeding with respect to this Agreement shall be brought exclusively in the state or federal courts of Franklin County in the Commonwealth of Pennsylvania, U.S.A.; provided, however, that any such action or proceeding by Licensor against You may also be brought in any court of competent jurisdiction where You or any of Your assets may be located. By the execution and delivery of this Agreement, You irrevocably submit to the jurisdiction and venue of such courts.
e. No Waiver. All waivers hereunder must be in writing, and no failure by either Party to enforce any rights hereunder shall constitute a waiver of such right then or in the future.
f. Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the economic intent of the Parties, and the remainder of this Agreement will continue in full force and effect.
g. Headings. The paragraph headings and captions of this Agreement are included merely for convenience of reference. They are not to be considered part of, or to be used in interpreting this Agreement and in no way limit or affect any of the contents of this Agreement or its provisions. Survival. The provisions of this Agreement that by their nature continue and survive, including, but not limited to, paragraphs 1b, 1d, 1e, 1f, 4, 9, 10, 11, and 14 shall survive any expiration or termination of this Agreement. Entire Agreement. This Agreement constitutes the entire understanding of the Parties related to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written or oral, regarding such subject matter. This Agreement may be modified by Licensor and such modifications shall be effective and deemed to be agreed to by You if You continue to use the Licensed Application after being notified of the modifications to this Agreement.