SOFTWARE AND HARDWARE AGREEMENT
WHEREAS, ProPoint currently owns, licenses and allows others to use ProPoint’s SuperSalon point of sale software (“Licensed Software”) and related add-on features and maintenance services;
WHEREAS, ProPoint wishes to grant to Customer the right to use the Licensed Software, add-on features and to receive maintenance services, and to finance certain hardware components from ProPoint, on the terms and subject to the conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual promises contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Customer and ProPoint agree to the following:
TERMS AND CONDITIONS:
1. PRODUCTS AND SERVICES DELIVERED
3. FEES AND PAYMENTS
4.1 License Grant. In exchange for the payment provided in Section 3(a), ProPoint hereby grants to Customer a non-exclusive, non-transferable, terminable license to use Licensed Software at the Location during the Term of this Agreement, and each licensed add-on feature or service identified in the attached Appendix A during the Licensed Software Term of this Agreement.
4.2 Single Use. Only Customer may use the Licensed Software. Customer may install, register, activate, and use one copy of the Licensed Software, on a single computer in a specific physical location as registered in the product registration. Changes to the original registration information and/or physical location must be reported to ProPoint and are subject to registration change fees, and such change request may be denied at the sole discretion of ProPoint.
4.3 Trial and Conversion. Some or all of the Licensed Software may be licensed on a trial basis. Customer’s right to use the Licensed Software on a trial basis is limited to the trial period. The Licensed Software subject to the trial and the length of the trial period are set forth during the activation process. Customer may have the option to convert the trial license to subscription or perpetual rights. Conversion options will be presented upon request.
4.4 ProPoint Controls the Licensed Software. ProPoint may change, suspend or discontinue any aspect of the Licensed Software any time, including the availability of any Licensed Software feature, database or content. ProPoint may also impose limits on certain features and services or restrict Customer’s access to parts or all of the Licensed Software without notice or liability.
5. CUSTOMER OBLIGATIONS AND PERMISSIONS
5.1 PCI Compliance. Customer is responsible for performing and maintaining the PCI-DSS and PA-DSS installation of the Licensed Software. Customer indemnifies and holds harmless ProPoint, its shareholders, officers, agents, and employees from and against any claims, demands, liabilities, or expenses, including attorneys’ fees and costs, for all actions arising out of or relating to the PCI-DSS and PA-DSS installation of the Licensed Software.
5.2 Security. Customer is responsible for maintaining the security of its software and network
5.3 Mandatory Activation. Activation associates the use of the Licensed Software with a specific device. During activation, the Licensed Software may send information about the Licensed Software and / or the device to ProPoint. This information includes the version, the license version and the product ID of the Licensed Software, Internet Protocol address of the device and information derived from the hardware configuration. BY USING THE LICENSED SOFTWARE, CUSTOMER CONSENTS TO THE TRANSMISSION OF THIS INFORMATION.
5.4 Validation. The Licensed Software may from time to time validate Customer’s license rights. Validation verifies that the Licensed Software has been activated and is properly licensed. Validation also permits Customer to use certain features of the Licensed Software or to obtain additional benefits. During a validation check, the Licensed Software will send information about the Licensed Software to ProPoint. This information includes the version of the Licensed Software and the product key. BY USING THE LICENSED SOFTWARE, CUSTOMER CONSENTS TO THE TRANSMISSION OF THIS INFORMATION TO PROPOINT.
6. SUPPORT SERVICES
6.1 ProPoint may provide Customer with support services related to the Licensed Software (“Support Services”). The provision and use of Support Services is governed by the ProPoint policies and programs described in the Licensed Software user manual and/or in “online” documentation. Any supplemental software code provided to Customer as part of the Support Services shall be considered part of the Licensed Software and subject to the terms and conditions of this Agreement. With respect to technical information Customer provides to ProPoint as part of the Support Services, ProPoint may use such information for its business purpose, including for product updates and development. ProPoint will use commercially reasonable efforts to not utilize such technical information in a form that personally identifies Customer.
6.2 Maintenance Scheduling. ProPoint reserves the right to determine a proper maintenance schedule for the Licensed Software, and may carry out scheduled and unscheduled maintenance that may temporarily result in the unavailability or limited accessibility of some or all services. Changes or modifications, including updates, to the Licensed Software will be pushed out on a schedule determined by ProPoint unless otherwise stated. ProPoint will use commercially reasonable efforts to schedule maintenance times one week prior to the maintenance time, but reserves the right to conduct maintenance without notice to Customer.
7. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS
7.1 ProPoint Owns the Licensed Software and Data. This Agreement gives Customer a limited right to use the Licensed Software. All right, title and interest in and to the Licensed Software, user displays or data generated by the software, and any accompanying materials are and will remain the property of ProPoint. This includes but is not limited to all copyrights, patent rights, trademark and service mark rights, trade secret rights, know-how and other intellectual property rights. Customer shall not remove, alter or otherwise modify any copyright, trademark or other notices of proprietary interest contained in the Licensed Software. Customer, and any of its officers, directors, assigns, agents, or employees, may not sell, assign, pledge, finance, transfer, distribute, license, sublicense, copy, modify, reverse compile, create derivative works of, disassemble, or otherwise reverse engineer or attempt to reconstruct the Licensed Software, in whole or in part or in any way encumber the Licensed Software, except as otherwise allowed in this Agreement. Customer acknowledges that ProPoint owns all data and information exchanged by the parties or received from Customer, its customers and employees, or its databases or systems. Customer understands that ProPoint, and any entity working in partnership or jointly with ProPoint, shall have the right to use this data without further obligation to Customer. Customer shall have a non-exclusive, perpetual, royalty free right to use the data that originates from Customer.
7.2 ProPoint Owns Modifications of the Licensed Software. ProPoint retains the right to modify or change the Licensed Software, any licensed add-on features or services, or the maintenance services offered under this contract, at its sole discretion. Modifications include, but are not limited to, updating functionality and modifying the user interface. ProPoint shall own all intellectual property rights in any work, improvements, updates, changes, alterations, revisions, error corrections, bug fixes, patches, releases and/or subsequent modifications of any type, including copyrights, patents, trade secrets, trademarks and other intellectual property.
7.3 Use of Trademarks and Logos. Customer grants ProPoint the right to use Customer’s name and logo on and in connection with ProPoint’s marketing materials, website or other consumer-facing materials.
8.1 Termination of Software License. With respect to the Licensed Software Term, this Agreement may be terminated during the Term or any Renewal Term by either party if the other party materially breaches this Agreement and does not cure the breach within 30 days after receiving written notice thereof from the non-breaching party. Failure to pay license or service fees when due shall constitute a material breach. In the event any fees are not paid when due, ProPoint shall have the further right to suspend Customer’s access to the Licensed Software or maintenance services until payment is made and/or to terminate this Agreement. ProPoint shall have the right to terminate this agreement with 30 days notice for any reason. Upon any termination of this Agreement, without prejudice to any other rights or remedies which the parties may have, (a) all rights licensed and obligations required hereunder shall immediately cease (including Customer’s right to access and use the Licensed Software and ProPoint’s services), and (b) Customer shall pay to ProPoint any outstanding fees that have accrued prior to the date of termination, and (c) Customer shall pay ProPoint the entirety of the remaining balance due to ProPoint through the end of the Licensed Software Term; (c) Customer shall pay ProPoint a break fee of 20% of the amount due to ProPoint during the entire Term or any Renewal Term. Bankruptcy or insolvency of either party shall be deemed grounds for termination of this Agreement by the other party.
8.2 Termination of Hardware Financing. With respect to the Financed Hardware Term, either party may terminate this agreement prior to the end of the Term with written permission of the non-terminating party. Should Customer exercise this termination option, Customer shall pay ProPoint the entirety of the remaining balance due to ProPoint through the end of the Financed Hardware Term.
8.3 Bankruptcy. Bankruptcy or insolvency of either party shall be deemed grounds for termination of this Agreement by the other party.
8.4 Customer may terminate this Agreement without payment of the fees identified in Section 8.1(b) and (c) in the event that Customer’s entire business at the location licensed under this Agreement is sold or transferred to any third party or the Customer’s location licensed under this Agreement is closed permanently and not relocated.
8.5 Destruction of Materials. Upon termination, Customer must destroy all copies of the Licensed Software and all of its component parts; to this end Customer grant to ProPoint the right to, with or without notice, monitor Customer’s Internet accessible activities for the purpose of verifying Licensed Software performance and/or Customer’s compliance with the terms hereof, including, but not limited to the remote monitoring and verification of Customer’s implementation, use and duplication of the Licensed Software. ProPoint does not accept any returns and/or refunds for the Licensed Software under any circumstances.
9. WARRANTIES AND EXCLUSIONS
9.1 Licensed Software Warranty. ProPoint warrants that it shall provide the Licensed Software, and any licensed add-on features or services, other related products features and services, and perform all related services in a professional and workmanlike manner. If the Licensed Software, licensed add-on features or services do not conform to the foregoing warranty, and Customer informs ProPoint within 14 days of delivery or performance, ProPoint will re-perform the service. Customer agrees that the forgoing constitutes Customer’s sole and exclusive remedy for breach by ProPoint of any warranties under this Agreement. This warranty does not cover problems caused by Customer’s acts (or failures to act), the acts of others, or events beyond ProPoint’s reasonable control.
9.2 Exclusive Warranty. The express warranty in this section is the exclusive warranty offered by ProPoint and all other express or implied conditions and warranties, including, without limitation, any conditions or warranties of fitness for a particular purpose, non-infringement, accuracy, quiet enjoyment, title, merchantability and those that arise from any course of dealing or course of performance are hereby disclaimed. ProPoint does not warrant that Customer’s use of the Licensed Software, any licensed add-on features, or services, will be uninterrupted or error-free, that errors will be corrected, that the Licensed Software, add-on features or services will meet Customer’s requirements (including but not limited to any regulatory or compliance standard), or that they will be free of viruses or other harmful components.
9.3 Financed Hardware Warranty. All Financed Hardware comes with a manufacturer’s warranty upon delivery to Customer. If the Financed Hardware fails to meet the warranty set forth herein, ProPoint will at its option assist with the Financed Hardware to the extent necessary to bring same into conformity with the foregoing warranty. EXCEPT AS SET FORTH IN THIS AGREEMENT, THERE ARE NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. No defect in, unfitness of or inability of Customer to use any Financed Hardware, howsoever caused, shall relieve Customer from its obligations to pay all fees hereunder or from any other obligations of Customer hereunder. ProPoint’s warranty obligation will not apply and does not extend to any adjustment, repair or replacement required because of Customer’s negligence, misuse, handling, failure to follow the routine maintenance schedule and operating instructions and/or repairs or alterations made in a manner inconsistent with the provisions of this Agreement.
9.4 Applicability of Warranty and Exclusions. This limited warranty gives Customer specific legal rights. Customer may have others that vary from state/jurisdiction to state/jurisdiction. Some states and jurisdictions do not allow disclaimers of or limitations on the duration of an implied warranty, so the above limitation may not apply to Customer.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability. To the extent permitted by law, in no event shall ProPoint be liable to Customer, users or to any third party in connection with this Agreement, including the Licensed Software, add-on features, services, financed hardware and intellectual property provided hereunder, whether under theory of contract, tort or otherwise (a) for any injury, loss, claim or any indirect, incidental, punitive, consequential, or special damages (including any damage to business reputation, business interruption, lost profits or lost data), whether foreseeable or not and whether ProPoint is advised of the possibility of such damages or (b) any amounts in excess of the total of the fees actually paid and the fees payable to ProPoint by Customer under this Agreement during the three (3) month period prior to the date that such liability first arises. This includes any injury, loss, claim or damage arising out of or that is any way connected with (1) the licenses and services under this Agreement; (2) any use of the Licensed Software or Licensed Hardware or the support services; (3) any alleged failure or delay by ProPoint; or (4) the performance or non-performance of any salon or business in connection with the Licensed Software.
10.2 No Liability for Third Party Materials. The Licensed Software, add-on features, services or Financed Hardware may contain features, functionality and information that are provided through or by third-party content, software, web sites, and/or systems (“Third-Party Materials”). Customer’s use and access of these features and functionality are subject to the terms published or otherwise made available by the third-party providers of Third-Party Materials. ProPoint has no responsibility for any Third-Party Materials, including servicing or performing maintenance for the Third-Party Materials, and Customer irrevocably waives any claim against ProPoint with respect to such Third-Party Materials.
10.3 Without limiting the foregoing, we are not responsible or liable for any malicious code, delays, inaccuracies, errors, or omissions arising out of Customer’s use of the Licensed Software or related services.
10.4 The terms of this section apply in equal force to ProPoint’s related companies, successors or assigns, officers, directors, employees, agents, representatives, licensors, operational service providers, advertisers, or suppliers.
11. SPECIFIC DISCLAIMERS
11.1 The following is a non-exclusive list of obligations with which Customer are solely responsible for compliance, and which ProPoint disclaims all liability:
14.2 Customer is thus GIVING UP CUSTOMER’S RIGHT TO GO TO COURT to assert or defend Customer’s rights under this contract EXCEPT for matters that may be taken to small claims court. Customer’s rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.
14.3 Claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration agreement. Such claims shall be exclusively brought in the state or federal courts located in Delaware. Additionally, notwithstanding this agreement to arbitrate, either party may seek emergency equitable relief before the state or federal courts located in Delaware in order to maintain the status quo pending the arbitrator’s ruling, and hereby agree to submit to the personal jurisdiction of the courts located within Delaware. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
14.4 If any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. In the event this agreement to arbitrate is held unenforceable by a court, or in the event AAA refuses to arbitrate the Dispute, all controversies, disputes, demands, counts, claims, or causes of action between ProPoint and CUSTOMER shall be exclusively brought in the state or federal courts located in Minnesota. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, Customer may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.
15. GENERAL PROVISIONS
15.1 Entire Agreement. This Agreement constitutes the entire agreement between the parties pertaining to the subjects herein, and cancels and supersedes all prior agreements and understandings of the parties in connection therewith, whether oral or written.
15.2 Force Majeure. Neither party shall be liable for any failure or delay in the performance of its obligations (except for payment obligations hereunder) due to causes beyond the reasonable control of the party affected, including but not limited to war, sabotage, insurrection, riot or other act of civil disobedience, strikes or other labor shortages, act of any government affecting the terms hereof, acts of terrorism, accident, fire, explosion, flood, hurricane, severe weather or other act of God, failure of telecommunication, internet service providers, or other utility providers. The obligations and rights of the party so excused will be extended on a day-to-day basis for the period of time equal to that of the underlying cause of the delay.
15.3 Independent Contractor Relationship. The parties are independent contractors with respect to each other, and nothing in this Agreement shall be construed as creating an employer-employee relationship, a partnership, agency relationship or a joint venture between the parties.
15.4 Binding and Assignment. This Agreement controls the actions of all party representatives, officers, agents, employees and associated individuals. The terms of this Agreement shall be binding on the parties. Customer has the option to assign the rights and responsibilities under this Agreement to any successor in interest of Customer’s business. Customer will not assign, transfer or delegate its rights or obligations under this Agreement (in whole or in part), including the financed hardware itself, without ProPoint’s prior written consent. Any attempted assignment, transfer or delegation in violation of the foregoing shall be null and void.
15.5 Waivers. All modifications to or waivers of any terms of this Agreement must be in a writing that is signed by the parties hereto and expressly references this Agreement.
15.6 Governing Law. In case of any dispute, this Agreement will be governed by the law of the State of Delaware. All parties expressly waive all other jurisdictions.
15.7 Survival. If any part, term or provision of this Agreement shall be invalid or unenforceable, the validity or enforceability of the remaining parts, terms and provisions shall not be affected thereby, and the rights and obligations of the parties shall be construed as if the Agreement did not contain the invalid or unenforceable part, term or provision. This Agreement, together with the AGREEMENT, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements or communications, including, without limitation, any quotations or proposals submitted by ProPoint.
15.8 Notices. All notices, consents and approvals under this Agreement must be delivered in writing by courier, by facsimile, or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at its main corporate headquarters and sent to the attention of such party’s Chief Executive Officer.