END-USER LICENSE AGREEMENT

 

This End-User License Agreement ("Agreement") is entered into by and between FOX & CROW, LLC ("Provider") and __________________________, the individual or entity agreeing to these terms ("User"). This Agreement governs the use of Provider’s enablement system, including any associated software, customizations (including customizations of third-party software), documentation (including, but not limited to, video and written training), data, databases, and services (collectively, the "System"). By purchasing, accessing, or using the System, User agrees to be bound by the terms of this Agreement.

 

ARTICLE I
 GRANT OF LICENSE

1.1 Limited License. Provider (or its licensors) grants User a non-exclusive, non-transferable, non-sublicensed, non-commercial and personal license to install and/or use the System (in whole or in part), for such time until either User or Provider terminates this Agreement. User must in no event use, nor allow others to use the System for commercial purposes without obtaining a license to do so from Provider. Updates, upgrades, patches and modifications may be necessary in order to be able to continue to use the System on certain hardware. The System is solely for User’s internal business purposes, subject to the terms and conditions of this Agreement. The System is licensed, not sold. User’s license is limited to use of the System as delivered by Provider.
 
1.2 Scope of Use. User shall not, directly or indirectly (i) sell, rent out, lease, license, distribute, market, exploit the System or any of its parts commercially to any unauthorized third-parties, (ii) reverse engineer, decompile, disassemble, modify, adapt, reproduce, or create derivate works of this System, in whole or in part, or otherwise attempt to derive the source code of the System; (iii) create, use and/or distribute computer programs or other “cheat” or “hack” programs or software applications for this System; (iv) use the System to develop a competing product or service; (v) publicly display, disclose, or share the System’s materials, features, or functionalities without explicit authorization from Provider; (vi) remove, alter, disable or circumvent any copyright and trademark indications or other authorship and origin information, notices or labels contained on or within this System and (v) export or re-export this System or any copy of adaptation in violation of any applicable laws or regulations.

Without limiting Provider’s rights to take action against User, User further agrees to not:

  1. Create, use, share, or publish any material (including text, words, images, sounds, videos, etc.) in connection with the System that violates confidentiality obligations, infringes intellectual property rights, breaches an individual's privacy rights, or encourages unlawful activities such as piracy, hacking, or the distribution of counterfeit software;

 

  1. modify, distort, block, abnormally burden, disrupt, slow down and/or hinder the normal functioning of all or part of the System, or their accessibility to other users, or attempt to do any of the above;

 

  1. create, supply or use alternative methods of using the Systems;

 

  1. falsely claim to be an employee or representative of Provider or its partners and/or agents;

 

  1. falsely claim an endorsement in connection with the System or with Provider.

1.3 Compliance. While using the System, User agrees to comply will all applicable laws, rules and regulations. User also agrees to comply with certain rules of conduct that govern User’s use of the System (“Rules of Conduct”), which are not meant to be exhaustive and can be modified at any time by Provider. In all cases, User may only use the System according to anticipated use of the System. User shall take reasonable steps to prevent unauthorized access to or misuse of the System, and User shall promptly notify Provider of any suspected or actual breach of this Agreement.

ARTICLE II
 OWNERSHIP

All title, ownership rights and intellectual property rights in and to the System and any and all copies thereof, including, but not limited to software, customizations, documentation, and trademarks, are owned by Provider or its licensors. This System may contain certain licensed materials and, in that event, Provider’s licensors may protect their rights in the event of any violation of this Agreement. Any reproduction or representation of these licensed materials in any way and for any reason is prohibited without Provider’s prior written consent and, if applicable, Provider’s licensors.’ Except as expressly set forth in this Agreement, all rights not granted hereunder to User are expressly reserved by Provider.

This License confers no title or ownership in the System and should not be construed as a sale of any rights in the System. 

ARTICLE III
 WARRANTY DISCLAIMER, LIMITATION OF LIABILITY.

USER EXPRESSLY ACKNOWLEDGES THE USE OF THE SYSTEM IS AT USER’S OWN RISK. TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SYSTEM IS SUPPLIED ON AN “AS IS” AND “AS AVAILABLE” BASIS. PROVIDER OR PROVIDER’S LICENSORS DO NOT MAKE AND HEREBY DISCLAIM ANY GUARANTEES, CONDITIONS, WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY OR OTHER TERMS INCLUDING AS TO: (A) ITS CONFORMITY, ACCURACY, CURRENTNESS, COMPLETENESS, RELIABILITY OR SECURITY (B) ITS SUITABILITY FOR A PARTICULAR USE; (C) IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT; (D) ITS MARKET VALUE; OR (E) USER’S SATISFACTION. PROVIDER DOES NOT WARRANT THAT THE SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SYSTEM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. USER ASSUMES ALL RESPONSIBILITY FOR SELECTING THE SYSTEM TO ACHIEVE USER’S INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE OF, AND RESULTS OBTAINED FROM THE SYSTEM.

TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, IN NO EVENT WILL PROVIDER, PROVIDER’S LICENSORS BE LIABLE FOR LOSS OR DAMAGE SUFFERED IN CONNECTION WITH THE USE OF THE SYSTEM OR ANY RELATED THIRD-PARTY SERVICE. THIS INCLUDES WITHOUT LIMITATION (A) ALL LOSSES OF ANY KIND, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION (WHETHER INNOCENT OR NEGLIGENT) OR OTHERWISE, (B) DIRECT LOSS; (C) ACCIDENTAL LOSS, (D) INCIDENTAL LOSS, (E) CONSEQUENTIAL LOSS, AND (F) INDIRECT LOSS.

NOTWITHSTANDING THE AFOREMENTIONED LIMITATIONS OF LIABILITY, USER’S SOLE REMEDY IN THE EVENT OF A DISPUTE WITH PROVIDER OR ITS LICENSORS, IS TO CEASE TO USE THE SYSTEM.

FOR PURPOSES OF THIS SECTION, PROVIDER’S LICENSORS ARE THIRD PARTY BENEFICIARIES TO THE LIMITATIONS OF LIABILITY SPECIFIED HEREIN AND THEY MAY ENFORCE THIS AGREEMENT AGAINST USER.

ARTICLE IV
 DATA ACCURACY DISCLAIMER

Provider does not guarantee the accuracy, completeness, or reliability of data contained within or processed by the System. User acknowledges that reliance on such data is at User's own risk and Provider shall not be held liable for damages resulting from errors, omissions, or inaccuracies in data.

ARTICLE V
 INDEMNIFICATION

User is solely responsible for any damage caused to Provider, its licensors, other users of the System (if applicable) or any other individual or legal entity as a result of User’s violation of this Agreement.

USER HEREBY AGREES TO DEFEND, INDEMNIFY AND KEEP INDEMNIFIED PROVIDER AND ITS AFFILIATES, MEMBERS, OFFICERS, EMPLOYEES, AND THEIR LICENSORS AGAINST ANY CLAIM OR ALLEGED CLAIMS, LIABILITIES, LOSSES DAMAGES AND ALL COSTS (INCLUDING LAWYERS’ FEES), DIRECTLY OR INDIRECTLY ATTRIBUTABLE TO USER’S FAULT AND/OR RESULTING FROM (A) A BREACH OF ANY PROVISION OF THIS AGREEMENT; (B) USER’S USE OR MISUSE OF THE SYSTEM; (C) THIRD-PARTY CLAIMS RESULTING FROM USER’S ACTIONS OR OMISSIONS. 

The provisions of this Article V shall remain in force after termination of this Agreement.

ARTICLE VI
 PAYMENT & TERMINATION.

6.1 Payment Terms. User’s continued access to the System is contingent on full and timely payments of all fees due to Provider. 

6.2 Cancellation and Termination. If User cancels payments or defaults on any of its obligations hereunder, this Agreement and User’s license rights will be immediately terminated, including customizations to any CRM. Further, upon termination, User shall cease all use of the System and delete or destroy any related materials in User’s possession. User must provide confirmation of taking such action within 24-hours after termination. Provider or its licensors may terminate this Agreement at any time without notice if you fail to comply with any terms or conditions of this Agreement. If the User fails to delete or destroy related materials within 24 hours as required, or fails to provide confirmation of such action, User shall pay a penalty of $500 per day until compliance is confirmed, in writing.

6.3 Effect of Termination. All outstanding fees, charges, and obligations owed by the User up to the date of termination shall become immediately due and payable without further notice or demand.

ARTICLE VI
 CHANGES TO THE SYSTEM

Provider reserves the right, in its sole and absolute discretion, to revise, update, change, modify, add to, supplement, or delete certain terms of this Agreement for security, legal, best practice or regulatory reasons. Such changes will be effective with or, as applicable, without prior notice to User. User can review the most current version of this Agreement by submitting a request to Provider. User is responsible for checking this Agreement periodically for changes. If any future changes to this Agreement are unacceptable to User or cause User to no longer be in agreement or compliance with this Agreement, User may terminate this Agreement and must immediately destroy all copies of the System, and follow the requirement per Article V. User’s continued use of the System following any revision to this Agreement constitutes User’s complete and irrevocable acceptance of any and all such changes.

Provider may modify the System for any reason or without any specific reason, at any time and at its entire discretion, in particular for technical reasons such as updates, maintenance operations and/or resets to improve and/or optimize the System. 

ARTICLE VII
 CONFIDENTIALITY

7.1 Definition. "Confidential Information" refers to any and all non-public information, in any form, disclosed by Provider to User in connection with this Agreement, including but not limited to System-related materials, documentation, designs, code and customizations. The obligations under this Article shall survive the termination of this Agreement. 

7.2 Obligations of Confidentiality. User agrees to:

  1. Maintain the confidentiality of all Confidential Information disclosed by Provider and use it solely for the purposes of this Agreement.
     
     
  2. Not disclose, share, or otherwise make Confidential Information available to any third party without the prior written consent of Provider.
     
     
  3. Take all reasonable measures to protect the confidentiality of Confidential Information, at least as stringently as User protects its own confidential information, and in no event with less than reasonable care.
  4. Limit access to Confidential Information to User’s employees, contractors, or agents who need such access to perform their duties and are bound by confidentiality obligations at least as protective as those in this Agreement.

7.3 Exclusions. The obligations of confidentiality do not apply to information that:

  1. Is or becomes publicly available through no fault of User.
  2. Was known to User prior to disclosure by Provider, as evidenced by written records.
  3. Is independently developed by User without reference to or use of Confidential Information.
  4. Is disclosed to User by a third party legally entitled to make such disclosure.

7.4 Remedies for Breach. User acknowledges that unauthorized use or disclosure of Confidential Information may cause irreparable harm to Provider, for which monetary damages may be inadequate. In such cases, Provider shall be entitled to seek injunctive relief or other equitable remedies in addition to any other rights or remedies available at law or under this Agreement.

ARTICLE VIII
 MISCELLANEOUS

8.1 Severability. If any court of competent jurisdiction or competent authority finds that any provision of this Agreement is invalid, illegal or unenforceable, that provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected. If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable to reflect Provider’s initial intentions.

8.2 No Waiver. No failure or delay by Provider (or its licensors) to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. 

8.3 Governing Law. This Agreement shall be governed by, interpreted, and enforced in accordance with the laws of the State of Michigan, without regard to its conflict of laws principles that would result in the application of the laws of another jurisdiction. Any dispute, claim, or controversy arising out of or related to this Agreement, the System, or any related services shall be resolved exclusively in the state or federal courts located in Oakland County, Michigan, and each party consents to the personal jurisdiction and venue of such courts.

8.4 Time Limit for Claims. To the maximum extent permitted by applicable law, User agrees that any claim, dispute, or cause of action arising out of or relating to this Agreement, the System, or any related services must be initiated within one (1) year from the date the issue giving rise to the claim is discovered or reasonably should have been discovered. Failure to bring a claim within this timeframe permanently bars the claim.

8.5 Entire Agreement. This Agreement constitutes the entire understanding between the parties and supersedes all prior agreements, whether oral or written.

8.6 Amendments. Provider reserves the right to modify this Agreement at any time. Continued use of the System after modification constitutes User’s acceptance of the updated terms.

 

8.7 Force Majeure Events. Provider shall not be liable for any failure or delay in performance due to events beyond its reasonable control, including but not limited to acts of God, natural disasters, war, terrorism, labor disputes, governmental actions, or interruptions in internet or communication services.

8.8 No Transfer by User. User may not assign or transfer this Agreement, or any rights or obligations under it, without the prior written consent of Provider. Any unauthorized assignment is null and void. Provider may assign or transfer this Agreement without restriction.

8.9 No Legal Effect. Headings used in this Agreement are for reference purposes only and shall not affect the interpretation of any provision.

8.10 Attorney Fees. In the event that Provider is required to take legal action to enforce any provision of this Agreement, User agrees to reimburse Provider for all costs, expenses, and attorney’s fees incurred in connection with such enforcement, including but not limited to pre-litigation negotiations, arbitration, mediation, litigation, appeals, and collection efforts. User’s obligation to pay legal fees and costs under this section shall survive the termination or expiration of this Agreement.

8.11 Acknowledgment and Acceptance. By signing below, User acknowledges that they have read, understood, and agree to be bound by the terms and conditions of this Agreement. User further represents and warrants that they have the authority to enter into this Agreement and that their use of the System will be in compliance with its terms and all applicable laws and regulations.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the Date the User accepted of these terms and proceeded with creation of a user account in the System