Software End User License Agreement
Redistribution or Rental Not Permitted
These Terms apply to the Punch Clock(tm) software (and all content that can be installed into it) (the “Product”). BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING OR USING THE PRODUCT THE INDIVIDUAL OR ENTITY LICENSING THE PRODUCT (“LICENSEE”) IS CONSENTING TO BE BOUND BY AND IS BECOMING A PARTY TO THIS AGREEMENT. IF LICENSEE DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED, AND LICENSEE MUST NOT INSTALL OR USE THE SOFTWARE.
1. License Agreement
In this Agreement "Licensor" shall mean Punch Clock, Inc. except under the following circumstances: (a) if Licensee acquired the Product as a bundled component of a third party product or service, then such third party shall be Licensor so long as that third-party is expressly granted a license by Punch Clock, Inc; and (b) if any third party software is included as part of the default installation and no license is presented for acceptance the first time that third party software is invoked, then the use of that third party software shall be governed by this Agreement, but the term "Licensor," with respect to such third party software, shall mean the manufacturer of that software and not the Licensor. With the exception of the situation described in (b) above, the use of any included third party software product shall be governed by the third party's license agreement between Punch Clock, Inc. and that third-party as well as this Agreement, whether that license agreement is presented for acceptance the first time that the third party software is invoked, is included in a file in electronic form, or is included in the package in printed form. If more than one license agreement was provided for the Product, and the terms vary, the order of precedence of those license agreements is as follows: a signed agreement, this End User License Agreement ("EULA") available for review on the Licensor website, a printed or electronic agreement that states clearly that it supersedes other agreements, a printed agreement provided with the Product, an electronic agreement provided with the Product.
2. Licensee Grant
Licensor grants Licensee a non-exclusive and non-transferable license to reproduce and use for personal or internal business purposes one (1) logical copy of the executable code version of the Product on a single computer and/or local area network, provided any copy must contain all of the original proprietary notices. One logical copy means several instances of the software can be installed, so long as they all operate against the same database instituting one logical entity. If Licensee is operating a VPN or a WAN connecting multiple physical locations, then a separate license is required for each additional physical location. In the case of a single-use license, the license is only valid for a single computer. Licensee may not redistribute the Product unless Licensee has separately entered into a distribution agreement with the Licensor. Licensee agrees to take all reasonable steps to prevent and/or avoid making unauthorized copies of the Product. Except as otherwise provided in this EULA, and except for the exclusive purpose of using the Product, the Licensee may not use the term "Punch Clock" or "Punch Clock, Inc." for profit or non-profit since the term "Punch Clock" is a trademark owned by Punch Clock, Inc.
Except as otherwise expressly permitted in this Agreement, Licensee may not: (a) alter, merge, adapt, modify or create any derivative works of the Product or documentation, including, without limitation, translation or localization; (b) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code for the Product (except to the extent applicable laws specifically prohibit such restriction); (c) redistribute, encumber, sell, rent, lease, sublicense or otherwise transfer rights to the Product; (d) remove or alter any trademark, logo, copyright or other proprietary notices, legends, symbols or labels in the Product; or (e) publish any results of benchmark tests run on the Product to a third party without the Licensor's prior written consent.
If Licensee wishes to receive the Product on media, there may be a charge for the media and for shipping and handling. Licensee is responsible for any and all taxes. Licensor reserves the right not to provide such media to Licensee if Licensee already received the software via online download and/or to limit the ability to install the Product from any such media to only one computer.
Without prejudice to any other rights, Licensor may terminate this Agreement if Licensee breaches any of its terms and conditions. On termination, Licensee shall destroy all copies of the Product.
6. Product Activation
All testing and evaluations of the Product are to be conducted while using the product in "DEMO" mode and before acquiring permanent activation codes from the Licensor. It is the sole responsibility of Licensee to provide the computer codes necessary to Licensor such that Licensor can provide permanent activation codes to Licensee. The failure of the Licensee to provide the computer codes, thereby delaying delivery of the permanent activation, shall not justify a refund of any money paid by Licensee. It is the sole responsibility of the Licensee to provide the Licensor with the afore mentioned computer codes for permanent activation within thirty (30) calendar days of the date of purchase, unless otherwise approved by the Licensor in writing. Failure to provide the computer codes within the required timeline shall result in the need of the Licensee to purchase a new replacement license. The sole obligation of Licensor after the transaction is completed will be to provide permanent activation codes after Licensee provides computer codes from previously downloaded DEMO version of Product. Activation codes are associated with hardware configuration of the computer(s) you install Punch Clock on. As such, these codes only work on those machines. If you move the Product to different hardware or do something to significantly change your hardware signature (replace or reformat harddrives, for example), you will be required to purchase an additional license or licenses, based on your configuration. If Licensee provides the wrong information to the Licensor and the Licensor provides permanent activation codes to that Licensee based on that information, then that is all that is required from the Licensor and as such that activity will be deemed concluded. If the Licensee then requests a second set of permanent activation codes or code, said codes will be provided after payment for the second code or codes requested by Licensee is received. Licensee is only entitled to set of Permanent activation codes, based on License purchased, for each "request for permanent activation codes or code".
All sales when paid, are final. Licensee agrees that once payment has been received by email, via online transaction, via check or via any other payment method, the transaction will be considered "completed," and no refund will be given by Punch Clock, Inc. to Licensee or customer(s).
8. Proprietary Rights
Title, ownership rights and intellectual property rights in the Product shall remain in the Licensor and/or its suppliers. Licensee acknowledges such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with the Licensor's or its suppliers' ownership of or rights with respect to the Product. The Product is protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the Product is the property of the applicable content owner and is protected by applicable law. The license granted under this Agreement gives Licensee no rights to such content.
9. Disclaimer of Warranty
THE PRODUCT IS PROVIDED, ON AN "AS IS" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED. LICENSOR DISCLAIMS ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. LICENSOR DOES NOT WARRANT THAT USE OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PRODUCT IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS BORNE BY LICENSEE. SHOULD THE PRODUCT PROVE DEFECTIVE IN ANY RESPECT, LICENSEE AND NOT LICENSOR OR ITS SUPPLIERS OR RESELLERS ASSUMES THE ENTIRE COST OF ANY SERVICE AND REPAIR. IN ADDITION, THE SECURITY MECHANISMS IMPLEMENTED BY THE PRODUCT HAVE INHERENT LIMITATIONS, AND LICENSEE MUST DETERMINE THAT THE PRODUCT SUFFICIENTLY MEETS ITS REQUIREMENTS. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE PRODUCT IS AUTHORIZED UNDER THIS AGREEMENT EXCEPT UNDER THIS DISCLAIMER.
10. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE FOR ANY DIRECT, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE PRODUCT, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) ON WHICH THE CLAIM IS BASED. IN ANY CASE, LICENSOR'S MAXIMUM LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL NOT EXCEED THE LESSER OF A) IN THE AGGREGATE THE SUM OF THE FEES LICENSEE PAID FOR THIS LICENSE (IF ANY) AND FEES FOR SUPPORT OF THE PRODUCT RECEIVED BY THE LICENSOR UNDER A SEPARATE SUPPORT AGREEMENT (IF ANY), OR B) ONE HUNDRED U.S. DOLLARS (USD 100.00), WITH THE EXCEPTION OF DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF LICENSOR TO THE EXTENT APPLICABLE LAW PROHIBITS THE LIMITATION OF DAMAGES IN SUCH CASES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. THE LICENSOR IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF CONTENT PROVIDED BY LICENSEE OR A THIRD PARTY THAT IS ACCESSED THROUGH THE PRODUCT AND/OR ANY MATERIAL LINKED THROUGH SUCH CONTENT.
11. Export Control Provisions - Governmental Use
Licensee agrees to comply with all export laws and restrictions and regulations of Canada, the United States or other foreign agencies or authorities, and not to export or re-export the Product or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Product. Neither the Product nor the underlying information or technology may be downloaded or otherwise exported or re-exported into any country subject to trade sanctions covering the Product, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions. By downloading or using the Product, Licensee agrees to the foregoing and represents and warrants that it complies with these conditions. If Licensee is acquiring the Product on behalf of any unit or agency of the United States Government the following provisions (or if on behalf of the Canadian Government then comparable provisions, if any) apply - It is acknowledged that Product and any documentation were developed at private expense and that no part is in the public domain and that the Product and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19 as applicable. Contractor /Manufacturer is Punch Clock, Inc. Fort Lauderdale, FL.
12. High Risk Activities
The Product is not fault-tolerant and is not designed, manufactured or intended for use or resale as online control equipment in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines or weapons systems, in which the failure of the Product could lead directly to death, personal injury or severe physical or environmental damage ("High Risk Activities"). Accordingly, Licensor and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities. Licensee agrees that Licensor and its suppliers will not be liable for any claims or damages arising from the use of the Product in such applications.
(1) This Agreement constitutes the entire agreement between the parties concerning the subject-matter hereof. There may not be a modification of this Agreement without a signed, written document executed in hand by the Licensor and Licensee. Verbal statements, written statements, email communication and affirmative or non-affirmative conduct shall not constitute a modification of this Agreement whatsoever.
(2) This Agreement may be amended from time to time by the Licensor, at will. The latest version of this agreement will be available on the Product website.
(3) Except to the extent applicable law, if any, provides otherwise, this Agreement shall be governed by the laws of the State of Florida, U.S.A., notwithstanding any conflict of law provisions set forth by any other jurisdiction.
(4) Licensee expressly agrees and consents to the exclusive personal jurisdiction for any claim or action arising out of or relating to this Agreement or use of the Product shall be filed only in the state or federal courts located in Broward County of the State of Florida, and Licensee further agrees and submits to the exercise of personal jurisdiction of such courts for the purpose of litigating any such claim or action.
(5) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.
(6) If any provision in this Agreement should be held illegal or unenforceable by a court having jurisdiction, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or severed from this Agreement if no such modification is possible, and other provisions of this Agreement shall remain in full force and effect.
(7) A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
(8) The provisions of this Agreement which require or contemplate performance after the expiration or termination of this Agreement shall be enforceable notwithstanding said expiration or termination.
(9) Licensee may not assign or otherwise transfer by operation of law or otherwise this Agreement or any rights or obligations herein except in the case of a merger or the sale of all or substantially all of Licensee's assets to another entity.
(10) This Agreement shall be binding on and shall inure to the benefit of the parties, and their legal representatives, heirs, executors, administrators, successors and permitted assigns.
(11) Neither party shall be in default or be liable for any delay, failure in performance (excepting the obligation to pay) or interruption of service resulting directly or indirectly from any cause beyond its reasonable control.
(12) The relationship between Licensor and Licensee is that of independent contractors and neither Licensee nor its agents shall have any authority to bind Licensor in any way.
(13) If any dispute arises under this Agreement, the prevailing party shall be reimbursed by the non-prevailing party for any and all legal fees, costs and expenses associated with any and all claims, demands, suits, judgments, awards and settlements, including but not limited to appellate proceedings, arbitration proceedings, ICAAN proceedings, litigation proceedings, mediation proceedings and any other activity which is intended to resolve a dispute among the parties.
(14) If any the Licensor's professional services are being provided, then such professional services are provided pursuant to the terms of a separate agreement between the Licensor and the Licensee. The parties acknowledge that such services are acquired independently of the Product licensed hereunder, and that provision of such services is not essential to the functionality of such Product.
(15) The headings to the sections of this Agreement are used for convenience only and shall have no substantive meaning.
(16) Licensor may use Licensee's name in any customer reference list or in any press release issued by Licensor regarding the licensing of the Product and/or provide Licensee's name and the names of the Product licensed by Licensee to third parties.
(17) This Agreement is effective and shall apply to all purchases of the Product from August 1, 2009 forward. If Licensee purchases a second Product, updates its Product, upgrades the Product installs the Product or otherwise obtains Product after August 1, 2009, this Agreement shall apply to the use and purchase of all prior and current versions of the Product.
Last updated: August 01, 2009