END USER'S LICENSE, MAINTENANCE AND SUPPORT AGREEMENT

 

This End User's License, Maintenance and Support Agreement ("Agreement") is a legal agreement between you (either an Individual or a single entity) ("LICENSEE") and NumberCruncher.com, Inc. ("LICENSOR") for All Orders by NumberCruncher, NumberCruncher Work Orders, NumberCruncher Sales Orders, NumberCruncher Pocket Inventory or All Orders Mobile software products, which includes the software and all its components as well as off-line, online and electronic documentation and  associated media developed by LICENSOR (herein referred to as the "LICENSED SOFTWARE"). LICENSED SOFTWARE also includes updates, custom reports, custom programs and supplements to the original LICENSED SOFTWARE provided to you by LICENSOR.

 

THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE LICENSOR AND LICENSEE REGARDING THE LICENSED SOFTWARE, MAINTENANCE AND SUPPORT SERVICES DESCRIBED HEREIN.  LICENSEE ACKNOWLEDGES THAT IT’S NONPAYMENT OF ANY AMOUNT DUE TO LICENSOR OR ANY OTHER RELEVANT THIRD PARTY RELATING TO MAINTENANCE AND SUPPORT OR THE LICENSED SOFTWARE, SHALL CONSTITUTE A BASIS FOR LICENSOR’S TERMINATION OF THIS AGREEMENT.  LICENSEE NEEDS TO BE CURRENT ON MAINTENANCE AND SUPPORT IN ORDER TO PURCHASE ADDITIONAL PRODUCTS AND\OR ADDITIONAL LICENSES AS DEFINED IN THE SOFTWARE LICENSE AGREEMENT.   LICENSEE FURTHER ACKNOWLEDGES THAT IT’S FUTURE PURCHASE OF MAINTENANCE AND SUPPORT FOR ADDITIONAL PRODUCTS OTHER THAN THOSE SHOWN IN THE SOFTWARE LICENSE AGREEMENT SHALL BE SUBJECT TO THE SAME TERMS AND CONDITIONS AS CONTAINED IN THIS AGREEMENT OR AS OTHERWISE AGREED TO AT THE TIME OF SUCH FUTURE PURCHASE.

 

By installing, copying, downloading, accessing or otherwise using LICENSED SOFTWARE, you agree to be bound by the terms of the terms of the LICENSE TO USE LICENSED SOFTWARE described below. If you do not agree to this LICENSE TO USE LICENSED SOFTWARE do not install LICENSED SOFTWARE and remove any copies of it from your computer.

 

A. LICENSE TO USE LICENSED SOFTWARE

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1) Copyright laws and international copyright treaties, as well as other intellectual property laws and treaties protect LICENSED SOFTWARE. LICENSED SOFTWARE is licensed, not sold.

 

2) All title to intellectual property rights in and to LICENSED SOFTWARE including documentation, are owned by LICENSOR. LICENSOR reserves all rights not expressly granted.

 

3) TRIAL LICENSE

(i)    LICENSOR may grant LICENSOR a non-purchased temporary license to use the LICENSED SOFTWARE for a specified period of time so that LICENSOR may determine the appropriateness of the LICENSED SOFTWARE ("TRIAL LICENSE").  

(ii)   TRIAL LICENSE shall terminate thirty 30 days from the date that LICENSOR registers with LICENSOR for such TRIAL LICENSE ("TRIAL PERIOD").  

(iii)  If after the TRIAL LICENSE terminates, LICENSEE does not purchase the LICENSED SOFTWARE, LICENSEE shall immediately remove all copies of the LICENSED SOFTWARE  from all its computers and destroy all printed matter relating to the LICENSED SOFTWARE.

(iv)   During the TRIAL PERIOD LICENSEE shall be bound by the terms of this AGREEMENT.

(v)    The TRIAL LICENSE does not entitle LICENSEE to receive "Maintenance" (as defined below) and "Support" (as defined below)

 

4) LICENSOR grants you the right to designate that number of individuals within your organization  i) If during the TRIAL PERIOD no more than 20 or ii) for which a user license was purchased ("LICENSED END USERS") to have the right to use LICENSED SOFTWARE as provided below.

 

5) LICENSOR grants LICENSEE a nonexclusive license to make, use and install LICENSED SOFTWARE on the computers of the LICENSED END USERS for personal purposes.

 

6) LICENSOR grants LICENSEE a nonexclusive license to make and use an unlimited number of copies of any documentation,  provided that such copies shall be used only for personal purposes and are not to be republished or distributed (either in hard copy or electronic form) beyond the LICENSEE's premises.

 

7) LICENSEE may also store and install a copy of LICENSED SOFTWARE on a storage device, such as a network server, used only to install or run LICENSED SOFTWARE on computers used by LICENSED END USERS in accordance with this AGREEMENT. A single license for LICENSED SOFTWARE may not be shared or used concurrently by other users.

 

8) LICENSEE may not resell, sub-license or otherwise transfer for value, LICENSED SOFTWARE.

 

9) LICENSEE may not reverse engineer, decompile or disassemble LICENSED SOFTWARE. You may not view or use source code, formulas, algorithms or other intellectual property developed by LICENSOR

 

10) LICENSEE may not rent, lease or lend LICENSED SOFTWARE.

 

11) If LICENSED SOFTWARE is labeled as an update or service pack, LICENSEE must be properly licensed to use LICENSED SOFTWARE. LICENSED SOFTWARE that is labeled as an update or service pack, replaces and/or supplements the original LICENSED SOFTWARE and is subject to the terms and conditions of this AGREEMENT

 

12) This AGREEMENT does not grant any rights in connection with any trademarks or service marks of LICENSOR. QuickBooks is a registered trademark and service mark of Intuit Inc. in the United States and other countries.

 

13) Without prejudice to any right, LICENSOR may terminate this AGREEMENT if LICENSEE fails to comply with the terms and conditions of this AGREEMENT. In such event, you must destroy all copies of LICENSED SOFTWARE.

 

14) LIMITED WARRANTY

(i)    LICENSOR warrants that a) LICENSED SOFTWARE will perform substantially in accordance with the accompanying documentation for a period of thirty (30) days from the date of receipt, and b) the Support Service provided by LICENSOR shall be substantially as described in applicable materials provided to you by LICENSOR and c) LICENSOR will make commercially reasonable efforts to solve problems with LICENSED SOFTWARE. Implied warranties are limited to thirty (30) days.

(ii)   LICENSOR liability and exclusive remedy shall be at LICENSOR's option, either to a) refund of the price paid, if any or b) repair or replacement of LICENSED SOFTWARE that does not meet LICENSOR's Limited Warranty and that is returned to LICENSOR with a copy or your receipt. This Limited Warranty is void if failure of LICENSED SOFTWARE has resulted from accident, abuse or misapplication. Any replacement LICENSED SOFTWARE will be warranted for the remainder of the original warranty period or thirty (30) days or whichever is longer.

(iii)  To the maximum extent permitted by applicable law, LICENSOR disclaim any and all other warranties and conditions, either express or implied, including but not limited to, implied warranties or conditions of merchantability, fitness for a particular purpose, title and non-infringement, with regard to the LICENSED SOFTWARE, and the provision for failure to provide Support Services.

15) LICENSEE shall be bound by the terms of LICENSE TO USE LICENSED SOFTWARE described above even without Maintenance described below.

 

B. MAINTENANCE

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1) Maintenance entitles LICENSEE to receive updates, upgrades and new releases or versions of the LICENSED SOFTWARE, including updated documentation, at such time as LICENSOR makes such updates, upgrades and new releases or versions available generally to its LICENSEE’s, as LICENSOR solutions may be provided in its sole discretion without requirement of a separate license agreement, and without additional charge other than payment of the License Software, Maintenance and Support fees described herein.

2) Maintenance does not include updates, upgrades and new releases or versions of any third-party software or related documentation included in the Licensed Software unless otherwise specified; such updates, upgrades or new releases or versions, if available, will be provided and/or billed separately.  Maintenance does not include or pertain to any LICENSOR products that are not part of the LICENSED SOFTWARE. Updates, upgrades and new releases or new versions of the LICENSED SOFTWARE provided through Maintenance, whether from LICENSOR or a third-party other than LICENSOR, shall be subject to the same terms and conditions of the applicable Software License Agreement.  LICENSEE must be party to a current maintenance and support agreement in order to purchase additional users of the LICENSED SOFTWARE and to also purchase new LICENSOR's products.

3) LICENSEE will receive the initial term of Maintenance upon initial purchase of the LICENSED SOFTWARE.  

4) Maintenance can be renewed by prepaying LICENSOR the applicable published maintenance fee for LICENSEE'S LICENSED END USERS.

5) Maintenance shall terminate one (1) year from a) in the case of the first year, the date of Initial Purchase of the LICENSED SOFTWARE or b) in the case of subsequent years from the date of Maintenance renewal.

6) Upon initial purchase of the LICENSED SOFTWARE or Maintenance renewal, LICENSEE shall be granted a specified number of prepaid Support Hours ("NC HOURS").   Such Hours will be communicated to LICENSEE at initial purchase of the LICENSED SOFTWARE or Maintenance renewal.

7) If Licensee’s Maintenance is interrupted as a result of expiration without renewal or otherwise pursuant to the terms and conditions of this Agreement for a period of more than one month following the beginning of the support term, a reinstatement fee will be charged to the Licensee.  Such reinstatement fee will be set at 25% of the total amount of the yearly maintenance and support fees.  Such reinstatement fees as well as additional Maintenance Support Fees for any future periods will apply to the maintenance and support term starting from the end of the last period of the last set Maintenance Agreement paid by the Licensee to the Licensor.

 

C. SUPPORT

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1) LICENSEE must have Maintenance described above in order to receive Support.

2) Support entitles the LICENSED SOFTWARE to telephone or assistance at LICENSOR’s published number, and/or assistance via E-mail or other automated processes, with the LICENSED SOFTWARE.  Support is currently available Monday through Friday, 9:00 a.m. to 5:00 p.m. EST.    The hours and days of Support are subject to change at any time; provided that LICENSOR will provide advance notice of any change in the hours and days.

3) LICENSOR will attempt to answer LICENSEE specific questions; however Support is offered to LICENSEE on a best-efforts basis only and LICENSOR may not be able to resolve every request for Support.  Support is provided for ongoing use of the LICENSED SOFTWARE; it is not intended to be a substitute for professional services or training necessary for the implementation, installation, ongoing operation or redesign of the LICENSED SOFTWARE.  All other services, including and without limitation, on-site assistance, custom programming, database and network administration; accounting principles or theoretical training, and custom designed reports, labels and forms, or any of the services outlined in section (f) of this agreement; may be furnished by LICENSOR or Authorized LICENSOR Agent subject to staff availability, and at LICENSOR’s then current rates and costs.  Support is not provided to LICENSEE for any software or hardware products or licenses that are not part of the Software License Agreement.

 

4) The LICENSEE hereby agrees to abide by the LICENSOR support procedures and processes as follows:  

(i)    LICENSEE may call LICENSOR support telephone line and provide initial support issue description and any other relevant information to LICENSOR Support Coordinator.  LICENSOR Support Coordinator will then open a Registered Support Ticket and provide LICENSEE with a Registered Support Ticket Number and proceeds to email a Registered Support Ticket Response Form to the LICENSEE in less then 24 hours from the initiation of the Registered Support Incident by the LICENSEE.

(ii)   LICENSOR’s Internal Help Support Staff may email the Support issue description and any other relevant information to LICENSOR’s support email account published at that time.  The LICENSOR Support Coordinator receiving the emailed support request will open a Registered Support Ticket and proceed to email a Support Ticket Response to the LICENSEE in less then 24 hours from the time of receipt of the emailed support request sent by the LICENSEE.

(iii)  LICENSOR will maintain a detailed count and description of all LICENSEE’s requested Registered Support Tickets and will do it’s best to resolve these Registered Support Ticketed Issues in a timely manner.

(iv)   LICENSOR will not close any Registered Support Tickets without LICENSEE's consent.

(v)    LICENSEE agrees that any Support issue not included in a Registered Support Ticket does not constitute a Support issue and will not be answered, supported or otherwise looked after by the LICENSOR.

(vi)   LICENSOR will only provide support for each revision of the LICENSED SOFTWARE following a period of 3 months after the public release of the revision of the LICENSED SOFTWARE, and provided in any case that LICENSEE has Maintenance described above.

(vii)  For each Registered Support Ticket Number, LICENSOR will provide LICENSEE with a record the time spent, in increments of one-eighth (1/8th) of one hour, and nature of Support provided.

 

5) The LICENSEE hereby agrees to pay Support Fees to LICENSOR as follows:

 

(i)    Other than the Additional Services provided below, LICENSEE may consume unused NC HOURS to pay for Support.

(ii)   LICENSEE may purchase a block NC HOURS at published prices.

(iii)  If LICENSEE has no available NC HOURS or LICENSOR’s Internal Help Support Staff determines that LICENSEE's available NC HOURS will not be sufficient to resolve a Support issue, the LICENSOR’s Internal Help Support Staff must receive LICENSEE's prior approval, in writing, to provide Support service and pay for time spent in excess of LICENSEE's NC HOURS

(iv)   Support is excess of NC HOURS shall be charged at the LICENSOR's published hourly rates.

(iv)   LICENSOR shall render and invoice for payment of Support in excess if NC HOURS. Such invoices are due upon receipt.   LICENSOR may at its option withhold future Support for non-payment of invoices in a timely manner.  

(v)    All Support provided in relation to Additional Services described below shall be considered time spent in excess of LICENSEE's NC HOURS

 

6) The following are considered Additional Services:

 

(i)    Unless otherwise agreed; Supporting of database products and issues, including and without limitation to: set-up and configuration of database products, on going database maintenance, database repair, database upkeep and proper backup of LICENSED SOFTWARE data.

(ii)   Unless otherwise agreed; training and providing support on any reporting tools used as additional functional, manufacturing or financial reporting means, as part of the SOFTWARE LICENSE, including but not limited to Data Dynamics tools and Software, Microsoft Access, and Microsoft Reporting Services and OLAP reporting tools.  Any such support services are considered training and customization services as per this Agreement, and are not included in the services of this Agreement.

(iii)  Retraining of LICENSEE new employees or agents, as well as any employees new to a position requiring the use of the LICENSED SOFTWARE. Any requirements for such training may be requested by the LICENSEE and provided by the LICENSOR by means of paid training in addition to this Agreement.  LICENSOR’s support staff will not provide such training as per this agreement.

(iv)   Customization and changes to the LICENSED SOFTWARE, creation and updates of reports and labels, and otherwise any customization or updates to the LICENSED SOFTWARE.  

(v)    Any Training and support relating to accounting principles not associated with the LICENSED SOFTWARE purchased by the LICENSED SOFTWARE.  Such training and support are deemed to be services outside of this Agreement and may be provided by the LICENSOR by means of scheduled and paid training.

(vi)   Any issues and Support requirements resulting from the LICENSEE directly updating or changing the Software database (Microsoft SQL/Server) by means other than entering data directly into the Software.  Such updates include processing update, delete and/or insert queries in the SQL/Server database, or importing of lists or otherwise information from external sources.

(vii)  Supporting the Licensed Software as it pertains to operating systems not supported by the LICENSOR in relation to the LICENSED SOFTWARE.

(viii) Support provided for issues already resolved or training already conducted in the past to either the same person or to different persons at the LICENSED SOFTWARE’s location.

(ix)   Upgrade services for the LICENSED SOFTWARE.  LICENSEE may choose to have LICENSOR staff help in the upgrade process at a set and previously agreed upon fee.

(x)    Any data restoration or database fix due to loss of data and the unavailability or availability of proper backups.

(xi)   Creation and training of labels and reports other than the initial training as per the Software License Agreement.

(xii)  Resolving network, server, workstation or environmental errors not directly related to the LICENSED SOFTWARE.

(xiii) Supporting any Licensed Software being used in a manner for which it was not designed.

(xiv)  Issues relating to configuring printers and/or printing labels and reports.

(xiv)  Issues relating to configuring mobile devices, scanners, Pocket PCs or smart phone.

 

7) It is the LICENSEE’s responsibility to make and maintain adequate back-ups and to test the data backed up on a regular basis.  In no event will LICENSOR be responsible for lost data due to inadequate back-ups and to non-testing of the data backed up on a regular basis.

 

 

D. REFUND POLICY

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All sales of Licensed Software, Maintenance and Support are final and non-refundable.  

 

E. GOVERNING BODY

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The Agreement is governed by laws of the State of Florida, United States of America.

 

F. LIMITATION OF LIABILITY

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TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR  CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES AND LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE OF LICENSED SOFTWARE AS WELL AS THE FAILURE TO PROVIDE MAINTENANCE OR SUPPORT SERVICES, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, IN ANY CASE, LICENSOR'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID FOR LICENSED SOFTWARE OR SERVICE AGREEMENT OR U.S. $5.00.