TERMS AND CONDITIONS OF SERVICE
TERMS OF SERVICE AGREEMENT
Our Data Processing Agreement under the European General Data Protection Regulation (GDPR) forms part of these Terms of Service.
The SOFTWARE PRODUCT is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties.
Section I – Terms and Conditions of Use of SOFTWARE PRODUCT
1. GRANT OF LICENSE AND RESTRICTIONS.
The SOFTWARE PRODUCT is licensed as follows:
(a) Installation and Use.
Subject to the terms and conditions of this Agreement, including the payment of the applicable subscription fees, Developer grants you a personal, limited, non-exclusive, non-transferable license, during the initial term of the subscription and any Renewal Term (as defined in Section 3), and the right to install and use a single copy of the SOFTWARE PRODUCT on your computer running a validly licensed copy of the operating system for which the SOFTWARE PRODUCT was designed [e.g., Windows XP, Windows Vista, and Windows 7].
(b) You are not licensed or permitted under this Agreement to do any of the following and shall not allow any third party to do any of the following:
(i) Access or attempt to access any other Developer systems, programs or data that are not made available for public use;
(ii) copy, reproduce, republish, upload, post, transmit, resell or distribute in any way the SOFTWARE PRODUCT;
(iii) permit any third party to benefit from the use or functionality of the SOFTWARE PRODUCT via a rental, lease, timesharing, service bureau, or other arrangement;
(iv) transfer any of the rights granted to you under this Agreement;
(v) work around any technical limitations in the SOFTWARE PRODUCT, use any tool to enable features or functionalities that are otherwise disabled in the Software, or decompile, disassemble, or otherwise reverse engineer the SOFTWARE PRODUCT except as otherwise permitted by applicable law;
(vi) perform or attempt to perform any actions that would interfere with the proper working of the Software, prevent access to or the use of the SOFTWARE PRODUCT by Developer’s other licensees or customers;
(vii) otherwise use the SOFTWARE PRODUCT except as expressly allowed under this Section
2. RESERVATION OF OTHER RIGHTS AND LIMITATIONS.
(a) Compliance with Applicable Laws. You must comply with all applicable laws regarding use of the SOFTWARE PRODUCT.
(b) The SOFTWARE PRODUCT is licensed not sold, and Developer reserves all rights not expressly granted to you in this Agreement. The SOFTWARE PRODUCT is protected by copyright, trade secret and other intellectual property laws. Developer and its licensors own the title, copyright, and other worldwide intellectual property rights in the SOFTWARE PRODUCT and all copies of the SOFTWARE PRODUCT. This Agreement does not grant you any rights to trademarks or service marks of Developer.
The SOFTWARE PRODUCT is licensed on a variable length subscription basis depending on the subscription length originally purchased or renewal term purchased after the original subscription length has ended. The SOFTWARE PRODUCT will be deemed accepted by you upon acceptance of this Agreement for trial versions (if applicable) of the SOFTWARE PRODUCT and upon acceptance of this Agreement and payment of the subscription fee for paid for versions of the SOFTWARE PRODUCT. Access to the SOFTWARE PRODUCT will begin (i) for trial versions after your acceptance of this Agreement and after Developer receives and processes all the information, requested in the registration process; and (ii) for paid for versions after your acceptance of this Agreement and after Developer receives and processes all the information requested by the registration process.
All title, including but not limited to copyrights, in and to the SOFTWARE PRODUCT and any copies thereof are owned by KabanaSoft, LLC or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the SOFTWARE PRODUCT is the property of the respective content owner and may be protected by applicable copyright or other intellectual property laws and treaties. This EULA grants you no rights to use such content.
5. NO WARRANTIES
KabanaSoft, LLC expressly disclaims any warranty for the SOFTWARE PRODUCT. The SOFTWARE PRODUCT is provided ‘As Is’ without any express or implied warranty of any kind, including but not limited to any warranties of merchantability, noninfringement, or fitness of a particular purpose. KabanaSoft, LLC does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within the SOFTWARE PRODUCT. KabanaSoft, LLC makes no warranties respecting any harm that may be caused by the transmission of a computer virus, worm, time bomb, logic bomb, or other such computer program. KabanaSoft, LLC further expressly disclaims any warranty or representation to Authorized Users or to any third party.
THE SOFTWARE IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
6. LIMITATION OF LIABILITY
In no event shall KabanaSoft, LLC be liable for any damages (including, without limitation, lost profits, business interruption, or lost information) rising out of ‘Authorized Users’ use of or inability to use the SOFTWARE PRODUCT, even if KabanaSoft, LLC has been advised of the possibility of such damages. In no event will KabanaSoft, LLC be liable for loss of data or for indirect, special, incidental, consequential (including lost profit), or other damages based in contract, tort or otherwise. KabanaSoft, LLC shall have no liability with respect to the content of the SOFTWARE PRODUCT or any part thereof, including but not limited to errors or omissions contained therein, libel, infringements of rights of publicity, privacy, trademark rights, business interruption, personal injury, loss of privacy, moral rights or the disclosure of confidential information.
Developer shall have the right, to change or add to the terms of its Agreement at any time, (provided that it is not Developer’s intent that such change substantially affect the license rights granted to Licensee in Section 1 and for which consideration was paid by you) and to change, delete, discontinue, or impose conditions on any feature or aspect of SOFTWARE PRODUCT and Services (including but not limited to Internet based services, pricing, technical support options, and other product-related policies) upon notice by any means Developer determines in its discretion to be reasonable, including posting information concerning any such change, addition, deletion, discontinuance or conditions in SOFTWARE PRODUCT or on any Developer sponsored web site. Any use of the SOFTWARE PRODUCT by you after Developer’s publication of any such changes shall constitute your acceptance of this Agreement as modified.
Without prejudice to any other rights KabanaSoft, LLC may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the SOFTWARE PRODUCT in your possession.
Except as expressly set forth in this Agreement, this Agreement is a complete statement of the agreement between you and Developer and sets forth the entire liability of Developer, its Suppliers, and service providers, and your exclusive remedy with respect to the SOFTWARE PRODUCT, and its use. The Suppliers, agents, employees, distributors, and dealers of Developer are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Developer. Any waiver of the terms herein by Developer must be in a writing signed by an authorized officer of Developer and expressly referencing the applicable provisions of this Agreement. If any provision of this Agreement is invalid or unenforceable under applicable law, then it shall be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement will be governed by Commonwealth of Pennsylvania law as applied to agreements entered into and to be performed entirely within the SOFTWARE PRODUCT, without regard to its choice of law or conflicts of law principles that would require the application of law of a different jurisdiction, and applicable federal law. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. As used in this Agreement, the word including means including but not limited to. This Agreement does not limit any rights that Developer may have under trade secret, copyright, patent or other laws.
Section II – Terms and Conditions of Sale of SOFTWARE PRODUCT
1. Offer and acceptance. When making an order you must follow all the instructions during the checkout process and provide all information required by the online order form. By submitting a completed order form, you offer to purchase, on and pursuant to these Terms and Conditions and the order form, the SOFTWARE PRODUCT you choose and submit to the Developer for purchase via the online order form. The Developer may accept your offer by sending you an electronic confirmation that your order has been received and accepted. It shall be in the Developer’s discretion to accept or reject your offer. If the Developer accepts your offer, these Terms and Conditions and the order form collectively constitute a legal agreement between the Developer and you governing your purchase of the SOFTWARE PRODUCT from the Developer over the online shopping service.
2. Responsibilities. If the Developer accepts your order, the Developer shall, in return for your payment, provide the Product that you order through the online shopping service. The Product shall be delivered to you digitally via an email containing instructions on how to access your purchase of the SOFTWARE PRODUCT that is sent to the email address you enter in the order form after applicable payment has been made for the SOFTWARE PRODUCT. Your payment for the SOFTWARE PRODUCT, including sales taxes and assessments (if applicable), is due upon completion of your order on-line. The Developer will charge the payment to the credit card which you submit to the Developer, and will collect the payment from your bank. You authorize the Developer to make and collect such charge, and agree to make payment to the Developer if the Developer cannot collect the charge for any reason. The total amounts you shall pay for the SOFTWARE PRODUCT per each order shall be the sums of the respective prices for the items you select and submit via the order form, plus all applicable sales taxes, as reported to you as the “TOTAL” in the order form. All prices quoted are in US Dollars.
3. Shopper information changes. It is your responsibility to promptly notify your bank of any changes to your billing information, or of any loss, theft, or unauthorized use of your credit card number. You are responsible for updating your registration information and your credit card information with the Developer, as applicable.
4. Communications. The Developer shall conclusively presume that online communications received from you through your use of the online order form and registration process are accurate, complete, and authorized by you as received by the Developer. You agree not to contest the validity and binding legal effect of those communications. The Developer will send your purchase and any communications to you at the contact details you provide on the order form and will not be responsible for any errors in this information.
5. Product Information. The Developer will attempt to update the SOFTWARE PRODUCT information and other as and when changes come to the attention of the Developer. However, the Developer is not responsible for any inaccuracy or misstatement of any such information.
6. Disclaimer of warranty. The Developer online shopping services are provided on as “AS IS”, “AS AVAILABLE” basis, and the Developer does not provide any assurances of the availability or usability by you of the online shopping services. The Developer makes no representations or warranties, whatsoever, as to the substance, or the accuracy or sufficiency thereof, of any Product information listed on the web site. The Developer MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS TO THE PRODUCTS SOLD, THE ONLINE SHOPPING SERVICES, DELIVERIES, OR OTHERWISE.
7. Limitation of liability. The Developer shall not be liable to you for any interception of online communications, software or hardware problems (including, without limitation, viruses, loss of data, or compatibility conflicts), unauthorized use of your credit card, or other consequence beyond the reasonable control of the Developer. Any liability of the Developer, its employees, affiliates, or agents, to you for damages, losses and causes of action, whether in contract, tort, or otherwise, either jointly or severally, shall be strictly limited to the aggregate dollar amount paid by you to the Developer in the twelve (12) months (or, if less, such shorter period of your use of the online shopping service) immediately prior to the claimed injury or damage.
8. Confidentiality. The Developer values you as a customer and your right to privacy. Except as may be otherwise required by law, the Developer (i) will exercise commercially reasonable efforts to ensure that your credit card information remains confidential and is available only to personnel who have a need to know such information in connection with providing you with the Developer’s online shopping services or otherwise for the Developer’s general business purposes and (ii) will not sell your name, address or similar personal information to third parties or permit the use of such information outside the scope of the Developer’s online shopping service or the Developer’s general business purposes. The Developer may, and reserves the right to, use and disclose internally within The Developer any aggregated information, including information you provide to the Developer, regarding the Developer’s customers and usage of the online shopping service, for any purpose.
9. Applicable law. This Agreement and the order form, collectively constituting the sole and entire agreement between the Developer and you regarding the online shopping services, are governed by laws of the State of Pennsylvania without regard to conflict of laws rules. The parties agree to jurisdiction and venue for any dispute hereunder solely in Allegheny or Westmoreland Counties in Pennsylvania.
10. Changes to the Agreement. The Developer reserves the right to, from time to time, with or without notice to you, in the Developer’s sole discretion, amend this Agreement for use and purchases regarding the online shopping services. Any amendments to this Agreement by the Developer will be effective only as to orders you place subsequent to the Developer’s revisions of this Agreement on the web site to reflect the amendments. It is your responsibility to review this Agreement prior to submitting each order and the Developer has no responsibility to notify you of any changes prior to effectiveness of the changes or otherwise.
11. Terms and Conditions Govern. These Terms and Conditions, as amended from time to time, shall be the sole terms of the agreement between you and the Developer regarding your online purchases. All statements otherwise made on the web site are intended only for your convenience and do not form and are not included in the terms for your purchase.
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