IMPORTANT: This End-User License Agreement (“EULA”) is a legal agreement between you (either an individual person or a single legal entity, who will be referred to in this EULA as “YOU” or “YOUR”) and Mobisoft Ltd. (referred to in this EULA as “Mobisale”). READ IT CAREFULLY BEFORE USING THE SOFTWARE. IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY USING THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS EULA. ALL INTELLECTUAL PROPERTY RIGHTS IN THE Mobisale SOFTWARE TOGETHER WITH ANY ACCOMPANYING DOCUMENTATION AND MATERIAL BELONG TO Mobisale AND/OR ITS LICENSORS. THE SOFTWARE IS LICENSED (NOT SOLD). By installing, copying, accessing or otherwise using the Software, YOU agree to be bound by the terms of this EULA. If YOU do not agree to the terms of this EULA, Mobisale is unwilling to license the Software to YOU.
1. Mobisale Software and Grant of License in consideration of YOUR agreement to the terms and conditions contained in this EULA, Mobisale grants to YOU a limited, non-exclusive, non-transferable license to use the Software, in object code form only, for YOUR own benefit. For purposes hereof, “Software” means the Mobisale computer program with which this Software License Agreement is included together with any associated documentation and any other relevant operational literature contained within the Mobisale Software and any updates to these received by YOU. The number of copies of each of the Mobisale Software that YOU are licensed to use is listed in the official Purchase Order or other documentation used to procure the Mobisale Software.
You may install and use the Software on a single computer; OR install and store the Software on a storage device, such as a network server, used only to install the Software on your other computers over an internal network, provided YOU have a license for each separate computer on which the Software is installed and run. You may physically transfer the Software between computers provided that it is used on only one computer at any given time for each individual license purchased. A license for the Software may not be shared, installed or used concurrently on different computers.& YOU may make one copy of the Software in machine-readable form solely for backup purposes. If the Software contains documentation that is provided in electronic form, you may print one copy of such documentation. You must reproduce on any such copy all copyright notices and any other proprietary legends on the original copy of the Software.You may not copy any printed materials accompanying the Software. YOU are expressly prohibited from installing or running the Mobisale Software other than as prescribed in this EULA. The license granted hereunder is personal to YOU, and may not be assigned, sold or transferred in any way without the prior written consent of Mobisale.
(a) For purposes of illustration only and without limitation, under the terms of this Agreement, you may not permit others to
(i) Transfer the license for the Mobisale Software or seek to sublicense or assign the license or YOUR rights under it.
(ii)   Use, copy or transfer the Software or other component parts of the Software except as expressly permitted by this Agreement.
(iii) Distribute, rent, sell, loan, lease, sublicense or otherwise deal in the Software and or any other component elements of the Mobisale Software.
(iv) Alter, adapt, merge, modify or translate the Software or other component elements of the Software in any way, or for any purpose, other than with the prior written consent of Mobisale;
(v) Reverse engineer, disassemble or de-compile the Software or otherwise attempt to obtain the source code for the Software; or
(vi) Adapt, alter, created derivative works based on, modify, or translate the Software, in whole or in part;
(vii) Remove, change or obscure any identification marks or notices of proprietary rights and restrictions on or in the Software and any other component elements of the Software;
(viii) Electronically transfer the Software in whole or in part from its computer server, or any other computer or device, to any third party, or enable any timesharing or service bureau use of the Software to any third party.
The Software is proprietary to Mobisale and/or its licensors. All rights, title and interest in and to the Software and all copyright, trade secret rights, patents, trademarks and any other intellectual property or proprietary rights in and to the Software, and all copies of the Software regardless of the form or media on which it exists, shall at all times, remain the exclusive property of Mobisale and/or its licensors. All rights not expressly granted under this Agreement are reserved by Mobisale.
YOU agree that in the event of actual or threatened breach of this Section by YOU, Mobisale will have no adequate remedy at law and will be entitled to immediate and injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.
This EULA and the licenses granted hereunder may be terminated by Mobisale, without refund, if YOU fail to make full payment of any amount due to Mobisale in accordance with this or any other agreement with Mobisale. Notwithstanding the foregoing, YOUR rights to use the Software will terminate automatically if YOU fail to comply with any terms of this EULA. This EULA will also terminate without further action or notice by Mobisale if YOU become bankrupt, go into liquidation, suffer or make any winding up petition, make an arrangement with YOUR creditors, have an administrator, administrative receiver or other receiver appointed, or if YOU suffer or file any similar action in consequence of debt. Within ten (10) days of termination of this EULA, YOU will return the original, as well as all copies or part copies of the Software, or will furnish to Mobisale a letter certifying the destruction of the original and any such copies. Mobisale will delete all customer setup and files within 14 days of their license expiration.
Mobisale warrants to YOU, for a period of one (1) year from your receipt of the Software, that the medium on which the Software is recorded or delivered will be free from defects in material and workmanship under normal conditions of use.
Mobisale does not warrant or guarantee that YOU will have uninterrupted or error free service from the Software. Mobisale’ entire liability and YOUR exclusive remedy for any breach of the foregoing warranty will be, at Mobisale’ option either
(a) to repair or replace the Software or encryption medium which does not conform or
(b) to refund the price paid to Mobisale for the Software and terminate this EULA. This warranty excludes defects caused by accidents, abuse, poor storage or handling, or by any act not conforming with documentation supplied with the Software.
4. Exclusion of Other Warranties
No employee, agent, representative or affiliate of Mobisale has authority to bind Mobisale to any oral representations or warranty concerning the Software. Any written representation or warranty not expressly contained in this EULA will not be enforceable. The disclaimers and limitations on liability set forth above are fundamental elements of the basis of the agreement between Mobisale and YOU. YOU expressly acknowledge and agree that Mobisale would not be able to provide the Software on an economic basis without such limitations. Such disclaimers and limitations on liability shall inure to the benefit of Mobisale’ licensors, if any.
Mobisale MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE SOFTWARE OR ANY UPDATES OR UPGRADES THERETO, OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO YOU UNDER THIS EULA, INCLUDING MAINTENANCE AND SUPPORT. Mobisale EXPRESSLY AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RESULTS, WORKMANLIKE EFFORT, COURSE OF DEALING AND TITLE, AND NONINFRINGEMENT WITH RESPECT TO THE SOFTWARE AND SAID OTHER MATERIALS AND SERVICES, AND WITH RESPECT TO THE USE OF ANY OF THE FOREGOING. NO RIGHTS OR REMEDIES REFERRED TO IN ARTICLE 2A OF THE UCC WILL BE CONFERRED ON YOU UNLESS EXPRESSLY GRANTED HEREIN. Mobisale DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE ERROR FREE OR UNINTERRUPTED. 6. Limitation of Liability TO THE MAXIMUM EXTENT PERMITTED BY LAW, Mobisale SHALL NOT BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY OF THE FOLLOWING, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT OR TORT, INCLUDING NEGLIGENCE OR OTHERWISE:
(A) ANY LOSS OF BUSINESS;
(B) LOSS OF REPUTATION;
(C) LOSS OF PROFITS OR GOODWILL;
(D) LOSS OF USE;
(E) LOSS OR DAMAGE TO OR CORRUPTION OF DATA;
(F) THE UNAUTHORIZED DISCLOSURE OF SENSITIVE, VALUABLE, OR CONFIDENTIAL INFORMATION;
(G) LOSS ATTRIBUTABLE TO YOUR FAILURE TO MAKE AND RETAIN REASONABLE BACK-UPS OF YOUR DATA;
(H) INTERRUPTION OF BUSINESS;
(I) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; AND
(J) ANY COSTS OF PROCURING SUBSTITUTE GOODS, SERVICES, TECHNOLOGY OR RIGHTS.
You hereby acknowledge that the allocation of risk in this Agreement reflects the price paid for the Mobisale Software. If any exclusion, disclaimer or other provision contained in this EULA is held to be invalid for any reason by a court of competent jurisdiction and Mobisale becomes liable thereby for loss or damage that could otherwise be limited, such liability whether in contract, tort or otherwise, will not exceed the amount actually paid by YOU for the Software.
YOU shall indemnify and hold Mobisale harmless from and against any costs, losses, liabilities and expenses (including reasonable attorneys fees) arising out of third party claims related to YOUR use of the Software or violation of this Agreement.
7. Compliance With Law
You acknowledge and agree that the Software and any other technical data provided hereunder are subject to restrictions and controls imposed by the United States government. You agree and certify that neither the Software nor any technical data provided hereunder is being or will be acquired, shipped, transferred or re-exported, directly or indirectly, into any country prohibited by the United States government or will be used for any purpose prohibited by the same. You further agree to comply with all laws and regulations of all jurisdictions in your use of the Software.
8. U.S. Government Restricted Rights
As defined in FAR section 2.101, DFAR section 252.227-7014(a)(1) and DFAR section 252.227-7014(a)(1) or otherwise, the Mobisale Software is a “commercial item,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software by the U.S. government shall be governed solely by the terms of this Agreement and shall be prohibited except to the extent expressly permitted herein.
(a) Any reseller, distributor or dealer (including any Mobisale approved dealer) from whom YOU may have purchased the Software is expressly not appointed or authorized by Mobisale as its agent. No such person has any authority, either express or implied, to enter into any contract or provide any representation, warranty or guarantee with or to YOU on behalf of Mobisale or otherwise to bind Mobisale in any way whatsoever.? Mobisale will not be responsible for any modifications or additions made to the Software by such any third party including without limitation, any reseller, distributor or dealer.
(b) Failure by Mobisale to enforce any particular term of this EULA shall not be construed as a waiver of any of its rights under it.
(c) If any part of this EULA is held by a court of competent jurisdiction to be unenforceable for any reason whatsoever, then YOU and Mobisale agree that the validity of the remainder of terms will not be affected.
(d) The validity, interpretation, construction and performance of this EULA shall be governed by the laws of the State of Tennessee, without giving effect to the principles of conflict of laws. Any action under this EULA or any provision hereof shall be commenced solely in the state or federal courts of the State of Tennessee. YOU agree that YOU will not contest venue and YOU waive any rights that YOU may have to initiate, transfer, or change the venue of any litigation arising from or related to this EULA.
(e) No variation, amendment of or addition to this EULA shall be effective without Mobisale’ prior written consent.
10. Entire Agreement
This EULA and any addendum or amendment to this EULA are the entire agreement between YOU and Mobisale with respect to the Software and supersede all previous communications, representations, understandings and agreements, either oral or written, with respect to the Software or other subject matter covered by this EULA