END USER LICENSE AGREEMENT
(Last Revised: January 25, 2017)
PLEASE READ THIS DOCUMENT CAREFULLY BEFORE ORDERING, ACCESSING OR USING THE SOFTWARE AND TRAINING REFERRED TO AS “PLUSTHIS™” (HEREINAFTER THE “SOFTWARE”).
IMPORTANT: THIS SOFTWARE END USER LICENSE AGREEMENT (“EULA”) IS A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR, IF PURCHASED OR OTHERWISE ACQUIRED BY OR FOR AN ENTITY, AN ENTITY) AND PLUSTHIS LLC. READ IT CAREFULLY BEFORE ACCESSING THIS WEB SITE AND USING THE SOFTWARE AND TRAINING. IT PROVIDES A LICENSE TO USE THE SOFTWARE AND CONTAINS WARRANTY INFORMATION AND LIABILITY DISCLAIMERS. BY SELECTING TO USE THE SOFTWARE, YOU ARE CONFIRMING YOUR ACCEPTANCE OF THE SOFTWARE AND AGREEING TO BECOME BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, THEN DO NOT USE THE SOFTWARE AND/OR TRAINING.
Please read carefully, and note our MANDATORY ARBITRATION PROVISION and WAIVER OF CLASS ACTION PROVISION.
A. “LICENSOR” means, PlusThis LLC, a limited liability company with an address of 2450 S. Gilbert Rd., Suite 211, Chandler, AZ 85286.
B. “LICENSEE” means you, either an individual or, if purchased or otherwise acquired by or for an entity, that entity.
C. “Designated Equipment” shall mean the host server(s) of LICENSOR where the software application and any applicable end user data (such as login details) are hosted.
D. “Documentation” shall mean all manuals, user documentation, online help, training videos, training audios, frequently asked questions, and other related materials pertaining to the Software that are furnished to LICENSEE by LICENSOR in connection with the Software.
E. “License Fee” shall mean the ongoing monthly, annual or other recurring term fee that is owed to LICENSOR to continue the license.
F. “Marketing Automation Platform” shall mean any third-party platform that is compatible with the Software. This currently includes InfusionSoft, Ontraport, Drip, or ActiveCampaign.
G. “Software” shall mean the “PlusThis™” web-hosted software and any subsequent error corrections or updates supplied to LICENSEE by LICENSOR pursuant to this Agreement.
2. LICENSE GRANT
A. LICENSOR hereby grants to LICENSEE a non-exclusive right and license to use the Software on the Designated Equipment on a periodic basis, with the license automatically being renewed each period (monthly, annually, or otherwise as specified in the original order) upon payment to LICENSOR of the applicable licensing fee. LICENSEE is entitled to reasonable use of server bandwidth for the Software under this License Grant, but any excessive usage by LICENSEE may result in additional charges in LICENSOR’s discretion.
B. LICENSEE may create up to 10 user accounts for one (1) License Grant, but LICENSEE may only use one instance (i.e. the connection key associated with one account on the Marketing Automation Platform) of a Marketing Automation Platform per License. Any additional instances of the Marketing Automation Platform require the purchase of an additional License Grant from LICENSOR, as do any user accounts that exceed the user limit set forth herein.
C. LICENSOR has the right to increase the periodic License Fee owed by LICENSEE at any time upon giving thirty (30) days advance notice to LICENSEE before the next scheduled renewal date of the license term. If LICENSEE does not want to continue the License after receiving notice of any increased License Fee from LICENSOR, LICENSEE shall have the right to terminate this Agreement according to the Termination provision of Section 13 herein.
3. BILLING POLICY
Please consult our separate Billing Policy for details. The Billing Policy is part of the terms of this Agreement and is hereby incorporated herein by reference.
LICENSOR shall be responsible for delivering to LICENSEE sufficient details (such as a user name, password, and access URL) that will allow LICENSEE to access the Software over an Internet connection and utilize its features. LICENSEE is responsible for providing the information needed from the respective Marketing Automation Platform to properly use the Software.
A. Error Corrections and Updates. LICENSOR will provide LICENSEE with error corrections, bug fixes, patches or other updates to the Software licensed to the extent they become available during the time that LICENSEE has a valid and fully paid license to use the Software.
B. Other Modifications. LICENSEE may request, from time to time, that LICENSOR incorporate certain features, enhancements or modifications into the Software. LICENSOR may, in its sole discretion, undertake to incorporate such changes and distribute the Software so modified to all or any of LICENSOR’s licensees.
C. Title to Modifications. All such error corrections, bug fixes, patches, updates or other modifications shall be the sole property of LICENSOR.
D. Not Liable for Losses due to Modifications. LICENSOR shall not be liable for any losses to LICENSEE as a result of any new releases of the Software or modifications made to the existing Software.
Except as specifically set forth herein, no Software or Documentation which is provided by LICENSOR pursuant to this Agreement in human or machine readable form, such as written, printed, or digital documents, shall be copied in whole or in part by LICENSEE without LICENSOR’s prior written agreement.
7. LICENSE FEES AND PAYMENT
A. License Fee. In consideration of the licenses granted herein, LICENSEE shall pay the License Fee or other consideration for the Software and Documentation as set forth herein to LICENSOR. All amounts payable hereunder by LICENSEE to LICENSOR shall be payable in United States funds without deductions for taxes, assessments, fees, or charges of any kind. In the event that LICENSEE exceeds the reasonable bandwidth amount allowed under the License Grant in Section 2, LICENSOR, in its discretion, may charge an additional License Fee for extra usage.
B. Taxes and Other Charges. LICENSEE shall be responsible for paying all (i) sales, use, excise, value-added, or other tax or governmental charges imposed on the licensing or use of the Software or Documentation hereunder.
8. PROTECTION OF SOFTWARE
A. Proprietary Notices. LICENSEE agrees to respect and not to remove, obliterate, or cancel from view any copyright, trademark, confidentiality or other proprietary notice, mark, or legend appearing on any of the Software or output generated by the Software.
B. No Reverse Engineering. LICENSEE agrees not to modify, reverse engineer, disassemble, or decompile the Software and its methodologies, or any portion thereof.
C. Ownership. LICENSEE further acknowledges that all copies of the Software in any form provided by LICENSOR or made by LICENSOR are the sole property of LICENSOR and/or its suppliers. LICENSEE shall not have any right, title, or interest to any such Software or output generated by the Software except as provided in this Agreement, and further shall secure and protect all Software and Documentation consistent with maintenance of LICENSOR’s proprietary rights therein.
D. Miscellaneous Ownership. LICENSEE shall remain the owner of LICENSEE’s data that is entered into the Software, such as any company details that are entered into the Software by LICENSEE using the interface within the Software. Upon termination of this Agreement, LICENSEE must cease any and all use of the Software.
E. Backups of Data. The campaign and customer data of LICENSEE is stored directly on the Marketing Automation Platform, and not on LICENSOR’s servers. Therefore, LICENSEE shall be solely responsible for the backup of LICENSEE’s files and/or data that is being used with the Software on the Marketing Automation Platform.
9. LIMITATIONS ON USE
LICENSEE shall not use the Software for any of the following uses:
- Engage in or promote illegal activities
- Promote violence
- Engage or promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age
- Promote sexually explicit materials
- Infringe or otherwise violate any copyright, trademark, or other intellectual property rights of a third party
- Any purpose that violates the terms of this Agreement
LICENSOR reserves the right to terminate LICENSEE’s rights under this Agreement immediately, and without advance notice, if LICENSOR determines that LICENSEE is doing any of the above or otherwise within LICENSOR’s sole discretion.
10. NAME AND LOGO USAGE
LICENSOR shall have the right to use the name and logo of LICENSEE in order to show other people that LICENSEE is a customer of LICENSOR, unless LICENSEE specifically informs LICENSOR that it wants to opt-out of being listed as one of LICENSOR’s clients. LICENSOR shall remove LICENSEE’s name and logo within fourteen (14) business days of receiving such request.
A. Acknowledgement. LICENSEE hereby acknowledges and agrees that the Software, Documentation, and underlying business processes constitute and contain valuable proprietary products and trade secrets of LICENSOR and/or its suppliers, embodying substantial creative efforts and confidential information, ideas, and expressions (“LICENSOR’s Confidential Information”). Accordingly, LICENSEE agrees to treat (and take precautions to ensure that its employees treat) LICENSOR’s Confidential Information as confidential in accordance with the confidentiality requirements and conditions set forth below.
B. Prohibited Use Of Software And Confidential Information. LICENSEE acknowledges and agrees not to use the Software for its own advantage or for the advantage of companies associated with LICENSEE other than for the sole purpose of using the Software to perform contact management, automated marketing, lead tracking and other related business functions that the Software is intended to perform. To be clear, this means that LICENSEE acknowledges and agrees that LICENSEE is strictly prohibited from accessing the Software and LICENSOR’s Confidential Information contained therein for the purpose of creating or improving a competing product. Replication of any aspect of the Software for competitive purposes is strictly prohibited, except where otherwise permitted by applicable law.
C. Maintenance of Confidential Information. Each party agrees to keep confidential all confidential information disclosed to it by the other party in accordance herewith, and to protect the confidentiality thereof in the same manner it protects the confidentiality of similar information and data of its own (at all times exercising at least a reasonable degree of care in the protection of confidential information); provided, however, that neither party shall have any such obligation with respect to use of disclosure to others not parties to this Agreement of such confidential information as can be established to: (1) have been known publicly; (2) have been known generally in the industry before communication by the disclosing party to the recipient; (3) have become known publicly, without fault on the part of the recipient, subsequent to disclosure by the disclosing party; (4) have been known otherwise by the recipient before communication by the disclosing party; or (5) have been received by the recipient without any obligation of confidentiality from a source (other than the disclosing party) lawfully having possession of such information.
D. Injunctive Relief. LICENSEE acknowledges that the unauthorized use, transfer or disclosure of the Software and Documentation or copies thereof will: (1) substantially diminish the value to LICENSOR of the trade secrets and other proprietary interests that are the subject of this Agreement; (2) render LICENSOR’s remedy at law for such unauthorized use, disclosure or transfer inadequate; and (3) cause irreparable injury in a short period of time. If LICENSEE breaches any of its obligations with respect to the use or confidentiality of the Software or Documentation, LICENSOR shall be entitled to equitable relief to protect its interests therein, including, but not limited to, preliminary and permanent injunctive relief.
E. Survival. LICENSEE’s obligations under this Section will survive the termination of this Agreement or of any license granted under this Agreement for whatever reason.
12. WARRANTIES; SUPERIOR RIGHTS
A. Ownership. Except for any rights as set forth herein, LICENSOR represents its belief that it is the owner of the entire right, title, and interest in and to Software, that it has the sole right to grant licenses thereunder, and that it has not knowingly granted licenses thereunder to any other entity that would restrict rights granted hereunder except as stated herein.
B. Limited Warranty. LICENSOR represents and warrants to LICENSEE that the Software, when properly used by LICENSEE, will perform substantially as described in LICENSOR’s then current Documentation for such Software during the period that LICENSEE has a valid license to use the Software (because all required licensing fees have been paid by LICENSEE to LICENSOR).
C. Limitations. Notwithstanding the warranty provisions set forth herein, all of LICENSOR’s obligations with respect to such warranties shall be contingent on LICENSEE’s use of the Software in accordance with this Agreement and in accordance with LICENSOR’s instructions as provided by LICENSOR in the Documentation, as such instructions may be amended, supplemented, or modified by LICENSOR from time to time. LICENSOR shall have no warranty obligations with respect to any failures of the Software that are the result of accident, abuse, misapplication, misunderstanding, incomplete training, power outage, website or server maintenance, equipment failure, extreme power surge or extreme electromagnetic field.
D. LICENSEE’s Sole Remedy. LICENSOR’s entire liability and LICENSEE’s exclusive remedy shall be, at LICENSOR’s option, either: (1) return of the license fee paid for one month of service; or (2) repair or replacement of the Software, provided LICENSOR receives written notice from LICENSEE during the warranty period of a breach of warranty. Any replacement Software will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer.
E. Disclaimer of Warranties. LICENSOR DOES NOT REPRESENT OR WARRANT THAT ALL ERRORS IN THE SOFTWARE AND DOCUMENTATION WILL BE CORRECTED. THE WARRANTIES STATED IN THIS SECTION ARE THE SOLE AND THE EXCLUSIVE WARRANTIES OFFERED BY LICENSOR. THERE ARE NO OTHER WARRANTIES RESPECTING THE SOFTWARE AND DOCUMENTATION OR SERVICES PROVIDED HEREUNDER, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF DESIGN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF LICENSOR HAS BEEN INFORMED OF SUCH PURPOSE. NO RESELLER OR AGENT OF LICENSOR IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF LICENSOR AS SET FORTH HEREIN.
F. Limitation of Liability. LICENSEE ACKNOWLEDGES AND AGREES THAT THE CONSIDERATION WHICH LICENSOR IS CHARGING HEREUNDER DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY LICENSOR OF THE RISK OF LICENSEE’S CONSEQUENTIAL OR INCIDENTAL DAMAGES WHICH MAY ARISE IN CONNECTION WITH LICENSEE’S USE OF THE SOFTWARE, DOCUMENTATION, AND ANY OUTPUT PRODUCED BY THE SOFTWARE. ACCORDINGLY, LICENSEE AGREES THAT LICENSOR SHALL NOT BE RESPONSIBLE TO LICENSEE FOR ANY LOSS-OF-PROFIT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE LICENSING OR USE OF THE SOFTWARE, DOCUMENTATION, OR OUTPUT PRODUCED BY THE SOFTWARE. Any provision herein to the contrary notwithstanding, the maximum liability of LICENSOR to any person, firm or corporation whatsoever arising out of or in the connection with any license, use or other employment of any Software delivered to LICENSEE hereunder, whether such liability arises from any claim based on breach or repudiation of contract, warranty, tort or otherwise, shall in no case exceed the actual price paid to LICENSOR by LICENSEE for the Software whose license, use, or other employment gives rise to the liability. The essential purpose of this provision is to limit the potential liability of LICENSOR arising out of this Agreement. The parties acknowledge that the limitations set forth in this Section are integral to the amount of consideration levied in connection with the license of the Software and Documentation and any services rendered hereunder and that, were LICENSOR to assume any further liability other than as set forth herein, such consideration would of necessity be set substantially higher.
G. Third Party Limitations. LICENSOR makes no representations whatsoever about any other web site that LICENSEE may access through the Software, that is referenced by the Software or Documentation, or from data that was retrieved from a third party web site about LICENSEE or another entity. When LICENSEE accesses a third party web site, LICENSEE acknowledges that it is independent from LICENSOR, and that LICENSOR has no control over the content on that web site. In addition, a link from LICENSOR’s web site(s) does not mean that LICENSOR endorses or accept any responsibility for the content, or the use, of such web site.
LICENSEE may terminate this Agreement for any reason upon following the cancellation procedures as specified in the Billing Policy. No refunds will be given for any License that is terminated by early (i.e. before expiration of the current License Term). LICENSOR has the right to terminate this Agreement at any time and for any reason whatsoever upon providing LICENSEE with at least ten (10) days written notice that LICENSOR is terminating LICENSEE’s access to the Software when the current periodic license term expires (i.e. the day before the next scheduled renewal date). LICENSOR has the right to terminate this Agreement immediately without written notice in the event of a breach of this Agreement by LICENSEE, such as if LICENSEE has not paid the required License Fee to LICENSOR when due.
LICENSEE agrees to defend, indemnify and hold LICENSOR, its officers, directors, agents, employees, and related companies harmless against any and all costs, expenses and losses (including reasonable attorneys’ fees and costs) arising from LICENSEE’s breach of this Agreement, and from LICENSEE’s use of the information generated by the Software.
15. POST TERMINATION RIGHTS
Upon the expiration or termination of this Agreement, unless otherwise agreed between the parties under a separate Addendum, all rights granted to LICENSEE under this Agreement shall forthwith terminate and immediately revert to LICENSOR and LICENSEE shall discontinue all use of the Software and Documentation. The other provisions of this Agreement (such as Confidentiality and Indemnification) that are specifically intended by their nature to remain in effect after termination shall remain in effect after termination.
16. FORCE MAJEURE
Neither party shall be liable for any loss or delay resulting from any force majeure event, including acts of God, fire, natural disaster, terrorism, labor stoppage, war or military hostilities, or inability of carriers to make scheduled deliveries, and any payment or delivery date shall be extended to the extent of any delay resulting from any force majeure event.
A. Any notice required to be given pursuant to this Agreement shall be in writing and mailed by certified or registered mail, return receipt requested or delivered by a national overnight express service (except for any notice from LICENSEE to LICENSOR of LICENSEE’s desire to cancel future use of the Software, which can be done through whatever means LICENSOR has specified). LICENSEE’s address to be used for any required notices shall be the address provided by its authorized user of the Software, unless another address and/or contact is provided for receiving such notices.
B. Either party may change the address to which notice is to be sent by written notice to the other party pursuant to the provisions of this paragraph.
18. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona. You hereby consent to binding arbitration in the State of Arizona to resolve any disputes arising under this Agreement.
19. ARBITRATION OF DISPUTES
(a) The parties agree that any dispute or claim in law or equity arising between them regarding this Agreement, including any dispute regarding the enforceability or applicability of this arbitration provision, shall be decided by neutral, binding arbitration conducted in Maricopa County, Arizona. The arbitrator shall be a retired judge, justice, or an attorney with at least ten (10) years of legal experience relating to the subject matter of this Agreement, unless the parties mutually agree otherwise, who shall render an award in accordance with the substantive laws of Arizona. In all other respects, the arbitration shall be conducted in accordance with the rules and procedures of the American Arbitration Association, subject to the parties being allowed limited discovery. Judgment upon the award of the arbitrator(s) may be entered in any court having jurisdiction.
NOTICE: BY USING THE SOFTWARE YOU ARE AGREEING TO HAVE ANY DISPUTE ARISING OUT OF THE MATTERS INCLUDED IN THIS “ARBITRATION OF DISPUTES” PROVISION DECIDED BY NEUTRAL ARBITRATION AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. YOU ARE GIVING UP YOUR JUDICIAL RIGHTS TO DISCOVERY AND APPEAL, UNLESS THOSE RIGHTS ARE SPECIFICALLY INCLUDED IN THE “ARBITRATION OF DISPUTES” PROVISION. IF YOU REFUSE TO SUBMIT TO ARBITRATION AFTER AGREEING TO THIS PROVISION YOU MAY BE COMPELLED TO ARBITRATE ANYHOW PURSUANT TO A COURT ORDER. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. IF YOU DO NOT WISH TO AGREE TO ARBITRATION, THEN YOU MAY NOT USE THIS SOFTWARE.
20. CLASS ACTION WAIVER
ANY LEGAL ACTION OR ARBITRATION ARISING IN CONNECTION WITH THE USE OF THE SOFTWARE OR THIS AGREEMENT MUST BE ON AN INDIVIDUAL BASIS. THIS MEANS NEITHER YOU NOR WE MAY JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR LITIGATE IN COURT OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
21. ATTORNEYS’ FEES
In any dispute, action, proceeding, or arbitration regarding the use of the Software or this Agreement, including the enforcement of any arbitration provision herein, the party prevailing in such action or proceeding shall be entitled to recover, in addition to any other award of damages or other remedies, its reasonable attorneys’ and experts’ fees, costs and expenses (including, without limitation, expenses for expert witnesses and all reasonable attorneys’ fees, costs and expenses upon appeal).
22. AGREEMENT BINDING ON SUCCESSORS
This Agreement shall be binding upon and shall inure to the benefit of the parties hereto, their heirs, administrators, successors and assigns.
No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement.
If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and such invalid provision shall be deemed to be severed from the Agreement.
A. The license granted hereunder is personal to LICENSEE and may not be assigned by any act of LICENSEE or by operation of law unless in connection with a transfer of substantially all the assets of LICENSEE or with the consent of LICENSOR.
B. LICENSOR shall have the right to assign this Agreement to another entity as LICENSOR sees fit, such as to a third party that acquires some or all of the ownership interests of LICENSOR.
This Agreement constitutes the entire understanding of the parties, and revokes and supersedes all prior agreements between the parties and is intended as a final expression of their Agreement. It shall not be modified or amended except in writing signed by the parties hereto and specifically referring to this Agreement. This Agreement shall take precedence over any other documents that may be in conflict therewith.
A. Amendment: No affiliate or agent of LICENSOR is authorized to make any amendment to this EULA.
B. Contact Information: All questions regarding this agreement should be directed to PlusThis LLC by mail at 2450 S Gilbert Rd., Suite 211, Chandler, Arizona, 85286, or by email at: email@example.com.