PLEASE READ THIS LICENSE AGREEMENT CAREFULLY. THIS LICENSE AGREEMENT IS A LEGAL AGREEMENT BETWEEN
POINT OF SALE TECHNOLOGIES, INC. HEREIN KNOWN AS POST, AND YOU (AS DEFINED BELOW). YOU ARE AGREEING
THAT YOU HAVE
READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW,
UNDERSTAND ALL OF THE
TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT AND
AGREE TO BE BOUND BY THE TERMS AND CONDITIONS
OF THIS LICENSE AREEMENT. AS USED IN THIS AGREEMENT, “YOU” MEANS THE PERSON OR COMPANY SEEKING TO
ACQUIRE THE RIGHTS AND OBLIGATIONS UNDER THIS LICENSE AGREEMENT AND, WITH RESPECT TO ANY COMPANY
EXPRESSLY EXCLUDES ITS PARENTS, SUBSIDIARIES AND AFFILIATES. ANY PERSON ENTERING INTO THIS LICENSE
AGREEMENT ON BEHALF OF A COMPANY, HEREBY RESPRESENTS THAT SUCH PERSON: (1) IS AN EMPLOYEE OR AGENT
OF SUCH COMPANY; AND (2) HAS THE AUTHORITY TO ENTER INTO THIS LICENSE AGREEMENT ON BEHALF OF SUCH COMPANY.
WARNING-------------------
POST IS WILLING TO LICENSE THE SOFTWARE TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE
TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.
I. OWNERSHIP; LICENSE GRANT
A. As between the parties, POST owns all right, title and interest in and to the computer
software and associated media and materials including any related documentation such as standard
training, user or reference manuals delivered in machine readable form or on-line at the TallySoft
website (collectively, the “SOFTWARE”) and any and all patents, copyrights, moral rights, trademarks,
trade secrets and any other form of intellectual property rights recognized in any jurisdiction,
including applications and registrations for any of the foregoing embodied therein (“Intellectual
Property Rights”). There are no implied licenses and POST retains all rights not expressly granted
to YOU in this AGREEMENT. All corrections, bug fixes, enhancements, updates, additions, or new
releases (“Updates”) created by or on behalf of POST and provided or made available to YOU as
part of the SOFTWARE will, together with all applicable Intellectual Property Rights, be owned
by POST, but will be included as part of the SOFTWARE for purposes of the license granted to YOU
hereunder.
B. POST hereby grants to YOU, and YOU accept, a non-exclusive, non-transferable,
non-sublicensable, revocable and limited license to access, use, copy and modify the SOFTWARE,
in object code form, only as authorized in Section III of this AGREEMENT.
II. TRIAL LICENSE; PERMITTED USES
YOU may install, copy, and use trial/developer versions of the SOFTWARE for “as defined” period of
time solely for the purposes of evaluation, demonstration, trials and training as well as the
design, development, staging and testing of designs, content and web parts on Your development
servers, testing servers and/or staging servers. For purposes of the trial license, the SOFTWARE
is in “use” on a computer when it is loaded into temporary memory (e.g., RAM) or installed into
permanent memory (e.g., hard disk, CD-ROM, or other storage devise) of that computer and in “use”
on a server when installed on any server of Yours, except for a web server that hosts web pages
and content that is live or is ready to be delivered for production (a “Production Server”). All
trial/developer versions of the SOFTWARE are subject to the rights, requirements and obligations
of this AGREEMENT.
The SOFTWARE is licensed for full use:
POST grants to YOU, effective upon completion of delivery and installation of the System, a
non-exclusive license to use the applications software owned by POST.
No transfer of ownership of this licensed software may be made without the prior written consent
of POST, which consent may be withheld by POST at its discretion. The recipient of the transfer
must agree to all the terms of this AGREEMENT as a condition precedent to the transfer of the
licensed software. A pro-rated transfer fee will be enforced. Copyright trademark laws and
international treaties, as well as other intellectual property laws and treaties protect the
SOFTWARE. All rights are reserved worldwide.
This license shall automatically terminate if you violate any of these restrictions and may be
terminated by POST at any time. Upon terminating your viewing of these materials or upon the
termination of this license, you must destroy any downloaded materials in your possession whether
in electronic or printed format.
III. PROHIBITED USES; MODIFICATIONS
A. You may not, without the prior written permission of POST:
-
disassemble, decompile or "unlock", decode or otherwise reverse translate or engineer, or
attempt in any manner to reconstruct or discover any source code or underlying algorithms
of SOFTWARE which is provided in object code form only or create any derivative works of the SOFTWARE;
-
use, copy, modify or merge copies of the SOFTWARE and any accompanying documents except as permitted
in this AGREEMENT;
-
transfer, rent, lease, or sublicense the SOFTWARE;
-
remove or alter any trademark, logo, copyright or other proprietary notices associated with the SOFTWARE;
-
design, develop or create any modifications, enhancements, derivative works and/or extensions (collectively
“Modifications”) to the SOFTWARE; or cause or permit any other party to do any of the foregoing.
B. In the event YOU or any of your employees, consultants or agents design, develop or create any
Modifications to the SOFTWARE in violation of this AGREEMENT, and addition to any other remedies that may
be available in law, in equity or under this AGREEMENT, all right title and interest in and to such
Modifications and all Intellectual Property Rights associated therewith will be the exclusive property of
POST. You agree to assign, and hereby assign, to POST the ownership of all such right, title and interests
in such Modifications including, without limitation, all Intellectual Property Rights therein and POST
shall have the right to obtain and hold same in its own name, without obligation of any kind to YOU. You
also agree to execute, acknowledge and deliver to POST all documents and do all things POST deems necessary
or desirable, at your expense, to enable POST to obtain and secure its rights to such Modifications anywhere
in the World. You agree to secure all necessary rights and obligations from your employees, consultants or
agents in order to satisfy the foregoing obligations.
C. You hereby agree to indemnify, hold harmless and defend POST, its affiliates and licensors, and
each of their respective officers, directors, employees and agents from and against any and all liabilities,
damages, losses, costs and expenses (including reasonable attorneys' fees) arising from or related to any
demand, claim, action, legal proceeding or allegation that arises or results, either directly or indirectly,
from your use and the use by your employees, consultants and agents of the SOFTWARE and any breach by YOU
or them of the terms of this AGREEMENT.
VI. PROPRIETARY PROTECTION OF SOFTWARE
A. Reservation of Title. This AGREEMENT does not effect any transfer of title in the SOFTWARE (or
any materials furnished or produced in connection with the SOFTWARE), including drawings, diagrams,
specifications, input formats, source code, and user manuals. YOU acknowledge that (1) the SOFTWARE
(and all materials furnished or produced in connection with the SOFTWARE), including, without limitation,
the design, programming techniques, flow charts, source code, and input data formats, contain trade secrets
of POST, entrusted by POST to YOU under this AGREEMENT for use only in the manner expressly permitted
hereby, and (2) POST claims and reserves all rights and benefits afforded under federal law in the SOFTWARE
as an unpublished copyrighted work.
B. Preservation of Secrecy and Confidentiality; Restrictions on Access. YOU agree to protect the
SOFTWARE (and all materials furnished or produced in connection with the SOFTWARE as trade secrets of
POST, and YOU agree to devote its best efforts to ensure that all of your employees, consultants, parent,
subsidiaries, affiliates or related parties, who receive, or have access to, protect the SOFTWARE as trade
secrets of POST. YOU shall not, at any time, disclose such trade secrets to any other person, firm
organization, or employee that does not need (consistent with Your right of use hereunder) to obtain access
to the SOFTWARE and the materials provided to YOU in connection with the SOFTWARE.
C. Restrictions on Use of Software Generally. Neither the SOFTWARE nor any materials provide to
YOU in connection with the SOFTWARE may be copied, reprinted, transcribed, or reproduced, in whole or
in part, without the prior written consent of POST. YOU shall not in any way modify or enhance the
SOFTWARE (or any materials furnished or produced in connection with the SOFTWARE) without the prior
written consent of POST.
D. Confidential Information. Each party agrees to treat as confidential and keep secret all
confidential business and technical information communicated by POST to YOU or by YOU to POST, including
all information contained or embodied in the SOFTWARE and all information, concepts and know-how conveyed
to YOU by POST with respect to the SOFTWARE. YOU agree to devote its best efforts to ensure that all of
Your employees, consultants, parent, subsidiaries, affiliates or related parties, who receive, or have
access to, Confidential Information comply with the terms of this AGREEMENT. Confidentiality however is not
applicable to information to which a party had prior knowledge, information that has entered the public
domain, or information that is not specifically marked as confidential. Both parties must exercise at least
equivalent effort to protect the other party's confidential information, as it would exercise with its own
confidential information. EACH PARTY IS HEREBY AUTHORIZED TO MAKE REASONABLE INQUIRIES AND INSPECTIONS TO
ENSURE THE OTHER PARTY'S COMPLIANCE HEREWITH.
E. Duration of Duties and Return of Software. The duties and obligations of YOU hereunder shall
remain in full force and effect for so long as YOU continue to control, possess, or use the SOFTWARE. YOU
shall promptly return the SOFTWARE, together with all materials furnished or produced in connection with
the SOFTWARE, upon (1) termination for any reason of this AGREEMENT or Your license of the SOFTWARE or
(2) abandonment or other termination of Your control, possession, or use of the SOFTWARE.
V. WARRANTY; DISCLAIMER
A. YOU represent, warrant and covenant that: (i) all of Your employees and consultants will abide
by the terms of this AGREEMENT; and (ii) YOU will comply with all applicable laws, regulations, rules,
orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in
its performance of this AGREEMENT. Notwithstanding any terms to the contrary in this AGREEMENT, YOU will
remain responsible for acts or omissions of all employees or consultants of Yours to the same extent as
if such acts or omissions were undertaken by YOU. YOU assume responsibility for the selection of the
SOFTWARE to achieve your intended results, and for the installation, use, and results obtained from the
SOFTWARE.
B. Except with respect to REDISTRIBUTABLES, which are provided "AS IS," without warranty of any
kind, POST warrants that the SOFTWARE will perform substantially in accordance with its accompanying
documentation for a period of thirty (30) days from the Effective Date.
VI. LIMITATIONS ON LIABILITY
THE TOTAL LIABILITY OF POST AND THE POST PARTIES IN THE AGGREGATE TO YOU OR ANY THIRD PARTY ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE AND SERVICES WILL BE LIMITED TO THE PAYMENTS
RECEIVED, WITHIN THE MOST RECENT SIX (6) MONTH PERIOD, FROM YOU, UNDER THIS AGREEMENT. POST AND THE POST
PARTIES SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY
TYPE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE AND/OR SERVICES, WHETHER OR NOT
POST AND ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON
BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE).
POST AND THE POST PARTIES SHALL HAVE NO LIABILITY FOR ANY DAMAGES RESULTING FROM ALTERATION, DESTRUCTION
OR LOSS OF ANY DATA OR INFORMATION INPUT, GENERATED OR OBTAINED FROM ACCESS AND/OR USE OF THE SOFTWARE
AND SERVICES, INCLUDING ANY REPORTS OR NUMERIC RESULTS, WHETHER OR NOT POST AND THE POST PARTIES HAVE
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
VII. MISCELLANEOUS
This AGREEMENT is governed by, and shall be construed in accordance with the laws of the Commonwealth
of Pennsylvania as applied to agreements entered into and to be performed entirely within Pennsylvania. This
AGREEMENT is the entire agreement between YOU and POST regarding the subject matter hereof and supersedes
all other agreements between us, whether written or oral, relating to this subject matter hereof. In the
event of a conflict between this AGREEMENT and any terms of service or other information on the POST
web-site, this AGREEMENT will prevail. YOU may not transfer Your rights under this AGREEMENT to any
third party. If any provision of this AGREEMENT is invalid, illegal, or incapable of being enforced by
any rule of law or public policy, all other provisions of this AGREEMENT will nonetheless remain in full
force and effect.
If you have any questions about this AGREEMENT or would like a copy to sign, please contact us
at
sales@tallysoft.com