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Software License and Services Agreement For Mar-Kov Software
1. Agreement Controls the Relationship. This Software License and Services Agreement ("Agreement") sets forth all terms and conditions, obligations, responsibilities, liabilities and remedies as between (a) you and (b) Mar-Kov Computer Systems Inc., ("Mar-Kov") and the Representatives (defined in Section 8) in regards to your use of the Software. The Software may include setup assistance ("Setup Service" as defined below) and an Update Service (as defined below), to the extent set forth herein. By using the Software, you confirm that you (a) have read and understood this Agreement, (b) accept and agree to be bound by its terms and conditions, (c) acknowledge that this Agreement sets forth your exclusive remedies in respect of any claims you may have related to the Software, and (d) understand that this Agreement fully sets out the obligations and limitations of liabilities of Mar-Kov, its licensors and the Representatives to you, notwithstanding any other prior or contemporaneous writing (including any related packaging or advertisements), promise, understanding, or oral representations made by any party, including Mar-Kov.
The term "Software" is defined as the Mar-Kov computer program with which this Agreement is included and any other programs, tools, internet-based services, components and any updates or maintenance releases of the Software that Mar-Kov may provide to you or make available to you after the date you obtain your initial copy of the Software, unless accompanied by separate terms.
Registration of the Software with Mar-Kov after the approximate amount of time specified in the Software or in the materials accompanying the Software and in accordance with Mar-Kov`s then-current privacy policies is required. Your registration information must be accurate and complete and you must maintain and promptly update your registration data as necessary to keep it true, accurate, current and complete.
2. Rejection of Agreement
2.1 If you purchased a license to the Software but do not agree with or consent to be bound by the terms of this Agreement, you must (a) immediately discontinue all use of the Software, related materials or documentation; (b) immediately delete from your computer all (including all parts) of the Software, and destroy any and all copies made by you (or with your permission) of any portion of such software; and (c) within sixty (60) days of purchase, return to Mar-Kov, all items provided to you as part of the Software plus documentation evidencing the date and amount you paid for your purchase of your edition of the Software at retail (e.g. dated receipt, shipping invoice) to the address set forth in Section 9.3.
2.2 If you comply with the terms of Section 2.1, you shall receive a full refund of any monies you paid for the Software within 60 days of original purchase.
2.3 If the Software was pre-installed on your computer or CDs came packaged with your computer at no extra charge, and you do not agree with this Agreement, do not use the Software.
3. Services and Support
3.1 In exchange for your continued compliance with this Agreement, and any modification to this Agreement made by Mar-Kov in accordance with Section 9.1, you shall have access to the Software in accordance with the following provisions: If you purchased your edition of the Software at retail or directly from Mar-Kov (technically, purchase of a license to use the Software), you shall receive: (i) unlimited access to the features of the Software; (ii) Setup Service, defined below; (iii) Update Service for so long as Mar-Kov supports your release of your specific edition of the Software. As part of your purchase of the Software license you may also be provided with certain software that, subject to the terms of this Agreement, you may store on or access via your computer. Mar-Kov`s obligations under this Section 3.1 are contingent upon you installing all updates and error corrections within thirty (30) days of their being provided to you by Mar-Kov (or its Representatives).
3.2 Services. "Additional Service" is available only to purchasers of a Software license. (a) The Additional Service means the initial assistance made available by Mar-Kov, through one (1) telephone call and via the mar-kov.com website, to help you install the Software, to start you successfully on your way with Recipe Manager, for a period based on your needs. This single call must occur during a period not to exceed sixty (60) days from product registration. (b) Update Service, which is available to all Software license purchasers, means updates and error corrections made generally available to users of your specific edition of the Software, and at Mar-Kov `s sole discretion certain feature enhancements, but not including new releases of the software. (c) Support Service means your unlimited access to consulting about the Software and technical support for so long as Mar-Kov supports your release of the Software. Mar-Kov reserves the right to limit the length of telephone calls made as part of the Support Service. SUPPORT SERVICE IS NOT PROVIDED AS A PART OF THE STANDARD LICENSE GRANTS AS DEFINED IN SECTIONS 4.1 AND 4.1. IF SUPPORT SERVICE IS REQUIRED IT MUST BE SEPARATELY LICENSED AND A SUPPORT SERVICE AGREEMENT WILL GOVERN THE TERMS OF THE SUPPORT SERVICE.
3.3 As determined by Mar-Kov in its sole discretion, the Software is provided electronically via the internet. It is your sole responsibility to establish and maintain adequate internet access in order to receive the Software.
3.4 Mar-Kov may provide, in its sole discretion, technical support for the current release/version of the Software and the immediately preceding release/version for a period of six (6) months following the date the subsequent release/version is made generally available to Software customers. You may access the price schedule for technical support by calling Mar-Kov at 1-416-633-4383.
4. License Grants
4.1 Single-User License. You are granted a non-exclusive, limited license for one (1) individual at a time to access the Software on a single computer. You are permitted to make one (1) backup copy of the applicable Software as an archival copy. You may also use your backup copy to replace the applicable Software in the event the Software that was loaded on the original single computer is lost or is damaged and rendered unusable, however, your use of the replacement copy of the Software will be subject to the terms and conditions set forth in this Agreement. You may print one (1) copy of any online user documentation in relation to the Subscription and/or the Software.
4.2 Multi-Users License. If you want multiple computers to have the ability to use the specific edition of the Software you have licensed, or want multiple users to have access to the software simultaneously, you are required to pay an additional license fee for each additional user, which will be subject to the same restrictions as the single user license. You may access the price schedule for additional user licenses by calling Mar-Kov at 1-416-633-4383. By way of example only, if you have paid for five (5) user licenses for your specific edition of the Software, you are granted a limited non-exclusive license to (a) download the Software on up to five (5) computers which are owned and operated by and for your company and are used by up to five (5) individuals simultaneously (who are your owners, employees, or contractors); (b) place the application database on the network to be accessed by such individuals; and (c) make up to four (4) additional copies of the printed materials provided to you by Mar-Kov (if any) and/or print up to five (5) copies of any online user documentation in relation to the Software for use by such individuals. You are responsible to ensure that any additional users (referred to above) comply with the terms of this license.
4.3 Trial-User License. If you have signed up for a trial-user version of the Software/Subscription, you are granted a limited non-exclusive license to use the Software so that one (1) individual may access the Software on a single computer. You may print one (1) copy of any online user documentation in relation to the Subscription and/or the Software, however, you cannot make multiple copies of any online user documentation or printed materials that accompany the Software (if any). Your trial-user license for Recipe Manager Professional and/or the Barcode Scanning Add-On component, is only valid for approximately thirty (30) days, or as otherwise may be specified on the packaging or as identified when you signed up for the trial-user version of the Software. You understand that upon the expiration of your trial user license, you must purchase a license to the Software if you seek their continued use, in the absence of which, you may not be able to use/access the Software or any data you entered into the Software. BY YOUR USE OF THE TRIAL VERSION OF THE SOFTWARE YOU UNDERSTAND AND AGREE THAT AFTER THE APPROXIMATE AMOUNT OF TIME SPECIFIED IN THE SOFTWARE OR IN THE MATERIALS ACCOMPANYING THE SOFTWARE, YOU MAY NOT BE ABLE TO CONTINUE TO ACCESS AND/OR USE THE SOFTWARE OR ANY DATA YOU HAVE ENTERED INTO SUCH SOFTWARE UNLESS YOU PURCHASE THE APPROPRIATE FULL VERSION OF THE SOFTWARE OR SIGN UP FOR A SUBSCRIPTION.
5. License Restrictions, Reservation of Rights and Ownership
5.1 The Software contains Mar-Kov trade secrets. You may not disclose such trade secrets or decompile, reverse engineer, disassemble, or otherwise reduce the Software to human-perceivable form.
5.2 You may not modify, adapt, translate, rent, sublicense (including offering the Software to third parties on an applications service provider or time-sharing basis), assign (except as permitted under Section 5.4), lend, resell for profit, distribute, or network any portion of the the Software or related materials, or create derivative works based thereon or any part thereof.
5.3 Any Software and materials provided to you are protected by Canadian and other copyright laws and international treaties. Unless expressly permitted under your applicable license grant in Section 4.1 or 4.2, any of the following actions by you, among others, would be considered violations of this Agreement:
(a) Enabling others to use your Software registration or access codes, passwords, Installation Key Codes (as may be provided by Mar-Kov), or serial number(s) (if any);
(b) Making additional copies or duplicating any aspect of the Software, by any means, including electronic transmission;
(c) Copying any portion of the printed materials, if any, accompanying the Software, or printing multiple copies of any user documentation; or
(d) Installing the Software on computers used by individuals who do not have license grants under the Software or Subscription.
5.4 Subject to Mar-Kov `s approval, in its sole discretion, you may only transfer/assign your right(s) in and to your edition of the Software to a third party, or sell the computer on which the Software is installed to a third party, provided that, within fifteen (15) days of the transfer/assignment to that third party, (a) you notify Mar-Kov of the transfer/assignment and complete any transfer forms required by Mar-Kov (b) the third party enters into the most current version of the Agreement for the specific edition of the Software as provided by Mar-Kov. If you transfer/assign your rights to your edition of the Software to any third party, you may not keep a copy of such software or any related materials/documentation for yourself.
5.6 Feedback. Mar-Kov may provide you with a mechanism to provide feedback, suggestions and ideas, if you choose, about its Software and/or Services ("Feedback"). You agree that Mar-Kov may, in its sole discretion, use the Feedback you provide to Mar-Kov in any way, including future modifications of the Software, multimedia works and/or advertising and promotional materials relating thereto. You hereby grant Mar-Kov a perpetual, worldwide, fully transferable, non-revocable, royalty free license to use, modify, create derivative works from, distribute and display any information you provide to Mar-Kov in the Feedback.
6. 60 Day Money Back Guarantee and Limited Waranty.
6.1 60 Day Money Back Guarantee. In the event you determine that you are not satisfied with the Software, whether obtained under Section 3.1(a) or (b) hereof, Mar-Kov`s entire liability and your exclusive remedy shall be as follows: you may cancel your order for a full refund (minus applicable shipping, handling and support/service fees) if within sixty (60) days of purchasing the Software you: (a) send to the address set forth in Section 9.3 the Software and all items provided to you as part of the Services, and your notice of cancellation; (b) delete any Software and documentation downloaded or loaded onto your computer; and (c) destroy any and all copies made by you (or with your permission) of any portion of the Software.
6.2 Limited Warranty. SECTION 6 SETS FORTH MAR-KOV`S ENTIRE LIABILITY AND YOUR EXCLUSIVE REMEDIES IN THE EVENT OF YOUR DISSATISFACTION WITH THE SUBSCRIPTION, THE SOFTWARE, DEFECTIVE DISKS OR APPLICABLE SETUP SERVICE, UPDATE SERVICE, TECHNICAL SUPPORT/SUPPORT SERVICE PROVIDED AS PART OF OR IN CONNECTION WITH THE SOFTWARE.
7. Limited Warranty and Disclaimers. EXCEPT AS PROVIDED IN SECTIONS 8 AND 9 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE, THE SUBSCRIPTION SERVICE, ANY RELATED DOCUMENTATION, MATERIALS AND TECHNICAL SUPPORT OR RELATED SERVICES PROVIDED TO YOU IN CONNECTION WITH THE SOFTWARE ARE PROVIDED "AS-IS" AND YOU ACCEPT THE ENTIRE RISK AS TO THEIR QUALITY AND PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MAR-KOV, ITS AFFILIATED COMPANIES, AND THEIR LICENSORS DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, THE SUBSCRIPTION SERVICE, RELATED DOCUMENTATION, AND OTHER MATERIALS AND TECHNICAL SUPPORT, INCLUDING THEIR FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABLE QUALITY, SECURITY, OR NONINFRINGEMENT. MAR-KOV DOES NOT WARRANT THAT THE SOFTWARE OR SERVICE SHALL PERFORM ERROR FREE OR WITHOUT INTERRUPTION, OR THAT THEY ARE FREE FROM BUGS, VIRUSES, ERRORS, OR OTHER PROGRAM LIMITATIONS, NOR DOES MAR-KOV WARRANT ACCESS TO THE INTERNET OR TO ANY OTHER SERVICE INCLUDING THIRD PARTY SERVICES TO WHICH YOU MAY CONNECT THROUGH THE SOFTWARE OR CONTINUED ACCESS TO THE TRIAL SOFTWARE OR TO THE DATA ENTERED INTO THE TRIAL SOFTWARE AFTER THE SPECIFIED NUMBER OF USES OR AMOUNT OF TIME IN THE MATERIALS ACCOMPANYING THE TRIAL SOFTWARE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY MAR-KOV AND ITS LICENSORS, THEIR RESPECTIVE EMPLOYEES, DISTRIBUTORS, DEALERS OR AGENTS SHALL INCREASE THE SCOPE OF THE ABOVE REPRESENTATIONS, WARRANTIES OR CONDITIONS, OR CREATE ANY NEW REPRESENTATIONS, WARRANTIES OR CONDITIONS IN CONNECTION WITH THE SOFTWARE OR THE SUBSCRIPTION SERVICE IN THIS AGREEMENT. MAR-KOV MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY THIRD PARTY CONTENT, EVEN IF ACCESSED THROUGH THE SOFTWARE OR THE SUBSCRIPTION SERVICE BY MEANS OF A LINK OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS OR WARRANTIES REGARDING THE OWNERSHIP, ACCURACY OR FUNCTIONALITY OF SUCH CONTENT. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF IMPLIED REPRESENTATIONS, WARRANTIES AND CONDITIONS, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. IN THAT EVENT, TO THE EXTENT YOUR JURISDICTION PERMITS LIMITATIONS ON DURATION OF IMPLIED WARRANTIES, ANY IMPLIED REPRESENTATIONS, WARRANTIES OR CONDITIONS ARE LIMITED IN DURATION TO SIXTY (60) DAYS FROM THE DATE YOU PURCHASED THE SOFTWARE OR SIGNED UP FOR THE SERVICE (AS THE CASE MAY BE), OR TO THE SHORTEST PERIOD PERMITTED BY APPLICABLE LAW, IF LONGER. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY HAVE OTHER RIGHTS AS WELL, WHICH VARY ACCORDING TO JURISDICTION.
THE MAR-KOV SOFTWARE AND RELATED SUBSCRIPTION AND SERVICES OR CONTENT ARE DESIGNED TO OPERATE AND PROVIDE INFORMATION WITH THE UNDERSTANDING THAT MAR-KOV AND ITS REPRESENTATIVES ARE NOT ENGAGED IN RENDERING LEGAL, ACCOUNTING OR OTHER PROFESSIONAL SERVICE. IF LEGAL ADVICE OR OTHER EXPERT ASSISTANCE IS REQUIRED, THE SERVICE OF A COMPETENT PROFESSIONAL SHOULD BE SOUGHT. MAR-KOV EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT YOUR USE OF THE MAR-KOV SOFTWARE WILL SATISFY ANY STATUTORY OR REGULATORY OBLIGATIONS, OR WILL ASSIST WITH, GUARANTEE OR OTHERWISE ENSURE COMPLIANCE WITH ANY APPLICABLE LAWS OR REGULATIONS. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THAT YOUR USE OF THE MAR-KOV SOFTWARE, RELATED SERVICES OR CONTENT IS IN ACCORDANCE WITH APPLICABLE LAW. IT IS YOUR RESPONSIBILITY TO KEEP ABREAST OF CHANGES IN LAWS, REGULATIONS AND ACCOUNTING PRACTICES THAT AFFECT YOU AND YOUR BUSINESS.
8. Limitation of Liability and Damages
8.1 THE ENTIRE AND SOLE LIABILITY OF MAR-KOV AND ITS SUBSIDIARIES, AFFILIATES, LICENSORS, PARTICIPATING FINANCIAL INSTITUTIONS, THIRD-PARTY CONTENT OR SERVICE PROVIDERS, DISTRIBUTORS, DEALERS OR SUPPLIERS ("REPRESENTATIVES") FOR ANY REASON SHALL BE LIMITED TO: (i) THE AMOUNT PAID BY YOU TO MAR-KOV OR ITS AUTHORIZED RESELLER FOR THE SOFTWARE DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE WHICH, AS DETERMINED BY A COURT OF COMPETENT JURISDICTION, YOU WERE HARMED BY THE SOFTWARE, OR (ii) IF YOU OBTAINED THE SOFTWARE FROM ITS AUTHORIZED RESELLER UNDER SECTION 3.1 ABOVE, THE AMOUNT PAID BY YOU TO SUCH RESELLER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MAR-KOV AND ITS REPRESENTATIVES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF BUSINESS, TELECOMMUNICATIONS FAILURES, LOSS OF PROFITS OR INVESTMENT, OR THE LIKE), WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF MAR-KOV OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. MAR-KOV`S AND ITS REPRESENTATIVES` TOTAL LIABILITY TO YOU FOR ALL DAMAGES FROM ANY CAUSE WHATSOEVER WILL BE LIMITED TO: (i) THE AMOUNT PAID BY YOU FOR THE SIX (6) MONTHS OF THE SOFTWARE IMMEDIATELY PRECEDING THE DATE WHICH, AS DETERMINED BY A COURT OF COMPETENT JURISDICTION, YOU WERE HARMED BY YOUR USE OF THE SOFTWARE, OR (ii) IF YOU OBTAINED THE SOFTWARE FROM ITS AUTHORIZED RESELLER UNDER SECTION 3.1 ABOVE, THE AMOUNT PAID BY YOU FOR THE SOFTWARE TO SUCH RESELLER. SOME JURISDICTIONS MAY NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY FOR CERTAIN CATEGORIES OF DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
8.2 These limitations of damages set forth above are fundamental elements of the basis of the bargain between Mar-Kov and you. Mar-Kov would not be able to have provided the Service and/or the Software without such limitations.
9. Termination and Amendment.
9.1 Your rights under this Agreement may be terminated by Mar-Kov immediately and without notice if you fail to comply with any term or condition of this Agreement. Upon such termination, you must immediately cease using the Software, and delete or destroy all complete and partial copies of the Software, including all backup copies. Any termination of this Agreement shall not affect Mar-Kov`s rights hereunder. Mar-Kov shall have the right to change or add to the terms of its Agreement at any time, and to change, delete, discontinue, or impose conditions on any feature or aspect of the Software or services (including but not limited to internet based services, pricing, technical support options, and other product-related policies) upon notice by any means Mar-Kov determines in its discretion to be reasonable, including sending you an email notification or posting information concerning any such change, addition, deletion, discontinuance or conditions in the Software or on any Mar-Kov sponsored web site, including www.mar-kov.com.
9.2 Notification by You to Mar-Kov: Any notification to be provided by you to Mar-Kov under this Agreement must be made by one of the following means:
(a) a letter mailed to: Mar-Kov Computer Systems Inc., 3701 Chesswood Drive, Suite 317, Toronto, Ontario, M3J 2P6; or
(b) a telephone call to 1-416-633-4383.
9.3 Address for Product Returns: All product returns under this Agreement must be sent via registered mail to: Mar-Kov Computer Systems Inc., 3701 Chesswood Drive, Suite 317, Toronto, Ontario, M3J 2P6.
9.4 Address for Contacting Mar-Kov: If you have any questions concerning this Agreement, you may contact Mar-Kov by writing to: Mar-Kov Computer Systems Inc., 3701 Chesswood Drive, Suite 317, Toronto, Ontario, M3J 2P6, Attn: Legal Department.
10. General Provisions. This Agreement sets forth Mar-Kov`s and its Representatives` entire liability and your exclusive remedy with respect to the Software. You acknowledge that this Agreement is a complete statement of the agreement between you and Mar-Kov and sets forth the entire liability of Mar-Kov and its Representatives and your exclusive remedy with respect to the Software and Third Party Services and their use. The Representatives, agents, employees, distributors, and dealers of Mar-Kov are not authorized to make modifications to this Agreement, or to make any additional representations, commitments, or warranties binding on Mar-Kov. Any waiver of the terms herein by Mar-Kov must be in a writing signed by an authorized officer of Mar-Kov 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, to that extent, deemed omitted and the remaining provisions will continue in full force and effect. This Agreement will be governed by Ontario law and the federal laws of Canada applicable therein, without regard to its choice of law or conflicts of law principles, and with respect to copyright and trademark matters to Canadian federal laws and international treaties. This Agreement is deemed entered into at Toronto, Ontario, and shall be construed as to its fair meaning and not strictly for or against either party. Headings are included for convenience only, and shall not be considered in interpreting this Agreement. This Agreement does not limit any rights that Mar-Kov may have under trade secret, copyright, patent or other laws.
11. Export Restrictions. You acknowledge and agree that the Software is subject to restrictions and controls imposed by the Export and Import Permits Act (Canada) and Regulations under the Export and Import Permits Act (the "Acts") as well as by the United States Export Administration Act and Export Administration Regulations. You agree and certify that neither the Software nor any part or direct product thereof is being or will be used for any purpose prohibited by the Acts.
12. Privacy Policy. Mar-Kov gathers certain end user information and personal data from its customers. Mar-Kov adheres to all applicable laws governing the protection of any individual personal data provided to Mar-Kov in connection with the use of Mar-Kov products/services. Please go to www.mar-kov.com and click on privacy to review Mar-Kov `s current privacy policy in full. The privacy policy is subject to change without notice. You agree to be bound by the applicable Mar-Kov privacy policies, including that your submission of personal information shall be deemed your consent to use such information in the manner set out in our privacy policy.