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General End User License Agreement (EULA)

 

SOFTWARE LICENSE AGREEMENT AND WARRANTY STATEMENT

RETAILERSOFT, INC. ("RetailerSoft") IS WILLING TO LICENSE THE SOFTWARE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS LICENSE AGREEMENT. PLEASE READ THE TERMS CAREFULLY. BY CLICKING ON "AGREE" AND/OR INSTALLING THE SOFTWARE, YOU WILL INDICATE YOUR AGREEMENT WITH THEM. IF YOU DO NOT AGREE WITH THESE TERMS, THEN RETAILERSOFT IS UNWILLING TO LICENSE THE SOFTWARE TO YOU, IN WHICH EVENT YOU SHOULD NOT PROCEED WITH INSTALLING THE SOFTWARE.

("Licensee"), a non-exclusive, non-transferable license to use the RETAILERSOFT Software Program, Manual and sample data, vendor pricing, and subsequent updates ("Software"), subject to the terms and conditions set forth herein.

1. TERM OF AGREEMENT
1.1. The term of this Agreement shall commence upon execution by both parties and shall remain in force until terminated as provided below.

2. TITLE
2.1. Title and full ownership rights to the Software furnished under this Agreement remain with Licensor. It is agreed that the Software constitutes Licensor's proprietary information, whether or not any portion thereof is or may be validly copyrighted or patented.
2.2. Licensee's rights in and to the Software may not be assigned, licensed, pledged, or otherwise transferred voluntarily, by operation of law or otherwise, and any such prohibited assignment shall be null and void.

3. PAYMENT/RENEWAL
3.1. Periodic charges for use of the Software and updates will he billed to Licensee and Licensee agrees to pay such charges. The Annual Support Fee for continued use and support of the RETAILERSOFT program will be automatically billed to the purchaser upon each subsequent 12 month anniversary from the original activation date.
3.2. Software is licensed on a per store/per computer basis. Should Licensee add additional stores to their organization, it is understood that they shall be billed the current rate for each additional license needed. License requirements are not determined by the end user, rather by the actual number of affiliated stores within the Licensee organization.
3.3. A reduction in store count will not result in any refund of any previously paid funds or unused support fees. Upon subsequent license renewal, the renewal fee will be adjusted to the actual number of affiliated stores within the Licensee organization.
3.4. The actual number of affiliated stores within the Licensee organization will be equal to the number of stores in the organization has recognized by the parent or cooperative membership organization. These companies are not required to be held under the same ownership.

4. LIMITED WARRANTY
4.1. Licensor hereby warrants that it has the right to license the Software. Licensor further warrants that, at the time of delivery, the media on which the Software is contained shall be free from defects in material and workmanship. Licensor's sole obligation under this Agreement and Licensee's sole remedy for breach of warranty will be the repair or replacement, as soon as practicable, of defective Software at its discretion. This warranty shall not apply if the Software is not used in accordance with Licensor's instructions, the Software has been altered, modified or converted by Licensee without the written approval of Licensor, any of Licensee's equipment malfunctions, or any other cause within the control of Licensee shall result in the Software becoming inoperative.
4.2. LICENSEE HEREBY EXPRESSLY AGREES AND ACKNOWLEDGES THAT THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, AN IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

5. CONFIDENTIALITY
5.1. Licensee understands and agrees that the Software contains the confidential and proprietary information of Licensor and it vendors. Licensee agrees to maintain the Software in strict confidence and agrees not to disclose, duplicate or otherwise reproduce, directly or indirectly said Software. Licensee agrees to take all reasonable steps to ensure that no unauthorized persons shall have access to the Software and that all authorized persons having access to the Software shall refrain from any such disclosure, duplication or reproduction. Licensee shall be responsible for all damages caused from such disclosure, duplication or reproduction by persons having access to the Software while in the possession of Licensee. The provisions of this Paragraph 5.1 will survive the revocation or termination of the license granted herein.

6. TERMINATION
6.1. Software License will expire on the date set below. Either party may, at any time, cancel and terminate this Agreement by sending 30 days advance written notice to the other.
6.2. Upon the termination of this Agreement, Licensor shall return any unused portion of any prepaid support fees prorated from the Licensee license renewal date.
6.3. Upon the termination of this Agreement, Licensee shall return the Software to Licensor or shall warrant to Licensor in writing that all copies thereof have been destroyed.


7. VENDOR DATA ACCURACY/AVAILABLITY
7.1 While Licensor will make every attempt to make Vendor Pricing available, Licensor is not responsible for obtaining and distributing vendor data. Licensee must contact vendor to encourage vendor to continue to provide data for use within the Software. Should the vendor discontinue providing data to Licensor, there shall be no action brought against Licensor.
7.2 Licensor makes no representation as to the accuracy or completeness of the vendor data provided.

8. SHARING OF INFORMATION
8.1 Licensee Understands that periodic statistical and troubleshooting information may be periodically sent to RETAILERSOFT to aid in the Training, Support, and Development of further programs and program enhancements.

9. PRICING ADVICE/GUIDELINES
9.1 Licensor does not provide pricing strategy or any guideline for Licensee to follow.
9.2 Because pricing is very Market Specific, only the Licensee can make intelligent qualified decisions about their pricing.
9.3 Licensor cannot be held responsible for poor pricing decisions made by Licensee.

WARRANTY DISCLAIMER; LIMITATION OF LIABILITY. RETAILERSOFT PROVIDES THE SOFTWARE "AS-IS" AND PROVIDED WITH ALL FAULTS. NEITHER RETAILERSOFT NOR ANY OF ITS SUPPLIERS OR RESELLERS MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. RETAILERSOFT AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, AND DATA ACCURACY. THERE IS NO WARRANTY OR GUARANTEE THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR VIRUS-FREE, OR THAT THE SOFTWARE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE, QUALITY, ACCURACY, PURPOSE, OR NEED. YOU ASSUME THE ENTIRE RISK OF SELECTION, INSTALLATION, AND USE OF THE SOFTWARE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT. NO USE OF THE SOFTWARE IS AUTHORIZED HEREUNDER EXCEPT UNDER THIS DISCLAIMER.

RETAILERSOFT works closely with companies to help facilitate the use of its products. Companies like Ace Hardware Corporation, True Value Corporation, Do it Best Corporation, Orgill Corporation, etc ("COMPANIES") COMPANIES are not affiliated with, RETAILERSOFT, and Licensee agrees: (i) not to hold COMPANIES responsible for any claims arising out of Licensee’s license agreement with RETAILERSOFT or any of its products; and (ii) not to take any action against COMPANIES as a result of Licensee’s agreement with RETAILERSOFT or any products provided by RETAILERSOFT. Regardless of Licensee’s use of RETAILERSOFT products, each Licensee is solely responsible for its usage of the software.  Licensee is solely responsible for its business operations including, without limitation, bookkeeping and accounting, inventory management, labor management and retail pricing.

If implied warranties may not be disclaimed under applicable law, then ANY IMPLIED WARRANTIES ARE LIMITED IN DURATION TO THE PERIOD REQUIRED BY APPLICABLE LAW. Some states do not allow limitations on how long an implied warranty may last, so the above limitations may not apply to You. This warranty gives you specific rights, and You may have other rights which vary from jurisdiction to jurisdiction.

To the extent that this Warranty Statement is inconsistent with the jurisdiction where You use the Software, the Warranty Statement shall be deemed to be modified consistent with such local law. Under such local law, certain limitations may not apply, and you may have additional rights which vary from jurisdiction to jurisdiction. For example, some states in the United States and some jurisdictions outside the United States may: (i) preclude the disclaimers and limitations of this Warranty Statement from limiting the rights of a consumer; (ii) otherwise restrict the ability of a manufacturer to make such disclaimers or to impose such limitations; or (iii) grant the consumer additional legal rights, specify the duration of implied warranties which the manufacturer cannot disclaim, or prohibit limitations on how long an implied warranty lasts.

INDEPENDENT OF THE FORGOING PROVISIONS, IN NO EVENT AND UNDER NO LEGAL THEORY, INCLUDING WITHOUT LIMITATION, TORT, CONTRACT, OR STRICT PRODUCTS LIABILITY, SHALL RETAILERSOFT OR ANY OF ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER MALFUNCTION, OR ANY OTHER KIND OF COMMERCIAL DAMAGE, EVEN IF RETAILERSOFT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY TO THE EXTENT PROHIBITED BY APPLICABLE LAW. IN NO EVENT SHALL RETAILERSOFT LIABILITY FOR ACTUAL DAMAGES FOR ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, EXCEED THE AMOUNT OF THE PURCHASE PRICE PAID FOR THE SOFTWARE LICENSE.

EXPORT CONTROLS. You agree to comply with all export laws and restrictions and regulations of the United States or foreign agencies or authorities, and not to export or re-export the Software or any direct product thereof in violation of any such restrictions, laws or regulations, or without all necessary approvals. As applicable, each party shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to its own export of the Software from the U.S. Neither the Software nor the underlying information or technology may be electronically transmitted or otherwise exported or re-exported (i) into Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country subject to U.S. trade sanctions covering the Software, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department's Table of Denial Orders. By downloading or using the Software, Licensee agrees to the foregoing and represents and warrants that it complies with these conditions.

MISCELLANEOUS. This Agreement constitutes the entire understanding of the parties with respect to the subject matter of this Agreement and merges all prior communications, representations, and agreements. This Agreement may be modified only by a written agreement signed by the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be construed under the laws of the Province of Manitoba, Canada, excluding rules regarding conflicts of law. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This license is written in English, and English is its controlling language.

U.S. GOVERNMENT END USERS. The Software is a "commercial item," as that term is defined in 48 C.F.R. 2.101 (Oct. 1995), consisting of "commercial computer software" and "commercial computer software documentation," as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4 (June 1995), all U.S. Government End Users acquire the Software with only those rights set forth herein.

LICENSEE OUTSIDE THE U.S. If You are located outside the U.S., then the following provisions shall apply: (i) Les parties aux presentes confirment leur volonte que cette convention de meme que tous les documents y compris tout avis qui siy rattache, soient rediges en langue anglaise (translation: "The parties confirm that this Agreement and all related documentation is and will be in the English language."); and (ii) You are responsible for complying with any local laws in your jurisdiction which might impact your right to import, export or use the Software, and You represent that You have complied with any regulations or registration procedures required by applicable law to make this license enforceable.
This EULA is a general EULA intended as a starting point for each product RETAILERSOFT makes available. Each individual product may have its own EULA with variations from this global EULA. The product specific EULA is the primary EULA and this document is to serve as a supplement to the product specific EULA if it exists.