Barefoot Technologies Corporation
END USER LICENSE AGREEMENT
IMPORTANT - READ CAREFULLY: THE INDIVIDUAL OR ENTITY WHICH IS PARTY TO THE APPLICABLE LICENSE OR SIMILAR AGREEMENT WITH BAREFOOT HAS DESIGNATED YOU AS A USER OF THE BAREFOOT TECHNOLOGIES CORPORATION (“BAREFOOT”) SOFTWARE AS A SERVICE PLATFORM AND ASSOCIATED MEDIA, PRINTED MATERIAL, AND ONLINE OR ELECTRONIC DOCUMENTATION (“THE PLATFORM”).
This End User License Agreement ("EULA") is a legal agreement between YOU and Barefoot GOVERNING YOUR USE OF AND ACCESS TO THE PLATFORM. YOUR ACCESS TO AND USE OF THE PLATFORM IS SUBJECT TO YOUR REVIEW AND ACCEPTANCE OF THIS EULA.
BY ACCEPTING THIS EULA, YOU ARE AGREEING TO ALL OF THE TERMS AND CONDITIONS HEREIN AND IN THE BAREFOOT ACCEPTABLE USE POLICY (“AUP”),PRIVACY POLICY, AND E DISCLOSURE AND CONSENTWHICH ARE HEREBY INCORPORATED BY THIS REFERENCE.
IF YOU DO NOT INDICATE YOUR ACCEPTANCE OF THIS EULA BY SELECTING THE “ACCEPT” OPTION BELOW, YOU WILL NOT BE ENTITLED TO ACCESS AND USE THE PLATFORM OR ANY PORTION THEREOF.The PLATFORM is protected by copyright laws, international copyright treaties and other intellectual property laws and treaties. The PLATFORM is licensed, not sold.
- GRANT OF LICENSE. Subject to the terms and conditions of the applicable license or similar agreement that controls your access to and use of the PLATFORM, and of the terms and conditions of this EULA, BAREFOOT hereby grants to you a non-exclusive, revocable, non-transferable, limited license (without the right of sublicense to third-parties) (the “License”) to access and use the PLATFORM, solely for your own purposes.
- OTHER RIGHTS AND LIMITATIONS.
- Maintenance of Copyright Notices. You must not remove or alter any copyright notices on any copies of the PLATFORM.
- Distribution Limitation. Unless you are a BAREFOOT Authorized Reseller under contract with BAREFOOT, you may not distribute copies of or subscriptions to the PLATFORM to third parties.
- This EULA does not grant any rights in connection with any trademarks or service marks of Barefoot Technologies Corporation.
- Reverse Engineering, Decompilation and Disassembly. You may not reverse engineer, decompile or disassemble the PLATFORM, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or by written consent from BAREFOOT. You may not view, copy or modify any BAREFOOT code, either in compiled format, or in source format, without explicit consent from BAREFOOT.
- Rental. You may not rent, lease or lend the PLATFORM.
- You may permanently transfer all of your rights under this EULA, provided the recipient agrees to the terms of this EULA and receives written consent from BAREFOOT.
- Support Services. BAREFOOT may provide you with support services related to the PLATFORM ("Support Services"). Use of Support Services is governed by BAREFOOT policies and programs described in the user manual, in "online" documentation and other BAREFOOT provided materials. Any supplemental software code provided to you as part of the Support Services shall be considered part to the PLATFORM and subject to the terms and conditions of this EULA. With respect to technical information you provide to BAREFOOT as part of the Support Services, BAREFOOT may use such information for its business purposes, including for product support and development. BAREFOOT will not utilize such technical information in a form that personally identifies you.
- Compliance with Applicable Laws. You must comply with all applicable laws regarding use of the PLATFORM.
- YOUR REPRESENTATIONS AND WARRANTIES.
- You hereby represent and warrant that you have the necessary rights to use any data and content that you enter into the PLATFORM, including without limitation any data, text, images, or other such information (“YOUR DATA”) and you hereby agree to indemnify and hold BAREFOOT harmless, consistent with the provisions of Section 11 below, for any claim or action arising from the use of YOUR DATA in connection with the PLATFORM.
- You hereby represent and warrant that you have permission from the individual or entity which is party to the applicable license or similar agreement to use the PLATFORM.
BAREFOOT reserves the right, at its sole and absolute discretion, to temporarily or in perpetuity, change, modify, update, alter or cancel the PLATFORM or any portion thereof, this EULA, and all other BAREFOOT policies without notice to you. BAREFOOT will not be liable for any kind of damage or loss to you or to any third party, stemming from any such changes, modifications, updates, alterations or cancelation of any of the PLATFORM or portion thereof, this EULA, or any other BAREFOOT policies. Any Changes to this EULA or other BAREFOOT policies will be reflected on the BAREFOOT website and continued use of the PLATFORM thereafter will constitute acceptance of any such changes, modifications, updates, alterations or cancellation.
V. TERMINATION
Without prejudice to any other rights, BAREFOOT may terminate this EULA if you fail to comply with the terms and conditions of this EULA. In such event, you must destroy all copies of the PLATFORM.
VI. COPYRIGHT
All title, including but not limited to copyrights in and to the PLATFORM and any copies thereof are owned by BAREFOOT or its suppliers. All title and intellectual property rights in and to the content which may be accessed through use of the PLATFORM is the property of the respective content owner and may be protected by applicable copyrights or other intellectual property laws and treaties. This EULA grants you no right to use such content. All rights not expressly granted are reserved by BAREFOOT.
VII. US GOVERNMENT RESTRICTED RIGHTS.
The PLATFORM is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraphs (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraph (c) (1) and (2) of the Commercial Computer Software Restricted Rights at 48 CFR 52.227-19 as applicable. Manufacturer is Barefoot Technologies Corporation, 41 Liberty Hill Rd, Henniker, NH 03242 – USA.
VIII. EXPORT RESTRICTIONS.
You agree that you will not export or re-export the PLATFORM, any part thereof, or any process or service that is the direct product of the PLATFORM (the foregoing collectively referred to as the "Restricted Components") to any country, person or entity subject to US export restrictions. You specifically agree not to export or re-export any of the Restricted Components: (i) to any country to which the US has embargoed or restricted the export of goods or services, which currently include, but are not necessarily limited to Iran, Iraq, Libya, North Korea, Sudan and Syria, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country; (ii) to any entity who you know or have reason to know will utilize the Restricted Components in the design, development or production of nuclear, chemical or biological weapons; or (iii) to any entity who you know or have reason to know has been prohibited from participating in US export transactions by any federal agency of the US government. You warrant and represent that no US federal agency has suspended, revoked or denied you export privileges.
IX. NO WARRANTIES.
BAREFOOT MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY, OR COMPLETENESS OF THE BAREFOOT SITES OR SERVICES, RELATED CONTENT, OR ANY OTHER RELATED SERVICES; BAREFOOT DOES NOT REPRESENT OR WARRANT THAT THE USE OF THE BAREFOOT SITES OR SERVICES WILL: (I) BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE; (II) OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (III) MEET USER'S REQUIREMENTS OR EXPECTATIONS; (IV) PROVIDE ACCURATE OR RELIABLE STORED DATA; (V) PROVIDE ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY USER THAT MEETS USER'S REQUIREMENTS OR EXPECTATIONS WITH REGARD TO QUALITY; (VI) PROVIDE ERROR OR DEFECT CORRECTION; OR (VII) BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE BAREFOOT SITES AND SERVICES AND ALL RELATED CONTENT IS PROVIDED TO USER STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
X. LIMITATION OF LIABILITY.
THE LIMITATION OF LIABILITY IS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; IN NO EVENT SHALL BAREFOOT OR ITS SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE PLATFORM OR THE FAILURE TO PROVIDE SUPPORT SERVICES, EVEN IF BAREFOOT HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, BAREFOOT'S ENTIRE LIABILITY UNDER ANY PROVISION OF THIS EULA SHALL BE LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY YOU FOR THE PLATFORM OR US $5.00; PROVIDED, HOWEVER IF YOU HAVE ENTERED INTO A BAREFOOT TECHNOLOGIES CORPORATION SUPPORT SERVICES AGREEMENT, BAREFOOT TECHNOLOGIES CORPORATION'S ENTIRE LIABILITY REGARDING SUPPORT SERVICES SHALL BE GOVERNED BY THE TERMS OF THAT AGREEMENT. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
XI. INDEMNIFICATION
You acknowledge and agree that you will indemnify, defend, and hold harmless BAREFOOT and its licensors from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising from any claim resulting from: (i) any breach by you of any representation, warranty, covenant, obligation or duty under this EULA; (ii) any third-party products, or product(s) not developed by BAREFOOT, whether or not provided hereunder; (iii) your combination or use of the PLATFORM or related content with software, services, or products developed or provided by a third-party or you; (iv) your continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement; or (vi) your use of the PLATFORM or related content in a manner not in accordance with this EULA.
XII. PRIVACY POLICY
By indicating your acceptance of this EULA, you agree to comply with the then-current BAREFOOT AUP and Privacy Policy as may be amended from time to time by BAREFOOT. Any such amendments to the AUP or Privacy Policy are effective immediately upon posting on the BAREFOOT website. Your continued use of the PLATFORM or any portion thereof, following the posting of such amendments, means that you accept and agree to such amendments.
XIII. SURVIVAL
All provisions relating to proprietary rights, disclaimer of warranty, indemnification, limitation of liability, and your representations and warranties shall survive the expiration or earlier termination of this EULA or other applicable agreement between you and BAREFOOT.
XIV. MISCELLANEOUS
This EULA is governed by the laws of the State of New Hampshire, USA without regard to its conflict of law provisions.
In the event that you have acquired this product in Canada, this EULA is then governed by the laws of the Province of Ontario, Canada; Each of the parties hereto irrevocably submits to the jurisdiction of the courts of the Province of Ontario and further agrees to commence any litigation which may arise hereunder in the courts located in the Judicial District of York, Province of Ontario. You further agree to the following: the parties hereto confirm that it is their wish that this EULA, as well as other documents relating hereto, including notices, have been and shall be written in the English language only. Les parties ci-dessus confirment leur désir que cet accord ainsi que tous les documents, y compris tous avis qui s'y rattachent, soient rédigés en langue anglaise.
If this product is acquired outside the United States, then local law may apply.
In the event that any provision of this EULA conflicts with applicable law or if any such provision is held invalid by a court of competent jurisdiction: (i) such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law; and (ii) the remaining terms, provisions, covenants and restrictions of this EULA will remain in full force and effect. No person or entity not a party to this EULA will be deemed to be a third-party beneficiary hereof.
BAREFOOT’s failure to strictly enforce any provision of this EULA will not constitute a waiver of any such provision, or any other provision of this EULA.
XV. CREDIT CARD PCI COMPLIANCE.
You hereby acknowledge that Barefoot does not store any identifiable credit card information in any database including any credit card number information. You further acknowledge and agree that BAREFOOT may not be held liable for any Payment Card Industry (“PCI”) or other credit card compliance issues. BAREFOOT may integrate with certain third party vendors that host credit card information in an encrypted format. BAREFOOT is not responsible for the policies or actions of these third parties and makes no representations or warranties regarding such third parties. As such, you are solely responsible for ensuring that you, any credit card vendors that you enter into agreement with and Customers meet the applicable PCI Compliance standards. If you or Customer is shut down for failing to meet the applicable PCI Compliance standards, you acknowledge and agree that BAREFOOT is under no obligation to assist you or Customer with any reinstatement procedures. BAREFOOT may, at its sole discretion, enter into a separate agreement with you or with Customer to assist in the reinstatement process on a paid hourly basis. This Section 15 constitutes BAREFOOT’s sole obligation regarding notice of required PCI Compliance to you and to Customer.
XVI. ELECTRONIC SIGNATURE AND CONSENT
All references to your consent or acceptance in this EULA may be satisfied by procedures the Company has established or may establish from time to time for an electronic system for execution and delivery of any such consent or acceptance including this EULA. You acknowledge and agree that your electronic signature, including, without limitation, "click-through" acceptance of this EULA or any other such online agreement (including any work orders and other such requests for services made by you via the PLATFORM) through a website maintained by or on behalf of BAREFOOT, is the same as, and will have the same force and effect as, your manual signature.
XVII. ENTIRE AGREEMENT
This EULA, together with the AUP and Privacy Policy, constitute the sole and entire agreement between you and BAREFOOT with respect to the PLATFORM and related content (except when the terms and conditions of a License Agreement may also apply) and supersedes all prior and contemporaneous understandings, agreements, representations, warranties or terms and conditions, both written and oral, with respect to the PLATFORM and related content.
Should you have any questions concerning this EULA, or if you desire to contact BAREFOOT for any reason, please contact the Barefoot Technologies Corporation subsidiary serving your county, or write Barefoot Technologies Corporation Sales Information center, PO BOX 274, Henniker, NH 03242.
Barefoot EULA 07.25.17
