Effective Date: As of April 30, 2014
IMPORTANT-READ CAREFULLY. THIS IS A LEGAL AGREEMENT BY AND BETWEEN (1) YOU THE LICENSEE, WHO IS THE PERSON, COMPANY, OR ENTITY UTILIZING “ACCOUNTINGSUITE™” – A WEB-BASED ACCOUNTING, ORDER MANAGEMENT, AND INVENTORY SOFTWARE PROGRAM (“ACCOUNTINGSUITE™”) – AND (2) YELLOW LABS SOFTWARE, INC. (“YLS”). BY CLICKING THE “I ACCEPT” BUTTON, OR BY USING ACCOUNTINGSUITE™, YOU ARE CONSENTING TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”). YOU FURTHER AGREE THAT YOUR EMPLOYEES OR ANY PERSON YOU AUTHORIZE TO USE ACCOUNTINGSUITE™ WILL ALSO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT OR DO NOT HAVE THE AUTHORITY TO BIND YOUR ENTITY TO THESE TERMS, THEN DO NOT USE ACCOUNTING SUITE.
OWNERSHIP. YLS owns and shall retain all right, title, and interest in and to AccountingSuite, any updates or maintenance releases, and any related media, online or electronic documentation, including all copyrights, patents, trade secret rights, trademarks, and other intellectual property rights thereto. AccountingSuite is protected by the copyright laws of the United States, international copyright treaties and conventions, and other laws, and all rights are reserved.
Grant. YLS hereby grants Licensee, and Licensee hereby accepts, a non-exclusive, non-sublicensable, non-transferable, fully revocable license to use AccountingSuite solely for internal use and operation upon the terms and conditions contained in this Agreement (“License”). You may use and access AccountingSuite™ according to the license level purchased by you from any number of virtual machines or physical computing devices owned, leased, or otherwise controlled by you. For purposes of this Agreement, “use” of AccountingSuite™ means accessing AccountingSuite™ over a computer network. AccountingSuite™ may not be used by a greater number of persons, agents, or employees than you have paid a License fee for. You acknowledge that YLS makes no representation as to the compatibility of AccountingSuite™ with any specific operating environments or computing device.
Restrictions. The License is granted solely to Licensee, and not to any parent, subsidiary, or affiliate of Licensee. All rights not expressly granted hereunder are reserved to YLS. The License does not include (a) maintenance, support, upgrades, or modifications to AccountingSuite™ other than as set forth herein, (b) derivative products developed by YLS or anyone else to whom YLS may license AccountingSuite™, or (c) a license or transfer of any intellectual property rights owned or controlled by YLS or any YLS affiliate, subsidiary, or parent. Licensee shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from, or any internal data files generated by, AccountingSuite™, rent, lease or loan AccountingSuite™, or use AccountingSuite™ in any manner that constitutes a breach of this Agreement or violates any applicable law or regulation, including without limitation any third party copyright or other intellectual property or proprietary right, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation.
Use Reporting, License Violations, and Remedies. YLS reserves the right to gather data on your usage of AccountingSuite™, including but not limited to server IP addresses, domain counts and other information deemed relevant, to ensure that our products are being used in accordance with the terms of this Agreement. YLS expressly prohibits domain count overrides without prior written approval. Any unauthorized use shall be considered by YLS to be a violation of this Agreement. YLS reserves the right to remedy violations immediately upon discovery, by charging the then current list price of unauthorized users to the credit card used to make the original, authorized purchase, or by any other means necessary. You agree not to block, electronically or otherwise, the transmission of data required for compliance with this Agreement. Any blocking of data required for compliance under this Agreement is considered to be in violation of this Agreement and will result in immediate termination of this Agreement.
License Automatic Update and Expiration. Your License may include an expiration date that can result in the termination of the License. If your login identification is stolen, or if you suspect any improper or illegal usage of your License outside of your control you should promptly notify YLS of such occurrence. A replacement login will be issued to you and the suspect login will immediately be terminated. For your License to remain active, your monthly payment for each month must be processed prior to the expiration date in order for the License updates to be performed. For your convenience YLS provides License expiration warnings in the product interface should there be any issues that would cause the product License to expire. It is your responsibility to contact YLS regarding any potential expiration that you deem inappropriate. YLS is not liable for any damages or costs incurred in connection with the expiring Licenses.
Grant of License to YLS. Licensee exclusively owns all rights in and to information it stores on AccountingSuite™ (“Information”). YLS needs a limited license from Licensee to use (i.e., display, perform, and distribute) Information to make AccountingSuite™ available to you. By providing Information, you grant to YLS a limited, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free, sub-licensable, transferable and worldwide license to use, modify, perform, display, reproduce and distribute the Information for the sole purpose of operating AccountingSuite™ and providing related services. YLS shall also have an unlimited, perpetual, non-exclusive, fully-paid, royalty-free, sub-licensable, transferable, and worldwide license to use, incorporate into AccountingSuite™, modify, perform, display, reproduce and distribute any suggestions, enhancement requests, recommendations, or other feedback provided by you relating to the operation or features of AccountingSuite™.
Liability for Third Parties. Should you make available any software, login identifications, or security credentials, or other means of access to AccountingSuite™ to third parties, whether deliberately or through error or omission, you agree that any and all use of AccountingSuite™ by such third parties, regardless of whether such use is specifically authorized or unauthorized by you, shall be legally attributed to you, and you hereby accept liability for any and all such use.
LICENSE FEES. AccountingSuite will be available to you for use upon your payment of the applicable License fee and your receipt of one or more login identifications. Upon acceptance of this Agreement, you may use your License by paying the requisite License fees applicable to your level of use, using the procedure set forth on the AccountingSuite™ website (www.accountingsuite.com). The License fees paid by you are paid in consideration of the License granted under this Agreement. YLS does not refund License fees. By accepting this Agreement you fully understand that once the License fee payment is made to YLS you will have no recourse for receiving a refund of any part of the fees.
TERM AND TERMINATION. The term of this Agreement commences as of the Effective Date, or upon your accessing, and using AccountingSuite even if you have not expressly accepted this Agreement, and shall continue unless and until either Party provides written notice to the other terminating this Agreement, or if Licensee makes an assignment or other transfer of this Agreement or the License, by operation of law or otherwise. Upon the termination of this Agreement, all License rights granted hereunder shall terminate in full and without notice, and Licensee shall immediately cease use of AccountingSuite. Notwithstanding the foregoing, any provision that by its nature or context is intended to survive any termination or expiration of this Agreement, including but not limited to indemnification, shall so survive.
OPEN SOURCE SOFTWARE. AccountingSuite™ may contain open source software components, each of which has its own copyright notice requirements and own applicable license conditions. These components are subject to the terms of third-party open source licenses, and not the terms of this Agreement. If any such license requires YLS to deliver the source code for such component to Licensee, YLS shall do so upon request at a nominal fee.
CONFIDENTIALITY. Licensee will not disclose AccountingSuite™, or the terms and conditions or existence of this Agreement to any third party without YLS’s express prior written consent.
INDEMNIFICATION BY LICENSEE. Licensee shall indemnify, defend, and hold harmless YLS (and its officers, directors, employees, and agents) from and against any and all claims, suits, liability, damages, losses, costs, or expenses (including reasonable attorneys’ fees) which result from claims that any modifications Licensee makes to AccountingSuite or any combination of AccountingSuite with software or other items not approved by YLS infringes or violates any third party intellectual property right. In case any action or proceeding is brought against YLS by reason of any such claim, demand, action, damage, loss, liability, cost, or expense, Licensee’s duty to defend shall begin upon receipt of written notice identifying the allegations that give rise to this duty to defend and shall be coextensive with Licensee’s indemnification obligation.
NO WARRANTIES. YLS LICENSES ACCOUNTING SUITE TO LICENSEE ON AN “AS IS” BASIS WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER ORAL OR WRITTEN, WHETHER EXPRESS, IMPLIED, OR ARISING BY STATUTE, CUSTOM, COURSE OF DEALING, OR TRADE USAGE. TO THE MAXIMUM EXTENT PERMISSIBLE BY APPLICABLE LAW, YLS DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, WITH REGARD TO ACCOUNTING SUITE. LICENSEE ACKNOWLEDGES THAT THE OPERATION OF ACCOUNTING SUITE MAY NOT BE UNINTERRUPTED OR ERROR-FREE, AND THAT ERRORS MAY NOT BE CORRECTED. YLS IS NOT RESPONSIBLE IN ANY WAY FOR ANY INTERFERENCE, ERRORS, OR PREVENTION OF LICENSEE’S ACCESS TO OR USE OF ACCOUNTINGSUITE™. YLS IS NOT YOUR ACCOUNTANT AND USE OF ACCOUNTINGSUITE DOES NOT CONSTITUTE THE RECEIPT OF ACCOUNTING ADVICE. IF YOU HAVE ANY ACCOUNTING QUESTIONS, PLEASE CONTACT AN ACCOUNTANT. IT IS YOUR SOLE RESPONSIBILITY TO DETERMINE THAT ACCOUNTINGSUITE™ MEETS THE NEEDS OF YOUR BUSINESS AND IS SUITABLE FOR THE PURPOSES FOR WHICH IT IS USED. YOU REMAIN SOLELY RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE ACCOUNTING, TAX, AND OTHER LAWS. IT IS YOUR RESPONSIBILITY TO CHECK THAT THE STORAGE OF AND ACCESS TO YOUR DATA VIA ACCOUNTINGSUITE™ AND THE WEBSITE WILL COMPLY WITH LAWS APPLICABLE TO YOU AND YOUR BUSINESS (INCLUDING ANY LAWS REQUIRING YOU TO RETAIN RECORDS).
BACKUP OF DATA. The licensee shall maintain copies of all data and information inputted by Licensee into AccountingSuite™. YLS adheres to reasonable practices and procedures to prevent data and information loss but does not make any guarantees that there will be no loss of data or information. YLS expressly excludes and disclaims any liability for any loss of Licensee’s data and information, no matter how such loss was caused.
PRIVACY AND DATA SECURITY. YLS agrees that it shall use best efforts to (i) keep and maintain Information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use or disclosure; and (ii) use and disclose Information solely and exclusively for the purposes for which the Information, or access to it, is provided pursuant to the terms and conditions of this Agreement, and not use, sell, rent, transfer, distribute, or otherwise disclose or make available Information for YLS’s own purposes or for the benefit of anyone other than Licensee, in each case, without Licensee’s prior written consent.
MAINTENANCE AND SUPPORT. YLS will provide maintenance and support services in accordance with the terms of the plan selected by Licensee. YLS’s obligations, if any, to provide maintenance and support is subject to the following: (a) Licensee shall provide YLS with sufficient access to its account and personnel to duplicate and resolve errors; (b) Licensee shall provide supervision, control, and management of the use of AccountingSuite™; (c) Licensee shall document and promptly report all errors or malfunctions in AccountingSuite to YLS, and (d) Licensee shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from YLS. Notwithstanding the foregoing, YLS shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to AccountingSuite™.
NO UNLAWFUL OR PROHIBITED USE. As a condition of your use of AccountingSuite™, you warrant that you will not use AccountingSuite™ for any purpose that is unlawful or prohibited by this Agreement. You may not use AccountingSuite™ in any manner which could damage, disable, overburden, or impair AccountingSuite™ or interfere with any other party’s use and enjoyment of AccountingSuite™. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through AccountingSuite™. The following is a non-exclusive list of actions that YLS considers to be inappropriate and thus prohibited. The examples identified in this list are provided as examples only for your guidance. If you are unsure whether any contemplated use or action is permitted, please contact YLS.
Using AccountingSuite™ for any activity that violates any local, state, federal or international law, order or regulation.
Using AccountingSuite™ to transmit, distribute, store or access any material (by e-mail, publishing, uploading, posting or otherwise) which is inappropriate, profane, obscene, indecent, pornographic, libelous, harassing, constitutes a threat or encourages bodily harm or destruction of property, or otherwise objectionable or unlawful.
Using AccountingSuite to transmit, distribute, store or access any material (by e-mail, publishing, uploading, posting, or otherwise) that infringes copyright, trademark, patent, trade secret, or other proprietary rights of any third party. You assume all risks regarding the determination of whether material is in the public domain.
Using AccountingSuite™ to make fraudulent offers to buy or sell products, items, or services, or to advance any type of financial/soliciting scams including, but not limited to, “pyramid schemes,” “Ponzi schemes,” “mail bombing,” and “chain letters.”
Using AccountingSuite™ to harm or attempt to harm a minor, including, but not limited to, hosting, possessing, distributing, or transmitting child pornography or other material that is unlawful.
Any fraudulent activities, including impersonating any person or entity or forging anyone else’s digital or manual signature.
Disrupting or interfering with AccountingSuite™ in any way, including through the uploading of files which contain viruses, worms, “Trojan horses,” or other software or programs that may be damaging to AccountingSuite or another user’s computer.
Using AccountingSuite to transmit, or to facilitate the transmission of, any unsolicited commercial e-mail or unsolicited bulk e-mail.
Using AccountingSuite™ to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of AccountingSuite or another entity’s computer software or hardware, electronic communications system, or telecommunications system, whether or not the
intrusion results in the corruption or loss of data. Using AccountingSuite™ to collect, or attempt to collect, personal information about third parties without their knowledge or consent.
Using AccountingSuite™ for any activity that adversely affects the ability of other people or systems to use AccountingSuite™ or the Internet.
Using AccountingSuite™ for excessive posting or cross-posting of the same or substantially similar messages, or binary files to newsgroups not specifically named for that purpose, or flooding or disruption of Usenet newsgroups.
Using AccountingSuite™ to perform chat “flooding”, maintaining more than two simultaneous chat discussions, using AccountingSuite™ to connect to chat servers or channels from which they have been previously banned, or forging, altering, or obscuring your identity while participating in chat sessions.
Using AccountingSuite™ to post any content that holds YLS up to public scorn or ridicule or would any way damage or impair YLS’s reputation or goodwill.
INJUNCTIVE RELIEF. Licensee understands and agrees that its breach of this Agreement will cause YLS irreparable damage for which recovery of money damages would be inadequate, and that YLS shall, therefore, be entitled to obtain timely injunctive relief to protect YLS’s rights under this Agreement in addition to any and all remedies available at law, without the necessity of a bond.
COPYRIGHT AND TRADEMARK NOTICES. All trademarks are owned by YLS and their affiliates. The content, organization, graphics, design, compilation, magnetic translation, digital conversion and other matters related to AccountingSuite™ are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights. Other than as expressly permitted in the “LICENSE” Section above, the copying, redistribution, use or publication by you of any such matters or any part of AccountingSuite, is strictly prohibited. You do not acquire ownership rights to any article, document or other materials viewed through AccountingSuite™. The posting of information or materials on AccountingSuite™ does not constitute a waiver of any right in such information and materials. Some of the content on AccountingSuite™ may be the copyrighted work of third parties. Nothing contained in AccountingSuite™ should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by YLS or any third party.
CHANGES TO THIS AGREEMENT. Due to changing technological and marketing demands, YLS reserves the right to revise, amend, or modify this Agreement from time to time. Notice of any revision, amendment, or modification will be posted on the website through which Licensee accesses AccountingSuite™, and/or by email to your primary email, and/or in mailings to the address you provide and will be effective on the date noted in the posting. This Agreement may not be amended or modified by Licensee except by means of a written document signed by both Licensee and an authorized representative of YLS. By continuing to use AccountingSuite™ after the amendments are effective, Licensee accepts and agrees to abide by them.
NOTICES AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement under United States copyright law should be sent to YLS at the address set forth in Section 21.
ARBITRATION. Any legal controversy or legal claim arising out of or relating to this Agreement or AccountingSuite™ (excluding legal action taken by us or you to collect or recover damages for, or obtain any injunction relating to, intellectual property ownership or infringement), shall be settled solely by confidential binding arbitration in accordance with the commercial arbitration rules of JAMS. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration shall be conducted in San Francisco, California. Each party shall bear one-half of the arbitration fees and costs incurred through JAMS, and each party shall bear its own attorneys’ fees.
UNITED STATES GOVERNMENT RESTRICTED RIGHTS. AccountingSuite™ is provided with Restricted Rights. Use, duplication, or disclosure by the government is subject to restrictions as set forth in subparagraph (c)(f)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c) (1) and (2) of the Commercial Computer Software-Restricted Rights at 48 C.F.R. S:52.227-19, as applicable.
GENERAL PROVISIONS. This Agreement is governed by and shall be construed in accordance with the domestic laws of the State of California, excluding (a) any conflicts-of-laws rule or principle that might refer the governance or the construction of this Agreement to the law of another jurisdiction, (b) the United Nations Convention on Contracts for the International Sale of Goods, and (c) any potentially applicable provisions of the Uniform Computer Information Transactions Act, to the extent it is, or has been, adopted in a governing jurisdiction.This Agreement is the entire agreement between the parties on the subject matter hereof and supersedes all prior communications or agreements, written or oral. The relationship of the parties hereunder is that of independent contractors, and this Agreement will not be construed to imply that either party is the agent, employee, or joint venturer of the other. In the event that any provision of this Agreement is held to be unenforceable, this Agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. Licensee may not assign or transfer this Agreement (by operation of law or otherwise) without the prior written consent of YLS and any prohibited assignment or transfer will be null and void, but YLS may freely assign or transfer this Agreement. This Agreement will be binding upon and will inure to the benefit of the parties’ permitted successors and/or assignees. Waiver by either party of a breach of any provision of this Agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.
CONTACTING US. If you have any questions, comments or complaints concerning this Agreement, please contact us at 415.462.5477, e-mail us at [email protected], or send any correspondence to Yellow Labs Software, Inc., 268 Bush Street, #2829, San Francisco, CA 94104, Attn: Legal. Our representatives will endeavor to contact you within fifteen (15) days of your inquiry.