These software subscription service terms (“agreement”) are an agreement between Computer Business Solutions, Inc, (CBSi) and you. Please read these terms carefully.
Except as otherwise expressly specified, this agreement applies to all CBSi software solutions, which includes the media on which you received it, if any. It also applies to any CBSi
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updates,
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supplements,
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Internet-based services, and
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support services
for the service, unless other terms accompany those items. If so, those terms apply. This agreement supersedes any license terms embedded in the software.
By installing, having installed, subscribing to, or using the software, you accept this agreement (including any modifications made to it from time to time). If you do not accept this agreement, do not install, have installed, subscribe to, or use the software.
If an individual enters into this agreement on behalf of a legal entity, that individual represents that he or she has the authority to bind that entity to this agreement.
Notice Regarding Subscription Validation. Servers on which the software is installed may periodically provide information to verify that the software is properly licensed and that the term has not expired. This information includes the customer subscription identifier, product name, license serial number, product version number, and date of last use.
If you comply with this agreement, you have the rights below for each license you acquire for the software.
1. OVERVIEW.
a. Software Subscription. The software may include:
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server software;
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client software that can be installed on devices and/or used with the server software;
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any updates or supplements for the software.
b. Licensing. The software is licensed or registered based on:
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the number of copies of the software that you install on premises or use on a hosted basis;
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the number of your users that access the software; and
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additional software components you license.
c. License Model.
The software is licensed under a subscription License / Registration Model – Under this model, you have subscribed to the software on a per user and module basis (in some cases including a per package shipment fee) for a limited period. Your software subscription must be paid monthly to ensure access to the subscription, and any shipments must be paid for in full, even if the billing of such is presented after the subscription is terminated.
CBSi is entitled to withhold access for non-payment and until past-due fees are paid in full. In the case of payment collections, you will reimburse CBSi for all costs of collection, including attorney's fees. Thirty days' notice is required to terminate the subscription service.
If your subscription license expires or terminates, your right to use the software will stop immediately. If you continue using the software after that, you could be held liable for infringement of intellectual property rights, which could result in significant damages being assessed against you or other legal remedies.
2. DEFINITIONS.
a. “affiliate” means any legal entity that directly or indirectly owns, is directly or indirectly owned by, or that is directly or indirectly under common ownership with a party to this agreement.
b. “client software” means the components of the software that allow a device to access or use the server software or to use certain aspects of the server software.
c. “device” means a single personal computer, workstation, terminal, handheld computer, mobile phone, personal digital assistant, or other electronic device.
d. “ERP” means enterprise resource planning.
e. “ERP solution” means the components of the software that control your users and financial reporting units.
f. “Instance” means an image of software that is created by executing the software’s setup or install procedure or by duplicating an existing Instance.
g. “ownership” means more than 50% ownership.
h. “partner” means the entity that has signed a channel partner agreement with CBSi authorizing it to market and distribute the software.
i. “SAL” means subscriber access license.
j. “you” means the legal entity that has agreed to this agreement, your affiliates, and each of your, and your affiliates’, employees, contractors, agents and suppliers.
3. INSTALLATION AND USE RIGHTS.
a. Subscription Software. You must register your software subscription. This will grant you the right to install and run the software for which you registered
4. TYPES OF REGISTRATION USE. Except as otherwise specified, the types of user registrations for the software subscription are as follows:
a. Feature Registration. A feature is a specific module of the CBSi ofsERP® Software Suite.
b. User Registrations (formerly Software Access Licenses or SALs). You must register, acquire and assign a User Registration to each user that accesses the software directly or indirectly. You also need a User Registration for each user that directly or indirectly accesses the software through a third party application.
c. Feature Registration and User Registration. Both Feature Registration and User Registrations are required for the software subscription.
5. TERMS.
a. Subscription Validation.
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Servers on which the subscription software is installed will from time to time perform a validation check of the software. Validation verifies that the software has been properly registered. It also verifies that no unauthorized changes have been made to the validation functions of the software subscription.
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The validation check may be initiated by the software or CBSi. To enable validation checks, the software may from time to time require updates or additional downloads of the validation functions of the software. The updates or downloads are required for the proper functioning of the software and may be downloaded and installed without further notice to you. During or after a validation check, the server may send information about the software, the computer and the results of the validation check to CBSi. This information includes customer subscription identifier, product name, registration serial number, product version number, and the date of last use. CBSi will use this information only to verify registration compliance. By using the software, you consent to the transmission of this information.
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If, after a validation check, the subscription software is found to be improperly registered, CBSi may provide notice that the software is improperly registered, and you may:
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need to follow instructions in the notice to be registered to use the software.
- receive reminders to obtain a properly registered copy of the software, or
6. Complex Software. The software is complex computer software. Its performance will vary depending on your hardware platform, software interactions, the configuration of the software and other factors. The software is neither fault tolerant nor free from errors, conflicts or interruptions.
7. Third Party Notices. The software may include third party material (i.e., code or documentation) that CBSi registers to you under this agreement. Notices, if any, for the third party material are included for your information only.
8. Additional Functionality. CBSi may provide additional functionality for the subscription software. Other registration terms and fees may apply.
9. Internet-Based Services. CBSi may provide Internet-based services with the software. CBSi may change or cancel them at any time. This section does not apply to the subscription validation terms above.
a. Consent for Internet-Based Services. Certain features in the software may connect to CBSi or third party service provider computer systems over the Internet. In some cases, you will not receive a separate notice when they connect. You may switch off these features or not use them. For more information about these features, see the software documentation. By using these features, you consent to the transmission of this information.
b. Computer Information. Certain features in the software use Internet protocols, which send to the appropriate systems computer information, such as your Internet protocol address, the type of operating system, browser, name and version of the software you are using, and the language code of the device where you installed the software. CBSi uses this information to make the Internet-based services available to you. Some of these features include, but are not limited to:
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Web Content Features. Features in the software can retrieve related content from CBSi and provide it to you. To provide the content, these features send to CBSi the type of operating system, name and version of the software you are using, and the type of browser and language code of the device where you installed the software. Examples of these features are package carriers, clip art, templates, online training, online assistance and Appshelp. You may choose not to use these web content features.
c. Use of Information. CBSi may use the device information, error reports, and malware reports to improve our software and services. We may also share it with others, such as hardware and software vendors. They may use the information to improve how their products run with CBSi software.
d. Misuse of Internet-based Services. You may not use these services in any way that could harm them or impair anyone else’s use of them. You may not use the services to try to gain unauthorized access to any service, data, account or network by any means.
10. PRODUCT / LICENSE KEYS. The software requires a key to run or access it. A key may only be used to run or access the particular version of the software subscription for which it was issued. You are responsible for the use of keys assigned to you. You must not duplicate or share the keys with third parties.
11. SCOPE OF LICENSE / REGISTRATION. The software is registered, not sold. This agreement only gives you some rights to use the software subscription. CBSi reserves all other rights. Unless applicable law or a separate written contract with CBSi gives you more rights despite this limitation, you may use the software subscription only as expressly permitted in this agreement. In doing so, you must comply with any technical limitations in the software that only allow you to use it in certain ways. You may only use the software for your internal business purposes. You may not:
a. work around any technical limitations in the software;
b. reverse engineer, decompile or disassemble the software, except and only to the extent that applicable law expressly permits, despite this limitation;
c. circumvent the validation functions of the software;
d. publish the software for others to copy;
e. rent, lease or lend the software; or
f. use the software for commercial software hosting services.
Your rights to use the software may be revoked if you do not comply with the terms of this agreement.
12. BACKUP COPY. You may make multiple copies of the software for backup, development and testing purposes, so long as such copies are not used in production and the development or testing is for your internal business purpose only. Your backup copies may be hosted by a third party on your behalf.
13. REGISTRATION TRANSFER. You may not transfer the software subscription without CBSi’s prior written consent. If permitted, there may be additional charges for transferring the software to an affiliate or third party.
14. CONFIDENTIALITY. The service is confidential to CBSi. You will use a reasonable degree of care to prevent its disclosure to third parties.
15. DOCUMENTATION. Any person that has valid access to your computer or internal network may copy and use the documentation for your internal, reference purposes. You will use at least a reasonable degree of care to prevent its disclosure to third parties.
16. DOWNGRADE. You have no rights to use earlier versions of the software under this license and CBSi is not obligated to supply earlier versions to you.
17. EXPORT RESTRICTIONS. The software subscription is subject to United States export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the software. These laws include restrictions on destinations, end users and end use.
18. APPLICABLE LAW.
a. Governing Laws. When you acquire CBSi software, a United States corporation located in Texas, Texas state law governs the interpretation of this agreement and applies to claims for breach of it, regardless of conflict of laws principles. Any potential legal issues will be subject to review and resolution in a court in the State of Texas, USA.
b. Attorneys’ Fees and Costs. If you or CBSi files a lawsuit, brings an action or otherwise pursues a claim against the other in connection with or arising out of this agreement or the software, the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses (including any appeal).
19. DEFENSE OF INFRINGEMENT AND MISAPPROPRIATION CLAIMS. CBSi will defend you against any claims made by an unaffiliated third party that the software infringes its patent, copyright or trademark or misappropriates its trade secret, and will pay the amount of any resulting adverse final judgment (or settlement to which CBSi consents).
You must notify us promptly in writing of the claim and give us sole control over its defense or settlement. You agree to provide us with reasonable assistance in defending the claim, and CBSi will reimburse you for reasonable out of pocket expenses that you incur in providing that assistance. The terms “misappropriation” and “trade secret” are used as defined in the Uniform Trade Secrets Act, except in the case of claims arising outside the United States, in which case “trade secret” will mean “undisclosed information” as described in Article 39.2 of the TRIPs agreement and “misappropriation” will mean intentionally unlawful use.
Our obligations will not apply to the extent that the claim or adverse final judgment is based on (i) your use of the software after CBSi notifies you to discontinue use due to such a claim; (ii) your combining the software with a non-CBSi product (hardware, software or service), data or business process including third party add-ons or programs; (iii) damages attributable to the value of the use of a non-CBSi product, data or business process; (iv) your altering or modifying the software, including any modifications by third parties; (v) your distribution of the software to, or its use for the benefit of, any third party; (vi) your use of CBSi trademark(s) without express written consent to do so; or (vii) for any trade secret claim, your acquiring a trade secret (a) through improper means; (b) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (c) from a person (other than CBSi or its affiliates) who owed to the party asserting the claim a duty to maintain the secrecy or limit the use of the trade secret. You will reimburse us for any costs or damages that result from these actions.
If CBSi receives information concerning an infringement or misappropriation claim related to the software, CBSi may, at its expense and without obligation to do so, either (i) procure for you the right to continue to run the software, or (ii) modify the software or replace it with a functional equivalent, to make it non-infringing, in which case you will stop running the software immediately. If, as a result of an infringement or misappropriation claim, your use of the software is enjoined by a court of competent jurisdiction, CBSi will, at its option, either procure the right to continue its use, replace it with a functional equivalent, modify it to make it non-infringing, or refund the amount paid in the past two monthly periods and terminate this license.
If any other type of third party claim is brought against you regarding CBSi’s intellectual property, you must notify us promptly in writing. CBSi may, at its option, choose to treat these claims as being covered by this section. This Section 17 provides your exclusive remedy for third party copyright, patent or trademark infringement and trade secret misappropriation claims.
20. LIMITATION ON AND EXCLUSION OF DAMAGES. You can recover from CBSi and its suppliers only direct damages up to the amount you paid for the software in the preceding two months except for claims covered by Section 16. You cannot recover any other damages, including consequential, lost profits, special, indirect or incidental damages.
a. This limitation applies to:
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anything related to the: (i) software, (ii) services, (iii) content (including code) on any third party Internet sites, or (iv) third party materials; and
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claims for breach of contract, breach of warranty, guarantee or condition, strict liability, negligence, loss of data, damage to records or data, loss of goodwill, loss as a consequence of a business interruption or any other tort to the extent permitted by applicable law
It also applies even if:
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repair, replacement or a refund for the software does not fully compensate you for any losses; or
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CBSi knew or should have known about the possibility of the damages.
Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. They also may not apply to you because your country may not allow the exclusion or limitation of incidental, consequential or other damages.
21. VERIFYING COMPLIANCE.
a. Right to verify compliance. You are required to keep records (including proof of purchase) relating to the software you use under this agreement. CBSi has the right to verify compliance with this agreement, at CBSi’s expense. You agree to provide reasonable cooperation in the event of a compliance audit, including by allowing CBSi, on request, to access the usage report as a tool in conducting the audit.
b. Verification process and limitations. To verify compliance with the terms of this Agreement, CBSi will engage an independent accountant from a recognized public accounting firm, which will be subject to a confidentiality obligation. Verification will take place upon not fewer than 30 days’ notice, during normal business hours and in a manner that does not interfere unreasonably with your operations. As an alternative, CBSi can require you to complete CBSi’s self-audit questionnaire relating to the software you use under this agreement and reserves the right to use a verification process as set out above.
c. Verification frequency. If CBSi undertakes verification and does not find material unlicensed use (license shortage of 5% or more), then CBSi will not undertake another verification of the same entity for at least one year.
d. Use of Results. CBSi and CBSi’s auditors will use the information obtained in compliance verification only to enforce CBSi’s rights and to determine whether you are in compliance with the terms of this agreement. By invoking the rights and procedures described above, CBSi does not waive its rights to enforce this agreement or to protect its intellectual property by any other means permitted by law.
e. Remedies for non-compliance. If verification or self-audit reveals any unlicensed use, you must promptly order and pay for sufficient licenses to cover your use. If material unlicensed use is found, you must reimburse CBSi for the costs CBSi has incurred in verification and acquire the necessary additional licenses at single retail license cost within 30 days.
22. ENTIRE AGREEMENT. This agreement (including the warranty), and the terms for supplements, updates, Internet-based services and support services that you use are the entire agreement for the software subscription and support services.
23. AUTHORITY. You possess the full power and authority to enter into this Agreement for your company and to fulfill its obligations. By using this service you agree to the terms and conditions.
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LIMITED WARRANTY
A. WARRANTY. If you follow the instructions, the service will perform substantially as described in the CBSi materials that you receive in or with the software. TO THE EXTENT PERMITTED BY LAW, ALL WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. The CBSi Service is offered “As is.”