This Software License Agreement ("Agreement")
is made and effective the date of purchase by and between
Franchise 123, Inc. ("Developer") and purchaser ("Licensee").
Developer has developed and licenses to users its software
program marketed under the name Franchise 123, Inc, dba.
Frandocs, Experts In Franchising®, Franchise Your Business
Programs (the "Software").
Licensee desires to utilize a copy of the Software.
NOW, THEREFORE, in consideration of the mutual promises set
forth herein, Developer and Licensee agree as follows:
1. License.
Developer hereby grants to Licensee a perpetual, non-exclusive,
limited license to use the Software for the named business on
licensee's Invoice only, as set forth in this Agreement.
2. Restrictions.
Licensee shall not license or sublicense the Software, or
transfer or convey the Software or any right in the Software to
anyone else without the prior written consent of Developer.
Licensee may make one copy of the Software for backup or
archival purposes. Licensee shall only use the software to
develop a single franchise for the named business on licensee's
invoice only. All information or items developed by licensee and
submitted to Developer shall be considered useable by Developer
to improve and extend the Software for Developer's use.
3. Fee.
In consideration for the grant of the license and the use of
the Software, Licensee agrees to pay Developer the Software Fee.
The warranty does not allow for a refund for the purchase of the
software.
4. Warranty of Title.
Developer hereby represents and warrants to Licensee that
Developer is the owner of the Software or otherwise has the
right to grant to Licensee the rights set forth in this
Agreement. In the event of any breach or threatened breach of
the foregoing representation and warranty, Licensee's sole
remedy shall be to require Developer or to either: i ) procure,
at Developer's expense, the right to use the Software, ii)
replace the Software or any part thereof that is in breach and
replace it with Software of comparable functionality that does
not cause any breach. Payment of the license fee shall be made
prior to delivery of the Software and is non-refundable.
5. Warranty of Functionality.
A. For a period of Thirty (30) days following delivery of the
Software to Licensee (the "Warranty Period"),
Developer warrants that the Software shall perform in all
material respects according to the Developer's specifications
concerning the Software when used with the appropriate computer
equipment. Licensee's sole remedy shall be that Developer shall
correct the Software so that it operates according to the
warranty. The warranty does not allow for a refund for the
purchase of the software. This warranty shall not apply to the
Software if modified by anyone or if used improperly or on an
operating environment not approved by Developer.
B. In the event of any defect in the media upon which the
Software is provided arising within thirty (30) days of the date
of delivery of the Software, upon return to Developer of the
Software upon the original media, Developer shall provide
Licensee a new copy of the Software. The warranty does not allow
for a refund for the purchase of the software.
6. Software Maintenance.
A. Standard maintenance. During the Warranty Period, Developer
shall provide to Licensee any new, corrected or enhanced version
of the Software as created by Developer. Such enhancement shall
include all modifications to the Software which increase the
speed, efficiency or ease of use of the Software, or add
additional capabilities or functionality to the Software, but
shall not include any substantially new or rewritten version of
the Software.
B. Optional maintenance. After expiration of the Warranty
Period, Licensee may continue to receive maintenance support for
successive twelve (12) month periods. The charge for such
optional maintenance support shall be Developer's regular list
price for maintenance and support for the Software as published
from time to time by Developer. Licensor shall notify Developer
in writing if it desires to receive optional maintenance. If
Licensee fails to take optional maintenance and later elects to
receive it, Developer reserves the right to charge Licensee its
maintenance fees for the period of the lapse in maintenance.
Developer may elect to discontinue maintenance at any time upon
notice to Licensee, and refund of any then unearned maintenance
fees. The warranty does not allow for a refund for the purchase
of the software.
7. Payment.
Payment of the license fee shall be made prior to delivery of
the Software and is non-refundable. Purchaser hereby agrees to
make full payment on any products purchased on a time payment
basis whether a credit card used is able to be charged or not.
If on a time payment basis then ongoing payments are the
responsibility of purchaser and purchaser's company irregardless
of the amount of credit available on the credit card. The
warranty does not allow for a refund for the purchase of the
software. If Frandocs, the copyright owner, brings a civil
action against you non payment or illegal distribution of the
software, the owner can seek to stop you from using its software
immediately and can also request monetary damages. The copyright
owner may then choose between actual damages, which includes the
amount it has lost because of your infringement as well as any
profits attributable to the infringement, and statutory damages,
which can be as much as $150,000 for each program copied. In
addition, the government can criminally prosecute you for
copyright infringement. If convicted, you can be fined up to
$250,000, or sentenced to jail for up to five years, or both.
8. Taxes.
In addition to all other amounts due hereunder, Licensee shall
also pay to Developer, or reimburse Developer as appropriate,
all amounts due for property tax on the Software and for sales,
use, excise taxes or other taxes which are measured directly by
payments made by Licensee to Developer. In no event shall
Licensee be obligated to pay any tax paid on the income of
Developer or paid for Developer's privilege of doing business.
9. Warranty Disclaimer.
DEVELOPER'S WARRANTIES SET FORTH IN THIS AGREEMENT ARE
EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE
WARRANTY DOES NOT ALLOW FOR A REFUND FOR THE PURCHASE OF THE
SOFTWARE.
10. Limitation of Liability.
Developer shall not be responsible for, and shall not pay, any
amount of incidental, consequential or other indirect damages,
whether based on lost revenue or otherwise, regardless of
whether Developer was advised of the possibility of such losses
in advance. In no event shall Developer's liability hereunder
exceed the amount of license fees paid by Licensee, regardless
of whether Licensee's claim is based on contract, tort, strict
liability, product liability or otherwise.
11. Notice.
Any notice required by this Agreement or given in connection
with it, shall be in writing and shall be given to the
appropriate party by personal delivery or by certified mail,
postage prepaid, or recognized overnight delivery services.
If to Developer:
Franchise 123, Inc. P.O. Box 149, Islamorada, Florida 33036
If to Licensee: At Licensee's business and/or home address
12. Governing Law.
This Agreement shall be construed and enforced in accordance
with the laws of the state of Florida, United States of America
and that any dispute shall have venue in Monroe Count or Palm
Beach County, Florida
under the laws of the State of Florida, United States of
America.
13. No Assignment.
Neither this Agreement nor any interest in this Agreement may
be assigned by Licensee without the prior express written
approval of Developer.
14. Final Agreement.
This Agreement terminates and supersedes all prior
understandings or agreements on the subject matter hereof. This
Agreement may be modified only by a further writing that is duly
executed by both parties.
15. Severability.
If any term of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, then this
Agreement, including all of the remaining terms, will remain in
full force and effect as if such invalid or unenforceable term
had never been included.
16. Headings.
Headings used in this Agreement are provided for convenience
only and shall not be used to construe meaning or intent.
IN WITNESS WHEREOF, Developer and Licensee have agreed to
Software License Agreement on the day and year purchased and do
agree to the terms and conditions of this license and licensee
by purchasing the software license agrees that the warranty does
not allow for a refund for the purchase of the software
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