Software License Agreement
THIS SOFTWARE LICENSE AGREEMENT (the “Agreement”)
BETWEEN:
Day Label, LLC of 10914 Southview Dr, Burnsville, MN 55122
(the “Vendor”)
OF THE FIRST PART
– AND –
(the “Licensee”)
OF THE SECOND PART
BACKGROUND:
The Vendor wishes to license computer website-based software to the Licensee and the Licensee desires to purchase the software license under the terms and conditions stated below. IN CONSIDERATION OF the provisions contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows:
LICENSE
1. Under this Agreement the Vendor grants to the Licensee a non-exclusive and non-transferable license (the “License”) to use Day Label, LLC computer website-based software (the “Software”).
2. “Software” includes the executable computer programs, website-based computer access and any related printed, electronic and online documentation and any other files that may accompany the product.
3. Title, copyright, intellectual property rights and distribution rights of the Software remain exclusively with the Vendor. Intellectual property rights include the look and feel of the Software. This Agreement constitutes a license for use only and is not in any way a transfer of ownership rights to the Software.
4. This Agreement grants a site license to the Licensee. The Software may be loaded onto an unlimited number of computers that reside within 1 exclusive and physically independent establishment location that is owned or franchised by the Licensee. A Licensee who owns or franchises multiple brands or establishment locations must obtain a site license for each individual brand or establishment location.
5. The rights and obligations of this Agreement are personal rights granted to the Licensee only. The Licensee may not transfer or assign any of the rights or obligations granted under this Agreement to any other person or legal entity. The Licensee may not make available the Software for use by one or more third parties.
6. The Software may not be modified, reverse-engineered, or de-compiled in any manner through current or future available technologies.
7. Failure to comply with any of the terms under the License section will be considered a material breach of this Agreement.
LICENSE FEE
8. Except as otherwise provided in this Agreement, all monetary amounts referred to in this Agreement are in USD (US Dollars).
9. The monthly license price will consist of the monthly recurring license fee of $19 .
10. The annual license price will consist of the annually recurring license fee of $219 .
11. The limited lifetime license price will consist of the one time license fee of $999 .
12. The limited lifetime license price is limited to the life of this Agreement while in good-standing; not breached or terminated.
13. Invoices submitted by the Vendor to the Licensee are due within 15 days in which same becomes due.
14. An unpaid invoice is individually subject to a 15% penalty on balance owed.
15. The original purchase price and license fee as stated in this Agreement includes sales tax, or other applicable duties as may be required by law. Any sales tax or duties required by law will be paid by Vendor.
EQUIPMENT SALES
16. Details for Equipment Sales are found in a separate Equipment Sale Terms and Conditions Agreement.
LIMITATION OF LIABILITY
17. The Software is provided by the Vendor and accepted by the Licensee “as is”. Liability of the Vendor will be limited to a maximum of the original purchase price of the Software. The Vendor will not be liable for any general, special, incidental or consequential damages including, but not limited to, loss of production, loss of profits, loss of revenue, loss of data, or any other business or economic disadvantage suffered by the Licensee arising out of the use or failure to use the Software.
18. The Vendor makes no warranty expressed or implied regarding the fitness of the Software for a particular purpose or that the Software will be suitable or appropriate for the specific requirements of the Licensee.
19. The Vendor does not warrant that use of the Software will be uninterrupted or error-free. The Licensee accepts that software in general is prone to bugs and flaws within an acceptable level as determined in the industry.
REFUND
20. Where the Vendor feels any of the Software is non-conforming to its specifications, the Vendor may choose to remedy this issue by any of the following: to repair or replace any or all of the Software; or provide a refund to the Licensee.
21. Any refund provided under this section may be reduced where the Licensee has gained significant use and value from the Software. The reduction will be prorated over the anticipated life of the License Agreement whether monthly, yearly or limited lifetime.
22. Limited Lifetime License has a limited refund request period of one (1) year, starting from the earliest signed date of this agreement. For the purpose of calculating a refund request on a Limited Lifetime License, the anticipated life of the Limited Lifetime License Agreement shall be considered 20 years. The refund amount shall not exceed a rate of three (3) dollars per month. After the one (1) year return request period, all return values are zero (0) dollars.
WARRANTS AND REPRESENTATIONS
23. The Vendor warrants and represents that it is the copyright holder of the Software. The Vendor warrants and represents that granting the license to use this Software is not in violation of any other agreement, copyright or applicable statute.
ACCEPTANCE
24. All terms, conditions and obligations of this Agreement will be deemed to be accepted by the Licensee (“Acceptance”) upon execution of this Agreement.
USER SUPPORT
25. The Licensee will be entitled to phone support available 9:00 AM to 5:00 PM Central, Monday – Friday, at no additional cost.
26. The Licensee will be entitled to maintenance upgrades and bug fixes, at no additional cost for the term of this Agreement from the date of Acceptance.
TERM
27. The term of this Agreement will begin on Acceptance and is perpetual.
TERMINATION
28. This Agreement will be terminated and the License forfeited where the Licensee has failed to comply with any of the terms of this Agreement or is in breach of this Agreement. On termination of this Agreement for any reason, the Vendor will deny Software access to the Licensee. Licensee will promptly cease using the Software or return the Software to the Vendor.
FORCE MAJEURE
29. The Vendor will be free of liability to the Licensee where the Vendor is prevented from executing its obligations under this Agreement in whole or in part due to Force Majeure, such as earthquake, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event where the Vendor has taken any and all appropriate action to mitigate such an event.
GOVERNING LAW
30. The Parties to this Agreement submit to the jurisdiction of the courts of the State of Minnesota for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement. This Agreement will be enforced or construed according to the laws of the State of Minnesota.
MISCELLANEOUS
31. This Agreement can only be modified in writing signed by both the Vendor and the Licensee.
32. This Agreement does not create or imply any relationship in agency or partnership between the Vendor and the Licensee.
33. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa.
34. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties’ intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
35. This Agreement contains the entire agreement between the parties. All understandings have been included in this Agreement. Representations which may have been made by any party to this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement will bind the parties.
36. This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon the Vendor’s successors and assigns.
NOTICES
37. All notices to the parties under this Agreement are to be provided at the following addresses, or at such addresses as may be later provided in writing:
Day Label, LLC: 10914 Southview Dr, Burnsville, MN 55122
Equipment Sale Terms and Conditions Agreement
AGREEMENT:
1. This agreement is IN CONSIDERATION OF the provisions contained in this Agreement and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the parties agree as follows:
2. This agreement applies to all physical property and equipment purchased from Seller by the Buyer and Buyer’s authorized representatives, for every purchase made now and in the future.
3. Seller hereby sells, conveys and transfers to Buyer all rights, title and interest in and unto the equipment and other physical property, hereinafter referred to collectively as EQUIPMENT.
4. The term of this Agreement will begin on Acceptance and is perpetual.
DELIVERY AND ACCEPTANCE
5. Upon acceptance by Buyer of the Equipment, which acceptance shall be identified by Seller taking possession of the equipment, such acceptance shall acknowledge that the equipment is in good order and condition and that Buyer is satisfied with same and that Seller has made no representation or warranty, expressed or implied, with respect to such item of equipment. All equipment is sold in an “as is” condition.
PURCHASE PAYMENTS
6. Buyer agrees to pay unto Seller the sum of the purchase price. Payments shall be payable to Seller via online checkout process (i.e. PayPal, Xero, Stripe), check mailed to specific address, or at any other place Seller may direct. Payments shall not be considered paid until received by Seller.
7. Upon receiving the final payment from Buyer under this agreement, Seller shall execute such further assurances as may be reasonably required by Buyer to insure that the equipment is free from all liens and encumbrances.
TITLE TO EQUIPMENT
8. Seller represents that he holds good and marketable title to the assets, and owns all equipment described herein free and clear of restrictions on or conditions to transfer or assignment, and that such equipment is free and clear of liens, pledges, charges or encumbrances.
MAINTENANCE AND REPAIR
9. All maintenance and repair costs to the equipment shall be paid by Buyer and Seller is hereby relieved from any responsibility to maintain or repair said equipment, all said equipment being sold in an “as is” condition.
DAMAGE TO EQUIPMENT; DESTROYED OR STOLEN EQUIPMENT
10. Notwithstanding any loss, theft, destruction or damage of any item of agreement equipment or property, the payments as contained herein shall continue to be paid by Buyer.
TAXES AND LICENSES
11. All taxes, license fees and other expenses associated with the agreement equipment shall be paid by Buyer.
RETURNS
12. If there was a problem with your order (missing, damaged, wrong items) our return policy makes it easy to correct your order, or get your money back.
We apologize for any error made in the processing of your order and for any inconvenience it may have caused.
If you received extra items that are not yours, please call us with the information from the items that are not yours.
If you are missing items from your order, please call us with detailed information of what is missing so we can reorder it for you or reimburse you.
If you received someone else’s order completely, please call us for assistance with the order number from the order you did receive, as well as your order number so we can track your equipment.
BY MAIL
When returning equipment purchased, shipping costs paid on the order are not refunded. If you prefer to return by mail, pack the equipment and receipt into a sturdy box. Day Label does not provide prepaid shipping labels. Please send all shipments prepaid and include all equipment with tags/labels.
IN PERSON
To avoid return shipping and handling costs, if you are near the Minnesota Twin Cities, simply bring your equipment and receipt to an agreed upon meeting place to deliver your equipment. Include original packaging and tags/labels to a Day Label representative. Call or email to make arrangements.
INDEMNIFICATION OF SELLER
13. Buyer shall indemnify, protect and hold harmless the Seller, its agents, servants, successors and assigns from and against all losses, damages, injuries, claims, demands and expenses, including legal expenses, of whatever nature, arising out of the use, condition or operation of any item of the equipment, regardless of where, how and by whom operated. Buyer shall assume the settling of, and the defense of any suits or other legal proceedings brought to enforce all such losses, damages, injuries, claims, demands and expenses and shall pay all judgments entered in the suit for other legal proceedings. The indemnification and assumptions of liability and obligation herein provided shall continue in full force and effect notwithstanding the termination of this agreement, whether by expiration of time, by operation of law or otherwise.
“AS IS” CONDITION OF EQUIPMENT
14. Seller makes no warranties unto Buyer for the sale of the equipment and all equipment described herein is sold in its “as is” condition with no representations or warranties of any kind unless provided exclusively from the manufacturer.
DEFAULT BY BUYER
15.Time is of the essence under this agreement and any of the following events shall constitute defaults on the part of Buyer hereunder:
(a) failure of Buyer to pay any payment within fifteen (15) days in which same becomes due;
(b) any breach or failure of Buyer to perform any of its obligations under this agreement;
(c) insolvency or bankruptcy of Buyer or assignment for the benefit of creditors;
(d) any other act of Buyer which will causes Seller to deem itself insecure.
IF DEFAULT
16. If default is made in payment after demand, and such default shall continue for a period of 10 days, then the holder hereof may, at its option, declare the whole sum then remaining unpaid immediately due and payable. In case of any such default, the undersigned agrees to pay all costs of collection, including a reasonable attorney’s fee, whether or not suit is instituted.
17. Upon the occurrence of any default Seller may exercise this option without notice to or demand on the Buyer and thereupon all equipment and rights of Buyer therein shall be surrendered unto Seller; upon default, Seller may take possession of the equipment where found with or without process of law in court, may enter upon the agreed premises without liability for suit, action, or other proceedings by Buyer and remove same; hold, sell, agreement or otherwise dispose of the equipment or keeping of any of them as Seller so chooses without affecting the obligation of Buyers as providing by this agreement; collect all unpaid payments due without prejudice to Seller’s right to regain possession of the equipment.
REPRESENTATIONS AND WARRANTIES OF SELLER
18. Seller represents and warrants to Buyer that the statements contained in this section are true, correct and complete.
(a) ORGANIZATION OF THE SELLER AND AUTHORIZATION OF TRANSACTION. The Seller has full power and authority, including full corporate power and authority, to execute and deliver this Agreement and to perform and consummate, its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of Seller, enforceable in accordance with its terms and conditions. The Seller need not give any notice to, make any filing with, or obtain any authorization, consent, or approval of any person(s), or government or governmental agency in order to consummate the transactions contemplated by this Agreement.
(b) CONSENTS. No approval, consent, waiver, or authorization of or filing or registration with any governmental authority or third party is required for the execution, delivery, or performance by Seller of the transactions contemplated by this Agreement.
REPRESENTATIONS AND WARRANTIES OF BUYER
19. Buyer represents and warrants to Seller that the statements contained in this section \are true, correct and complete.
(a) ORGANIZATION OF THE BUYER / AUTHORIZATION OF TRANSACTION. Buyer has full power and authority, including full corporate power and authority, to execute and deliver this Agreement and to perform and consummate, its obligations hereunder. This Agreement constitutes the valid and legally binding obligation of Buyer, enforceable in accordance with its terms and conditions. The Buyer need not give any notice to, make any filing with, or obtain any authorization, consent, or approval of any person(s), or government or governmental agency in order to consummate the transactions contemplated by this Agreement.
(b) NONCONTRAVENTION. Neither the execution and the delivery of this Agreement, nor the consummation of the transactions contemplated hereby, will, immediately or with the passage of time: (A) violate any constitution, statute, regulation, rule, injunction, judgment, order, decree, ruling, charge, or other restriction of any government, governmental agency, or court to which Buyer is subject; or (B) conflict with, result in a breach of, constitute a default under, result in the acceleration of, create in any party the right to accelerate, terminate, modify, or cancel, or require any notice under any agreement, contract, lease, license, instrument, or other arrangement to which Buyer is a party or by which it is bound.
(c) CONSENTS. No approval, consent, waiver, or authorization of or filing or registration with any governmental authority or third party is required for the execution, delivery, or performance by Buyer of the transactions contemplated by this Agreement.
POST PURCHASE COVENANTS
20. In case at any time after the Purchase any further action is necessary or desirable to carry out the purposes of this Agreement, each of the parties will take such further action (including the execution and delivery of such further instruments and documents) as any other party may request, at the sole cost and expense of the requesting party. Without limiting the foregoing, Seller shall from time to time at the request of Buyer and without further consideration, execute and deliver such instruments of transfer, conveyance, and assignment in addition to those delivered hereunder, and will take such other actions as Buyer may request from time to time, to more effectively transfer, convey, and assign to and vest in Buyer, and to put Buyer in possession of, all or any portion of the Equipment.
GOVERNING LAW
21. The Parties to this Agreement submit to the jurisdiction of the courts of the State of Minnesota for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement. This Agreement will be enforced or construed according to the laws of the State of Minnesota.
MISCELLANEOUS
22. This Agreement can only be modified in writing signed by both the Seller and the Buyer.
23. This Agreement does not create or imply any relationship in agency or partnership between the Seller and the Buyer.
24. Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa.
25. If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties’ intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
26. This Agreement contains the entire agreement between the parties. All understandings have been included in this Agreement. Representations which may have been made by any party to this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement will bind the parties.
27. This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon the Vendor’s successors and assigns.
NOTICES
28. All notices to the parties under this Agreement are to be provided at the following addresses, or at such addresses as may be later provided in writing: Day Label, LLC: 10914 Southview Dr, Burnsville, MN 55122