END USER LICENSE AGREEMENT (“EULA”)
IMPORTANT: THIS IS A BINDING LEGAL AGREEMENT. READ IT CAREFULLY IN ITS ENTIRETY. IT SUPERCEDES ANY PREVIOUS AGREEMENT BETWEEN US AND YOU. IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.
AFTER YOU HAVE READ THIS AGREEMENT, YOU MUST CHOOSE TO EITHER ACCEPT IT OR NOT ACCEPT IT. YOU MAY ACCEPT IT IN SEVERAL DIFFERENT WAYS. YOU ACCEPT THE AGREEMENT IF YOU DO ANY OF: (a) ACCESS THE SOFTWARE’S OPENING INSTALLATION SCREEN, CLICK “ACCEPT” AND CONTINUE; (b) OPEN A SEALED SOFTWARE DISK PACKET (“PACKET”) AND ELECT TO NOT IMMEDIATELY RETURN THE PACKET WITH ITS CONTENTS UNUSED AND UNACCESSED; OR (c) LOAD AND USE THE SOFTWARE. OTHER WAYS OF ACCEPTING THIS AGREEMENT ARE STATED BELOW. IF YOU DO NOT WISH TO ACCEPT THIS AGREEMENT, CLICK “NOT ACCEPT” OR IMMEDIATELY RETURN THE PACKET TO US, AS APPLICABLE, AND ENTIRELY DELETE THE SOFTWARE FROM YOUR PRODUCTS ENTIRELY.
INTRODUCTION
This End-End User License Agreement (“EULA”) is a legal agreement between End User (either as an individual or a business entity as discussed below) and UniKey Technologies, Inc. (“UniKey”), a Florida corporation, for End User’s use of the Products defined below.
This EULA concerns UniKey’s license to End User to use UniKey’s Cloud-Based Subscription Services and other related services for providing credentialing, profiles and authentication for remote access control, all as specified below.
1. DEFINITIONS
The following definitions apply to this EULA.
1.1 “Computer” means one of: a single microcomputer with a single processor or multi-processors, a phone or PDA, or a web browser upon which End User uses a TimeClock Plus web-enabled product, on which End User is using and is licensed to use the Software.
1.2 “Documentation” means UniKey’s End User Reference Manual, and Quick Start Guide for the Software, and other UniKey documents, whether hardcopy or electronic, that UniKey delivers or makes available to End User together with End User’s licenses and purchases from UniKey.
1.3 “EULA” means this End User License Agreement.
1.4 “Hardware” means equipment and components that UniKey supplies to End User, if any, in connection with the use of the Software.
1.5 “Hybrid” means the implementation of both web based Software and client-server based Software which will share a common TimeClock Plus SQL database.
1.6 “Intellectual Property” means any patents, Marks, know-how, proprietary processes, proprietary information and other intangible property rights encompassed in or related to the Products.
1.7 “Manual” means the UniKey Documentation applicable to End User’s specific licensed Software.
1.8 “Marks” means UniKey’s name, trade name(s), domain, logos and any other identifying indicia UniKey adopts.
1.9 “Products” means End User’s license to use the Software, the Software media, the Hardware, Licensed Additional Modules which End User licenses from UniKey, UniKey’s printed materials, “online” or electronic documentation, and, if and to the limited extent that same is expressly agreed upon and applicable, access to UniKey updates, supplements, add- on components, Product support services, Professional Services and Internet-based services components.
1.10 “Software” means the binary executable computer programs and any associated Product files, structure sequence and organization, input and output protocols, screens, functionality, incorporated computer software, associated media, printed materials, artwork and “online” or electronic documentation contained in the media enclosed in the accompanying Packet or downloaded, accessed, or otherwise made available to End User pursuant to this EULA, now or in the future.
1.11 “Licensed Additional Modules” means additional Software modules UniKey has agreed to provide to End User for use by End User in conjunction with the Products for which End User has paid the applicable license fees, if any, and accepted any applicable additional license terms.
1.12 “UniKey” means UniKey Technologies, Inc., a Florida corporation with its headquarters located in Orlando, Florida.
1.13 “UE“ means user or employee licensing, the quantity of which is outlined on the invoice at the time of purchase. The number of UE licenses purchased identifies the maximum number of employees or persons who may access the software pursuant to this EULA. The number of employees/persons who can access the software is defined as the number of employees/persons currently active in the Software’s database. The number of employees/persons active in the database should never exceed the number of UE licenses purchased.
1.14 “End User” means each individual beneficiary of the subscriber that pays the monthly subscription for the Cloud-Based Subscription Services. Where the context requires, the term “End User” may refer to an individual within the subscriber’s immediate organization such as employees and contractors or may refer to customers of the subscriber for whom the subscriber provides UniKey’s subscription services pursuant to this EULA.
1.15 “You” means either the individual person downloading, updating or accessing the Software or, if the person downloading, updating or accessing the Software is an agent, employee, or other representative authorized to bind a company or other legal entity to this EULA, then “You” or “End User” means the company or other legal entity. If You are not acting as the representative of a company or similar business entity, then You are personally and individually agreeing to and bound by the EULA. If the person downloading, updating or accessing the Software is doing so as the agent, employee, or other representative, then the person represents and promises that he or she is authorized to act on behalf of the company and that this EULA is a legally enforceable obligation of the Company.
Other terms are defined herein in context.
2. BENEFITS TO End User
2.1 License Grant. UniKey grants End User a limited nonexclusive license to access and use the Software, where the maximum number of users of the Software does not to exceed the number of UE licenses purchased in conjunction with this Software license as reflected on the invoice, for the limited purpose of providing collection, management, and disbursement of End User’s accumulated data as specified below, all solely within and subject to the terms, conditions, and limitations herein.
Where license to access web based Software has been purchased, End User may install the Software on a single web server, and the Software may be accessed via a web browser by a number of employees/persons equal to or less than the number of UE’s purchased in conjunction with the Software license.
Where license for client-server based Software has been purchased, End User may install Software on a single server, and may be accessed by a number of employees/persons equal to or less than the number of UE’s purchased in conjunction with the Software license.
Where both types of licenses including web based and client-server Software have been purchased to be used as a Hybrid solution sharing a single, common database, End User may install each Software, subject to the terms, conditions, and limitation herein. The number of active employees/persons must be equal to or less than the number of UE’s purchased in conjunction with such hybrid Software solution and it’s licenses.
2.2 Functionality. The Software is capable of producing data output equivalent to the output examples found in the Manual from data properly inputted into the Software as directed by the Manual. The Software has the features and is capable of performing the functions defined in the Manual.
Differing versions of TimeClock Plus software, such as Small Business Edition, Web Edition, Professional Edition, Enterprise Edition as well as future Product(s) may have differing functions supporting differing equipment/operating Products as specified in their Manuals.
2.3 Personal Access Code. The Software permits End User to assign employees individual usernames and optional passwords or personal identification numbers, depending on the version purchased.
2.4 Training. UniKey makes several training options available to End User. The Manual includes guidelines for initial installation and implementation of the Software by End User’s qualified personnel on designated equipment and operating systems at End User’s business. Minimum and recommended hardware and operating system requirements are outlined in the Manual. While UniKey’s Manual is of a general type, standard, and quality which has been sufficient to assist qualified computer personnel of prior End Users to install and implement the Software on standard designated hardware and software platforms, UniKey makes no warranties, representations, or guarantees concerning End User’s personnel’s qualifications or performance, End User’s hardware or operating systems, or UniKey’s Manual and training, if any, to enable End User to install, implement or use the Software at End User’s business. End User may additionally elect to purchase UniKey’s GOLIVE! onsite training, virtual web training, or virtual onsite support (VOSS). Unless End User purchases additional training and implementation assistance from UniKey, this part inclusively states all of UniKey’s training and installation promises and representations.
2.5 Ongoing Assistance. UniKey will make available to End User access to UniKey’s standard instructional materials that UniKey generally makes available to users for the Software. There may be a charge for any additional assistance or support requested by End User, including telephone support. All Support is for UniKey’s Products only, excluding third party payroll software, operating platforms, networking, hardware or anything not originally created and sold by UniKey to End User unless expressly agreed upon otherwise. UniKey is not responsible for providing maintenance, support or assistance related to End User’s operating systems, network, communications, hardware or other End User specific matters. This part inclusively states all of UniKey’s ongoing assistance promises and representations. If End User desires additional ongoing assistance, same must be separately negotiated and agreed to pursuant to a written customized agreement for an additional price.
2.6 Access to Updated Software. UniKey will provide End User, under the terms of this Agreement, with access to updates to the Software as UniKey generally makes such updates available to other similar users. Software updates are minor additions, enhancements, or fixes to the Software. Updates do not include upgrades to newer versions of the Software.
2.7 Hardware Migration and Backups. End User shall install the Software on only one single Computer, phone or PDA. However, End User may change the particular Computer on which End User is authorized to use the Software to another Computer within End User’s immediate business organization if the Software is no longer used on any former computer. End User may create up to three (3) copies of the Software for backup purposes only, provided that each and every copy contains all of the original Software’s proprietary notices and a label is placed on the outside of each backup copy showing the program name and UniKey’s copyright and trademark notices in the same form as they appear on the original. Transfer of a copy to one hard disk counts as one backup copy.
3. PRICES
3.1 Initial Product. The prices to be paid by End User to UniKey for the Product (Software and Hardware, if any) which End User is obtaining from UniKey pursuant to this EULA are specified on the invoice. Prices for software include the licensing for the Software as well as a number of UE licenses.
3.2 Additional Product. The prices to be paid by End User to UniKey for additional Product (Software and Hardware, if any) which End User does not obtain from UniKey at this time shall be set if and when End User and UniKey agree upon same. Prices for additional Product may be changed from time to time by UniKey without notice to End User until the End User’s new order is accepted by UniKey.
3.3 Software Updates. UniKey currently makes certain Software updates accessible to qualified users at no cost by posting same upon one or more accessible servers. If UniKey elects in the future to charge for such updates, the prices to be paid by End User to UniKey for Software updates shall be UniKey’s standard user level prices, as they may be changed from time to time by UniKey.
4. TERM
4.1 Perpetual License. End User’s license to use the Software delivered to End User pursuant to this EULA is perpetual, unless sooner terminated in accordance with the provisions hereof.
4.2 Other Items. Access to Software updates, receipt of support and services from UniKey, purchase of Hardware and other Products or goods from UniKey and all other additional tangible and intangible things or rights beyond End User’s license to use the Software delivered to End User pursuant to this EULA may be conditioned upon future new and additional agreements and payments.
5. OPERATIONS
5.1.1 Independent Businesses. This EULA does not create an agency, partnership or joint venture. Neither party will represent itself as an agent, representative or partner of the other. All restrictions and requirements UniKey imposes on End User herein or elsewhere solely concern the relationship between UniKey and End User. Day-to-day conduct of business by End User and End User’s employees including, without limitation, employee relations and safety, payment of salary, overtime, bonuses, taxes and other liabilities, work performed for customers, goods delivered to customers, etc., shall be controlled solely by End User and not by UniKey. UniKey has no power to instruct End User or End User’s employees to do or not do any specific thing or practice except as set forth herein. The standards and restrictions herein relate solely to the parties’ rights with respect to each other and do not control End User’s actions or failure to act with respect to End User’s customers, employees, or other third parties. End User may not use UniKey’s name or Marks in a way which implies to the public, suppliers, creditors or others that End User’s business is an agent for UniKey or has any association with UniKey beyond having a legal right to use the Software. End User will not use any part of the Marks except as permitted by UniKey. Neither party will make any promises or representations concerning the other or its goods or services except as expressly authorized in writing. Each party is an independent entity solely responsible for its own management, safety, legal compliance, employee relations, taxes, hiring, firing, operations, goods, services, etc. Every contractual duty herein is subservient to the parties’ obligation to the public to do all things necessary for public and employee safety and to comply with all applicable laws. Neither party is liable under any circumstance for any act, omission, contract, debt, or other obligation of the other.
5.2 Standards. End User shall comply with all applicable laws and regulations relating in any way to End User’s use of the Product; keep the original Software media and all copies in End User’s possession and direct control; not engage in any activity which results or may reasonably be anticipated to result in harm to the reputation of UniKey or UniKey’s Products or litigation against or public criticism of UniKey or UniKey’s Products; never threaten to breach the EULA or indicate to any entity that End User is not bound by it; not allow or engage in unlawful, unsafe, or unethical practices; rely solely on End User’s own attorney’s advice in these regards; and obtain all necessary governmental approvals and licenses for all acts taken by End User under or relating to this EULA and deliver copies of the same to UniKey upon UniKey’s request. The Manual supplements this EULA and is binding on the parties except to the extent it contradicts this EULA. UniKey may amend the Manual as UniKey deems useful. End User will ensure that End User’s relationship with UniKey is conducted in strict compliance with this EULA and the Manual. End User will not enter into agreements that conflict with End User’s obligations to UniKey.
5.3 Intellectual Property.
5.3.1 Restrictions. UniKey’s Intellectual Property is an important asset that belongs solely to UniKey. It shall not be copied, changed, used, or disclosed without the consent of the President of UniKey or someone specifically designated by the President of UniKey. End User agrees each part of the Intellectual Property is valid and enforceable and End User’s sole right to use it is pursuant to the licenses granted herein to End User. Any use of UniKey’s Intellectual Property outside the scope of this EULA or in breach of the EULA’s terms is without UniKey’s license and infringes UniKey’s rights. End User will report immediately to UniKey if End User becomes aware that UniKey’s Intellectual Property is being used, misappropriated, or infringed by anyone, including End User’s employees or third parties and cooperate fully concerning investigating and ending same. End User shall not: decode, modify, disassemble, change, alter, de-compile, reverse engineer, make improvements to, re-compile, translate or otherwise alter, access or tamper with any element of the Software or Hardware, use or attempt to obtain any techniques, algorithms, processes, trade secrets, or proprietary information contained in the Software or Hardware, except and only to the extent that such activity is expressly permitted by UniKey through the Software or Hardware’s built-in functionalities; make derivative works, including but not limited to translations, adaptations, arrangements, modifications or any other alteration; place the Software on the Internet or similar network or network service, or enter into any reseller, distribution or third party arrangements for distribution of the Software or Hardware such as, but not limited to, electronic, on line, subscription, “fee for service” or any general availability to the public; make or have made copies of the Software, Hardware or their training materials, Manual, etc. (collectively, “Related Materials”); allow a greater number of users or employees to access the Software at any one time than the total number of user licenses End User has been granted by UniKey; rent, lease, sublicense or lend the Software, Related Materials or End User rights; make any attempt to unlock or bypass any initialization or encryption safeguards; or alter, remove or obscure any proprietary legend, copyright or trademark notice; sublicense, or make any of the Products, including the Hardware available for use or distribution separately from the Software; make any of the Products, or any component or derivative of them, available for downloading separately or in formats designed or intended for permanent storage or re-use as a separate or downloadable reusable file or other medium, or provide End User’s clients, customers, or anyone else with copies of the Products or use the Software. The Software is in “use” when it is loaded into any form of temporary memory (i.e. RAM) or installed into any form of permanent memory (e.g. hard disk, CD ROM, or any other storage device) of that Computer. End User shall not permit any persons to use the Software except as expressly provided herein (i.e. only End User’s qualified employees); or make more than three copies of the Software which copies must be used for backup purposes only. End User will not use the Software on any equipment and operating Products combination other than those designated by UniKey for the Software. These terms survive termination of this EULA.
5.3.2 Proprietary Information. End User names, access codes, and personal identification numbers assigned to End User or End User’s employees and non-public information concerning access to the Software or any part of UniKey’s Products (collectively, “End User ID”) are solely owned by UniKey and are UniKey’s confidential property. End User ID may be assigned, changed, or withdrawn solely by UniKey. End User will protect End User IDs from misuse, and prevent disclosure of End User ID to unauthorized third parties. The Software is and remains UniKey’s exclusive proprietary property. End User will take all reasonable steps to protect the Software from theft or use in a manner inconsistent with the terms of this EULA. End User will limit access to the Software to employees who need access to perform their duties. End User will not copy the Software or otherwise make it available to third parties except as permitted herein. Neither End User nor End User’s employees or agents shall use (except to the extent expressly authorized in this EULA) or disclose such proprietary information to any third-party or otherwise allow any third-party to use or access the Software. End User shall have no more than one machine readable copy of any part of the Software without UniKey’s written consent except back-up copies to the limited extent stated herein. End User will not take any action in derogation of the Intellectual Property; immediately report to UniKey any misappropriation, infringement or complaint thereof and cooperate fully at End User’s expense to remedy the same; only use it as permitted herein and not use or infringe it after this Agreement ends. All intangible property rights associated with the creation, making, use, marketing, or any other aspect of UniKey’s Intellectual Property created by or acquired by End User and all improvements, changes, or derivative works related to the Software created or acquired by End User during this EULA are always fully assigned to UniKey. No right to use, sell, copy, display, disclose, sublicense or use for the benefit of any third party is granted except as expressly stated. UniKey does not provide source code. During the term of this EULA End User will not have an interest in or operate a competitive software business or use or create competitive Software. During the term of this Agreement and for two years thereafter End User shall not solicit any of UniKey’s employees, agents or customers to end or change their relationship with UniKey. UniKey will protect the confidentiality of End User’s data which UniKey, after notice of the confidential nature of same, agrees to receive and to protect as confidential and is received by UniKey’s designated person for receipt of same. Otherwise, UniKey is not responsible for maintaining the confidentiality of anything other than its own interests.
5.4 Payment. End User will promptly pay all obligations when due in accordance with UniKey’s written instructions. Monies due to UniKey shall be delivered to UniKey at UniKey’s headquarters or wired to UniKey’s designated bank account by 5:00 p.m. Central time on the date due. Quoted prices and terms are always in U.S. dollars F.O.B. place of shipment, exclusive of duties, commissions or other charges, all of which are End User’s sole responsibility (unless UniKey requires full payment in advance) unless otherwise agreed in writing. Exchange rate conversion costs, if any, shall be borne by End User. Interest is due on all amounts past due to UniKey at the lesser of The Wall Street Journal’s USA national published prime rate plus five percent or the highest lawful rate on the unpaid balance from the date the underlying payment was due. Entitlement to interest is in addition to the payee’s other rights and remedies. If applicable law determines any obligation, charge, or payment to be an unlawful overcharge of interest, or otherwise unlawful then such obligation, charge or overpayment is automatically reduced to the maximum lawful rate, the full remedy to be refund of excessive interest already paid. Upon End User’s failure to punctually pay any obligation due, UniKey may accelerate that and any other obligations of End User to UniKey, whether under this or any other agreement, making all obligations immediately due and payable without notice of intent to accelerate or notice of acceleration. If End User is late in paying any amount due to UniKey, in addition to any other remedies, UniKey reserves the right to suspend any and all performance of this Agreement and to deny End User all rights, communications, and access until such late payments are made and credit arrangements acceptable to UniKey is satisfied. End User will reimburse UniKey for any taxes, duties, fees or other governmental charges related to End User’s payments to UniKey except for taxes based on UniKey’s net income. If any part of any payment due UniKey is not made in accordance with this Agreement, End User will pay all costs of collection and repossession including full attorney’s fees and expenses. UniKey has the right to disable End User’s access to the Software if End User breaches this Agreement. UniKey’s judgment of End User’s credit, in UniKey’s sole discretion, may cause UniKey to deny or restrict some transactions, impose credit limits, prepayment or COD, cash in advance requirements, or other terms etc. End User’s future support and access fees and other prices, if any, may be increased or decreased in UniKey’s discretion. UniKey’s prices and terms concerning anything may be changed at any time prior to UniKey and End User entering an enforceable agreement concerning same. UniKey may deliver notices of same to End User, change prices and terms on UniKey’s web site, or inform End User of same when End User places an order. End User’s ordering or use of anything after notice or UniKey’s posting of changed prices or terms is End User’s agreement to same. The above notwithstanding End User’s license to End User of End User’s original delivered Software is not conditioned upon End User agreeing to pay UniKey for any additional services or support.
6. WARRANTIES
6.1 LIMITED WARRANTY. THE WARRANTIES GIVE USER SPECIFIC LEGAL RIGHTS. USER MAY HAVE OTHER LEGAL RIGHTS THAT VARY BY STATE. THESE ARE THE ONLY WARRANTIES MADE BY UNIKEY. NO DEALER, AGENT, OR EMPLOYEE IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO UNIKEY’S WARRANTIES. SOME STATES MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO APPLICATION OF THE LIMITATIONS OR EXCLUSIONS HEREIN MAY BE LIMITED BY STATE LAW.
6.2 License Warranty. UniKey warrants that UniKey is the proper party to grant the Software license set forth herein, that UniKey has not granted licenses in conflict herewith, and that UniKey has no knowledge that the Software infringes any third party’s rights. UniKey otherwise expressly disclaims any promise, warranty or representation concerning the validity, scope, enforceability, usefulness, value of any right licensed hereunder; that anything made, used or sold hereunder will not infringe third parties’ rights; or any obligation of UniKey to bring suits against third parties for any matter whatsoever. End User is not promised and does not expect any specific or equal benefit from any of the grants, promises or licenses herein other than a license to access to the Software under the terms herein. Other users may obtain different, better or worse terms, opportunities or results. End User will promptly notify UniKey in writing of any Product defects or warranty claims.
6.3 Software Warranty. UniKey warrants that the Software is capable of producing data output equivalent to the output outlined in the Manual from data properly inputted into the Software as directed by the Manual; Software authored by UniKey is, to the best of UniKey’s knowledge, free from material errors; and UniKey is the lawful owner of the Software. UniKey shall use its best efforts to correct verified Software errors (an error which UniKey recreates on UniKey’s CPU using End User’s data or similar data, and which substantially impairs the usefulness of the Software). This is a ninety-day limited warranty. If UniKey does not correct the error within ninety days of the error being verified, UniKey, at UniKey’s sole option, will repair or replace any Software that does not operate in accordance with the specifications set forth in the Manual or refund End User’s initial license fee and terminate this EULA, the refund conditioned on End User removing and returning to UniKey all copies of the Software and all associated materials in their original condition. THIS IS USER’S SOLE REMEDY. End User must provide UniKey with information sufficient to allow UniKey to reproduce the nonconformity. End User otherwise assumes any and all other risks. End Users who obtain any goods, or services not authored, manufactured or otherwise provided by UniKey, do so without any warranty or representation of UniKey. UniKey makes no warranties concerning any software of suppliers whether they are listed as approved suppliers or otherwise recommended by UniKey or concerning software purchased by End User from UniKey, but which are not originally manufactured by or for UniKey. Such sales are “AS IS” with respect to UniKey. UniKey does not represent or warrant that any Software or service will meet End User’s requirements, that operation or use of any Software or service will be uninterrupted or error free or that the Software will integrate with or run on any operating products, hardware, or software, except as expressly stated herein. Responsibility for selection of equipment, operating products, personnel, use, storage, and handling after shipment by UniKey is solely End User’s. UniKey makes no warranties to End User’s employees or third parties. UniKey expressly disclaims any other warranty or representation relating to UniKey’s Software. UniKey will not debug, install, or support the Software for End User except as expressly stated herein.
Hardware Warranty. UniKey products are warranted to be free from defects in materials and workmanship for a period of one (1) year from the date of shipment to the original purchaser. If UniKey receives notice of such defects during the hardware warranty period, UniKey shall be obligated as follows:
(a) For any defective parts or units returned within the hardware warranty period commencing from the date of shipment to original purchaser, UniKey will repair the items at no charge for labor and materials.
(b) All transportation charges to and from UniKey for any such defective parts or units or repairs must be paid by the original purchaser.
(c) The UniKey Support Group will provide the customer with a Return Material Authorization (RMA) number to track the unit to and from the customer’s site, after appropriate troubleshooting measures have been exhausted, as determined by UniKey.
The UniKey Support Group is open between the hours of 9:00 A.M. and 5:00 P.M. (Central Time), Monday through Friday, excluding company holidays.
(d) With respect to any device, part, component or other item which is not specifically manufactured by UniKey, the hardware warranty of the manufacturer thereof shall apply and be exclusive.
(e) UniKey’s hardware warranty obligation shall be subject to UniKey being satisfied that service, repairs or modifications to the hardware, firmware or code have not been made by persons other than UniKey-authorized service personnel, and that the product was installed properly and has been used only in accordance with the Product Specifications and instructions, and that the product has not been subjected to negligence, misuse, accident or abuse, acts of God, or has had its serial number altered, defaced, or removed.
(f) The foregoing hardware warranty extends solely to the original Purchaser and all hardware warranty claims must be made by Purchaser and not by customers or transferees of Purchaser. Repair or replacement of parts or product shall neither extend nor decrease the original warranty period.
(g) This hardware warranty may exclude any failure of the product(s) connected with the use of badges, cards or other like medium not manufactured by UniKey.
(h) THIS HARDWARE WARRANTY EXPRESSLY PROVIDED HEREIN IS THE SOLE WARRANTY. ALL OTHER WARRANTIES EXPRESSED OR IMPLIED ARE HEREBY DISCLAIMED, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR USE OR PURPOSE. IN NO EVENT SHALL UniKey BE LIABLE FOR ANY LOSS OR INJURY TO EARNINGS, PROFITS OR GOODWILL OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES EVEN IF UniKey IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
6.4 Warranty Disclaimer. EXCEPT AS EXPRESSLY STATED HEREIN, UniKey EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT, ACCURACY OF ANY INFORMATIONAL CONTENT OR THOSE ARISING BY STATUTE, OF CONFORMITY TO ANY REPRESENTATIONS OR DESCRIPTIONS NOT CONTAINED HEREIN, OR OTHERWISE IN LAW OR FROM COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, UniKey DOES NOT WARRANT THAT ANYTHING WILL MEET USER’S REQUIREMENTS, WILL BE UNINTERRUPTED OR ERROR-FREE. UniKey HAS NO OBLIGATIONS CONCERNING PRODUCTS USED OUTSIDE THE U.S.A. UNLESS THEY ARE STATED IN WRITING BY UniKey TO BE EXPORT PROGRAM PRODUCTS AND ARE ISSUED AN EXPORT PROGRAM WARRANTY. UniKey’S OBLIGATIONS, IF ANY, ARE CONDITIONAL ON PURCHASER PROMPTLY COMPLYING WITH ALL OF THIS EULA’S TERMS AND CONDITIONS. USER ACCEPTS THE PRODUCT “AS IS” AND WITH ALL FAULTS. THE LIMITED WARRANTIES AND REMEDIES IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES CONCERNING ANY GOODS, SERVICES, OR INTANGIBLES, NOW OR IN THE FUTURE.
6.5 Liability Limitation. IN NO EVENT SHALL UniKey BE LIABLE FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES OR REMEDIES RELATING TO THIS EULA, THE SOFTWARE OR ANY UNIKEY PRODUCTS, GOODS, SERVICES OR INTANGIBLES (EXCLUDED DAMAGES INCLUDE, WITHOUT LIMITATION, FOR LOST PROFITS, BUSINESS INTERRUPTION, COSTS OF DELAY, FAILURE OF DELIVERY, REVENUE, GOODWILL, LOST OR DAMAGED DATA, DOCUMENTATION OR EQUIPMENT, LOSS OF BUSINESS INFORMATION, COST OF REMOVAL OR INSTALLATION OF ANYTHING, INTERCEPTIONS, DEFECTS, VIRUSES, DELAYS, OR FAILURE OF PERFORMANCE, OTHER LOSS ARISING OUT OF USE, OR INABILITY TO USE THE PRODUCT, LIABILITIES TO THIRD PARTIES, INABILITY TO USE THE SOFTWARE, ERRORS IN THE SOFTWARE, MALFUNCTIONS OR ERRONEOUS DATA, PAYMENTS TO THIRD PARTIES WHICH ARE TOO SMALL, TOO LARGE, TOO LATE OR ARE OTHERWISE IMPROPER), EVEN IF UniKey HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM OF ACTION (INCLUDING, WITHOUT LIMITATION, CONTRACT, NEGLIGENCE, TORT, WARRANTY, ETC.), ANY ASSERTED UNIKEY BREACH OF PROMISE OR WARRANTY; ANY ACT OR FAILURE TO ACT; NEGLIGENCE INCLUDING GROSS NEGLIGENCE; OR ANY CLAIM MADE AGAINST USER BY ANY OTHER PARTY. WITHOUT LIMITING THE FOREGOING, IN NO EVENT SHALL UNIKEY’S LIABILITY (FOR ALL CAUSES OF ACTION), EXCEED THE AMOUNT PAID BY USER TO UniKey FOR THE SPECIFIC PRODUCT WHICH CAUSED THE PROBLEM. THESE LIMITATIONS ARE INDEPENDENT AND APPLY REGARDLESS OF THE BASIS OF THE CLAIM, INCLUDING, BUT NOT LIMITED TO, A FINDING THAT A WARRANTY, CONDITION, OR REMEDY HAS FAILED ITS ESSENTIAL PURPOSE, BREACH OF CONTRACT (INCLUDING, BUT NOT LIMITED TO, FUNDAMENTAL BREACH), TORT, (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR MISREPRESENTATION), BREACH OF STATUTORY DUTY, OR OTHER LEGAL OR EQUITABLE THEORY. ANY CAUSE OF ACTION USER MAY HAVE AGAINST UniKey, ITS AFFILIATES, OFFICERS AND AGENTS MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CLAIM OR CAUSE OF ACTION ARISES OR SHALL BE FOREVER BARRED. UNIKEY’S MAXIMUM AGGREGATE LIABILITY SHALL NEVER EXCEED THE AMOUNT PAID BY USER FOR THE PRODUCTS. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF THE BASIS OF THE CLAIM.
6.6 Governmental Entities. CERTAIN GOVERNMENTAL BODIES DO NOT ALLOW DISCLAIMERS OF CERTAIN WARRANTIES OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO ONE OR ALL OF THE LIMITATIONS HEREIN MAY NOT APPLY TO USER. CERTAIN GOVERNMENTAL BODIES DO NOT ALLOW THE LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF ANY LIMITATIONS ON LIABILITY MAY NOT APPLY TO USER AND USER MAY HAVE ADDITIONAL RIGHTS.
6.7 Release and Indemnity. Without in any way expanding upon the warranty stated above: UniKey is not responsible for problems caused by changes in the operating characteristics of End User’s computer hardware or operating Products which are made prior to or after the delivery of the Software or Hardware; nor is UniKey responsible for any problems that may arise as a result of anyone improperly downloading, installing or using the Software or Hardware. If any unauthorized modifications are made to the Software; if the media is subjected to an accident, abuse or improper use; or if End User violates this EULA, then all warranties will immediately terminate and End User loses End User’s right to return the Product. UniKey’s entire liability and End User’s exclusive remedy for any cause whatsoever, including, but not limited to, nonperformance or misrepresentation, is limited as set forth herein. In no event will UniKey or any person or entity involved in making, delivering, or using any of UniKey’s Products, be liable for damages caused in any part by End User’s negligence. Any unauthorized changes made to the Software or Hardware release UniKey from UniKey’s obligations and terminate the EULA. USER WILL INDEMNIFY, HOLD HARMLESS, AND DEFEND UniKey AGAINST ANY CLAIM, DEMAND, LOSS, OR ACTION RESULTING FROM USER’S ACTS, FAILURES TO ACT, OR USER’S POSSESSION OR USE OF THE PRODUCT.
6.8 Training Limitations. UniKey’s training materials and other experiences and assistance to End User to whichever limited options End User elected to purchase, have previously been used by appropriately qualified personnel to accomplish the defined tasks. End User’s personnel’s actual abilities, motivation, and diligence and End User’s hardware and software are not within UniKey’s control. Accordingly, UniKey does not promise, warrant, or represent any specific results from any training materials or training experience and assistance UniKey provides, only that the training experience or assistance itself has been generally sufficient to permit appropriately qualified, motivated, diligent, personnel to accomplish the results specified in the Manual. Training will be provided only in English unless special arrangements have been otherwise expressly agreed to in writing. Onsite training will be performed only after the parties agree to the terms and price for such training.
6.9 Third Party Vendors. UniKey does not warrant that any third party, third party equipment, software, product, or service, or installers, trainers, service providers, etc., that UniKey may qualify or recommend or that the Software or any UniKey good, service, or intangible will meet End User’s requirements or that their operation or services will be uninterrupted, merchantable, useful, or error free or that UniKey’s Products will interface or be useful with same. In the absence of a specific signed commitment by UniKey to End User specifically stating same, UniKey makes no representations or warranties concerning whether or not any UniKey data output or reports will interface with any third party software. Additionally, if UniKey Software interfaces or allows for the interface with a particular version of a third-party vendor’s software, the third party’s software may change, operating platforms and Products may change, and the like. Accordingly, even if UniKey gives a specific written promise and representation concerning UniKey’s software’s interface with a third-party vendor’s software, same is strictly limited to then-currently existing hardware, software, operating platform, and all other then-current existing conditions. Accordingly, interface characteristics and functionality between UniKey Software and any third-party vendor’s software are always at End User’s sole risk. Any interface to any third party software is always, as available and “AS IS” with respect to UniKey. UniKey’s website or other materials may link to or promote websites, goods, or services from other businesses or offer End User the ability to download Software or purchase goods or services from other businesses. End User agrees that UniKey is not responsible or liable for, any third party’s websites, goods, services, software, or any other matter. End User is encouraged to obtain direct warranties from any third party supplier. UniKey’s approval of third party computers, communications, equipment, software, or any other goods, services or rights is not a representation or promise that same is suitable or can be relied on by End User.
6.10 Third Party Platforms and Equipment. The Software runs on and minimally requires certain third party operating platforms, software, communications capabilities and equipment. End User must obtain these from third parties at End User’s cost and risk.
7. CLAIMS AND DISPUTES
7.1 Claims. End User will immediately notify UniKey in writing of any complaints, suits, or threats relating to End User’s use of Products or UniKey. UniKey may in its sole discretion, take whatever action UniKey deems appropriate with regard to patent, trademark, copyright, or unfair competition issues, including controlling or settling litigation and instruct End User to adopt substitutes chosen by UniKey at End User’s expense. End User will indemnify, defend, and hold UniKey harmless from all costs arising from End User’s failure to perform any obligation hereunder. End User shall indemnify UniKey and hold UniKey harmless from and against, and shall defend UniKey and its affiliated companies against, any and all claims and damages of every kind for injury to or death of any person or persons and for damage to or loss of property, arising out of or attributed, directly or indirectly, to the conduct, operations or performance of the End User. USER MUST FILE SUIT AGAINST UniKey WITHIN TWO YEARS OF THE OCCURRENCE OF ANY BREACH OF CONTRACT OR TORTIOUS ACT OR IS DEEMED TO HAVE WAIVED AND RATIFIED THE SAME. USER MUST DELIVER A WRITTEN NOTICE TO UniKey WITHIN NINETY DAYS OF BEGINNING OPERATIONS UNDER THE EULA OF ANY PRE-OPERATIONAL BREACHES OR MISREPRESENTATIONS OR IS DEEMED TO HAVE WAIVED THE SAME. EACH PARTY SHALL FILE SUIT AGAINST THE OTHER WITHIN TWO YEARS OF THE FIRST OCCURRENCE OF ANY BREACH OF CONTRACT OR TORTIOUS ACT INCLUDING, BUT NOT LIMITED TO, FRAUD, MISREPRESENTATION, STATUTORY TORTS, NEGLIGENCE, PROMISSORY ESTOPPEL, AND ALL ACTIONS HOWEVER DENOMINATED OR IS DEEMED TO HAVE WAIVED THE SAME FOR ALL PURPOSES. These limitations are reasonable and intended to promote the early disclosure of problems to permit them to be resolved in a timely manner rather than becoming the basis of expensive, time consuming litigation at a later date. End User indemnifies and holds UniKey, its affiliated companies, officers, employees, and agents harmless from all damages and expenses, (including, without limitation, attorney’s fees) fines, claims, actions, or demands of every kind, including, without limitation, for injury to or death of any person, damage done to any property arising directly or indirectly or allegedly arising from End User’s or its agent’s work, offer, sale, lease or transfer of any good or service including, without limitation, where such injuries, death, damages, or loss are caused by the sole, joint, or concurrent gross or simple negligence of UniKey, its officers or employees, will obtain and maintain reasonable amounts of comprehensive liability insurance, and upon written request End User will deliver to UniKey verification of the same and renewals thereof to UniKey, and not make any claim against the other party which is covered or required to have been covered by such insurance.
7.2 Dispute Resolution. In accordance with Title 9 of the United States Code, any dispute or controversy arising out of or relating to this License Agreement or its interpretation will be settled exclusively and finally by binding arbitration. The arbitration will be conducted procedurally in accordance with Subchapters C through G of Chapter 172 of the Texas Civil Practice and Remedies Code, as amended from time to time. Where a conflict exists between the terms of any of the provisions of those subchapters and this agreement, the terms of this agreement will control. The arbitration will be conducted before a sole arbitrator appointed by the presiding judge of one of the state district courts of Orange County, Florida. The arbitration will be conducted in Orlando, Florida. Any award rendered in the arbitration proceeding will be final and binding on each of the parties, and judgment may be entered thereon in a court of competent jurisdiction.
8. TERMINATION
8.1 Mutual Cancellation. This EULA may be terminated by mutual agreement between UniKey and End User, by both parties’ mutual consent in writing to such a cancellation. Termination pursuant to mutual agreement shall have the same effect as termination generally except to the extent that the parties may otherwise agree in a signed writing.
8.2 Termination. End User may terminate this Agreement at any time by notifying UniKey in writing thirty days prior to the termination date. UniKey may only terminate this Agreement for cause, including, without limitation, failing to pay monies when due to UniKey, failing to protect UniKey’s proprietary rights to the Software, or End User’s failure to comply with any term of this Agreement, or without limitation, any of the guidelines, requirements, or monetary terms incorporated here by reference, or End User becomes insolvent or bankrupt or ceases to do business, or UniKey choosing to cease offering to license the Software to End User’s class of users in End User’s county. UniKey may suspend performance upon End User failing to pay monies when due until such monies are paid. If a default is both a material substantial breach and incurable, such as a knowing failure to protect UniKey’s proprietary rights to the Software by permitting a competitor of UniKey to have access to the Software, termination may be made with immediate effect. If End User commits acts which, in UniKey’s good faith determination, substantially adversely affect the parties’ relationship after End User has been warned in writing concerning same; such as documented repeated abuse of UniKey’s staff, repeated publication of statements hostile to UniKey or derogatory concerning the Software, or a pattern of repeated breaches of this Agreement, then UniKey may terminate this Agreement.
8.3 Effect of Termination. In the event of termination, End User will immediately discontinue all use of the Software and remove and return all versions and copies (digital, paper, or otherwise) and all associated materials to UniKey and deliver to UniKey End User’s unconditional verification that this has been completed. Termination does not affect any right to monies earned prior to the termination. Without limiting the general survivability of terms which, by their nature, survive termination, the provisions herein concerning confidentiality and proprietary rights, ownership, and limitations of warranties and liability, Intellectual Property, dispute resolution, and all other obligations which, by their terms imply that they are intended to survive termination, expressly survive termination. Neither termination nor the existence of claims by End User against UniKey is a defense to UniKey’s immediate enforcement of any obligation. UniKey is not liable for any termination compensation whether based on goodwill, investments made, or otherwise. If a notice of termination or a notice of intent to terminate is given by UniKey, then no communication from UniKey except a written communication issued directly by UniKey’s President is effective to delay, waive, modify, revoke, or otherwise change the notice or its effect. On receiving notice of termination of this EULA, End User shall return the Software including all copies of the Software to UniKey. If this Agreement ends, End User will promptly deliver to UniKey the Software, Manual, and all items or writings which bear UniKey’s trademarks or contain UniKey proprietary information.
9. OTHER TERMS
9.1 Ownership of Software. The Software is licensed to End User, not sold. End User owns only the physical media on which the Software is recorded or fixed, not the Software. All right, title and interest in and to the Software, including any permitted copies and all copyrights, trade secrets, trademark, patent and other forms of proprietary and intellectual property rights, belong only to UniKey. This EULA does not convey to End User any interest in or to the Software, but only a limited right of use, revocable in accordance with the terms of this EULA. All rights not expressly granted in this EULA are reserved by UniKey. All title and copyrights in and to the Software, Product, related materials and copies thereof are always only owned by UniKey. All rights not specifically granted to End User under this EULA are reserved by UniKey.
9.2 U.S. Government Restricted Rights. If End User is acquiring the Software on behalf of any unit or agency of the United States Government, the following provision applies: It is acknowledged that the Software and the documentation were developed at private expense and that no part is in the public domain and that the Software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (C)(1)(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 CFR 52.227-19, as applicable.
9.3 Impossibility. Neither party is liable for any default or delay in the performance of its obligations (other than the obligation to pay monies due) which results directly or indirectly from any cause or circumstance beyond the reasonable control of the party, including but not limited to, fire, electrical failure, communications failures, accidents, acts of God or the elements, war, labor controversies, civil commotion, failure of carriers, shortages, break down, inability to obtain any labor, materials, supplies, Software or equipment from regular sources or actions or requests from any governmental authority compliance with any law, regulation or governmental order, whether or not valid or other similar causes beyond UniKey’s reasonable control. This EULA and performance hereunder are subject to the continuing approval and issuance of all necessary authorizations, licenses, permits and clearances by all affected governments. If such approvals, licenses, permits and clearances are granted subject to conditions, the same will be incorporated herein.
9.4 Assignment. This Agreement and its covenants apply to and inure to the benefit of and shall be binding on the parties hereto and their respective permitted successors and assigns. The parties do not intend this Agreement to confer any benefit on any entity other than the parties except as expressly stated herein. End User has the right to transfer this Agreement together with the sale of substantially all of End User’s business assets if the new user signs UniKey’s then current standard EULA for the software and UniKey has given its prior written permission, not to be unreasonably withheld, but not otherwise. Any transaction which would have the effect of making the Products or UniKey’s confidential information available to a competitor or any company or other organization which supports competition with UniKey may be disapproved. This includes any transaction pursuant to which a competitor of UniKey will obtain access to the Products or an ownership interest in or control of any entity with access to Products. UniKey may delegate any part of its rights and duties and assign this EULA to a subsidiary, affiliate or to purchaser of all or substantially all of its assets provided the assignee agrees in writing to assume and be bound by this Agreement, whereupon UniKey will be released from its obligations. This Agreement is personal and specific to End User. The EULA and rights conveyed herein to End User are indivisible, non-assignable, non-transferable, non- delegatable, and incapable of being sublicensed by operation of law or otherwise without UniKey’s written consent as set forth herein.
9.5 Entire Agreement. This is the exclusive, complete, and entire agreement superseding all prior representations or agreements concerning its subject matter and supersede any and all prior communications, proposals, advertising, discussions, representations, and understandings. If there are any conflicting terms between any document and this EULA, the terms of this EULA control. No amendment or modification to this Agreement is valid unless signed by the parties. No representations have been made to induce execution hereof which are not included. Neither party has relied upon any promises or representations made by the other party which are not included herein. No special relationship exists between the parties except with respect to UniKey’s proprietary information. The Agreement may not be amended or waived by anyone on behalf of UniKey and no representations may be made by anyone on behalf UniKey, except as set forth herein or in a writing signed by UniKey’s President or a designated representative. Headings and arrangement are for convenience only and shall not affect construction or interpretation. No licenses, assignments, or duties shall be implied against UniKey except as expressly stated herein. UniKey’s grants are limited, non-exclusive grants confined to their express terms. No representation, grant, obligation, warranty, right to use or any other duty or limitation shall be implied against UniKey unless expressly stated herein. The official language of this Agreement and all performance hereunder is English as generally used in the U.S.A. The duties to pay hereunder are material duties, any failure of which is a material breach justifying termination if not cured as set forth herein. Time is of the essence. This Agreement becomes valid and is performable at UniKey’s headquarters, Orlando, FL. Florida internal law governs the entire relationship and all rights or obligations of the parties between each other, whether or not they are related to this Agreement without application of conflict of law rules. UniKey’s listed rights and remedies are cumulative with any others granted by law or equity. Any provision of this Agreement which is held unlawful or unenforceable under applicable law will be as to such jurisdiction, without affecting any other provision, reformed to enforce the parties’ intent as expressed herein to the maximum extent permitted by applicable law. To the full extent, however, that the provisions of such applicable law may be waived, they are hereby waived, to the end that this Agreement be deemed to be a valid and binding Agreement enforceable in accordance with its terms. Each covenant herein is independent. A party’s breach does not provide a defense against the party’s request for relief. This Agreement shall be construed in accordance with its fair meaning and not for or against either party.
9.6 Purchase Orders. All purchase orders received by UniKey are subject to acceptance by UniKey as set forth herein. UniKey has the right to not accept new orders and to withhold shipment of accepted orders if End User is in any way in default hereunder, specifically including, without limitation, failure to pay any sum due UniKey. UniKey may change prices or product line without advance notice. UniKey’s quotes, price lists, etc. are invitations to submit orders and no more. Any provision included by End User in any purchase order which is inconsistent with this Agreement or UniKey’s standard terms of sale is ineffective. UniKey is under no obligation to examine End User’s orders except to determine items and quantity. UniKey reserves the right to reject any order. Absent a separate written notice of acceptance only shipment by UniKey comprises acceptance of End User’s order and then only to the extent of goods shipped and no more. All UniKey’s sales and quotations are subject to this Agreement unless this clause is specifically referred to and negated in a subsequent signed agreement. Additional specific terms and conditions of ordering, shipment, delivery and payment may be disclosed at the time of purchase. End User’s exclusive remedy for all causes relating to delivery, quantity and quality of goods is for refund of such monies paid for the goods and is conditioned on timely giving notice of rejection, holding or returning the goods for UniKey’s inspection at UniKey’s discretion and a finding that the goods were defective when delivered.
9.7 Accord and Satisfaction. Payments by End User to UniKey of any amount less than due are deemed payments on account regardless of any endorsement to the contrary. Endorsing any check or accepting any amount from End User will not bind UniKey to such endorsement or any claim that acceptance was an accord and satisfaction for less than the full amount due or to any other condition. Payments from End User will be applied first to any interest owing to UniKey and then to the earliest amounts due UniKey.
9.8 Waivers. End User shall make a timely written request to UniKey whenever this Agreement requires approval. UniKey’s approval must be in writing to be effective and relied upon by End User. UniKey assumes no liability or obligation and makes no representation or warranty by denying, granting, or providing any waiver, approval, advice, consent or suggestions to End User or for any neglect, delay or denial of any requests therefore. Failure of UniKey to exercise any right, power or option or to insist on strict compliance with the terms hereof will not comprise a waiver with respect to any other or subsequent breach of the same or different nature nor a waiver of UniKey’s right to at any time require exact and strict compliance with all terms hereof and declare any breach or default. No custom or practice waives UniKey’s right to demand exact compliance with this Agreement. UniKey’s rights and remedies herein are cumulative with any other rights or remedies which may be granted by law or equity. It is expressly agreed that the description of any breach or default in any notice by UniKey, including, without limitation, a notice of termination, will not preclude the later assertion of other additional defaults or breaches, whether known or unknown at the time of the notice. Subsequent acceptance by UniKey of any payments or performance is not a waiver of any preceding breach by End User. UniKey reserves the right, from time to time, to waive observance or performance of the whole or any part of an obligation imposed on End User by this Agreement. No waiver of any default of any term, proviso, covenant or condition of this Agreement by UniKey constitutes a waiver by UniKey of any prior, concurrent or subsequent default of the same or any other term, proviso, covenant or condition hereof.
9.9 Consumer Rights Waiver. AFTER CONSULTATION WITH AN ATTORNEY OF ITS OWN SELECTION, USER VOLUNTARILY WAIVES ITS RIGHTS UNDER LAW THAT GIVES PURCHASERS OR CONSUMERS SPECIAL RIGHTS OR PROTECTIONS, INCLUDING, WITHOUT LIMITATION, THE DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT, SECTION 17.41 ET SEQ., TEXAS BUSINESS & COMMERCE CODE.
9.10 Construction. Capitalized terms are defined in this Agreement where they appear in quotation marks and have no other meaning, and shall not for any purpose be deemed a part of this Agreement. “Affiliate” means a company that is affiliated with another company because one of them is the subsidiary of the other, or both are subsidiaries of the same company, or each of them is controlled by the same person, firm or company, all whether the relationship is direct or the relationship is indirect through intermediary entities. All monetary amounts are expressed in United States of America currency. References to this “Agreement” include its future then-current Manual to the extent same do not contradict this Agreement and is uniform for End User’s designated class of licensees. Wherever UniKey is given discretion by the use of “discretion,” “consent,” “may” or other permissive wording, UniKey has absolute, unfettered, and unreasonable discretion, unless expressly provided to the contrary. Whenever the word “including” is used, the term is used without limitation unless expressly stated otherwise, i.e., “including” means “including, without limitation.” Whenever in this Agreement UniKey is to provide advice or guidance to End User concerning the Products’ standards or use of the Products’ standards, or the like, no benefit or advantage is thereby promised or represented to End User except that UniKey’s advice or guidance will provide such information to End User. End User’s compliance with the Products’ standards may or may not be beneficial or advantageous to End User. The language of this Agreement will otherwise be construed according to its fair meaning and not for or against either party. All words refer to whatever number or gender the context requires. Headings are for reference purposes only and do not affect or control interpretation in any way. This Agreement and all transactions hereunder shall be construed, interpreted and implemented in English. The rights and remedies contained in this Agreement and any other agreements between the parties are cumulative and no exercise or enforcement of any right or remedy by UniKey shall preclude UniKey’s exercise or enforcement of any other right or remedy to which UniKey is otherwise entitled by law or equity.
9.11 Savings Clause. This Agreement shall be construed, interpreted and reformed to avoid violating any applicable law, and to preserve its intent to the fullest possible extent. If any statute, law, by-law, ordinance or regulation promulgated by any competent authority with jurisdiction over any part of this Agreement or End User’s Business or any court order pertaining to this Agreement requires a longer or different notice period than that specified herein, the notice period herein shall automatically be deemed to be amended so as to conform with the minimum requirements of such statute, law, by-law, ordinance, regulation or court order. The unenforceability of any part, segment, or clause hereof will not affect the validity of the remaining portions hereof as the parties would have executed the remaining portions of this Agreement without such portions as may be invalid except that if any portions relating to restrictions on End User or End User’s payments to UniKey are finally determined to be unenforceable, UniKey may elect to terminate this Agreement. End User expressly agrees to be bound to the maximum extent permitted by law, as if separately set forth herein, with respect to any remaining reformed part of this Agreement if it is held to be unenforceable as written. In the event of legislation, government regulation, or changes in circumstances beyond the control of UniKey that materially affects the relationship between UniKey and the End User, UniKey shall have the right to reform and modify this Agreement to the limited extent reasonably needed to both adapt the Agreement to the changed circumstances and preserve the parties’ original intent as expressed herein to the greatest extent possible. The parties do not intend to charge usurious rates of interest. If applicable law determines any obligation, charge or payment to be an unlawful charge or overcharge of interest, such obligation, charge or payment is automatically reduced to the maximum lawful rate, the excess to be refunded if already paid, the repayment comprising a complete remedy.
9.12 Amendment. UniKey reserves the right, in its sole discretion, to amend this EULA from time to time. If there is a conflict between this EULA and the most current version of this EULA, the most current EULA which may be posted at www.timeclockplus.com, will prevail. If End User does not accept amendments made to this agreement, then this license will be immediately terminated pursuant to “Terms and Termination”. End User accepts this EULA in its electronic format each time End User opens or executes UniKey’s Software. UniKey may change the EULA from time to time, including, without limitation, material changes and changes to the parties’ rights and obligations and to then currently available Product or prices. The most current EULA entered into between End User and UniKey shall govern all past, then current, and future transactions and all of the parties’ rights, duties, and relationship unless and until a different EULA is subsequently entered into between the parties.
9.13 Governing Law: NOTWITHSTANDING THE LOCATION OF USE OF THE SOFTWARE, THIS AGREEMENT AND USE OF THE SOFTWARE IS SOLELY GOVERNED BY THE LAWS OF THE STATE OF FLORIDA. EACH OF THE PARTIES HERETO IRREVOCABLY AGREES TO EXCLUSIVE JURISDICTION BY THE COURTS LOCATED IN ORANGE COUNTY, FLORIDA. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
9.14 Disclosures. End User has reviewed or had an opportunity to review UniKey’s website or documentation relevant to the chosen Products and conducted an independent review of all relevant matters, and decided that the same meet End User’s expectations. End User accepts sole responsibility for (i) End User’s Products configuration, design, and requirements, (ii) selection of the specific Products to achieve End User’s intended results, (iii) any modifications or changes to the Products, and (iv) all intended interfacing between and usefulness, if any, of UniKey’s Products and any non-UniKey software, hardware, inputs, output, personnel, or End User’s requirements. UniKey does not promise or represent that End User will be able to open or continue a business, or that End User’s business will be successful. UniKey’s technical support consists of general guidelines concerning UniKey’s standard methods, procedures, and guidelines. UniKey’s technical support is not tailored to any End User’s specific circumstances and is not promised or represented to provide any specific benefit or result. UniKey does not promise or represent that UniKey will repurchase anything from End User. No one at UniKey has authority to make representations or promises which are contrary to or which modify, or extend anything stated in this Agreement except pursuant to a writing signed by UniKey’s President or a designated representative. End User acknowledges that it has had ample opportunity to seek legal counsel and analyze and negotiate the various provisions herein and to review, compare and analyze all aspects and characteristics of the Products.
9.15 Acceptance. End User’s acceptance of this Agreement is indicated by End User’s execution of this Agreement by clicking “ACCEPT,” or installing or using any part of the Software, or downloading or installing any part of an update, module, fix, or revision to the Software which has been made available by UniKey. End User’s acceptance of the then-current EULA as then currently posted on UniKey’s website is made and reaffirmed each time End User performs any of these actions.
9.16 Communications. UniKey may communicate with End User and provide assistance, information, Software, updates, and support by making the same available to End User via the internet or CD-ROM, sometimes with access code requirements or any other means chosen by UniKey. It is solely End User’s responsibility to access UniKey’s website for updates, terms, assistance, restrictions, information, etc. UniKey’s posting communications, EULA or other materials on UniKey’s website, access code protected or not, comprise UniKey’s delivery of the same to End User and End User’s receipt of the same. Checking in to access or download same is solely End User’s responsibility. Any or all of End User’s communications with UniKey, by any means, including, without limitation, telephone, email, downloads, mail, common carrier, etc., may be recorded, tracked, and used by UniKey without any restrictions whatsoever. End User agrees this is a satisfactory method of delivery and to UniKey’s unrestricted monitoring and use of the same. Otherwise, any payment, notice or other communication required or permitted herein shall be delivered in person, by facsimile, or mailed by first class certified mail to the parties’ addresses of record or such other addresses as designated by the receiving party from time to time. Any notice of a breach shall be delivered to the party and its designated attorney, if one has been designated. Written notices shall be deemed delivered at the time if delivered by hand; one business day after sending if by facsimile or comparable electronic Products which provides proof of delivery or, if sent by certified mail or other means which gives evidence of delivery, on the date of receipt or attempted delivery if delivery is refused or made impossible by the party being notified.