Revision: 1.04.13 – 29/06/2017
eZee Software™ Terms of Service
PLEASE READ THESE TERMS (“TERMS“) CAREFULLY, AS THEY REPRESENT THE TERMS OF A BINDING AGREEMENT (THE “AGREEMENT“) BETWEEN YOU AND WARRINGAH LTD. (“WARRINGAH” or “We” and related pronouns) AND GOVERNS YOUR USE OF “eZee Software™” SOFTWARE, WHICH INCLUDES CLOUD BASED, MOBILE BASED, CLIENT-SIDE AND SERVER-SIDE INTERNET-ENABLED COMPUTER SOFTWARE AND ASSOCIATED DOCUMENTATION (COLLECTIVELY, THE “SOFTWARE”) TOGETHER WITH RELATED SERVICES FOR EZEE SOFTWARE (THE “SERVICE”). BY ACCEPTING THESE TERMS EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, YOU AGREE TO THESE TERMS. BY DOWNLOADING, INSTALLING, ACCESSING AND/OR OTHERWISE USING THE SOFTWARE AND/OR THE SERVICE, YOU ACCEPT AND AGREE TO BE BOUND BY THESE TERMS.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT THESE TERMS IN THEIR ENTIRETY, YOU MUST NOT INDICATE YOUR ACCEPTANCE, MAY NOT USE THE SERVICES, AND ARE NOT AUTHORIZED TO DOWNLOAD, INSTALL OR USE THE SOFTWARE OR THE SERVICE IN ANY WAY.
THE SOFTWARE IS LICENSED (NOT SOLD) TO YOU, AND AT ALL TIMES REMAINS THE SOLE PROPERTY OF WARRINGAH. YOUR ACCEPTANCE OF THESE TERMS CONSTITUTES AN ESSENTIAL PART OF THE BARGAIN BETWEEN YOU AND WARRINGAH, WITHOUT WHICH WARRINGAH WOULD NOT AGREE TO EXTEND THE RIGHTS SET FORTH HEREIN.
IF YOU REGISTER FOR OUR SERVICES USING A FREE TRIAL OF EZEE SOFTWARE THESE TERMS WILL ALSO GOVERN THAT REGISTRATION AND USAGE.
You may not access the Services or Software if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement will become effective between You and Warringah upon Your acceptance of these Terms on the basis described herein.
The Software is licensed expressly subject to these Terms, and Your rights to use the Software and Service are conditioned upon: (i) Your compliance with all provisions of these Terms, and (ii) Your timely payment of any / all applicable Fees (as defined in Section 6 below).
eZee Software reserves the right, in its sole discretion, at any time and from time to time, to replace, modify, add to or retract/delete all or any portion of these Terms. It is Your obligation to review the most recent version of these Terms from time to time, posted on the eZee Software website (http://www.ezeesoftware.com/), to ensure Your continued acceptance hereof. Any revisions to these Terms will become effective, and will constitute an amendment to this Agreement, one (1) business day after such revisions are posted, unless You expressly accept the revised Terms as of an earlier date. Your continued use of the Software and/or Service after the applicable effective date of such revisions will conclusively establish Your acceptance to be bound by the revised Terms.
If You have questions about these Terms, the Software or the Service, please contact eZee Software customer support at http://www.ezeesoftware.com/contact
1. Definitions and Representations
(a) For purposes of these Terms, “You” means: (a) the individual identified on the invoice, order form or during registration to use the Software and Service, and (b) if that individual is entering into these Terms for the benefit of an employer or other third-party, then such employer or third-party as well.
(b) By accepting these Terms, You represent that: (1) You have the legal power to enter into the Agreement based on these Terms. (2) You are now, and at all times during the Term, will remain in compliance with and agree to be bound by all terms, conditions, and policies (including without limitation privacy policies) of Warringah applicable to the use of the eZee Software Platform, as such may from time to time be modified, altered and/or amended; (3) before You use the Software and/or Service in connection with any other third party software, You will ensure that You have procured all necessary rights for such use and will remain in compliance with and agree to be bound by all terms, conditions, and policies applicable to the use of such software; (4) You understand that certain materials provided under license from Warringah and/or other third party providers may be used by and/or interact with the Software and the Service and are subject to copyright and other intellectual property rights owned or licensed by such providers; and (5) Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features.
2. eZee Software.
eZee Software is available for license purchase or download via www.ezeesoftware.com subject to the terms and conditions contained within this document.
Additional eZee Software products and services are available for purchase via our professional sales team. Please contact our sales department at www.ezeesoftware.com for further information.
(a) If You register on our website for the free trial version of eZee Software, we may make one or more Services available to You free of charge for a limited (trial) period of time. In the case of an eZee Software Free Trial this service is limited to access to the eZee Software cloud data service for the duration of the free trial period. Any/all data captured/entered or stored during the free trial period will be lost upon completion of the free trial. You acknowledge and agree that Warringah has no obligation to store or to provide you with a copy of said data. If you purchase an eZee Software License, it may include additional services to those offered with eZee Software Free Trial which are detailed in your eZee Software contract agreement as negotiated between You and Warringah, such as consultancy, development and technical support. Additional terms and conditions may appear on the registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
(b) eZee Software is a cloud data service used to accept, store, analyse and control data and requires an “always on” high-speed broadband internet connection to operate. It is your responsibility to ensure that a suitable high-speed broadband internet connection is available at all times. You agree and acknowledge that Warringah has not obligation to provide said high-speed broadband internet service and that Warringah has no obligation to support said high-speed broadband internet connection or any other 3rd party hardware, service or software.
(c) Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services.
(d) Warringah may offer a data import service as part of the Services. If such service is offered it may be subject to a fee. This fee will based on the current per day rate charged by Warringah for services. You acknowledge and agree that any/all data imported on your behalf by Warringah, regardless of it’s source, is imported as is, without warranty as to it’s accuracy, completeness, or fitness for purpose in relation to the eZee Software or it’s operation. You acknowledge and agree that data values contained within any imported data files may be used to determine pricing of service and products via the eZee Software Point of Sale module (POS) and via online booking and gift certificate sales modules and that Warringah has no responsibility for the accuracy of said data. You acknowledge and agree that you have sole responsibility for ensuring that all such prices for Service and Products with the eZee Software are entered into the eZee Software system and are accurate and correct. You acknowledge and agree that Warringah expressly excludes any responsibility for pricing within the data, database and eZee Software system including online web services.
3. Right to Use. Subject to all provisions of these Terms, including without limitation Your timely payment of all applicable Fees, Warringah grants You a limited, revocable, non-exclusive, non-sublicensable, non-transferable right and license to install and use the Software, solely for Your benefit, in the manner and for the purposes specified in these Terms and in any documentation which Warringah may provide from time to time in connection with the Software and/or the Service.
4. Conditions of Use. Your use of the Software and the Service is expressly subject to the following:
(a) An individual user license must be obtained for each eZee Software user. Each individual for whom an eZee Software Free Trial license has been granted, or for whom the applicable eZee Software license fees have been paid in a timely manner (each a “User”) (i) may install and make use of the Software solely for such Subscriber’s personal benefit and (ii) access the Service solely as permitted by Warringah. Only such Users are authorized to access and use the Software and Service.
(b) Warringah may terminate these Terms and Your rights hereunder for any reason or no reason, at any time, immediately upon written notice to You (email will suffice), and without liability of any kind to Warringah.
(c) Warringah reserves the right, in its sole discretion, to automatically apply certain upgrades or updates to the Software and push such upgrades or updates to You.
(d) Warringah reserves all rights not expressly licensed or otherwise granted under these Terms.
(e) Use of or access to the Software or Service other than as permitted hereunder is expressly prohibited.
(f) You may not (and may not permit any other person to): (i) modify, translate, adapt, arrange, or create derivative works based on the Software, Service or associated documentation for any purpose; (ii) reverse engineer, decompile or disassemble the Software, or any portions thereof; (iii) remove, alter, or obscure any proprietary notices, labels, or marks from the Software or associated documentation; (iv) use any equipment, device, software, or other means to circumvent digital rights protection used in connection with the Software; (v) use the Software to develop a product which is competitive with any eZee Software offerings; or (vi) permit the Software to be used by more than the number of Users or on more than the authorized number of devices, as the case may be.
(g) The Software is licensed to You as a single product and its components may not be separated for any purpose. You may not distribute, rent, loan, lease, sell, sublicense, or otherwise transfer all or any portion of the Software, access to the Service, or any other rights granted in these Terms, to any other person without the prior written consent of Warringah.
(h) You will at all times comply with all applicable local, state, federal, Irish, European and foreign laws, treaties, regulations, and conventions in connection with Your use of the Software and the Service, including without limitation those related to privacy, electronic communications and anti-spam legislation. In particular, to the extent required under applicable law, You will provide notice and secure the consent of all persons whose locations will be determined to be using the Software and Service.
(i) Except as expressly permitted by this Agreement, no part of the Software or Service may be copied, reproduced, distributed, republished, displayed, posted or transmitted in any form or by any means. You agree not to access the Software or the Service in any way other than by the methods and/or interfaces designated by Warringah.
(j) Warringah has the right to monitor Your use of the Software and Service, and to take other reasonable steps to provide and improve the Service, to upgrade the Software, and to assure Your compliance with these Terms. You agree that Warringah has the right to take such actions, and to disable and terminate Your use of the Software and Service if Warringah believes, in its sole discretion, that You are using the Software or Service in any manner other than as expressly authorized under these Terms or applicable law. You hereby grant Warringah the right to remotely access or monitor the device(s) on which the Software is installed and used, and agree to provide Warringah with access rights as necessary to do so. You further agree that Warringah may collect and retain data regarding Your use of the Software and may use all such data for any legal purpose it deems necessary to the operation of its business.
5. Technical Support. Subject to these Terms, including without limitation Your timely payment of all applicable Fees, Warringah will provide reasonable technical support services via the Warringah technical forum or email to Your designated support representative. Your designated support representative must have completed the eZee Software training courses to avail of technical support. It is Your responsibility to ensure that Your support representative has completed the eZee Software training course. Please contact Warringah for costs and options on obtaining such training courses. These support services cover only the current publicly available version of the Software and do not cover hardware, operating systems, broadband connections, networks or third party software interaction. You may contact Warringah’s customer support as provided at http://www.ezeesoftware.com/contact
6. Fees and Payment. You agree to pay all applicable license, subscription and other fees for the Software and the Service promptly when due, in accordance with the policies established by Warringah from time to time, unless otherwise agreed in a separate document executed by You and by Warringah (in each case, collectively “Fees”). Except where provided by law or as otherwise expressly provided herein or agreed to by Warringah in a separate signed agreement, all Fees are non-refundable. You agree to a minimum contract term of 12 months. Unless otherwise agreed in writing, all Fees are exclusive of applicable sales/use taxes and similar taxes, VAT, tariffs, duties, charges and assessments (“Taxes”). You are solely responsible for timely payment of all Taxes, and will indemnify, defend and hold Warringah harmless from and against claim, suit, proceeding or other action resulting from Your non-payment thereof, together with all related penalties and interest.
7. Ownership and Rights; Third Party Elements, Policies.
You acknowledge and agree that:
(a) Warringah and/or its licensors are the sole and exclusive owner(s) of the Software and the Service, and of all intellectual property rights therein, including without limitation copyrights, trademarks, trade secrets, trademarks and other proprietary rights, title to all of which is hereby expressly reserved.
(b) The functioning of the Service may depend upon system elements (such as network connections, broadband and/or internet services and third party software, applications and hardware) over which Warringah exercises no control. We do not assume, and expressly disclaim, any liabilities associated with the function or failure to function of any such system elements outside the reasonable control of Warringah, in particular poor broadband performance. We or third parties may make available third-party products or services, including, for example, applications and implementation and other consulting services. Any acquisition by You of such third party products or services, and any exchange of data between You and any third party provider, is solely between You and the applicable third party provider. If You install or enable a third party application for use with a Service, You grant Us permission to allow the provider of that application to access Your Data as required for the interoperation of that application with the Service. We are not responsible for any disclosure, modification or deletion of Your Data resulting from access by such an application. The Services may contain features designed to interoperate with third party applications. To use such features, You may be required to obtain access to such third party applications from their providers, and may be required to grant Us access to Your account(s) on those applications. If the provider of a third party application ceases to make it available for interoperation with the corresponding Service features on reasonable terms, We may cease providing those Service features without entitling You to any refund, credit, or other compensation.
8. Disclaimers and Limitations. YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW:
(a) THE SOFTWARE AND THE SERVICE ARE PROVIDED “AS IS” AND WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, INTERFERENCE WITH CUSTOMER’S QUIET ENJOYMENT, SYSTEM INTEGRATION OR WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WARRINGAH MAKES NO WARRANTY, AND EXPRESSLY DISCLAIMS ANY WARRANTIES, RESPECTING THIRD PARTY APPLICATIONS OR OTHER SYSTEM ELEMENTS WITH WHICH THE SOFTWARE INTERACTS.
(b) WARRINGAH MAKES NO WARRANTY THAT OPERATION OF EITHER THE SOFTWARE OR THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
(c) UNDER NO CIRCUMSTANCES WILL WARRINGAH, ITS OFFICERS, DIRECTORS, EMPLOYEES, INDEPENDENT CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, DISTRIBUTORS OR ANY OTHER THIRD-PARTY PARTNERS (COLLECTIVELY “COVERED PARTIES”) BE LIABLE TO YOU, OR TO ANY THIRD PARTY CLAIMING THROUGH YOU, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, RELIANCE, EXEMPLARY, CONSEQUENTIAL OR SIMILAR DAMAGES (INCLUDING BUT IN NO WAY LIMITED TO BUSINESS INTERRUPTION; LOSS OF USE, DATA, REVENUES OR PROFITS; OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES), HOWSOEVER CAUSED AND UNDER WHATSOEVER THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR YOUR USE OF OR INABILITY TO USE THE SOFTWARE OR THE SERVICE, EVEN IF WARRINGAH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(d) THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL SURVIVE ANY EXPIRATION OR EARLIER TERMINATION OF THESE TERMS AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
(e) IN THE EVENT THAT WARRINGAH IS NEVERTHELESS HELD BY A COURT OR OTHER TRIBUNAL OF COMPETENT JURISDICTION TO BE LIABLE TO YOU FOR DAMAGES FOR ANY REASON ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE SUBJECT MATTER HEREOF, YOU FURTHER AGREE THAT SUCH LIABILITY WILL BE LIMITED IN THE AGGREGATE TO THE LESSER OF (I) ALL AMOUNTS PAID BY YOU HEREUNDER, OR (II) ONE EURO (€1.00). IN NO CASE WILL THE LIABILITY OF WARRINGAH UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SOFTWARE OR SERVICES EXCEED THIS MAXIMUM AMOUNT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND/OR THE LIMITATION OR EXCLUSION OF LIABILITY IN CERTAIN CASES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU, OR MAY APPLY ONLY IN PART.
9. Indemnity. You will at all times during and after the Term of this Agreement indemnify, defend and hold Warringah and the Covered Parties harmless from any and all claims, suits, proceedings, damages and/or expenses (including without limitation reasonable attorney and other professional fees) brought against or incurred by Warringah (i) based upon breach of any of Your representations, warranties, obligations or covenants as set forth in this Agreement, (ii) based on Your use (or use by others You have authorized) of the Software or the Services in combination with other technologies, (iii) based in whole or in part on the manner in which You (or others You have authorized) use or are using the Software or Services, (iv) based on modifications to the Software or Services You make (or have authorized others to make); (v) based on Your use (or that of others You have authorized) of the Software or Services in violation of applicable law; (vi) based on Your use (or use by others You authorize) of the Software or Services in a manner for which they were not intended.
10. Privacy. Warringah, the Software and the Service collect personally identifiable information from You. For example, we collect certain biographical, contact and billing information when You register to use the Software and Service, without which we would not be able to communicate with You or bill You regarding the Software/Service. We currently use Your information in order to provide You with access to and use of the Software and the Service, as well as to improve the Software and the Service. We may also exchange certain information about You with other third party partners with whom You have established accounts, and You hereby consent to our receipt, use and exchange of this information in providing the Service. We do use “cookies,” which are small data files saved on Your accessing device, in order to store certain information about You, Your preferences, etc., and may also adopt similar complementary or successor technologies from time to time, as they become available or more widely accepted.
You understand that we may also combine information collected from our users into various aggregate, statistical forms, and in such form no information of any specific user is discernible/detectable (“Aggregate Data”). We therefore reserve the right to use, and to transmit to third parties from time to time, in our sole discretion, these forms of Aggregate Data for any legal purpose whatsoever.
11. Term; Termination; Survival.
(a) Subject to these Terms, the license to use the Software will begin upon installation or download of the Software, and will be for the duration specified by Warringah in policies as it may establish from time to time (the “Term”). The Term of an eZee Software Trial is 30 days. The Term of an eZee Software license agreement is a minimum of 12 months. Use of the Software before or beyond the Term, as applicable, or any attempt to defeat any time-control disabling function in the Software is an unauthorized use and constitutes a material breach of these Terms and applicable law.
(b) Warringah may, without further obligation or liability to You or any other person or entity, terminate these Terms and Your rights hereunder in the event that You fail to materially comply with these Terms. Upon expiration or earlier termination of these Terms for any reason, (i) neither You nor any other person or entity will have any further right to make any use of the Software or Service pursuant hereto, and (ii) You will immediately cease using or otherwise accessing the Service, and uninstall and delete all Software and associated documentation.
(c) In the event that Warringah terminates these Terms and Your license to use the Software for any reason other than Your failure to materially comply with these Terms, Your sole and exclusive remedy will be limited to a refund of the pro rata portion of any prepaid Fees for use of the Software and/or Service during the then-current Term or €1.00, in any event whichever amount is lower; provided however that the availability or non-availability of any such refund, and the method for calculating the amount thereof (if any) shall be at Warringah’s sole option and discretion.
(d) All obligations which are continuing in nature, including those in Sections 1, 4(d) through 4(i), 6, 7, 8, 9, 11(c), this 11(d), 12, 13, 14 and 15 of these Terms, will survive expiration or earlier termination of this Agreement.
12. Export Control. You agree that neither the Software nor access to the Service will be transferred, sublicensed, exported, re-exported or otherwise made available in or into any country or used in any manner prohibited by the United States Export Administration Act or any other applicable export laws, restrictions or regulations (collectively the “Export Laws”). In addition, if the Software or the Service is identified as subject to export control under the Export Laws, You represent and warrant that You are permitted to receive and use, and are located in a jurisdiction where You are permitted to receive and use, the Software and the Service. You will indemnify, defend and hold harmless Warringah and the Covered Parties from and against any claims, penalties, loss or damage arising out of a breach of Your obligations under this Section. You may not export the Software or associated documentation in violation of these Terms, U.S. or other applicable export control laws.
13. Dispute Resolution. Any dispute regarding these Terms will be governed by the laws of the Republic of Ireland, the location of the company of Warringah, without reference to conflict of law principles, and each party hereby submits to and accepts the exclusive jurisdiction of the courts located in Limerick City, Ireland with respect to any dispute arising out of or in connection with these Terms, the Software and/or the Service, and hereby waives all objection to such exclusive jurisdiction. The parties hereby expressly disclaim applicability of the United Nations Convention on Contracts for the International Sale of Goods in connection with these Terms, the Software and/or the Service. In any dispute between Warringah and You in which Warringah prevails, Warringah will be entitled to recover its reasonable attorneys’ fees, legal expert fees, court costs, and related expenses.
14. Entire Agreement; Conflicts. These Terms together with any other terms referred to or incorporated herein by reference constitute the entire agreement between the parties with respect to the subject matter hereof and merge all prior and contemporaneous understandings regarding the same subject matter. Further, no purchase order or similar document issued by You will modify these Terms even if signed or otherwise accepted by Warringah and, in the event of any conflict between these Terms and any other agreement between You and Warringah, these Terms will control. In the event of any conflict between these Terms and any other document relating to the subject matter hereof, You agree that these Terms will control.
15. General. If any provision of these Terms is found invalid or unenforceable, the remaining provisions of these Terms will remain valid and enforceable in accordance with their terms. Accordingly, the parties agree that if any provisions are deemed not enforceable, they will be deemed modified to the extent necessary to make them enforceable and in such manner as comes closest to the intentions of the parties to these Terms as is possible. If Warringah’s performance of any of its obligations hereunder is delayed by labor dispute, war, governmental action, acts of terrorism, flood, fire, explosion, other act of nature, the public enemy, or any other matter not within Warringah’s reasonable control, then the date for performance will be extended by the time of such delay. These Terms will inure to the benefit of and be binding upon the parties, their successors and assigns, except that You may not assign or transfer these Terms or the rights granted hereunder without Warringah’s prior written consent. If You are acquiring the Software on behalf of an entity, You represent and warrant that You have the legal capacity to bind such entity to these Terms. The parties acknowledge and agree that these Terms are solely between the parties hereto, and do not create any rights or benefits in favor of any third party.