IMPORTANT—READ CAREFULLY: This is a legal agreement (“Agreement”) between you (an individual or a single entity) (“You[r]”) and BC Logic Corp. d.b.a. Retail Hero (BCL), BCL pertaining to the Retail Hero Management™ (RMH) software You are about to install, copy, access, or otherwise use. You and BCL are sometimes each referred to herein as a “Party” and together as the “Parties.” BCL licenses the Software to You only upon the express condition that You accept all of this Agreement’s terms and conditions. You therefore should carefully read this Agreement before downloading, installing, copying, accessing, or using the Software. By downloading, installing, having installed, copying, accessing, or otherwise using the Software, You accept this Agreement’s terms and conditions and understand that they will be legally binding on You. If You do not agree to any term or condition of this Agreement, then BCL is unwilling to license the Software to You, and You must not download, install, copy, access, or use the Software, and You may return the Software to BCL for a full refund (less any shipping fees) within thirty (30) days of Your purchase date. After thirty (30) days, any and all license fees paid to BCL shall be non-refundable.
Subject to this Agreement’s terms and conditions, the Software is licensed, not sold, to You as follows: BCL hereby grants to You, solely during the term of this Agreement, a nonexclusive, nontransferable, limited license (the “License”): to electronically download, install, activate, and use machine-readable object code versions of the Software solely for Your internal business operations and solely on each individual stand-alone computer or local area network hard drive (“LAN-HD”) that is a Product Activated Computer; for the purposes of this Agreement, a “Product Activated Computer” or “PAC” means each stand-alone computer or LAN-HD for which You have obtained from BCL a unique product key to activate and operate the Software on that particular stand-alone computer or LAN-HD. You may install the Software in its entirety (make a “Full Installation”) on either a stand-alone PAC or a LAN-HD PAC. You may only make a “Workstation Installation” (i.e., only install the client component(s) of the Software) on each workstation computer that runs the Software from a PAC LAN-HD. If You need to install and operate the Software on additional PACs, please contact BCL to obtain additional product keys. You may not duplicate product license keys without BCL’s prior written consent.
BCL expressly reserves any and all rights not specifically granted to You pursuant to this Agreement, including in and to the Software and each work that BCL develops, owns, and/or licenses from any third party and uses in connection with the License or BCL’s provision of Services.
1.1. Upgrades. If BCL or its authorized agent provides You additional software that supplements or extends the Software, that additional software shall be subject to this Agreement’s terms and conditions unless BCL otherwise agrees in writing. If the Software is an upgrade (“New Version”) to software previously licensed to You (“Previous Version”), Your license rights to each such Previous Version are terminated upon Your first successful installation of the New Version. Under no circumstances may You then operate the Previous Version; provided, however, as an exception, You may continue to use a Previous Version of the Software on Your Product Activated Computer after You install a New Version but only to assist You in the transition to the New Version, provided that:
1.2. Backup Copy. Your License includes the right to make one (1) backup copy of the Software, provided that You use it only when and for so long as the primary copy of the Software is inaccessible and inoperable. The backup copy shall be subject to all terms and conditions of this Agreement, including those set forth in Section 2.
1.3. Document Features. The Software may contain features or functionality that appears disabled or grayed out (“Document Features”). The Document Features will only activate when You have obtained from BCL a unique product key to activate and operate the module. You agree not to access, or attempt to access disabled Document Features or otherwise circumvent the permissions that control activation of such Document Features. You may only use the Document Features that have been activated using Your unique product key.
The License granted shall not extend to any third party. Except as specifically permitted pursuant to this Agreement, You shall not, and will not permit or authorize any third party to, whether through use of any technology now known or later devised: (i) allow any third party to use or access the Software; (ii) copy (except as permitted by applicable law or as provided in this Agreement), sell, modify, translate, transfer, reverse engineer, decompile or disassemble the Software or work around any technical limitations in the Software; (iii) remove any Software proprietary notice, label or mark, whether in machine language or human readable form; (iv) transmit, rent, lease, lend or distribute the Software to any person outside Your internal business organization(s) (for the sake of clarity, in no event may this Agreement, including the Software license granted to You be transferred to any third party without BCL’s express prior written consent); (v) create any derivative work that is based on or incorporates the Software; (vi) install, use, or operate the Software in connection with: (a) any Application Service Provider (“ASP”), Cloud-based, or similar service, or (b) any commercial software hosting service or other service bureau by which any third party can access the Software or by which information produced by the Software is sold or accessible to any third party; (vii) sublicense, assign, delegate, or otherwise transfer the License or any right or obligation related to it for any reason without BCL’s prior written consent (any attempt to sublicense, assign, delegate, or transfer this license, by contract, statute, corporate merger of any sort, regulation, or court order without BCL’s prior written consent shall be void); (viii) export the Software outside of the country in which it was purchased without BCL’s express prior written consent; (ix) install and operate the Software on any computer or server other than a PAC, whether through physical transfer of a copy, electronic access through a wide area network of any description, or by any other means now known or hereinafter devised. Upon expiration or termination of this Agreement for any reason, this License shall terminate and any user accessing the Software shall immediately cease to use or have access and support for it; or (x) install, operate, or otherwise use the Software to control the operation of equipment in any nuclear facilities, aircraft navigation, aircraft communications or flight control systems, air traffic control, mass transit, medical equipment (FDA class 2 or 3, or equivalent), or weapons systems, or in any other applications in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage. If You breach any provision of this Agreement, including by making any Unauthorized copy of the Software or by failing to comply with any prohibition set forth in this Agreement, the License shall immediately terminate automatically.
The Software is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Any installation, copying, or distribution of the Software absent, or that exceed(s) the terms of, a properly issued Sales Order constitutes copyright infringement and may be punishable in a federal criminal action by fines and imprisonment. In addition, federal civil remedies for copyright infringement allow for the recovery of actual damages based on the number of copies produced or, if BCL so elects, statutory damages of up to U.S. $150,000 per work for willful copyright infringement.
It is hereby understood and agreed that as between BCL and You, BCL owns all rights, title, and interest, including all copyrights and other legally recognized proprietary rights, in and to the Software, including the media on which the Software is furnished to You and any subsequent copy, whether using any technology now known or hereafter devised.
This Agreement shall continue for as long as You use the Software licensed herein or until terminated by BCL, whichever occurs first. Without prejudice to any other rights, this Agreement will terminate if You fail to pay BCL any amount due or if You fail to comply with any of the terms or conditions of this Agreement. You agree, upon termination, to destroy all copies of all Software.
4.1 Survival. The provisions of this Agreement pertaining to proprietary rights in and to the Software, disclaimers, limited liability, privacy, use of information, and each other provision that may reasonably be interpreted or construed as being intended to survive termination or expiration of this Agreement, shall survive such termination or expiration.
5.1 DISCLAIMER OF WARRANTIES. THE SOFTWARE IS FURNISHED “AS IS” AND WITH ALL FAULTS. BCL, ITS RESELLERS, DISTRIBUTORS, SUBLICENSEES, AND AGENTS, IF ANY, MAKE, AND YOU RECEIVE, NO EXPRESS OR IMPLIED WARRANTIES, IN ANY COMMUNICATION WITH YOU OR OTHERWISE. To the Maximum extent permitted by applicable law, ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, SECURITY, TITLE AND NON-INFRINGEMENT, ANY WARRANTY THAT OPERATION OF THE SOFTWARE OR PERFORMANCE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR ANY WARRANTY TO PROVIDE ADEQUATE SUPPORT FOR THE SOFTWARE, ARE ALL HEREBY EXPRESSLY DISCLAIMED. BCL SHALL NOT BE RESPONSIBLE FOR ANY THIRD PARTY’S UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY OF YOUR TRANSMISSION(S) OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED USING THE SOFTWARE, ANY INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, DESTRUCTION, OR USE OF RECORD. BCL DOES NOT WARRANT THAT THE SOFTWARE IS FREE OF INACCURACIES, ERRORS, BUGS, VIRUSES, HACKERS, INTERRUPTIONS, OR OTHER HARMFUL COMPONENTS OR PROGRAM LIMITATIONS. AS BETWEEN YOU AND BCL, THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE, REMAINS WITH YOU AND YOU ASSUME THE ENTIRE RISK AND COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY ANY OF THE FOREGOING, FOR ANY ACT OF GOD, INTERNET BLACKOUT (OR BROWNOUT), YOUR IMPROPER APPLICATION ARCHITECTURE OR IMPLEMENTATION, ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, OR ANY TRANSMISSION(S) ENTERED THROUGH THE SOFTWARE. EXCEPT AS OTHERWISE EXPRESSLY AGREED BY BCL IN WRITING, BCL SHALL NOT BE OBLIGATED TO REPAIR OR OTHERWISE REMEDY ANY ERRORS OR SOFTWARE PROBLEMS ARISING FROM ANY OF THE FOREGOING. AS BETWEEN YOU AND BCL, YOU SHALL BE SOLELY RESPONSIBLE FOR THE ACCURACY AND TRANSMISSION OF ALL DATA ENTERED, ANY DAMAGE THAT RESULTS FROM OR IS ASSOCIATED WITH USE OF THE SOFTWARE. YOU EXPRESSLY ACKNOWLEDGE THAT, IF ANY WEB-BASED TOOL IS USED TO RESOLVE ANY PRODUCTION OR OPERATING PROBLEMS, ANY DATA SECURITY ISSUES RELATING THERETO SHALL NOT IN ANY WAY BE THE RESPONSIBILITY OF BCL. YOU EXPRESSLY ASSUME ALL RISK RELATING TO YOUR USE OF ANY SITE OR SERVER (INCLUDING THIRD PARTY SITES OR SERVERS) IN CONNECTION WITH THE SOFTWARE, AND SUCH USE SHALL NOT IN ANY WAY BE THE RESPONSIBILITY OF BCL.
5.2 Limitation of Liability. In no event shall BCL, its resellers, distributors, licensors, sublicensees, or agents, if any, be liable for any cause or action or claim, howsoever arising, including, whether in contract, tort, warranty, or otherwise for any special, incidental, indirect, or consequential damages (including damages for loss of business profits, business interruption, loss or corruption of business information or other data, cost of cover, or any other pecuniary loss) arising out of this Agreement, the Services, use of or inability to use the Software, or the failure to provide full or adequate Software support services, even if BCL has been advised of the possibility of such damages. You acknowledge that the license fee amount reflects this allocation of risk. In any case, the entire aggregate liability amount of BCL, its resellers, distributors, licensors, sublicensees, or agents, if any, shall be limited to the total Software license fee amount You actually paid to BCL during the twelve (12) month period preceding the date when BCL was given notice of the claim. THE LIMITATION OF LIABILITY IN THIS SECTION 5.2 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
5.3 Limitation of Rights. This Agreement does not grant any rights to copy, modify, or distribute the RMH Software source code.
5.4 Technical Support. BCL is responsible for providing direct technical support to You with respect to the Software, subject to the conditions set forth in this Section 6.5 below. You must be current and in good standing under Your RMH maintenance plan and applicable annual BCL support contract in order to obtain technical support from BCL
5.5 Enhancement Plan. For every new order of RMH, You must purchase an RMH Enhancement Plan covering the RMH Software for at least the first year following the order.
5.6 Multiplexing. Hardware, software or any other manual mechanism You use to pool connections, reroute information, reduce the number of devices or users that directly or indirectly access or use the Software or reduce the number of devices or users the Software directly manages, (sometimes referred to as “multiplexing” or “pooling”), does not reduce the number of licenses You need. Third party applications that access RMH require a license for each database in accordance with RMH applicable licensing terms.
5.7 Third Party Hosting. You may have a third party host the Software or on Your behalf solely for access by You. You may not permit Your third party hosting vendor to allow access to the Software by unaffiliated third parties except as otherwise allowed by this Agreement. Your third party hosting vendor must agree to be bound by the terms and conditions in this Agreement. You may not use the Software for business process outsourcing purposes. However, You may use the Software to provide business process outsourcing services to third party users provided that they do not access the Software.
5.8 License Grant for Templates. You may copy and use templates provided with the RMH Software and identified for such use in documents and projects that You create. You may distribute those documents and projects non- commercially.
5.9 Modification Disclaimer. You may modify the RMH Software only as necessary to use it for Your internal business purposes if You received it in source code form or You or any third party acting on Your behalf have licensed tools that allow You or that third party acting on Your behalf to modify the object code form. You agree that BCL is not responsible for any problems that result from modifications made by You, a partner, or any other third party acting on Your behalf, or any problems that are caused by third party hardware or software. BCL does not, and will not have any obligation to, provide technical or other support for any modifications made by You, a partner or any other third party. BCL does not make any representation, endorsement, guaranty or assurance of the suitability of the RMH Software for Your business, the suitability of the partner or any other third party to create modifications or to implement the modifications or the software, or that any modification created, implemented, supported and/or serviced by, for or on behalf of You or any third party will meet Your business needs or operate successfully with the software. BCL and its partners are independent entities and BCL is not liable for nor bound by any acts of such business partners.
5.10 Benchmark Testing. You must obtain BCL’s prior written approval to disclose to a third party the results of any benchmark test of the RMH Software.
5.11 Attorneys’ Fees and Costs. If You or BCL files a lawsuit, brings an action or otherwise pursues a claim against the other in connection with or arising out of this Agreement or the Software the prevailing party will be entitled to recover its reasonable attorneys’ fees, costs and other expenses (including any appeal).
If the RMH Software You have received is pre-commercial release, beta, development, or evaluation Software (each referred to herein as “Pre-release Software”), the following additional terms apply. You acknowledge that the Pre-release Software does not represent final product from BCL and may contain bugs, errors, and other problems that could cause system or other failures and data loss. Accordingly, the disclaimers and limitations set forth in Section 5 above shall apply to Pre-release Software, except that the entire aggregate liability amount of BCL, its resellers, distributors, licensors, sublicensees, or agents, if any, FOR PRE-RELEASE SOFTWARE shall be limited to the TOTAL SUM OF FIFTY UNITED STATES DOLLARS (U.S. $50.00). You acknowledge that (i) BCL has not promised or guaranteed to You that the Pre-release Software will be made available to anyone in the future; and (ii) BCL has no obligation to You, express or implied, to make available the Pre-release Software, or any product similar to or compatible with the Pre-release Software, in the future. Any research or development that You perform in connection with the Pre-release Software or any product associated with the Pre-release Software is done entirely at Your own risk. If requested by BCL, You will provide feedback to BCL regarding Your testing and use of the Pre-release Software, including error or bug reports. If You received the Pre-release Software under a separate written agreement, Your use of the Software is also governed by such agreement. Your License to the Pre-release Software shall automatically terminate upon the earlier of (i) the expiration of one hundred twenty (120) days from Your receipt of Pre-release Software; (ii) Your receipt of a later pre-commercial release, beta, development, or evaluation version of the Pre-release Software; or (iii) distribution by BCL of a publicly released commercial version of the Pre-release Software, whether as a stand-alone product or as part of a larger product; upon which termination of Your License to the Pre-release Software You shall return the Pre-release Software to BCL. All terms and conditions of this Agreement applicable to Software are also applicable to Pre-release Software, except to the extent that any provision in this Section is in conflict with any other term or condition in this Agreement, then this Section shall prevail solely with respect to the Pre-release Software, but only to the extent necessary to resolve the conflict.
You acknowledge and agree that You (and third parties acting on Your behalf) may provide, and BCL and its authorized resellers (and third parties acting on behalf of BCL and its authorized resellers) may obtain, certain information and data (including personal information) related to You, Your business, and Your customers in connection with this Agreement, including information and data provided or obtained in connection with ordering, registration, activation, updating, validating entitlement to, auditing, monitoring installation of and access to the RMH Software, and managing the relationship with You. You hereby consent to BCL maintaining, using, storing, and disclosing such information and data (including personal information, if any) in a commercially reasonable manner, in conformity with any and all commercially reasonable BCL policies on privacy and data protection, as such policies may be updated from time to time. Without limiting the generality of the foregoing, You acknowledge and agree that (i) BCL may provide information and data, including information and data about Your use of the Software and Your support requests, to BCL affiliates, distributors or resellers, and other third parties in connection with the provision, maintenance, administration, or usage of the Software or in connection with enforcement of any agreements relating to the Software; and (ii) BCL may make cross-border transfers of such information and data, including to jurisdictions with privacy or data protection laws that are less protective of You than the jurisdiction in which You are domiciled. You acknowledge and agree that such policies may be changed from time to time and that, effective upon posting on BCL’s website or other written notice from BCL, You will be subject to such changes if you continue to use the Software.
This Agreement shall be exclusively governed by and construed under the laws of the State of California (U.S.A.) without reference to principles of conflicts of laws. Except as described in Section 10 below, the courts having exclusive venue in connection with this Agreement is the U.S. Federal Court in San Francisco, California or in federal court for the Northern District of California (U.S.A.). You consent to exclusive jurisdiction in such venue and expressly waive any objection to same.
You acknowledge that monetary damages would not be an adequate remedy for the breach of certain provisions of this Agreement, including those pertaining to the protection of BCL’s proprietary rights (e.g., its copyrights, trademarks, and patent rights). Accordingly, if You breach or threaten to breach any of Your obligations relating thereto, other than payment when due, BCL shall be entitled, without showing or proving any actual damage sustained, to a stipulated temporary restraining order, and shall thereafter be entitled to apply for a preliminary injunction, permanent injunction, and/or order compelling specific performance, to prevent the breach of Your obligations under this Agreement. Nothing in this Agreement shall be interpreted as prohibiting BCL from pursuing or obtaining any other remedies as otherwise available to it for such actual or threatened breach, including recovery of damages.
This Agreement cannot be assigned or transferred by You in whole or in part to, or to You by, any third party under any circumstances, including by court order, operation of law, statute, regulation, ordinance, or otherwise, without BCL’s prior express written consent. Subject to the foregoing restrictions on assignment, this Agreement is binding upon, inures to the benefit of, and is enforceable by the parties and their respective successors and assigns. BCL has the absolute right to assign, sublicense, or transfer this Agreement, including any of BCL’s respective rights or obligations arising out of it, without Your consent.
Notwithstanding anything contained herein to the contrary and regardless of any disclosure made by You to BCL of any ultimate destination of the Software, You shall not export directly or indirectly the Software licensed from BCL, or any technical data derived therefrom, without first obtaining the written approval or required export license to do so from the United States Department of Commerce or any other agency of the U.S. government or of any foreign government having jurisdiction over such transaction, when required by any applicable statute, regulation or order. You also shall comply with all state, federal, and local rules and regulations relating to Your use of the Software, and You shall indemnify BCL for any failure to so comply. The Software is provided with RESTRICTED RIGHTS for U.S. Government customers. Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in FAR 12.212 (Commercial Computer Software-Restricted Rights) and DFAR 227.7702 (Rights in Technical Data and Computer Software), as applicable.
If the Software is modified (including any change to the Software’s initialization file[s]), installed, or used in violation of any Agreement prohibition or any warning, instructions, or recommendation by BCL, its resellers, distributors, and sublicensees, You hereby agree to, and You therefore shall, defend and indemnify and hold BCL, its resellers, distributors, and sublicensees harmless from and against all claims of any kind for any expense, injury, loss, or damage arising out of, connected with, or resulting therefrom.
This Agreement shall be construed within its fair meaning and in interpreting this Agreement no inference shall be drawn against the drafting party. As used in this Agreement, the term “including” shall be deemed to mean “including, but not limited to,”; the variable use of words in their singular and plural and gender-specific or gender-neutral forms shall not be construed as altering their substantive meaning or affecting this Agreement in any way. EACH PARTY HERETO HAS: (A) READ AND UNDERSTOOD THE AGREEMENT AND AGREES TO ALL OF ITS TERMS AND CONDITIONS; (B) INDEPENDENTLY EVALUATED THE DESIRABILITY OF ENTERING INTO THIS AGREEMENT AND IS NOT RELYING ON ANY REPRESENTATION, GUARANTEE OR STATEMENT OTHER THAN AS SET FORTH HEREIN; AND (C) BEEN AFFORDED THE OPPORTUNITY TO SEEK THE ADVICE OF LEGAL COUNSEL WITH REGARD TO ITS RIGHTS AND OBLIGATIONS PURSUANT TO THIS AGREEMENT AND HAS EITHER SOUGHT OR REFUSED THE ADVICE OF SUCH COUNSEL.
No delay, omission, or failure to exercise any right or remedy provided for in this Agreement shall be deemed to be a waiver thereof or an acquiescence in the event giving rise to such remedy, but every such right or remedy may be exercised, from time to time, as may be deemed expedient by the party exercising such right or remedy. No modification of or amendment to this Agreement shall be effective unless in writing and signed by the Parties. If any provision of this Agreement is determined by an arbitrator or court of competent jurisdiction to be prohibited or unenforceable, the parties shall have ten (10) business days to renegotiate each such provision in good faith. If the parties are unable to do so, then: such provision shall be deemed narrowed to the broadest term permitted and shall be enforced as so narrowed. If any such provision is nevertheless deemed by such arbitrator or court to be unlawful, void, or unenforceable, it shall be deemed severable from, and shall in no way affect the validity or enforceability of any remaining provision of, this Agreement.
Notices in connection with this Agreement by either party shall be in writing and delivered either by e-mail or other electronic communication, personally or by recognized overnight express service with proof of receipt and shall be effective when delivery is confirmed to each respective party at its address. For purposes of this section, Your address is as set forth in Your sales order for the Software or that is otherwise on file with BCL and BCL’s address is c/o Retail Realm Distribution, Inc., 477 Devlin Road, Napa, CA 94558, Attention: Legal. Each party may change the address to which notice is to be sent by written notice to the other party pursuant to this section.
This Agreement sets forth the entire agreement and understanding of the parties relating to the specific subject matter herein and merges and supersedes all prior agreements, writings, commitments, discussions and understandings between them.
YOU HEREBY ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT AND CONTRACTUALLY BIND YOU, AND HEREBY DO AGREE TO THIS AGREEMENT’S TERMS AND CONDITIONS.